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, ...