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May 20, 2003


The opinion of the court was delivered by: Howard Munson, Senior District Judge


Plaintiff sues her prospective employer for violation of the Americans with Disability Act ("ADA"), alleging failure to accommodate her back problems. Her back troubles resulted from a fall in 1987 and a workplace accident in 1989. The injury compelled her to adjust her lifestyle and daily activities to avoid aggravating the condition. The injury limited her capacity to lift and carry and do certain strenuous housework. It also affected her abilities to dress herself, stand for protracted periods, make lengthy automobile trips as a driver or rider, walk, and take part in recreational programs. When her back is causing her discomfort, she will delay carrying out tasks, and, at times, has had to hire work done that she could previously complete.

Throughout the relevant time period of this case, however, plaintiff was sufficiently physically fit to continue to work as a physical therapist from 1991, until the birth of her daughter in 1996. During this period she worked with individuals who had received treatment and been discharged from a subacute rehabilitation program. She did not assist any patients who were totally debilitated and required acute physical therapy care. Plaintiff did not have her back treated because she adjusted her lifestyle to accommodate her disability, and as a physical therapist, she has self-treated, taking treatments for her back including ultrasound, heat and electrical stimulation from equipment available to her through her work.

Plaintiff subsequently returned to work, and on January 23, 1997, she held a position at Olsten Kimberly Quality Care in Auburn, NY, when she was interviewed for employment at Highgate Manor ("Highgate") of Staff Physical Therapist in Highgate's subacute care program. The interview was conducted by Anthony C. Zgardzinski, Jr., Highgate's Director of Physical Therapy. Highgate's written job description, produced before advertising the availability of the position, contained the job's physical requirements that the prospective employee can perform lifting and carrying fifty to one hundred pounds. This lifting capacity was needed to make maximum assist lifts without the assistance of another person or mechanical device. Maximum assist lift procedures are utilized by physical therapists to evaluate a patient's abilities, encourage and assist patient rehabilitation and transfer patients to wheelchairs or physical therapy equipment. Plaintiff signed a copy of the job description.

She received an employment offer from Highgate, and was instructed to report for an employment physical the next day, and given a start work date of January 27, 1997. On January 24, 1997, plaintiff completed a health questionnaire in which she made known that she had been employed in her profession since 1983, suffered from a back condition, and could not perform maximum assist lifts. Plaintiff then passed the physical examination that was done by Dr.Eckel, a staff physician at Highgate.

Highgate staff members considered the ability to perform maximum lifts and transfers to be an essential part of a physical therapist's duties. When they later examined plaintiffs health questionnaire and found that she was unable to undertake this duty, they discussed what steps might be taken to accommodate plaintiff in a full lift and transfer situation. Consideration was given to possibly assigning an aide to work with her but, concluded that additional staff might not be available to assist plaintiff each time she would require it, thereby creating possible dangerous situations for Highgate's patients. Additionally, a physical therapist frequently needs to physically lift or assist in lifting a patient to ascertain that patient's condition and therapy needs. Another factor is that a physical therapist in an acute care situation must be able to help and support the full weight of an ambulatory patient and, if necessary, interpose her body if the patient starts to fall.

The use of a mechanical lift was also deliberated, but rejected because of the restricted availability of lifts to cover the 30% to 40% of patients at Highgate that needed maximum assistance, using a lift would also rule out the personal hands-on analyses indispensable to a physical therapist's work. The hiring of another maximum assistance therapist to work on plaintiffs shift was deemed impractical because if the new therapist was not available due to scheduling, vacation or illness, there would be no fully qualified therapist at the facility during plaintiffs work periods.

After reviewing all of these possible accommodations for plaintiff, the staff members concluded that they could not hire the plaintiff.

Plaintiff asserts that the physician who conducted her physical examination, Dr.Eckel, was well acquainted with the physical requirements of a physical therapist, that he was made aware of her back condition, questioned her about her lifting capacity, and found that she would do fine at Highgate. Plaintiff further asserts that maximum lifts were rare and were needed for only about 6% to 8% of Highgate's patients.

Later that day, plaintiff was contacted by Anthony Zgarzinsky and advised that Highgate did not want to employ a person with any limitations. She replied that she was trained in lifting techniques, had successfully self-medicated her back condition by herself for seven years, and that her disability had readily been accommodated by former employers by the use of the mechanical lifting device or requesting assistance from co-workers on the infrequent occasions when a maximum assist lift was called for. She was advised that such accommodations would not be forthcoming at Highgate, and her offer of employment was rescinded. She then sought employment in appointments with duties that corresponded with those of the Highgate position, but did not accept any because they had lower salaries, no benefits and long commutes.

In February 1997, plaintiff filed an ADA employment claim against the defendants with the Equal Employment Opportunity Commission ("EEOC"). Her claim was automatically filed with the New York State Human Rights Commission. On March 27, 2002, the EEOC issued a probable cause determination on plaintiffs discrimination charge. On August 24, 2002, the EEOC notified plaintiff that it would not institute legal proceedings against the Highgate defendants and issued plaintiff a Notice of Right to Sue. Plaintiff then timely commenced this action.

The amended complaint in this action was filed on February 12, 2002. It alleges discrimination in employment based on disability in violation of the ADA, 42 U.S.C. § 1201, et seq., the 1991 Civil Rights Act, 42 U.S.C. § 1981 (a), and the New York State Human Rights Law ("NYSHRL") New York State Executive Law § 90, et seq. Plaintiff seeks equitable relief and monetary damages.

Currently before the court is defendants' motion for summary judgment dismissing the complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. ...

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