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United States District Court, Southern District of New York

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 exists for trial." Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996); see also Fed.R.Civ.P. 56(c) and (e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986).

II. Statute of Limitations

Plaintiff claims that DEP discriminated against her when it failed to accommodate her requests for different work and ergonomic work equipment at various times between 1996 and 2000. Defendants argue that most of Plaintiff's ADA claims are time-barred.

The ADA incorporates the procedural requirements of Title VII, which obligate a plaintiff in New York to file an administrative claim within 300 days "after the alleged unlawful employment action occurred." 42 U.S.C. § 12117(a); see also Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325 (2d Cir. 1999); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996). Moreover, any federal court action must be filed within 90 days of receipt of a right to sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1) and 12117(a); Zerilli-Edelglass v. New York City Transit Auth., ___ F.3d ___, 2003 WL 21384867, at *2 (2d Cir. June 17, 2003).

Plaintiff filed her first EEOC complaint on March 17, 1998, alleging that she was subject to time constraints for completing her work, which created stress because of her disability. The EEOC issued a right to sue letter on April 10, 1999, but Plaintiff never filed a civil action on the basis of her EEOC claims. Instead, Plaintiff filed another administrative complaint with the EEOC on August 2, 2000. This complaint alleged that DEP "continued to ignore [her] requests for reasonable accommodation, specifically, for ergonomic equipment at [her] workstations." (Defs.' Mot., Ex. FF.) Moreover, she claimed that the various disciplinary charges that were filed against her were brought as retaliation for her first EEOC complaint. (Id.) The EEOC concluded that the information it obtained did not establish violations of the employment discrimination statutes, and it issued a right to sue letter on September 22, 2000.*fn3 (Pl.'s Second Amended Complaint ("Second Am. Compl ."), Ex. 2.) Plaintiff timely filed her Complaint with this Court's Pro Se office on December 18, 2000. Thus, any acts of discrimination challenged by Plaintiff which occurred more than 300 days before she filed her EEOC complaint — that is before October 6, 1999 — are time-barred.*fn4 See Van Zant, 80 F.3d at 712; see also Figueroa v. City of New York, 198 F. Supp.2d 555, 562 (S.D.N.Y. 2002); Contes v. City of New York, No. 99 Civ. 1597(SAS), 1999 WL 500140, at *6 (S.D.N.Y. July 14, 1999).

Plaintiff contends that because at least some acts of discrimination took place within 300 days of the filing of her EEOC complaint, these acts render timely the other, earlier acts of discrimination alleged, such as DEP's failures to accommodate her disability, under the continuing violation doctrine. The continuing violation doctrine allows a plaintiff to challenge all conduct that is part of the same course of discriminatory treatment, even if some of the conduct occurred more than 300 days before the filing of the EEOC complaint. See Nat'l R.R. Passenger Corp v. Morgan, 536 U.S. 101, 111-114, 122 S.Ct. 2061, 2071-2072 (2002); Fitzgerald v. Henderson, 251 F.3d 345, 362 (2d Cir. 2001); Coffey v. Cushman & Wakefield, No. 01 Civ. 9447 (JGK), 2002 WL 1610913, at *2 (S.D.N.Y. July 22, 2002). However, the Supreme Court recently held that the continuing violation doctrine does not apply to serial violations, that is, discrete discriminatory acts occurring before the 300-day period, that are plausibly related to acts occurring within the 300-day period. See Morgan, 536 U.S. at 113, 122 S.Ct. at 2072. The Court carved out an exception for hostile work environment claims, explaining that these claims differ from discrete acts of discrimination because such claims are usually based on the cumulative effects of repeated actions, and the unlawful practice therefore cannot be said to have occurred on any particular day. See id., 536 U.S. at 115, 12 S.Ct. at 2073. In other words, in hostile environment cases, the entire body of separate discriminatory acts combine to form one "unlawful employment practice." Id., 536 U.S. at 117-118, 122 S.Ct. at 2075.

Although the Second Circuit has not yet spoken on whether the continuing violation doctrine remains viable with respect to any claims other than hostile work environment, the Court of Appeals recently applied Morgan to a Title VII claim for failure to accommodate an employee's religious practices. See Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 133-135 (2d Cir. 2003). In Elmenayer, the Court held that a Muslim plaintiff's request for an accommodation to his work schedule in order to pray on Fridays, and its subsequent denial, constituted a discrete act and thus was not part of a continuing violation. Id. The Court distinguished between a continuing effect on the employee and a continuing action on the part of the employer, concluding that one request and denial, while it may affect the employee from that day forward, is not a continuing violation. Id.; cf. Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003) (finding plaintiff's Rehabilitation Act claim time-barred because employer's denial of plaintiff's single request for an ergonomic chair was not a continuing violation, as there was no series of alleged discriminatory acts).

In the instant case, there is documentary evidence supporting at least one request by Plaintiff for a more ergonomic workstation, made prior to October 6, 1999. See Defs.' Mot., Ex. E. Moreover, Plaintiff testified at her deposition that she repeatedly requested, throughout 1996 and 1997, that she be given limited duty, and that her workstation be made ergonomically correct. See Fol Dep. at 46-48, 55, 58-59, 63-64, 70-71. Although the repetition of Plaintiff's requests, and DEP's failure to act on them is distinguishable from the single request and denial in Elmenayer, each request and denial is analogous to the discrete acts which Morgan expressly held are no longer subject to the continuing violation doctrine. See Elmenayer, 318 F.3d at 134 ("an employer performs a separate employment practice each time it takes adverse action against an employee, even if the action is simply a periodic implementation of an adverse decision previously made"). Therefore, any claims of failure to accommodate prior to October 6, 1999, are no longer actionable.

Remaining in the case as timely are Plaintiff's claims that between December 6, 1999, the date when she returned to work, and August 2, 2000, DEP failed to accommodate her requests for limited duty and an ergonomic workstation. Plaintiff requested limited duty on December 28, 1999.*fn5 Plaintiff has submitted documentary evidence indicating that she notified DEP that her workstation was not ergonomically correct on January 4, 2000. Plaintiff also alleges that she made more general verbal requests for ergonomic equipment and limited duty in and around late 1999 and early 2000.*fn6 See Fol. Dep. at 63-66.

III. Americans with Disabilities Act

The ADA prohibits a covered employer from discriminating against "a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment." 42 U.S.C. § 12112(a). In order to make out a prima facie case of discrimination based on an employer's failure to accommodate, a plaintiff must show "(1) that he is an individual who has a disability within the meaning of the statute, (2) that an employer covered by the statute had notice of his disability, (3) that with reasonable accommodation, he could perform the essential functions of the position sought, and (4) that the employer has refused to make such accommodations." Stone v. City of Mt. Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997) (internal citation omitted); accord Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 216 (2d Cir. 2001). An employer can defeat the claim if it shows "(a) that making a reasonable accommodation would cause it hardship, and (b) that the hardship will be undue. The burden of proof on these two issues is on the employer." Stone, 118 F.3d at 97.*fn7

A. Failure to Accommodate

Plaintiff alleges that DEP failed to accommodate her requests for limited duty and for an ergonomic workstation. Defendants do not dispute that Plaintiff was disabled within the meaning of the ADA, or that they had notice of Plaintiff's disability. Defendants argue that Plaintiff was not an "otherwise qualified" individual under the ADA, and alternatively, that the accommodations she sought were either unreasonable or were provided.

1. "Otherwise Qualified" under the ADA

Defendants argue that Plaintiff has failed to prove the third prong of her prima facie case — that she was otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation.

An individual is "otherwise qualified" if she can, "with or without reasonable accommodation, . . . perform the essential functions of the employment position that [she] holds or desires." 42 U.S.C. § 12111(8); see also Lovejoy-Wilson, 263 F.3d at 218; Norville, 196 F.3d at 98-99. "Although the phrase `otherwise qualified' is hardly unambiguous on its face, its meaning in the context of an employment discrimination claim is fairly clear: an individual is otherwise qualified for a job if she is able to perform the essential functions of that job, either with or without a reasonable accommodation." Borkowski v. Valley Central Sch. Dist., 63 F.3d 131, 135 (2d Cir. 1995) (citing Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n. 17, 107 S.Ct. 1123 (1987)). "In approaching this inquiry, a court must give considerable deference to an employer's judgment regarding what functions are essential for service in a particular position." Shannon v. New York City Transit Auth., ___ F.3d ___, 2003 WL 21362328, at *3 (2d Cir. June 13, 2003) (internal citations omitted). A reasonable accommodation "does not mean elimination of any of the job's essential functions." Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir. 1991); see also Shannon, 2003 WL 21362328, at *3.

In the instant case, there is a factual dispute as to the essential functions of an Assistant Chemist. Plaintiff conclusorily claims that DEP employed other Assistant Chemists who worked in the laboratory, rather than at a computer performing data entry. There is no evidence in the record from which the accuracy of this assertion can be ascertained. Plaintiff also testified at her deposition that she was hired to work in the laboratory. Defendants assert that entering data into the computer is an essential function of Plaintiff's job. Yet, the written job description for an Assistant Chemist details a variety of duties, only two of which appear to require typing. Thus, although the record is clear that by late 1999 and early 2000, Plaintiff could no longer perform data entry functions, it is not clear how critical this was to her position and whether there were other duties which she could have assumed.*fn8

Assuming for the purposes of argument that other job functions existed to which an Assistant Chemist could be assigned, Defendants contend that Plaintiff testified at her deposition that she would have been unable to perform most of those job functions by the year 2000. See Fol Dep. at 96-97, 99, 101. The testimony to which Defendants refer is ambiguous. Plaintiff was asked whether, by the time she resigned, or at some unspecified time in the year 2000, she was capable of performing various duties of the position. Plaintiff did indicate that she doubted that she could, even with respect to functions other than data entry. However, Plaintiff did not resign from DEP until September 2000. It is not clear whether in the months of December 1999 through March 2000, when she was actually in attendance, albeit irregularly, Plaintiff would have been able to fulfill the duties of an Assistant Chemist had she been accommodated. She was certainly never given a chance to assess whether she could perform other duties. Because factual questions exist as to what Plaintiff's capabilities were, and whether she could have performed the essential functions of an Assistant Chemist in the months preceding her termination, Defendants are not entitled to summary judgment on this issue.*fn9

Defendants also contend that Plaintiff's excessive absences prove that she was unqualified, because being present was an essential function of her position. "[A] regular and reliable level of attendance is a necessary element of most jobs." Tyndell v. Nat'l Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th Cir. 1994); see also Morris v. City of New York, 153 F. Supp.2d 494, 502 (S.D.N.Y. 2001); Mescall v. Marra, 49 F. Supp.2d 365, 374 (S.D.N.Y. 1999); Kotlowski v. Eastman Kodak Co., 922 F. Supp. 790, 798 (W.D.N.Y. 1996).

There is no question that Plaintiff had excessive absences throughout her employment at DEP. Moreover, the Court does not question DEP's right to refuse an accommodation that would allow an employee to be absent on a regular basis. However, the question in this case is whether Plaintiff's absences were related to her disability and whether, had Plaintiff's disability been accommodated, she would have been able to attend work with acceptable regularity. Cf. Morris, 153 F. Supp.2d at 502 ("Where the employer was aware that an employee's absences were related to a disability, however, the employee's attendance may be an impermissible pretext for the employee's disability."); Mescall, 49 F. Supp.2d at 374 (finding that the plaintiff could not perform essential functions of her job because of her excessive absences, but stressing that absences were unrelated to disability and thus no reasonable accommodation could have improved her attendance record).*fn10

This issue cannot be decided on summary judgment because it requires a resolution of contested factual issues, for example, what the essential functions are of an Assistant Chemist, whether Plaintiff's requests for limited duty or alternative assignments were reasonable, and whether Defendants' failure to accommodate her requests for an ergonomic workstation was the cause of Plaintiff's absences.*fn11

2. Reasonable Accommodation

During the period between December 1999 and March 2000, when Plaintiff was working, she made at least one request that her workplace be ergonomically fitted and compliant with regulations. Plaintiff also testified at her deposition that she continued to request some form of job modification or transfer during this period as well. Defendant argues that her requests for accommodations were either unreasonable or were granted.

a. Limited Duty

Under the ADA, an employer must make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business." 42 U.S.C. § 12112 (b)(5)(A); see also Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 98 (2d Cir. 1999).

A plaintiff claiming that an employer failed to offer a reasonable accommodation bears the burden of establishing "that an accommodation exists that permits her to perform the job's essential functions." Jackan v. New York State Dep't of Labor, 205 F.3d 562, 566 (2d Cir.), cert. denied, 531 U.S. 931, 121 S.Ct. 314 (2000) (citing Borkowski v. Valley Ctl. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995)).*fn12 Reasonable accommodations include "job restructuring, part-time or modified work schedules, [and] reassignment to a vacant position." 42 U.S.C. § 12111(9)(B); see also Lovejoy-Wilson, 263 F.3d at 217; Jackan, 205 F.3d at 565-66. Thus, by the plain language of the Act, an employer may be required to transfer a disabled individual who cannot perform her current job to a different position whose essential functions she can perform. See Jackan, 205 F.3d at 565 (citing Stone, 118 F.3d at 100-01); see also Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011, 1018 (8th Cir. 2000) ("[T]he definition of `qualified individual with a disability' includes a disabled employee who cannot do his or her current job, but who desires and can perform, with or without reasonable accommodation, the essential functions of a vacant job within the company to which he or she could be reassigned. Such a view of the reassignment duty is well-supported among the circuits.") (collecting cases). It is the plaintiff's burden to show that "a suitable vacancy existed at the time [s]he sought [reassignment] ." Jackan, 205 F.3d at 567.

Plaintiff contends that her request for limited duty merely required a shift in assignments with other Assistant Chemists, not a transfer.*fn13 As discussed, the record is unclear as to the feasibility of this accommodation. Other than Plaintiff's contention that other Assistant Chemists performed lab functions, and Defendants' contention that they all performed data entry, there is no evidence in the record of what other Assistant Chemists did, whether they could have assumed Plaintiff's data entry functions, and whether it would have been feasible to allow Plaintiff to perform non-typing functions. Summary judgment cannot be granted on this basis.

b. Ergonomic Workstation

There is no question that Plaintiff's request for an ergonomic workstation was "a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits." Borkowski, 63 F.3d at 138. "Once the plaintiff has [put forth a plausible accommodation], she has made out a prima facie showing that a reasonable accommodation is available, and the risk of nonpersuasion falls on the defendant." Id.

Defendants merely argue that this accommodation request was granted "prior to or immediately after" Ms. Fol's September 26, 2000 resignation. However, Defendants proffer no reasons why Plaintiff's workstation was not made ergonomic at least eight months earlier, when it was requested, or six months earlier, when COSH issued a report finding violations.*fn14 The February 2000 COSH report set forth several recommended modifications such as "[p]rovid[ing] Ms. Fol with an ergonomically correct chair meeting the specifications of the Directive . . . [r]epair[ing] or replac[ing] keyboard trays, ensuring that they have negative tilt capabilities and the ability to hold a mouse device . . . [and] [e]nsur[ing] desk surfaces are at the appropriate height for all employees. (Defs.' Mot., Ex. CC.)

In light of the long history of Plaintiff's requests for ergonomic equipment, and Defendants' delay in implementing changes, a reasonable jury could conclude that Defendants failed to reasonably accommodate Plaintiff's disability by more promptly providing an ergonomic workstation. At trial, "[a]s with all claims under the ADA, plaintiff must show that this . . . delay in granting plaintiff's request was motivated by discriminatory intent." Powers v. Polygram Holding, Inc., 40 F. Supp.2d 195, 202 (S.D.N.Y. 1999).

Accordingly, Defendants' motion for summary judgment as to Plaintiff's post-October 6, 1999 complaints of failure to accommodate is denied.

B. Retaliation and Constructive Discharge

Plaintiff also contends that she was retaliated against for filing her first EEOC complaint on March 17, 1998. She appears to claim that the disciplinary charges she received throughout 2000 were in retaliation for this complaint. In addition, Plaintiff appears to claim that because of this retaliation she was forced to resign, thus giving rise to a constructive discharge claim. Defendants argue that Plaintiff suffered no adverse employment action and, alternatively, there is no temporal or causal r relationship between any adverse employment action and Plaintiff's protected activity.

Under the ADA, "[n]o person shall discriminate against any individual because such an individual has opposed any act or practice made unlawful by this [Act] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the [Act.]" 42 U.S.C. § 12203(a). In order to establish a prima facie case of retaliation, "a plaintiff must establish that (1) the employee was engaged in an activity protected by the ADA, (2) the employer was aware of that activity, (3) an employment action adverse to the plaintiff occurred, and (4) there existed a causal connection between the protected activity and the adverse employment action." Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000) (citing Sarno v. Douglas Elliman-Gibbons & Ives, 183 F.3d 155, 159 (2d Cir. 1999)).

1. Adverse Employment Action

Plaintiff filed her first complaint with the EEOC on March 17, 1998. Although Plaintiff vaguely alludes to many actions taken by DEP as being retaliatory, her primary retaliation claim focuses on the disciplinary charges filed two years later, between December 1999 and August 2000, and the termination hearing that was subsequently held in September 2000. The disciplinary charges asserted that Plaintiff had been excessively absent from work.*fn15

Receiving disciplinary charges and attending a disciplinary hearing, without more, do not rise to the level of adverse employment actions. See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (defining an adverse employment action as a "materially adverse change in the terms and conditions of employment") (internal citations omitted); see also Manessis v. New York City Dep't of Transp., No. 02 Civ. 359(SAS), 2003 WL 289969, at *13 (S.D.N.Y. Feb. 10, 2003) (no adverse employment action where plaintiff received negative performance evaluations, but no change in terms and conditions of employment); Valentine v. Standard & Poor's, 50 F. Supp.2d 262, 284 (S.D.N.Y. 1999) ("Given that plaintiff's negative reviews did not lead to any immediate tangible harm or consequences, they do not constitute adverse actions materially altering the conditions of his employment."), aff'd, 205 F.3d 1327 (2d Cir. 2000).

The Complaint also alleges that Defendants retaliated against Plaintiff by terminating her employment. (Third Am. Compl. ¶ 8.) However, Plaintiff was not terminated from employment by DEP — she resigned. She now contends that she was under sedation at the disciplinary hearing and was forced to resign. See Plaintiff's Memorandum of Law in Opposition ("Pl.'s Mem.") at 20. Thus, the Court construes Plaintiff's claim as one of constructive discharge.

"Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily." Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983) (ADEA claim); see also Chertkova v. Connecticut Gen. Life Ins., 92 F.3d 81, 89 (2d Cir. 1996) (Title VII case). "Working conditions are intolerable if they are `so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Chertkova, 92 F.3d at 89 (citing Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987)).

No reasonable jury could conclude that by itself, DEP's filing of disciplinary charges in response to Plaintiff's absences gave rise to such intolerable working conditions that a reasonable person would feel compelled to resign from employment. There is no dispute that Plaintiff was absent from work an extraordinary amount of time. Moreover, DEP offered to place Plaintiff on probation, and suspend the disciplinary proceedings if she came back to work full time. See Fol Dep. at 67. Plaintiff did not accept the offer.

Because Plaintiff was not discharged, and the filing of disciplinary charges did not give rise to such intolerable working conditions so as to amount to a constructive discharge, Plaintiff has failed to demonstrate a retaliatory, adverse employment action. Defendants are therefore entitled to summary judgment on Plaintiff's claim of retaliation.*fn16

Moreover, even if Plaintiff could show that she was forced to resign because of the disciplinary charges, she has failed to adduce any evidence suggesting a causal connection between her protected activity and the disciplinary charges. The Second Circuit has held that "a close temporal relationship between a plaintiff's participation in protected activity and an employer's adverse actions can be sufficient to establish causation." Traglia v. Town of Manlius, 313 F.3d 713, 720 (2d. Cir. 2002); cf. Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990) (upholding summary judgment for defendant on retaliation claim where several months elapsed between protected activity and adverse action); Castro v. Local 1199, Nat'l Health & Human Servs. Employees Union, 964 F. Supp. 719, 728 (S.D.N.Y. 1997) (no causal connection found where plaintiff was fired over a year after she had filed a complaint with the EEOC).

In the instant case, DEP lodged the disciplinary charges more than thirty months after Plaintiff filed her EEOC complaint.

Because the disciplinary procedures and hearing did not rise to the level of an adverse employment action, and because of the absence of any plausible connection between Plaintiff's EEOC complaint and the disciplinary charges, no reasonable jury could conclude that Plaintiff was subjected to unlawful retaliation. Defendants are therefore entitled to summary judgment on this issue.


For the reasons set forth above, Defendants' motion for summary judgment is granted in part and denied in part. Plaintiff's claims of discrimination predating October 6, 1999 are dismissed, as is her retaliation claim. The post-October 6, 1999 failure to accommodate claims and any claim of constructive discharge based upon the failure to accommodate remain in the case. The parties are to submit a Joint Pretrial Order, Proposed Jury Instructions, and Proposed Voir Dire, by August 15, 2003. Upon receipt of the pretrial submissions, a trial date shall be set.


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