United States District Court, Northern District of New York
March 11, 2002
BELINDA FOUNTAIN, PLAINTIFF,
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, AND GLENN S. GOORD, DEFENDANTS.
The opinion of the court was delivered by: David N. Hurd, United States District Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiff Belinda Fountain ("Fountain" or "plaintiff") commenced this
action pursuant to the Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12112(d)(4)(a) to challenge a policy promulgated by the
defendant, New York State Department of Correctional Services' ("DOCS"),
which requires her to provide a diagnosis of her medical condition each
time she is absent from work. She also sues defendant Glenn S. Goord
("Goord") (collectively, "defendants") in his capacity as Commissioner of
DOCS for causing the policy to be issued and enforced. Defendants have
moved for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff made a
cross-motion for summary judgment. Oral argument was heard on July 27,
2001, in Albany, New York. Decision was reserved.
The following are the undisputed facts in this case, and where noted,
the facts as alleged by each side. Fountain has been employed as a
Corrections Officer by DOCS since 1989. Goord serves as Commissioner of
DOCS. DOCS is an agency of the State of New York that maintains 71
correctional facilities throughout the state, in which over 69,000
inmates are confined. DOCS employs a workforce of over 30,000. The
subject matter of the instant litigation is a DOCS' time and attendance
policy regarding paid sick leave to its employees. This policy authorizes
DOCS employees to use sick leave for personal illness, medical or dental
appointments, and illness or death in an employee's immediate family.
This policy also provides that an employee returning to work after
taking sick leave may be required to provide a medical certificate
containing a diagnosis. "[A] supervisor may exercise the right to request
certification for any absence charged to sick leave or family sick leave
regardless of duration." (Mindel Aff. at Ex. B.) The doctor's
certification must be on the doctor's letterhead and must contain: (1) a
brief diagnosis of the condition treated; (2) a statement that the
employee was unable to work during the absence; and (3) a prognosis
including, where possible, the date of return to work or continued
absence until next scheduled appointment date. It must also state that
the employee is fit to perform their duties. In addition, the certificate
must be signed by the doctor. The facility's "Time and Attendance
Lieutenant" reviews the medical certification from employees who wish to
charge their absence to sick leave to determine if they may do so.
(Baxter Aff. at ¶ 16.)
There is a dispute as to whether the "brief" diagnosis may be specific
or general. DOCS contends that the diagnosis may be general, such as
"recovering from minor surgery." Plaintiff submitted her affidavit
stating that in the past, certifications containing such general
diagnoses were rejected by DOCS. When the medical certification is
rejected, employees may be reprimanded and punished. Plaintiff filed a
complaint with the Equal Employment Opportunity Commission ("EEOC") in
August of 1998. She received a Notice of Right to Sue letter on December
17, 1998, and this suit followed.
A. Summary Judgment Standard
A moving party is entitled to summary judgment "if the pleadings,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c). The ultimate inquiry is whether a
reasonable jury could find for the nonmoving party based on the evidence
presented, the legitimate inferences that could be drawn from that
evidence in favor of the nonmoving party, and the applicable burden of
proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In
determining a motion for summary judgment, all inferences to be drawn
from the facts contained in the exhibits and depositions "must be viewed
in the light most favorable to the party opposing the motion." United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Hawkins v. Steingut,
829 F.2d 317, 319 (2d Cir. 1987). Nevertheless, "the litigant opposing
summary judgment `may not rest upon mere conclusory allegations or
denials' as a vehicle for obtaining a trial." Quinn v. Syracuse Model
Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (quoting SEC v.
Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
B. Americans with Disabilities Act
The ADA is designed, in part, to protect employees from discrimination
based on disabilities or perceived disabilities. Toward that end, the ADA
prohibits employers from inquiring into whether the employee has a
disability and the nature or severity of such a disability. See
42 U.S.C. § 12112(d)(4)(A). It also restricts the employer's ability
to conduct medical examinations and to conduct inquiries that may uncover
employees' disabilities or perceived disabilities. Id.
Under this provision, a prohibited inquiry in and of itself will be
enough to assert a cause of action. See id. at (d)(4)(A). The plaintiff
need not establish a disability in order to state a claim for prohibited
inquiry under the ADA. Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 520
(3d Cir. 2001). See Griffin v. Steeltek, Inc. 160 F.3d 591, 594 (10th
Cir. 1998) (disability not required for prohibited inquiry plaintiff);
accord Cossette v. Minnesota Power & Light, 188 F.3d 964, 969 (8th Cir.
In order to determine whether an inquiry is of the type prohibited by
the ADA, it is necessary to determine whether the inquiry would be likely
to require employees to disclose their disabilities or perceived
disabilities. See Roe v. Cheyenne Mt. Conf. Resort, 124 F.3d 1221, 1237
(10th Cir. 1997) (affirming district court's finding that requiring
employees to disclose their prescription drug medication is a prohibited
inquiry because such a disclosure would likely force employees to reveal
disabilities or perceived disabilities).
The ADA provides a limited exception to the general prohibition on
medical inquires. Such inquiries are permitted only when "shown to be
job-related and consistent with business necessity."
42 U.S.C. § 12112(d)(4)(A). An inquiry falls within this exception
when it is necessary to "determine whether an employee is still able to
perform essential functions of his or her job," Riechmann v.
Cutler-Hammer, Inc., 2001 U.S. Dist. LEXIS 22544, *10 (D.Kan. Sept. 12,
2001), or to ascertain whether "[the] employee will pose a direct threat
to health and safety [in the workplace] due to a medical condition." Lent
v. Goldman Sachs & Co., 1998 U.S. Dist. LEXIS 20371, *26 (S.D.N.Y. Dec.
A prohibited inquiry claim does not necessitate the same analysis of
legitimate non-pretextual reasons for the inquiry that a general
discrimination claim would. See Gonzales v. Sandoval County,
2 F. Supp.2d 1442, 1445 (D.N.M. 1998). Instead, in order to fall within
the exception provided for in Section 12112(d)(4)(A), the employer must
demonstrate some reasonable basis for concluding that the inquiry was
necessary. That is, the employer must show that it had some reason for
suspecting that the employee, or class of employees, would be unable to
perform essential job functions or would pose a danger to the health and
safety of the workplace. "`An employee's behavior cannot be merely
annoying or inefficient to justify an examination; rather, there must be
genuine reason to doubt whether that employee can perform job-related
functions.'" Ditullio v. Village of Massena, 81 F. Supp.2d 397, 411
(N.D.N.Y. 2000) (quoting Sullivan v. River Valley School District,
197 F.3d 804, 811 (6th Cir. 1999)).
In cases applying this exception, the employer's inquiries were
motivated by facts that led it to suspect that the employee might not be
able to perform job functions or might pose a threat to the health and
safety of their work environment. For example, in Ditullio, the court
held that the employer's request for a medical examination was related to
plaintiff's ability to safely perform his duties as a police officer
patrolman after he suffered an eye injury which caused blindness. Id. In
Riechmann, the court held that it was consistent with a business
necessity for the defendants to inquire whether a traveling salesperson
was able to perform the functions of her job after suffering a severe
stroke that caused her to be absent from work for six months. Riechmann,
2001 U.S. Dist. LEXIS 22544, *18. An employer's inquiry into an
employee's ability to perform the functions of his job after he suffered
a back injury at work was held not to violate the ADA because the injury
appeared to affect his ability to do his work. Porter v. United States
Alumoweld Co., 125 F.3d 243, 246 (4th Cir. 1997). See also, Donofrio v.
N.Y. Times, 2001 U.S. Dist. LEXIS 13788, at *21 (S.D.N.Y. Aug. 24, 2001)
(stating that where an employee had not reported to work in over three
weeks inquiry may be made as to whether he is capable of performing the
functions of the job); Strong v. Bd. of Educ. of Uniondale Union Free
Sch. Dist., 902 F.2d 208, 212 (2d Cir. 1990) (stating that inquiry is
appropriate where teacher did not report to work for approximately a month
at the end of the school year).
C. DOCS' Policy
1. Prohibited Inquiry
DOCS' policy makes inquiries into the medical status of employees by
requesting a brief diagnosis from employees returning from an absence.
Assuming that the "brief" diagnosis need not be specific even a
diagnosis in general terms, "received chemotherapy," could cause an
employee in some circumstances to divulge a disability or perceived
disability. See Roe, 124 F.3d 1221(stating that inquiry into an
employee's prescription medication is prohibited because it may reveal a
DOCS' sick leave policy permits the Time and Attendance Lieutenant to
require the employee to provide medical certification, including a
diagnosis, whenever the employee takes an unauthorized absence for any
length of time. Just like the disclosure of prescription drug
information, the required disclosure of a medical diagnosis would be
likely to cause employees to reveal a disability or perceived
2. Business Necessity
It must then be asked whether DOCS' policy falls within the exception
provided in 42 U.S.C. § 12112(d)(4). In order to fall within this
exception, the DOCS' policy must be based upon a reasonable expectation
that the inquiry into the protected information would reveal that the
employee was unable to perform work related functions or was a danger to
the health and safety of the workplace. The defendants argue that
employees are rarely required to provide medical documentation and
diagnosis for short term absences. Nevertheless, the sick leave policy
provides no limitation on the ability of the defendants to ask for medical
diagnosis. Employees may take an unplanned single day leave of absence
for a myriad of reasons, the vast majority of which do not suggest an
inability to do their job or a threat to their work environment. Examples
of such reasons include the common cold or care of a sick child.
Therefore, no reasonable factfinder could conclude that an inquiry
triggered by a single day's absence from work is the type of reasonable
expectation discussed above.
It should be noted that this opinion is tailored to the DOCS' policy as
it is currently written. This opinion does not reach other circumstances
under which DOCS may request medical certification, including a request
for a diagnosis. However, the policy as it is currently written allows
inquiry after only a single day's absence from work. DOCS must have more
reason to suspect that an employee is unable to perform their job
functions or needs an accommodation than a few days' absence from work.
Accordingly, it is
1. The defendants, New York State Department of Correctional Services and
Glenn S. Goord's, motion for summary judgment is DENIED;
2. The cross-motion for summary judgment by plaintiff Belinda Fountain is
3. The defendants are permanently enjoined from implementing their sick
leave policy in so far as such implementation is inconsistent with this
4. The plaintiff, Belinda Fountain, is entitled to reasonable attorneys
fees and expenses pursuant to 42 U.S.C. § 12205;
5. The plaintiff shall file and serve a verified application for
attorneys' fees and expenses on or before March 26, 2002. The defendants
may file and serve in opposition on or before April 9, 2002. The
application will be on submit.
IT IS SO ORDERED.
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