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SACAY v. RESEARCH FOUNDATION OF CITY UNIVER. OF NY
March 27, 2002
MELANIE SACAY, PLAINTIFF,
THE RESEARCH FOUNDATION OF THE CITY UNIVERSITY OF NEW YORK; THE CITY UNIVERSITY OF NEW YORK; BROOKLYN COLLEGE; CHRISTINE PERSICO, INDIVIDUALLY AND IN HER CAPACITY AS ASSISTANT DEAN FOR BROOKLYN COLLEGE; AND MARY ROSE MORRIS, INDIVIDUALLY AND IN HER CAPACITY AS DIRECTOR OF THE OFFICE OF ADULT AND CONTINUING EDUCATION AT BROOKLYN COLLEGE, DEFENDANTS. VALERIE SACAY, PLAINTIFF, V. THE RESEARCH FOUNDATION OF THE CITY UNIVERSITY OF NEW YORK; THE CITY UNIVERSITY OF NEW YORK; BROOKLYN COLLEGE; CHRISTINE PERSICO, INDIVIDUALLY AND IN HER CAPACITY AS ASSISTANT DEAN FOR BROOKLYN COLLEGE; AND MARY ROSE MORRIS, INDIVIDUALLY AND IN HER CAPACITY AS DIRECTOR OF THE OFFICE OF ADULT AND CONTINUING EDUCATION AT BROOKLYN COLLEGE, DEFENDANTS.
The opinion of the court was delivered by: Gershon, District Judge.
Valerie Sacay and her daughter Melanie Sacay bring these
separate actions against
the Research Foundation of the City University of New York
("Research Foundation"), the City University of New York
("CUNY"), Brooklyn College, Assistant Dean for Brooklyn College
Christine Persico, and Director of the Office of Adult and
Continuing Education at Brooklyn College Mary Rose Morris for
discrimination and retaliation under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12112, 12117; the
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.; New York
State Human Rights Law ("NYSHRL"), Executive Law § 296 et.
seq.; New York City Human Rights Law ("NYCHRL"), Administrative
Code of the City of New York § 8-107; and 42 U.S.C. § 1983 for
violations of the First, Fifth and Fourteenth Amendments to the
Constitution. Defendants move for summary judgment pursuant to
Fed.R.Civ.P. 56 on all of both plaintiffs' claims.
Unless otherwise indicated, the following facts are
a. Employment and Medical History. On May 1, 1989, Christine
Persico, Assistant Dean at Brooklyn College, hired Valerie Sacay
as an Administrative Assistant in the Office of Adult and
Community Education, now known as the Office of Adult and
Continuing Education ("BCACE"). BCACE is fiscally administered
by the Research Foundation, and Valerie*fn1 was on the
Research Foundation's payroll. The Research Foundation is a
not-for-profit corporation that acts as fiscal agent for
sponsored programs performed by CUNY. Valerie's primary
responsibility was to assist in the design and production of the
Audit and Community Education Catalog. On April 16, 1991,
Valerie was promoted to Grant Assistant Administrator, which
entailed the additional responsibilities of developing and
upgrading a computerized registration program. On July 2, 1994,
Valerie was promoted to Research Assistant B. In addition to her
previous responsibilities, Valerie had to create and manage new
databases, including PeopleWare, and supervise data entry
personnel. Valerie received recognition for her achievement.
Valerie claims that, when she began working for BCACE, she had
a number of physical impairments. She had complex partial
seizure disorder, which required her to avoid exhaustion and
prevented her from taking the subway or other transportation
which creates a "strobing effect." As a result, she quit her job
in Manhattan to work closer to home in Brooklyn. Valerie also
claims she had back problems and poor vision, which prevented
her from reading out of one eye and made her susceptible to eye
strain. Valerie's back and neck condition worsened while working
at BCACE. From April 12, 1991 to April 23, 1991, Valerie was out
on sick leave for chest pain, which was later diagnosed as a
gall bladder attack. On January 30, 1992, Valerie suffered a
post-surgical mycardial infarction and was required to
recuperate at home for eight weeks. By March 1995, Valerie had
developed severe gastritis, and was diagnosed with irritable
bowel syndrome, an ulcer, and a hiatus hernia.
Valerie claims that by 1994, she "could not take public
transportation; climb more than a few stairs; engage in
strenuous physical activities necessitating lifting, pushing,
pulling, or carrying; sit for more than an hour without back
discomfort; work under high stress; or allow myself to become
physically exhausted or sleep
deprived." She further claims that, although she did not claim
to be disabled, she discussed all her conditions, except
epilepsy, and the limitations these conditions caused, with
Persico. In response, Valerie claims Persico made several
accommodations for her, even though Valerie did not specifically
ask for an "accommodation." Valerie claims that, even though
other employees had non-glare screens, she was the only employee
with a "special screen." She also claims she had a more
supportive desk chair than other employees. Following her 1992
heart attack, and upon Valerie's request, Persico provided
Valerie with computer equipment at home. Valerie claims this was
done for defendants' benefit so she could work at home.
Following her return to work, Valerie continued to performed
some of her catalog duties from home, but she was generally in
the office every day from 11:00 a.m. to 7:00 p.m., except for
the last two weeks before catalog production. Valerie indicated
that "our office was so crowded that you couldn't think or
breath or anything. It was extremely noisy and crowded. . . .
[W]hen this catalog production thing got compressed and
crunchier and involved, you know — seventeen hours — things are
much easier to do if you are at home because if you are at home,
you can stop and you can lay down and take fifteen minutes and
just go breathe." Working at home was typical. According to
Persico, "[a]ll the part-time professionals did their work from
home unless they were at the campus supervising a class and
hiring. Mostly people worked at home."
At a November 11, 1994 meeting, Valerie indicated to Persico
and Mary Rose Morris, the Director of the Office of Adult and
Continuing Education Program at Brooklyn College, that she could
not continue to perform both her catalog and database duties and
asked to be relieved from her catalog duties because she was
"burned out." After Morris announced that the catalog would be
outsourced at a November 28, 1994 staff meeting, Valerie wrote
in a December 28, 1994 memorandum that "[n]ow that I've just
been relieved of the catalog, I can finally get cracking and
hope to proceed with gusto on PeopleWare!" While it is
undisputed that the Research Foundation decided to outsource the
catalog sometime in November, Valerie and the Research
Foundation got into a dispute over Valerie's responsibilities in
outsourcing the catalog. During this dispute, Valerie reiterated
that she could not perform her catalog duties due to her stress,
stating in a February 10, 1995 memorandum that:
Over time, my job had grown significantly into a
whole other entity which no one could have possibly
foreseen. I have never requested or been unwilling to
accept all the additional work and responsibilities
that have piled on over the past five years: and I
have been successfully handling and fulfilling all of
the ever-expanding functions that had been asked of
me. However, there were long-run consequences that
were detrimental and cumulative: the point has been
reached where I could not, safely or reasonably,
continue effectively at this pace. Catalog
production, which requires intense concentration and
unending sessions on the computer, was literally
"swallowing my life," exacerbating existing health
problems and triggering new ones. . . . The stress
level passed "burn-out" months ago.
Defendants' Exhibit T, 2 (emphasis in original). At her
deposition, Valerie testified that she was seeking to be
relieved from her catalog responsibilities only, and that she
did not want to be released from any other function or seek any
other accommodation in this memorandum.
On November 29, 1994, Persico approved the renewal of
Valerie's contract for another six months, until June 30, 1995.
The Personnel Action Form indicates that "Ms. Sacay is expected
to be reappointed on 7/1/95. Benefits should be continuous." In
mid-December 1994, Valerie was absent from work due to
pharyngitis and otitis media (inflamation of the middle ear
cavity). Valerie was out on sick leave again from January 2,
1995 to May 1, 1995 with bronchitis and pneumonia, which she
claims was unrelated to her disability. In February, she was
treated for "multiple bouts of abdominal pain and multiple
movements of diarrhea," which were "exacerbated by stress and
anxiety," received counseling for stress, and physical therapy
for "severe cervical and lumbosacral radiculitis." Valerie
submits medical documentation indicating that, on February 16,
1995 she was treated for irritable bowel syndrome. She was
treated for irritable bowel syndrome and hypertension again on
March 13, 1995, but her treating physician indicated that the
irritable bowel syndrome was improving with rest and medication.
On March 14, 1995 and March 20, 1995, Valerie was treated for
hypertension and chest pain. On March 29, 1995, Valerie
underwent an endoscopy and was diagnosed with an acute peptic
ulcer, acute gastritis, and a hiatus hernia. While Valerie was
out, her database duties were assigned to another employee, and
catalog production was outsourced. However, there was no need to
transfer her duties to setup the database because Valerie had
already completed this task.
In a letter dated June 15, 1995, after Valerie had been
terminated (see discussion to follow), Valerie's treating
physician, Dr. Yonk, opined that Valerie has a medical condition
that affects her life activities in significant ways. He
identified her condition as partial epilepsy since 1986,
postoperative non-Q-wave myocardial infarction since 1992;
degenerative disc disease since 1993, and duodenal ulcer with
gastritis since March 29, 1995. Dr. Yonk noted that these
conditions limit her life activities because she needs to be
near a bathroom, work close to home, attend regular physical
therapy, and work on a flexible work schedule to provide rest
periods and time for treatment. He also notes that Valerie
should avoid climbing long flights of stairs and avoid the
"strobe light" effect of rapid transit. Dr. Yonk concluded that
has certain disabilities which are permanent and
others which are chronic "exacerbating-remitting"
condition. . . . I previously advised that she could
resume her former duties, and I still feel that, with
the same accommodations formerly provided to her,
this patient is employable and productive. She has
advised me that her position is being terminated
following her recent illness, and she was not allowed
to return to work (on May 1) for the balance of her
appointment. This is neither fair nor reasonable nor
is it medically indicated.
In a separate letter dated June 15, 1995, Dr. Norman Sobol, of
Neurology Associates, indicates that he saw Valerie on April 27,
1995 for a neurological evaluation. An MRI from 1992 showed mild
to moderate herniation of the C3-C4 nucleus pulposus, and
significant impingement of the right neuroforamental C5-C6.
Valerie subsequently developed sciatica, and an MRI in 1994
showed a small herniated L1-L2 disc but no large pathology. Dr.
Sobol notes a subjective loss of sensation over the right
anterior portion of Valerie's thigh, and multiple trigger points
in the neck and lower back. Dr. Sobol also notes that Dr.
Zuckerman has diagnosed Valerie with temporal lobe seizures, and
that Valerie has chronic long term compensated myofascial pain
syndrome. As for treatment,
Dr. Sobol notes that Valerie receives physical therapy for her
neck and back which has been:
keeping her sufficiently pain free so that she can
function in her activities of daily living. Though
she has been disabled with these various complaints,
she has been able to maintain a reasonable work life
and daily regime of living by having flexible work
hours for periods of time and work at home. . . .
With continued physical therapy I think she will be
able to maintain a reasonable and functional
lifestyle. Of course, certain compromises need to be
made at her work to accomplish this. However, I do
not see why this lady cannot continue working when
the choice is mere compromise of style. I would
suggest that the patient can continue working; she
wishes to work and with a minimal amount of
compromise for her special needs, I think she can
continue to work.
b. Valerie's Complaints and Termination. On January 4, 1995,
while Valerie was out on sick leave, she spoke over the
telephone with Morris. Morris told Valerie that Valerie had to
attend a coordinators' meeting regarding the catalog at 10:00
a.m. on January 9, 1995, and that Valerie would have to
reschedule her regular physical therapy appointment. Valerie
called Michelle Aluqdah, her assistant, who verified that there
was a memorandum on her desk from Morris asking her to
reschedule her physical therapy appointment for the meeting.
Valerie was upset, and called Diana Murphy, the Assistant
Director of the Human Resources Department. Valerie testified at
her deposition that the purpose of this telephone call was "for
information because I feel I am being harassed and I feel that
this is happening to me because I was forthcoming with my
employers that I was becoming disabled. I don't know if I used
`disabled' in the legal sense, the word. . . ."*fn2 Murphy
agreed to send a copy of the Research Foundation's Project
Employee Complaint Procedure to Valerie.
Even though Murphy indicated that the phone conversation would
be kept confidential until Valerie filed a written report,
Valerie became worried. She called Aluqdah and asked her to hold
the memorandum from Morris requesting that Valerie cancel her
therapy until Valerie could have the memorandum picked up and
stored in a safe place. While Valerie was on the phone, she
heard Morris come into her office and ask Aluqdah to find the
memorandum and return it to Morris. Valerie called Murphy back
to express concern that Morris had found out about her request
for information, and Murphy said she would have John Zummo, the
Director of Human Resources, call Valerie.
On January 9, 1995, Valerie called Zummo and informed him that
she had cause to file a complaint of harassment. She explained
the incident with Murphy, and Zummo stated that Murphy assured
Zummo that she had not spoken to anyone at Brooklyn College. In
response to Valerie's questions about what agency handles claims
under the ADA, the following exchange took place:
Zummo: Have you . . . you indicated that you have a
disability. Have you ever made your disability known?
Plaintiff: No, I'm not . . . I never indicated that I
have a disability.
Plaintiff: I . . . I never held myself so I could be
a disabled person, but I do have physical problems,
of which my employer is aware.
Zummo: So we're aware. It's in your personnel folder
here . . . that you have uh . . . that you have a
disability and you need a reasonable accommodation.
Plaintiff: No, it is not.
Plaintiff: Um . . . there's no reason why it should
Zummo: We're the employer. It should be in your file
Plaintiff: Oh, if I file a complaint, I understand.
But I've never filed a complaint.
Zummo: If you complain, then you understand that our
[indiscernible] respond and there's no . . . there's
never been a request for reasonable accommodations.
Do you understand that?
Plaintiff: Oh, I understand that. But there's never
been an . . . an occurrence before where I would have
had to make a request for reasonable accommodations.
They're . . . you know . . . the accommodations have
always been there and they've always been reasonable
up until um . . . last week.
Zummo: So then . . . so what you're telling me is
they removed the accommodations.
Zummo: They removed . . . and they agreed . . . it
was a prior agreement to provide you with reasonable
Plaintiff: No it was prior agreement, um . . . you
know . . . I was asked if I could attend a certain
meeting, and I — you know — told the secretary who
was circulating this memo about this meeting . . . um
. . . that it would be very difficult for me to
attend the meeting at that time due to a doctor's
appointment, but that I'd be happy to — you know —
come at some other time.
I was called and I was told that I had to be at
that meeting . . . and that I would have to cancel
any doctor's appointments I might have to be present
at the meeting. . . .
But that's just one. I mean there's several others
that were . . . several other things that happened.
But that's just — you know ...