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United States District Court, Eastern District of New York

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 accommodate her, the Medical Center had placed her on long-term disability and later terminated her. The EEOC issued [ Page 5]

a right to sue letter on October 23, 2000.

On January 19, 2001, Stuevecke filed this action. Her six-count complaint contains three counts alleging unlawful failure to provide reasonable accommodations under the Americans with Disabilities Act ("ADA"), the New York Human Rights Law ("NYHRL"), and the New York City Human Rights Law ("NYCHRL"), respectively, and three counts alleging unlawful retaliation for having requested these accommodations under the same three statutes.


A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).The burden is on the moving party to identify those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits that demonstrate the absence of a genuine issue of material fact. See Celotex Corp.,477 U.S. at 323. Once the moving party has carried this burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986) (quoting Fed.R.Civ.P. 56(e)) (other citations omitted).

1. Federal Claims

A. Reasonable Accommodation [ Page 6]

"An employer violates the ADA when it fails to `mak[e] reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability . . . unless [the employer] can demonstrate that the accommodation would impose an undue hardship. . . ." Jacques v. DiMarzio, Inc., 200 F. Supp.2d 151, 161 (E.D.N.Y. 2002) (quoting 42 U.S.C. § 12112(b)(5)(A)). "ADA regulations further state that an employer is required to make `[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position.'" Id. (quoting 29 C.F.R. § 1630.2(o)(1)(ii)).

The Medical Center contends that Stuevecke's failure to accommodate claim is time-barred; alternately, it argues that Stuevecke was not "disabled" within the meaning of the statute, and to the extent she was disabled, did not request nor require an accommodation to perform her essential job duties. The Court need not address the Medical Center's alternate arguments because it concludes that Stuevecke's failure to accommodate claim under the ADA is untimely.

A plaintiff may bring an ADA action in federal court only after timely filing a complaint with the Equal Employment Opportunity Commission ("EEOC") and receiving a right-to-sue letter. See Legnani v. Alitalia Linee Aeree Italiane, S.P.A, 274 F.3d 683, 686 (2d Cir. 2001); Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325 (2d Cir. 1999) (recognizing that the ADA subjects ADA claims to the same administrative exhaustion requirement as Title VII claims). In New York, a claimant must file a charge with the [ Page 7]

EEOC within 300 days of the alleged unlawful act and provide notice of the circumstances and date of the charge. See 42 U.S.C. § 2000e-5(e)(1); Tewksbury, 192 F.3d at 327-28. The filing requirement acts as a statute of limitations to bar all claims falling outside the 300-day period. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996) Stuevecke "alleges that [the Medical Center] failed to reasonably accommodate her in June of 1999[.]" Plaintiff's Rule 56.1 Counter Statement, ¶ 2, at 1. Thus, she had 300 days from then — until April of 2000 — to file her complaint with the EEOC. She did not do so until August 8, 2000. That Stuevecke's November 16, 1999 termination occurred within the 300-day window is immaterial. The Medical Center's alleged failure to provide reasonable accommodations and its termination of her employment are discrete acts. See Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (discrete discriminatory acts include termination, failure to promote, denial of transfer, and refusal to hire); see also Lovejoy-Wilson v. Noco Motor Fuel, Inc., 263 F.3d 208, 218 (2d Cir. 2001) (failure to provide reasonable accommodation for an otherwise-qualified employee with a disability). "[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts allegedly in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act." Nat'l Railroad Passenger Corp. 536 U.S. at 113. Thus, a plaintiff cannot "use a termination that [falls] within the limitations period to pull in [a] time-barred discriminatory act." Id. (citation omitted).

Stuevecke argues that her reasonable accommodation claim should be [ Page 8]

considered timely because the Medical Center's repeated failure to accommodate her, culminating in her termination, amounted to a "continuing violation." The continuing violation exception to the 300-day filing period provides that if a plaintiff "files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993); see also Harris v. City of New York, 186 F.3d 243, 248 (2d Cir. 1999) ("In that situation the existence of such a continuing discriminatory practice or policy may delay the commencement of the statute of limitations period until the last discriminatory act in furtherance of it.") While the continuing violation doctrine is "usually associated with a discriminatory policy[,]. . . . [a] continuing violation may be found `where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice.'" Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (citing Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir.1994)). Rather than allege a policy or practice of discrimination, Stuevecke's complaint points to three separate instances where the hospital allegedly failed to provide her with an accommodation: failing to provide her with a working cart, failing to move her to an office building that had elevators, and failing to permit her to wear a surgical boot while on duty. It is undisputed, however, that the Medical Center had previously permitted Stuevecke to wear an open-toed boot, that it provided her with a cart (albeit an allegedly ineffective one), and that Stuevecke did not have her doctor's [ Page 9]

permission to return to work when Praga refused to clear her in June of 1999. Under the circumstances, there is no factual basis for the Court to infer that defendant's actions arose from any explicit or implicit policy or practice to deny disabled employees reasonable accommodations. Accordingly, there was no continuing violation, and Stuevecke's ADA failure to accommodate claim, filed more than 300 days after the claim arose, is time-barred.

B. Retaliation

As an initial matter, the Medical Center contends that it is entitled to summary judgment on Stuevecke's retaliation claim because Stuevecke did not raise it in her EEOC complaint. Although the Court generally has "no jurisdiction to hear claims not alleged in an employee's EEOC charge[,]. . . . claims that were not asserted before the EEOC may be pursued in a subsequent federal court action if they are `reasonably related' to those that were filed with the agency." Shah v. New York State Dept. of Civil Service, 168 F.3d 610 613-14 (2d Cir. 1999). "A claim raised for the first time in the district court is `reasonably related' to allegations in an EEOC charge `where the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.' "Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 83 (2d Cir. 2001) (citing Butts v. City of New York Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1402 (2d Cir.1993)). Although Stuevecke did not check the "retaliation" box on the EEOC Charge form, her narrative description of the Medical Center's alleged wrongdoing could [ Page 10]

reasonably have prompted an investigation of retaliatory conduct based on Stuevecke's allegation that "Instead of allowing me to return to work my former employer placed me on long term disability and subsequently terminated my services on or about November 16, 1999." Charge of Discrimination, at 1 (emphases added). The Court concludes that Stuevecke's retaliation claim is reasonably related to her EEOC claim of failure to provide reasonable accommodations, and fell within the scope of the EEOC investigation. Since Stuevecke's termination occurred within the 300 day period preceding the filing of her EEOC complaint, her retaliation claim is timely.

The ADA prohibits "retaliation against any individual who has asserted rights under the ADA[.]" Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999). Retaliation claims under the ADA are analyzed under the familiar McDonnell-Douglas burden-shifting framework. See Treglia, 313 F.3d at 719. To establish a prima facie case for retaliation, plaintiff has a de minimus burden to prove that: "(1) [s]he engaged in an activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took adverse employment action against h[er]; and (4) a causal connection exists between the alleged adverse action and the protected activity." Id. If plaintiff carries this burden, the defendant has a burden of production to demonstrate a non-discriminatory reason for its action. Id."The ultimate question is whether the employer intentionally discriminated, and proof that `the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.' In other words, `[i]t is not enough . . . to disbelieve the employer; the [ Page 11]

factfinder must believe the plaintiff's explanation of intentional discrimination.'" Reeves Sanderson Plumbing Products, Inc. 530 U.S. 133, 146-47 (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 1993)).

Assuming, without deciding, that Stuevecke has satisfied the first three elements, the Court concludes that she has not satisfied the causality element. To establish a causal connection between the adverse employment action (her termination) and the protected activity (seeking reasonable accommodation), Stuevecke "must show that the allegedly adverse actions occurred in circumstances from which a reasonable jury could infer retaliatory intent." Treglia, 313 F.3d at 721.

Stuevecke has not presented facts which would permit a reasonable jury to infer that the decision to fire her was motivated by her request for accommodations. Davin, the director of the Medical Center's Human Resource Department, testified that he terminated Stuevecke to comport with company policy regarding excessive absences and had terminated between two and four dozen employees for precisely the same reason. The Medical Center's policy in this respect was set forth in the employees' handbook, a copy of which Stuevecke had received. There is no evidence that Davin had any knowledge of Praga's June 9, 1999 meeting with Stuevecke or that he terminated Stuevecke for any reason other than absences from work. And while the Second Circuit "ha[s] 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[.]" id., the Medical Center's alleged failure to accommodate and Steuvecke's [ Page 12]

termination occurred more than five months apart — a period which is too distant to permit a jury to find a causal connection between the two events based on time proximity. Cf. id., 313 F.3d at 721 (events occurred a month apart); Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) (events occurred twelve days apart). Having failed to make out a prima facie case, the Court grants summary judgment in favor of the Medical Center on Stuevecke's retaliation claim under the ADA.

2. State Claims

Stuevecke's remaining failure to accommodate and retaliation claims are based on the NYHRL and NYCHRL. Because the parties are not diverse, the Court would have jurisdiction over these claims only by the exercise of supplemental jurisdiction. See 28 U.S.C. § 1367. The Supreme Court and Second Circuit have instructed that district courts ordinarily should decline to decide pendent state claims. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988) ("[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point towards declining to exercise jurisdiction over the remaining state-law claims."); Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001) ("We think that in the absence of any remaining federal claims, the appropriate analytic framework to be applied to discrimination claims based on a `disability' as defined by New York state and municipal law is a question best left of the courts of the State of New York."); Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998) ("In general, where the federal claims are dismissed before [ Page 13]

trial the state claims should be dismissed as well."); see also Sussle v. Sirina Protection Sys. Corp., ___ F. Supp.2d ___, 2003 WL 21346935, at *26 (S.D.N.Y. June 10, 2003) (declining to exercise supplemental jurisdiction over NYHRL and NYCHRL disability discrimination claims. The Court recognizes that the state courts are better positioned to "decide for themselves whatever questions of state law this case may present," Giordano, 274 F.3d at 754, and will not exercise jurisdiction over the remaining claims.


The Court grants summary judgment in favor of the Medical Center as to Stuevecke's accommodation and retaliation claims grounded in the ADA, and declines to exercise supplemental jurisdiction on her claims under the NYHRL and NYCHRL. Accordingly, the complaint is dismissed, but without prejudice as to the non-federal claims.

SO ORDERED. [ Page 1]


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