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August 26, 2003


The opinion of the court was delivered by: Frederic Block, District Judge


Plaintiff Elise Stuevecke ("Stuevecke") brings this action against her former employer, defendant New York Hospital Medical Center of Queens (the "Medical Center"), alleging that the Medical Center failed to provide accommodations for her foot injury and later terminated her in retaliation for requesting the accommodations. The Medical Center moves for summary judgment. For the reasons stated below, the motion is granted.


The following facts, drawn from the pleadings, depositions, affidavits, and [ Page 2]

Local Rule 56.1 statements submitted to the Court, are uncontested. See Fed.R.Civ.P. 56. The Court construes them in the light most favorable to Stuevecke, the non-moving party. See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).

Stuevecke began her employment with the Medical Center in 1990 and at all times relevant to this action was a secretary in the Medical Center's case management department. As part of her daily duties, Stuevecke was required to transport medical records and often carried approximately thirty pounds of records up stairs and between buildings. Beginning in 1996, Stuevecke began to experience lengthy absences from work due to recurrent foot problems. She underwent surgery for her foot in July, November, and December of 1996, June of 1998, and April, August and November of 1999. With the exception of notations that she had these prolonged absences, Stuevecke consistently received exemplary written reviews from her supervisors.

The Medical Center's Medical Leaves of Absence Policy ("Leaves Policy") authorizes its employees to take up to twenty-six weeks' disability leave. Before returning to work, an employee must receive clearance from the Medical Center's Employee Health Service and present a doctor's note authorizing return to work. "If the [employee's] disability exceeds 26 weeks and the employee is unable to return to full duty, the employee will be released from payroll." Leaves Policy, ¶ 2.1.2. The Leaves Policy also provides that "[i]f, at a later date, the employee is able to return to the workforce, the Medical Center will accept the employee's application and make every effort to place the individual in a suitable available position for which he/she qualifies." Id., ¶ 3.1. [ Page 3]

Stuevecke testified at her deposition that she was unaware of the Leave Policy, but acknowledged that she had received a copy of the Medical Center's employee handbook containing the policy.

Following her 1998 surgery, and after receiving the necessary clearance to return to work, the Medical Center permitted Stuevecke to wear an open-toed surgical boot, which was contrary to the Medical Center's usual practice of requiring closed-toe footwear. Stuevecke was also provided with a wheeled filing cabinet to assist her in transporting records within and between buildings. Stuevecke was unable to use the cart on a regular basis, however, because its wheels would fall off and it could not fit through some of the Medical Center's doorways. Instead, Stuevecke occasionally used shopping bags to carry the records.

After her April 1999 surgery, Stuevecke's treating physician, Dr. Peteris Dzenis ("Dr. Dzenis"), certified that Stuevecke was continuously totally disabled from the date of her surgery (April 19, 1999) through May 31, 1999. On June 9, 1999, Stuevecke met with Ken Praga ("Praga"), a nurse practitioner in Employee Health Services. Stuevecke did not have clearance from Dr. Dzenis to return to work. Calling Stuevecke "a liability," Stuevecke Dep. at 244, Praga refused to clear Stuevecke because her swollen foot did not permit her to wear closed-toe shoes and because she lacked permission from her physician. Praga acknowledged at his deposition that he had permitted at least one other employee to wear an open surgical boot, even though it would also be considered a sandal or open shoe, but claimed that the other employee did not walk as much as [ Page 4]


Stuevecke did not return to work and thereafter underwent the August 1999 surgery. She convalesced throughout September and October of that year, but was not fully healed and required additional surgery, which was scheduled for November of 1999. Between her June 9, 1999 meeting with Praga and November 16, 1999, Stuevecke did not tell anyone at the Medical Center that she planned to return to work.

By letter dated November 16, 1999, Paul Davin ("Davin"), the Medical Center's director of Human Resources, terminated Stuevecke. Davin testified at his deposition that he terminated Stuevecke after concluding that she had exceeded the amount of leave permitted under the Leaves Policy. Davin had previously terminated two to four dozen other employees for the same reason, although the record before the Court does not disclose over what period of time the other terminations occurred. There is no evidence before the Court that Davin consulted Praga in connection with Stuevecke's termination.

On August 8, 2000, Stuevecke filed a form complaint against the Medical Center with the EEOC and the New York State Division of Human Rights. She checked the form's box for discrimination based on "disability," but not for "retaliation." In the narrative section, Stuevecke alleged that she had requested a cart to transport medical records and that she be relocated to the building containing the Medical Center's Admissions Department, which had elevators; rather than ...

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