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April 16, 2002


The opinion of the court was delivered by: McMAHON, District Judge.


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. 56.


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 on a 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 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 had ...

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