The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff commenced this action against her employer, County
of Rockland, for allegedly retaliating against her for her
filing of a complaint alleging disability discrimination with
the EEOC on April 18, 1996. Plaintiff alleges that as a direct
result of her complaint with the EEOC, defendant took an adverse
employment action against her, including "refusing to allow
plaintiff to `swap' her work shift with other employees, ongoing
harassment, reprimand, and other hostile treatment" in violation
of the Americans with Disabilities Act ("ADA"). Complaint ¶ 14.
Defendant moves for summary judgment pursuant to Fed.R.Civ.P.
FACTS PERTINENT TO THE MOTION
I. Actions leading up to filing of EEOC Complaint
Plaintiff Alice Honey became a Radio Operator I for the
defendant Rockland County in 1988. Honey Aff. ¶ 4. Radio
Operators are the 9-1-1 operators for Rockland County.
Plaintiffs job included receiving and transmitting police, fire
and other emergency information by telephone, radio and state
and national computer systems, assisting in the radio
coordination of all emergency services in the County, and
monitoring and maintaining many automatic fire alarm accounts.
Def. 56.1 ¶ 10. According to the job description, a Radio
Operator I must work "one shift of an operation that covers 24
hours, 7 days a week." Def. 56.1 ¶ 11, Ex. 6. A Radio Operator I
employee would be assigned to one of three work shifts assigned
weekly basis. The three shifts consisted of a 12:00 A.M. — 8:00
A.M. shift, a 8:00 A.M. — 4:00 P.M. shift, and a 4:00 P.M. —
12:00 A.M. shift. Pl. 56.1 ¶ 13. From 1988 to late 1995,
plaintiff worked this rotation shift schedule without problem or
complaint. Honey Aff. ¶ 4. In 1995, Chief Joseph Britney was
plaintiffs direct supervisor.
In 1995, plaintiff started to experience chest pain and
dizziness. In late October/early November of 1995, plaintiff was
hospitalized for medical tests. Pl. Aff. ¶ 5. Although the tests
showed no signs of a heart attack or any other serious cardiac
illness, plaintiffs doctor informed her that she should not be
working frequent rotating shift because it aggravated her health
problems. Pl. Aff. ¶ 6. Plaintiff presented Chief Britney with a
letter from her physician stating that plaintiffs shifts should
be changed no more than once a month, rather than on a weekly
basis. Def. 56.1 ¶ 68. Plaintiffs doctor subsequently filled out
a Medical Assessment Form, in which the doctor stated that the
frequent changes in plaintiffs shifts were causing "sleeping
difficulties" and "added weight gain," and therefore should only
be made once a month. Def. 56.1 ¶ 73, Ex. 14. The doctor did
note, however, that plaintiff was capable of working full-time
and performing all activities normally. Id. at ¶ 72.
In December 1995, Chief Britney suggested that, if it was
agreeable to the person who was working the 8:00 A.M. to 4:00
P.M. shift when plaintiff was assigned to the 12:00 A.M. to 8:00
A.M. shift, plaintiff could switch her shift with that person
for two months beginning in January 1996. Def. 56.1 ¶ 79, Ex. 5
at 85 and Ex. 12; Pl. Aff. ¶ 10. In January 1996, plaintiff
began switching shifts with Radio Operator I Brian Block
pursuant to this discussion. Def. 56.1 ¶ 81; Pl. Aff. ¶ 11. This
arrangement did not provide plaintiff with a single shift
schedule — she still had to rotate between the 8:00 A.M. — 4:00
P.M. shift and the 4:00 P.M. — 12:00 P.M. shift. Plaintiff did
not attempt to switch her 4:00 P.M. — 12:00 P.M. shift. Def.
56.1 ¶ 85.
On or about February 15, 1996, Chief Britney gave plaintiff a
letter that stated:
This is to re-affirm our conversation of December 21,
1995 concerning your Doctors [sic] note suggesting
you change shifts on a monthly basis. As a result we
agreed that you could "mutually swap" your 12 to 8
shifts with Brian Block's 8 to 4 shifts, for January
and February 1996.
Consequently, commencing March 2, 1996 I anticipate
your return to your normally assigned 12 to 8 shifts.
Def. 56.1 ¶ 93, Ex. 19. After giving plaintiff the letter, Chief
Britney had a conversation with plaintiff. Plaintiff asserts
that Chief Britney gave her permission to continue swapping her
midnight shifts occasionally if her and Mr. Block's schedules
were identical and the switch did not cost any money, but stated
that he no longer approved of the switch arrangement and would
no longer sanction it. Honey Dep. pp. 101-104. A permanent
change to her shift schedule was not discussed at that time.
Def. 56.1 ¶ 96.
On February 22, 1996, plaintiff brought Chief Britney a letter
from her physician which stated that plaintiff suffered from
"HTN [hypertension] and obesity" and that she should not change
shifts more than once a month. Def. 56.1 ¶ 98, Ex. 20; Pl. Aff.
¶ 16. On February 23, 1996, plaintiff contacted her union
representative about the end of her sanctioned shift
arrangement. Def. 56.1 ¶ 98. Plaintiffs union representative
told her to write a letter telling the Chief that she was
applying for accommodations through the ADA. Id.
On February 29, 1996, plaintiff gave the chief a letter which
stated that "based
upon my health as documented by my physician . . . I am applying
for accommodations through the ADA." Def. 56.1 ¶ 99, Ex. 21.
Plaintiff also gave the Chief another copy of her physician's
note. On or about March 19, 1996, Chief Britney contacted
plaintiff and reiterated that he expected her to work her
regular schedule. Def. 56.1 ¶ 105, Ex. 12. Between February 15,
1996 and through the middle of April 1996, plaintiff and Brian
Block continued to switch his morning shift for her midnight
shifts. Plaintiff claims that after she gave her February 29,
1996 letter to Chief Britney, he "essentially stopped talking to
me and was generally rude and offensive in his dealings with
me." Pl. Aff. ¶ 17.
On or about April 10, 1996, plaintiff wrote a letter to Chief
Britney in which she requested "reasonable accommodations" of
her "disability." Plaintiff listed three possible
"accommodations": (1) rotation of shifts not more than once a
month; (2) a steady day shift; (3) a steady day shift "during
the busiest times of the day". Def. 56.1 ¶ 116, Ex. 23. It is
undisputed that since plaintiff began working for the County in
1988, no Radio Operator I has ever worked a steady day shift,
has ever worked a shift where he or she rotated shifts only once
a month or has ever been given steady day shifts as requested by
plaintiff. Def. 56.1 ¶¶ 117-119. In fact, no Radio Operator I,
prior to a negotiated change in the schedule for all Radio
Operators I in the fall of 2000, ever had a steady single shift
assignment since 1988. Id. at ¶ 120.
On April 11, 1996, Chief Britney responded to plaintiffs
letter. His letter stated that he had passed plaintiffs inquiry
on to the Rockland County Attorney's Office for an opinion, and
that Chief Britney would respond to plaintiff as soon as
possible after the attorney assigned to the case returned from
vacation on April 15, 1996. Def. 56.1 ¶ 123, Ex. 24. On April
15, 1996, plaintiffs request for a change in her work schedule
was denied. Id. at ¶ 124, Ex. 25. Chief Britney, in a letter
to plaintiff, stated that the County did not believe that
plaintiff suffered from a disability as defined by the ADA, that
her request for an exemption from working her regular shift
rotations was denied, and that because her physician has said
that she suffered from symptoms which made it potentially
dangerous for plaintiff to do her job, the County would seek to
have plaintiff examined by a physician to determine her fitness
pursuant to Civil Service Law § 72. Id. at ¶ 125, Ex. 25.
II. Filing of the EEOC Complaints and this Action
On or about April 19, 1996, plaintiff filed a disability
discrimination complaint with the EEOC. Def. 56.1 ¶ 128, Ex. 3.
On April 30, Chief Britney received a copy of this complaint
from the EEOC. Def. 56.1 ¶ 131; Pl. Aff. ¶ 25. In plaintiffs
discrimination complaint with the EEOC, she charged that the
County discriminated against her because of her obesity and
hypertension, which she described as "disabilities". She
described the discrimination against her as the County's refusal
to create a new schedule whereby she would rotate shifts only
once a month. The EEOC eventually dismissed plaintiffs
disability discrimination claim on November 24, 1997, finding no
probable cause to believe there was a violation of the ADA. Def.
56.1 ¶ 167.
On June 11, 1996, plaintiff filed a second complaint, this
time of retaliation, with the EEOC. Def. 56.1 ¶ 146, Ex. 4. In
her retaliation complaint, plaintiff stated that the County had
retaliated against her for filing her April 18, 1996 disability
discrimination complaint. Id. at ¶ 147. In her Charge of
Discrimination, plaintiff stated:
From December 11, 1995 until May 16, 1996, my
co-worker and I have continuously swapped our
midnight and day shifts. On May 16, 1996, I was
informed that I could no longer switch with my
co-worker because of my "pending litigation."
Def. 56.1 Ex. 4. On March 3, 1998, the EEOC sent a determination
letter to both parties stating that there was reason to believe
that a retaliatory act had occurred. On December 14, 2000, the
Department of Justice ("DOJ") sent a letter to plaintiff stating
that the DOJ had determined not to file suit, but that plaintiff