United States District Court, Eastern District of New York
June 19, 2002
JANICE THORNER-GREEN, PLAINTIFF,
NEW YORK CITY DEPARTMENT OF CORRECTIONS, DEFENDANT.
The opinion of the court was delivered by: Gershon, District Judge.
Plaintiff Janice Thorner-Green, a former Correction Officer
("CO") for the New York City Department of Correction ("DOC"),
brings this action against DOC pursuant to the Americans with
Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq.,
New York State Executive Law § 296 ("State Human Rights Law"),
and Administrative Code of the City of New York. § 8-107(1)(a)
("City Human Rights Law"). She . . . alleges that the DOC
unlawfully discriminated against her on the ground of her
disability, chronic asthma, first by failing to accommodate her
asthma by assigning her to a smoke-free environment, and then by
terminating her employment. The DOC now moves for summary
judgment on all claims.
Unless otherwise indicated, the following facts are
Thorner-Green began working as a CO at the DOC in September
1984. She was first diagnosed with asthma in or around 1985.
Thorner-Green first requested accommodation of her asthma in
October 1995, when she requested a one-year medical leave of
absence. On November 8, 1995, the DOC granted her request and
accorded her leave for the period between November 18, 1995 and
November 17, 1996. During that leave of absence, plaintiff
requested a one-year extension of her leave. The DOC granted
this request on November 18, 1996. In early September of 1997,
Thorner-Green applied for
permission to return to work on September 23, 1997. The DOC
granted her request and she returned to work on that date.
On her return, Thorner-Green requested assignment to a
smoke-free environment as an accommodation of her asthma, and,
on September 30, 1997, plaintiff was assigned to the
Telecommunications Division ("Telecom Division"). At her
deposition in this case, Thorner-Green testified that the
Telecom Division was a smoke-free environment. Thorner-Green
Dep. 73. Plaintiff made no other requests to accommodate her
On September 24, 1998, the DOC terminated Thorner-Green's
employment on the ground that her asthma rendered her unable to
perform the essential duties of her job. Plaintiff does not
contest that in the nine months before her termination, during
which period Thorner-Green was at all times assigned to the
Telecom Division, she worked 115 tours of duty, called in sick
for 65 tours, and took 12 of her annual vacation days. Kitzinger
Decl. Exhibit J.
Summary Judgment Standard
Motions for summary judgment are granted if there is no
genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law. See Lipton v. Nature
Co., 71 F.3d 464, 469 (2d Cir. 1995). The moving party must
demonstrate the absence of any material factual issue genuinely
in dispute. See id. The court must view the inferences to be
drawn from the facts in the light most favorable to the party
opposing the motion. See Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986); Howley v. Town of Stratford, 217 F.3d 141,
150-51 (2d Cir. 2000). However, the non-moving party may not
"rely on mere speculation or conjecture as to the true nature of
the facts to overcome a motion for summary judgment." Knight v.
U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert.
denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987).
The party must produce specific facts sufficient to establish
that there is a genuine factual issue for trial. See Celotex
Corp. v. Catrett, 477 U.S. 317, 32223, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986).
In a discrimination action such as this, it is important to
[a] victim of discrimination is . . . seldom able to
prove his or her claim by direct evidence and is
usually constrained to rely on the cumulative weight
of circumstantial evidence. . . . Consequently . . .
where a defendant's intent and state of mind are
placed at issue, summary judgment is ordinarily
Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991)
(citations omitted). On the other hand, "[t]he summary judgment
rule would be rendered sterile . . . if the mere incantation of
intent or state of mind would operate as a talisman to defeat an
otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d
Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74
ADA and State Law Claims
To establish a prima facie claim for failure to accommodate
under the ADA, a plaintiff must show (1) that she has a
disability within the meaning of the ADA; (2) that her employer
is covered by the statute and had notice of her disability; (3)
that with reasonable accommodation, she could perform the
essential functions of her position; and (4) that the employer
has refused to make such accommodations. Lovejoy-Wilson v. NOCO
Motor Fuel, Inc., 263 F.3d 208, 216 (2d Cir. 2001). To
establish a prima facie claim for discriminatory discharge
under the ADA, a plaintiff must show that: (1) her employer is
subject to the ADA; (2) she suffers from a
disability within the meaning of the ADA; (3) she could perform
the essential functions of her job with or without reasonable
accommodation; and (4) she was fired because of her disability.
Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir.
For purposes of this motion, defendant does not contest
plaintiffs allegations that the DOC is covered by the ADA, that
plaintiffs asthma is a disability within the meaning of the ADA,
that the DOC had notice of plaintiffs asthma problem, or that
plaintiff was fired because, of her disability. The only issues
are whether the DOC in fact accorded Thorner-Green the
reasonable accommodation she requested, and whether
Thorner-Green could perform the essential functions of her job
with or without, reasonable accommodation.
There is no dispute that Thorner-Green requested three
accommodations from the DOC and no more: the request for a
1995-96 leave of absence; the request for a 1996-97 leave of
absence; and the request to be assigned to a smoke-free
environment. Nor is it disputed that the DOC granted
Thorner-Green both requested leaves of absence, as well as
permitting her to return to her job when she asked to do so. In
addition, the only evidence in the record regarding the Telecom
Division, to which plaintiff was assigned when she resumed work,
is plaintiffs own deposition testimony that the division was
Q Was [the Telecommunications Division] a smoke-free
A Yes, it was a smoke-free environment.
Q You had been in a smoke-free environment for —
A For a year. Telecommunications was smoke-free.
Thorner-Green Dep. 73.
Despite this unequivocal testimony, plaintiff now argues that
the DOC failed to grant her requested accommodation of a
smoke-free environment, on the ground that the Telecom Division
was not "truly" smoke-free:
The only true smoke-free environment is in fact a
building that is completely separated from the
facility of the Department of Correction. It cannot
be said that the Telecommunications Unit, which is
within a smoke filled environment is totally smoke
free. Ms. Green had to walk through and constantly be
exposed to second hand smoke misstating and
misrepresenting what a smoke free environment is.
Plaintiff's Memorandum of Law in Opposition to Defendant's
Motion for Summary Judgment, 4-5. This argument is unavailing.
First, plaintiff points to no actual evidence that contradicts
her own testimony that the Telecom Division was, in fact,
smoke-free. The suggestion that the Telecom Division was not
"totally smoke free" because it was "within a smoke filled
environment" is mere argument of counsel entitled to no
evidentiary weight; such argument cannot, as a matter of law,
serve to raise an issue of fact as to the presence or absence of
cigarette smoke in the Telecom Division. Fletcher v. Atex,
Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) ("mere conclusory
allegations or denials in legal memoranda or oral argument are
not evidence and cannot by themselves create a genuine issue of
material fact where none would otherwise exist") (citations and
internal quotation marks omitted). Furthermore, if Thorner-Green
had wished to be transferred to a DOC building that was
"completely separated" from the main DOC facility; it was her
duty to request such a transfer, not the DOC's duty to
anticipate her belatedly articulated desire. An employee cannot
hold an employer liable for
failing to provide an accommodation that the employee has not
requested in the first place, Mazza v. Bratton, 108 F. Supp.2d 167,
176 (E.D.N.Y. 2000), aff'd, 9 Fed.Appx. 36 (2d Cir.
2001), and the record is devoid of evidence that Thorner-Green
requested a transfer to somewhere other than the Telecom
Division. Because plaintiff has proffered no evidence that the
DOC failed to grant any of her requests for accommodation, and
indeed explicitly testified that "the accommodation [she] sought
[she was] given," Thorner-Green Dep. 74, defendant is entitled
to summary judgment on plaintiffs ADA failure to accommodate
Turning to plaintiffs discriminatory discharge claim,
Thorner-Green does not dispute that she was unable to perform
the essential functions of her job without the accommodation of
being assigned to a smoke-free environment. As for her
performance with such an accommodation, there is no dispute
that, even when assigned to the Telecom Division, Thorner-Green
was chronically absent because of her asthma, missing work more
than a third of the time in the nine months prior to her
termination. Her absenteeism demonstrates that plaintiff could
not perform the essential functions of her job, even with
reasonable accommodation; "regularly attending work is an
essential function of virtually every job," and the "ADA does
not require an employer to accommodate an employee who cannot
get to work." Mazza, 108 F. Supp.2d at 175 (citations omitted
and internal quotation marks omitted). For the reasons just
discussed, plaintiffs counsel's argument that the Telecom
Division was not truly smoke-free cannot be used to undermine
Plaintiffs position is reduced to the argument that, although
she was unable to perform the essential functions of her job
even with reasonable accommodations, defendant nonetheless owes
her compensation under the ADA because her chronic asthma is
attributable to the DOC's failure to comply with federal, state,
and city nonsmoking regulations. Regardless of the accuracy of
plaintiffs characterization of the DOC's regulatory compliance,
her argument simply does not state an ADA claim. To the extent
such an argument suffices to state any claim, that claim would
presumably be under the non-smoking regulations she cites (if
they even provide a private right of action), or perhaps under
state tort law. The issue is not before me, however, as
Thorner-Green has asserted no such claim in this action.
Because the only evidence in the record indicates that
Thorner-Green could not perform the essential functions of her
CO job with or without reasonable accommodation, defendant is
entitled to summary judgment on plaintiffs ADA discriminatory
discharge claim as well.
The DOC's motion for summary judgment is therefore granted on
Thorner-Green's ADA claims.*fn1 Having dismissed plaintiffs
federal claims, I decline to exercise supplemental jurisdiction
over her state law claims. See Giordano, 274 F.3d at 754-55.
Therefore, plaintiffs New York State and New York City Human
Rights Law claims are dismissed without prejudice.
The Clerk of Court is directed to enter judgment for defendant
on plaintiffs ADA claims.