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July 8, 2003


The opinion of the court was delivered by: Theodore Katz, United States District Magistrate Judge


Plaintiff Esther Fol brings this action against the City of New York and the Department of Environmental Protection ("DEP"), alleging employment discrimination on the basis of disability, in violation of the Americans with Disabilities Act of 1990 ("ADA"), as codified, 42 U.S.C. § 12112-12117 (amended by the Civil Rights Act of 1991, Pub. L. No. 102-166); the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code § 8-107; and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 292, 296. Plaintiff claims that DEP failed to accommodate her disability, that she was retaliated against for filing a complaint with the Equal Employment Opportunity Commission ("EEOC"), and that she was constructively discharged.

Defendants have moved for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, Defendants' motion for summary judgment is granted in part and denied in part.*fn1


Esther Fol was hired as an Assistant Chemist by DEP in February of 1995. (Third Amended Complaint ("Third Am. Compl.") ¶ 9(A).) There is some discrepancy in the record as to the job responsibilities of an Assistant Chemist. Plaintiff claims she was told her duties would involve laboratory work. (Deposition of Esther Fol ("Fol Dep.") at 39-40, Exhibit ("Ex.") 6 to Plaintiff's Statement of Facts ("Pl.'s St.").) However, after Ms. Fol was trained, her job duties consisted entirely of computer data entry relating to water quality reports. Defendants claim that "the essential function of an Assistant Chemist is to precisely enter critical water quality monitoring data into the laboratory information management system and to produce regulatory reports and managerial reports to monitor and to evaluate general water quality condition." (Declaration of Tom Tipa ("Tipa Decl.") ¶ 5, Ex. A to Defendants' Motion for Summary Judgment ("Defs.' Mot.").) The official job description for an Assistant Chemist identifies nine responsibilities, only two of which appear to involve any sort of data entry. The remaining seven responsibilities are related to laboratory work. (Defs.' Mot., Ex. B.)

In January 1996, Plaintiff began having medical problems related to carpal tunnel syndrome ("CTS") and ulnar nerve entrapment ("UNE"). (Third Am. Compl. ¶ 9(B) .) In May 1996, she submitted three notes from her doctor indicating that she had CTS "due to unsuitable working conditions with the computer," and asserting that "[s]he should be given different work to accommodate her disability." (Defs.' Mot., Ex. E.) Two of these notes also indicated that she would need time off from work to recuperate and recover. Ms. Fol then requested, and was granted, Worker's Compensation leave from May 24, 1996 to May 23, 1997. Ms. Fol underwent surgery for CTS on January 14, 1997. Her leave was then extended through January 14, 1998.

Plaintiff returned to work on January 12, 1998, and submitted a note from her doctor indicating that she "may return to work resuming her regular duties." (Id., Ex. J.) On March 17, 1998, Plaintiff filed her first complaint with the EEOC, alleging that she was discriminated against because of her disability and because she is Jewish. She argued that she was doing work outside the scope of her official job responsibilities, and was subject to time limits for completing her work. (Id., Ex. DD.) On April 10, 1999, the EEOC issued a determination, concluding that the information obtained in its investigation did not establish violations of the employment discrimination statutes. A right to sue letter was issued. (Id., Ex. EE.) Ms. Fol did not bring suit based on her first EEOC complaint.

Plaintiff fell at work on April 16, 1998. On April 20, 1998, she requested, and was granted, medical leave without pay through July 15, 1998.*fn2 Plaintiff then requested, and was granted, an extension on her medical leave until April 15, 1999. (Id., Exs. C, M.) Plaintiff returned to work on April 5, 1999. (Id., Ex. C.) However, she worked only two days between April 5 and May 4, 1999. (Id., Ex. G.)

On May 5, 1999, Plaintiff again requested, and was granted, medical leave without pay through December 5, 1999. (Id., Ex. N.) On November 17, 1999, Plaintiff submitted a note from her doctor stating that she "may return to work performing her regular duties." (Id., Ex. O.) This note was supported with another doctor's note, dated December 1, 1999, stating that she could return to work at "full duty with no restrictions." (Id., Ex. P.)

Plaintiff returned to work on December 6, 1999. On December 13, 1999, Plaintiff requested that she be given time off on Tuesdays and Thursdays to receive treatment for her neck, back and hands. (Id., Ex. Q.) DEP denied the requested and Plaintiff was informed that she would be considered Absent Without Leave ("AWOL") if she went to such sessions on Tuesdays and Thursdays, until DEP received supporting documentation from her doctor about her fitness. (Id., Ex. U.) On January 7, 2000, Plaintiff submitted a note from her doctor, stating that "Ms. Fol needs continuing treatment for job-related illnesses . . . [l]ength of time is unknown." (Id., Ex. T.)

On December 28, 1999, Plaintiff produced another doctor's note, stating that she should be reduced to "limited duty" and that she was only capable of "light slow work with her hands" and should "not be typing all day." (Id., Ex. S.) On the same day, DEP requested that the City Office of Occupational Safety and Health ("COSH") investigate any potential problems with the design of Plaintiff's workstation. (Id., Ex. CC.) On January 4, 2000, Plaintiff submitted a doctor's note stating, "[i]n the receiving room the computer keyboard and chair are not within OSHS requirements. These conditions should be corrected, and she should not work under these conditions." (Id., Ex. T.) COSH conducted a survey of Plaintiff's workstation and issued its report on February 17, 2000, detailing various violations and recommendations to improve Plaintiff's workstation. (Id., Ex. CC.) It is unclear from the record when exactly DEP implemented COSH's recommendations. Defendants contend that most of the recommendations were effectuated prior to or immediately after Plaintiff's resignation on September 26, 2000. On August 25, 2000, Plaintiff submitted a final doctor's note stating that she could return to work full-time and that "DEP has provided all ergonomic equipment." (Id., Ex. X.)

On December 20, 1999, Plaintiff received her first notice of disciplinary charges, alleging incompetence due to excessive absences. (Id., Ex. R.) It appears that Plaintiff was present at work for a few days each week between December 6, 1999 and February 17, 2000. (Id., Ex. G.) On January 6, 2000, Plaintiff received a "Notice of Determination After Informal Conference" recommending that she be terminated because of her absences. Plaintiff refused to sign this notice and, in accordance with the notice, a hearing was then scheduled on the charges. Between February 17 and March 14, 2000, Plaintiff came to work on only seven days. (Id.) Plaintiff was then absent from work for the entire period between March 14, 2000, and September 24, 2000. DEP considered her AWOL and issued four additional notices of disciplinary charges between January 3 and September 12, 2000, all relating to her absences. Defendants offered to drop the disciplinary charges against her if Plaintiff returned to work full-time, with a one-year probationary period. (Fol. Dep. at 65-66.) Plaintiff refused. (Id.)

A formal disciplinary hearing was held on September 25, 2000. (Defs.' Mot., Exs. U, V, W, Y, and Z.) At the hearing, Plaintiff was represented by counsel. Before the hearing was completed, Plaintiff voluntarily resigned. She now claims that she was under heavy sedation and effectively forced to resign against her will. Plaintiff also claims that the disciplinary charges were brought in retaliation for her first EEOC filing.


I. Summary Judgment Standard

Summary judgment is appropriate only when the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. In deciding a motion for summary judgment, the Court must "view the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in its favor." American Cas. Co. of Reading, Pa. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994).

On a motion for summary judgment, a court "`cannot try issues of fact; it can only determine whether there are issues to be tried.'" Donahue v. Windsor Locks Bd. of Fire Commissioners, 834 F.2d 54, 58 (2d Cir. 1987) (quoting Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975)); see also LaFond v. General Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995); Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1995). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Cronin, 46 F.3d at 203.

Nevertheless, to defeat a motion for summary judgment, a plaintiff "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356. (1986). A plaintiff must "come forward with enough evidence to support a jury verdict in [his] favor, and the motion will not be defeated merely . . . on the basis of conjecture and surmise." Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2d Cir. 1992). A party opposing a motion for summary judgment "may not rest on the pleadings, but must further set forth specific facts in the affidavits, depositions, answers to interrogatories, or admissions showing a genuine issue ...

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