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SACAY v. RESEARCH FOUNDATION OF CITY UNIVER. OF NY

March 27, 2002

MELANIE 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. 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.

    OPINION AND ORDER

FACTS

Unless otherwise indicated, the following facts are undisputed.

1. Valerie Sacay

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.

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 Valerie:

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.

Valerie Exhibit 18.

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.

Valerie Exhibit 18.

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.

Zummo: Oh.

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.

Zummo: It isn't? Okay.

Plaintiff: No, it is not.

Zummo: It is not. Okay.

Plaintiff: Um . . . there's no reason why it should be.
Zummo: We're the employer. It should be in your file of employment.
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.

Plaintiff: Yes.

Zummo: They removed . . . and they agreed . . . it was a prior agreement to provide you with reasonable accommodations.
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 ...

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