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THORNER-GREEN v. N.Y. CITY DEPT. OF CORRECTIONS

June 19, 2002

JANICE THORNER-GREEN, PLAINTIFF,
V.
NEW YORK CITY DEPARTMENT OF CORRECTIONS, DEFENDANT.



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

ORDER

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.

FACTS

Unless otherwise indicated, the following facts are undisputed.

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 asthma.

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.

DISCUSSION

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 note that

[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 inappropriate.

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, ...


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