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RAFFAELE v. CITY OF NEW YORK

JOSEPH RAFFAELE, Plaintiff,
v.
THE CITY OF NEW YORK, NEW YORK CITY FIRE DEPARTMENT, and SAM PEPPER, Defendants.



The opinion of the court was delivered by: DAVID TRAGER, District Judge

MEMORANDUM AND ORDER

Plaintiff Joseph Raffaele brought this action alleging his employer failed to accommodate his disability as required by the Americans with Disabilities Act of 1990 ("ADA"), and he was retaliated against for speaking out on a matter of public concern in violation of his First Amendment rights. In particular, he alleges that he was transferred from Staten Island to the Bronx in retaliation for expressing to defendant Sam Pepper ("Pepper") that he believed Pepper's wife's work created an unethical conflict of interest for Pepper. Raffaele also alleges that his requests to be transferred out of the Bronx, to be given a department vehicle, and to be given a parking space in front of the Fire Department's Brooklyn headquarters were denied in retaliation for his statements against Pepper. He further alleges that these denials of requests for accommodation violated the ADA. Raffaele has been diagnosed with hypertension, Type II diabetes, and chronic obstructive pulmonary disease.

Defendants brought this motion for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. Plaintiff has made a cross-motion to amend his complaint pursuant to 15(c)(2) of the Federal Rules of Civil Procedure, seeking to add supplemental claims under city and state discrimination laws.

  Background

  (1)

  Plaintiff Joseph Raffaele ("Raffaele" or "plaintiff") began working for the New York City Fire Department ("FDNY") in the Bureau of Fire Prevention as a Fire Protection Inspector in October of 1990. (Ex. A).*fn1 On April 30, 1993, Raffaele was promoted to the position of Supervisor of Electrical in the Electrical Unit of the Bureau of Fire Prevention, which later became the Fire Alarm Inspection Unit. (Ex. B and Ex. E at 22, 25, 37). Raffaele's work involved inspecting fire alarm installations and alterations throughout the City of New York, as well as scheduling appointments and reviewing plans. (Ex. E at 19-20). He traveled to sites around New York to inspect fire alarm systems and ensure that the systems were in compliance with New York City fire codes. (Ex. E at 19). His job required him to travel to sites in all of the five New York City boroughs. Id.

  Before he was promoted to his supervisory position, Raffaele worked under Rick Stein, who was the Deputy Chief Inspector under Henry Gittlitz. (Ex. E at 22-23). While serving as Supervisor, Raffaele reported to Barry Brown, Chief Inspector, who in turn reported to Jean Vital, Supervisor. Henry Gittlitz ("Gittlitz"), Unit Manager, was responsible for Jean Vital's unit. (Ex. E at 22). Sam Pepper ("Pepper") was the director of the entire division; he served as Director of the Headquarters Inspection Group of the Bureau of Fire Prevention. Id.*fn2

  Raffaele first requested permission to use his personal vehicle for work purposes in 1994, before he was diagnosed with any illness. (Ex. E at 78). He wanted to use his vehicle because "it was easier than using public transportation." Id. Pepper denied that request. Id. at 82.

  In February of 1995, a new initiative of the Mayor's office required at least one electrical inspector be assigned to each of the five borough offices of the Department of Buildings. (Ex. G at 113-114, Ex. E at 31). Previously, all the inspectors had reported to FDNY's Brooklyn headquarters. (Ex. E at 31). When the electrical unit was split to comply with this program, Raffaele, a Staten Island resident, was assigned to the Staten Island office. Id. at 48.

  Sometime in1995, Raffaele was diagnosed with hypertension. (Ex. E at 43). In 1997 Raffaele was diagnosed with Type II Diabetes, which he claims affected his work, walking, breathing, and sleeping. (Ex. E at 41). Raffaele testified that the hypertension and diabetes caused him to "perspire" and feel "shaky." (Ex. E at 44). When asked during his deposition what he would do to treat these conditions, he replied that he would "stop and take a gulp or two of Coke, take a few seconds and go back to what [he] was doing." Id. Raffaele also said; "Sometimes [my feet] hurt when I sit, stand, walk, certain times they don't, sometimes they do, but it's constant — it's there all the time." Id. at 45. When asked for how long he could walk without experiencing pain in his feet, Raffaele responded; "I could do my day really without taxing myself too much, but I pace myself." (Ex. E at 44). However, he also stated that the amount of pain varied from day to day, with some days being worse than others. Id. at 44-45.

  In 1985, Raffaele had a pneumothorax with a chest tube placement, and in 1998 he had a recurrent pneumothorax with further chest tube placements. (Ex. JJ at 1). Raffaele testified that he uses an inhaler for his breathing difficulties. (Ex. E at 45).

  Since the FDNY did not ordinarily allow inspectors to use their personal vehicles to travel to sites within Manhattan and Raffaele had difficulty walking and breathing, Raffaele submitted a request to the FDNY on October 6, 1997 in order to obtain a Fire Department Personal Vehicle Placard to use his car in Manhattan. (Ex. I). On October 17, 1997 Gittlitz forwarded Raffaele's request to Pepper. (Ex. J). The request specifically stated that Raffaele wanted to use his personal vehicle on the basis of a "medical physical disability." Id. Pepper approved the request on the condition that Raffaele was willing "to absorb any parking tickets and or [sic] towing." Id.

  Although plaintiff asserts in his brief that he was assigned to the Staten Island position from February 1995 to February 1999, his assertion is not entirely accurate. (Ex. E at 48). As plaintiff admits in his deposition, he worked exclusively on Staten Island from 1995 to 1997. Id. at 53. Thereafter, his assignment area included Manhattan as well as Staten Island Id. at 53-54. Because his assignment area included Manhattan, Raffaele testified that he traveled to Manhattan two to three times a week — every Friday to visit his office and one to two times a week for site visits. Id. Raffaele said that the majority of his time in Manhattan was spent in midtown, which he defined as between 57th Street and Canal Street. (Ex. E at 51). He spent the second greatest amount of his Manhattan time in Upper Manhattan; he rarely worked in Lower Manhattan. Id. at 52. This was attributable to his difficulty parking in Lower Manhattan since he could not use his parking placard in that area. (Ex. E at 50).

  The Staten Island assignment was a short commute from Raffaele's home and his treating physician, Dr. Lucinda Ripoll. (Ex. N). During his deposition, Raffaele claimed that his supervisors, Mr. Vital and Mr. Brown, were aware of his medical condition and understood that it would be difficult for him to walk around.*fn3 (Ex. E at 138). He admitted he was not initially given a reason why he was assigned to Staten Island, but that he explained "to [his] supervisors after [his] diagnosis getting around was much more difficult and [he] really wanted to stay in Staten Island There was never any objection to it or any reason for [him] to believe that they would move [him] . . ." Id. at 139.

  (2)

  On December 23, 1998, Raffaele scheduled an appointment to meet with Z.S. Engineering to discuss a fire alarm installation at a Staten Island shopping center. (Ex. E at 109). Unbeknownst to Raffaele, Pepper's wife, Agnes Pepper, worked as the Director of Operations for the security company, Arm Rest Security, that Z.S. Engineering had hired to watch over the shopping center until the fire alarm system was fully installed.*fn4 (Ex. G at 63-65). According to Pepper, his wife was scheduled to be at the site at the same time as Raffaele solely at the behest of her client, the shopping center owner. Id. at 73-75. Pepper categorically denies that his wife was scheduled to meet with Raffaele. Id. at 73. Pepper testified that the Fire Department does not make appointments with security companies; rather the Department schedules appointments with vendors and engineers. Id. at 73-74. Furthermore, Mrs. Pepper's security company has no contact with the Fire Department "whatsoever." Id. at 73.

  The meeting at the shopping center did not take place at the scheduled time because of an emergency situation with another one of Raffaele's sites. (Ex. E at 130-131). Raffaele called Z.S. Engineering's headquarters and notified them of the delay. Id. at 132. When Raffaele later arrived at the Z.S. Engineering site, the company's representative, Mr. Alloca, informed him that Mrs. Pepper had left upset because she had been kept waiting. (Ex. E at 133). Raffaele testified that Mr. Alloca "allude[d] that she would, in fact, take care of the situation." Id. Raffaele further stated that he did not "understand it." Id. According to Pepper, once his wife discovered that Raffaele would not arrive at the site until noon, she decided to leave because "there was no sense in her hanging around." (Ex. G at 75). On that day it was cold and Mrs. Pepper was not "dressed for the field." Id. Upon leaving, Pepper said that his wife called him to inform him that one of his inspectors was not on time. Id. at 76. He reasoned that she thought it would be in his "best interest" as Director of the Fire Inspection Unit to be aware of his employee's tardiness. Id. at 77. Pepper categorized his wife's phone call as "an innocent comment just to apprise me of doing something that anybody else would have done as well." Id.

  (3)

  On December 24, 1998, Raffaele reported as usual to FDNY's Headquarters in Brooklyn to turn in his time sheets and pick-up his paycheck. (Ex. E at 134). After he arrived, Pepper took Raffaele's time sheets. Id. at 111. Pepper testified that he looked over the time sheets in consultation with Gittlitz, Raffaele's supervisor. Id. at 85. Contrary to Raffaele's testimony, Pepper said that Gittlitz denied knowledge of any changes in Raffaele's December 23, 1998 schedule. (Ex. G at 84). When asked why he did not directly contact Raffaele about the alleged tardiness, Pepper responded that "[i]t didn't seem to be important." Id. He wanted to review Raffaele's time sheets with Gittlitz and if there were any problems, then he intended to speak with Raffaele. Id. at 85.

  According to Raffaele's testimony, when he walked up to Pepper and asked him why he was looking at his time sheets, Pepper was "very irritated and very upset and barked at me where were you why were you late? How dare you make [the] department look bad and so forth and so on." (Ex. E at 111). Raffaele told Pepper that in conjunction with Gittlitz he made the decision to respond to the emergency before going to the Z.S. Engineering meeting. Id. at 132. He testified that "he became irritated and I became a little bit irritated and there were words and I said we had to make a change because that's the way it was." Id. at 112. Although Raffaele claims in his complaint that on December 24, 1998 he "further informed Pepper that he, as a taxpayer and public servant, felt Pepper's wife's position as a representative of the Fire Guard Company was unethical and a conflict of interest with Pepper's position as Director since the FDNY routinely worked with this company," his testimony during the deposition was considerably vaguer than that statement. Id. at 136. From his testimony about the December 24, 1998 exchange, it appears that Raffaele's discussion of Pepper's wife was limited to the following: "I had no idea of his wife being there or anything to that effect, why his wife was there." Id. When Raffaele was asked specifically whether he told Pepper that he was "a public servant that's answerable to the tax paying citizen," Raffaele responded, "My job is a fire alarm inspector and I inspect fire alarms. I had no idea that your wife was involved in any way, shape or form in this." Id. at 136-137.

  Raffaele asserts that later in the day he overheard Pepper tell Gittlitz, "He's going as far away as possible." Id. at 140. Raffaele clarified that statement, when he further stated, "In other words, . . . I heard him very loudly saying, I want him moved as soon as possible." Id. He alleges that Mr. Remalino confirmed the transfer portion of what he heard, specifically stating, "[H]e's going to have you transferred. . . . He's pissed." Id. at 141. Raffaele also testified that Pepper threatened him with a review of his time sheets. Id. at 136.

  On February 15, 1999, Raffaele returned from personal leave for his mother's death and learned that he had been reassigned. (Ex. E at 117). Raffaele characterized his reassignment as the farthest area possible from Staten Island — Upper Manhattan and the Bronx. Id. However, the reassignment schedule lists Raffaele's assignment as the Bronx and Manhattan, not "Upper Manhattan." (Ex. K at 11). Furthermore, Raffaele's assignment only required him to be in the Bronx two days a week. (Ex. K at 14). He reported to Manhattan the remaining three days a week. Id. Like the other inspectors who reported to Manhattan, including the Staten Island-based inspector, on the days when he was assigned to Manhattan, the schedule states that he is to report to Manhattan, not a specific area of Manhattan.*fn5 Id. As a result of the reassignment, Raffaele claims he had to travel an additional two and one half to three hours per day for the days he had to report to the Bronx office. (Ex. E at 117). Prior to his reassignment, Raffaele testified that he could remember only being in the Bronx once since he began working for the FDNY in 1993. Id.

  Defendants claim that the transfer was not punitive, but rather a result of an FDNY mandate that required field inspectors to be rotated to new areas every twelve to eighteen months. (Ex. E at 121, Ex. F at 48, and Ex. G at 121-122). However, the rule had been implemented only twice since its inception in 1988. (See Ex. F at 34). When asked to define the purpose of the mandatory rotation program, Pepper replied that on a professional level he did it because he was told to, but on a personal level, he did not understand the purpose behind the rotation. (Ex. G at 123). According to Pepper, the rotation program was in practice until the City of New York required inspectors be assigned to different boroughs in 1995. (Ex. G at 113). Pepper testified that it had been unclear whether or not the FDNY could continue to rotate the inspectors after they were stationed in each of the Department of Buildings' borough offices, because confusion existed over who was responsible for the inspectors — FDNY or Department of Buildings. Id. at 114-115. Additionally, the rotation fell to the "back burner" because Pepper was concentrating on developing new procedures for the program and ensuring that the procedures were implemented. Id. at 114. Later, the FDNY learned that it retained responsibility for supervising the inspectors. Id. at 115. Gittlitz's testimony corroborates Pepper's statement of events. (See Ex. F at 48).

  Pepper said that Gittlitz and he made the decision to re-implement the mandatory rotation program during their monthly review meeting in early 1999. (Ex. G at 117). Raffaele acknowledged during his deposition that every fire inspector was transferred. (Ex. E at 118). Gittlitz notified the inspectors on February 16, 1999 of the reassignment and that it would be effective beginning March 1, 1999. (Ex. G at 125 and Ex. K). However, plaintiff asserts that his transfer was the only "major shift;" all of the other inspectors were affected only "slightly." (Ex. E at 119). According to Raffaele, the only transfer that would have been "non-disruptive" for him was Brooklyn. Id.

  Although Raffaele claims that as director Pepper retained discretion over the assignments (Ex. E, 122), Gittlitz testified that was not the situation. (Ex. F at 24). While Gittlitz consulted with Pepper, Gittlitz had final authority over the assignments. Id. Pepper testified that Gittlitz and he made the decision to re-implement the mandatory rotation during their monthly review meeting. (Ex. G at 117). During his deposition, Pepper categorically denied being involved with these transfer assignments or any earlier transfers. Id. at 125-126. He described his role in the process as simply reviewing what Gittlitz decided. Id. at 126 . Pepper testified that he did not "approve" the transfers, nor did he "override" them. Id. at 133. He also stated that he felt Gittlitz was a "fully-qualified Manager" and as such he had no reason to question or investigate Gittlitz's assignment decisions. Id. at 126-127. Furthermore, since Gittlitz was a level M-1 Manager, he was entitled to "great latitude in decisions and carrying out his mandates." Id. at 128.

  Although Raffaele continued in his position and performed all the essential functions of his job, he did so under protest. (Pl. Mem. at 7). Beginning in April of 1999, Raffaele claims the longer workdays began to affect his health and interfere with his medical treatments. (Ex. E at 149).

  In May of 1999, Raffaele's attorney wrote to Fire Commissioner Thomas Von Essen. (Ex. M at 5). In the letter, counsel asserted that Raffaele was transferred to Upper Manhattan and the Bronx in retaliation for being late to a meeting with Mrs. Pepper. (Ex. M at 5). The letter also alleged that Mrs. Pepper "upon information and belief is a co-owner along with Mr. Pepper, in the entity of `Fire Guard Company,' that does regular business with Mr. Pepper's Department specifically, and the Fire Department generally," and asked that the "Inspector General's Office investigate this contention, for possible impropriety, conflict of interest and abuse of power." Id. at 5. In addition, the letter claimed that Mrs. Pepper bragged about having him transferred. Id. at 6. It also requested a reasonable accommodation in accordance with the attached letter from Raffaele's doctor, Dr. Lucinda Ripoll, for his medical conditions.*fn6 Id. at 5. Dr. Ripoll's letter, dated April 14, 1999, states that Raffaele's health conditions necessitate medical testing and office exams on a timely basis and that the transfer has made receiving treatment more difficult. (Ex. N).

  Raffaele never received a response to his letter. (Ex. E at 147). Although plaintiff further states in his brief that to his knowledge the FDNY never took action on his letter, Pepper's testimony contradicts that allegation. Id. Pepper testified that two employees from the Inspector General's Office met with him in 1999 to discuss his wife's employment. (Ex. G at 66, 71). Pepper claims that when he met with the Inspector General representatives he did not know of and was not told the reason for the interview. Id. at 71.

  During this time one of Raffaele's co-workers agreed to switch assignments with him, as was permitted under FDNY practices.*fn7 (Ex. E at 119-120). The switch would have allowed Raffaele to work in Brooklyn, which is closer to his home in Staten Island Id. Although Raffaele's immediate supervisor Mr. Brown had no objection to the switch and submitted the request to Gittlitz, Gittlitz allegedly told Mr. Brown, "[Raffaele] goes where I tell him to go." (Ex. E at 120). Raffaele continued to work at his placement. Id.

  (4)

  On October 19, 1999, Raffaele filed a claim with the Equal Employment Opportunity Commission ("EEOC"). (Ex. C). In his complaint, Raffaele alleged that he had been discriminated and retaliated against under the Americans with Disabilities Act ("ADA") and Title VII of the Civil Rights Act of 1964 ("Title VII"). Id. He described the alleged discriminatory and retaliatory conduct as occurring on December 24, 1998 when he confronted Pepper about the perceived conflict of interest between Pepper's position and his wife's job. Id. He also alleged that Mr. and Mrs. Pepper co-owned "Fire Guard," an entity "hired to provide services" at the shopping center he was scheduled to inspect on December 23, 1998. Id. On March 31, 2000, the EEOC issued Raffaele a Right to Sue Letter on the ADA claim.*fn8 (Ex. D).

  Pepper testified that he had no knowledge of Raffaele's letter to the Commissioner or its contents until Raffaele filed his Equal Employment Opportunity complaint. (Ex. G at 129-130). He recalled being first aware of Raffaele's charges against him after the summer of 1999 when he received the EEOC complaint. Id. at 149. According to the letter to the Commissioner, the only persons to receive a copy of it and Dr. Ripoll's attached note besides the Commissioner were Raffaele, Joseph Vicari, L.U. #3, and Edward Kuriansky, Commissioner of Investigations. (Ex. M at 7). Furthermore, Pepper recalled only recently seeing Dr. Ripoll's letter; he could not remember if and when he had read this letter around the spring and summer of 1999.*fn9 Id. at 130. Pepper highlighted the fact that Dr. Ripoll's letter is addressed only to "To Whom It May Concern." Id. at 143. He stated that even if he had seen the Doctor's letter, it does not request an accommodation for Raffaele. Id. at 146. The letter merely informs the recipient that Raffaele's condition may be aggravated by the transfer. Id. When asked hypothetically if he had received both Raffale's letter to the Commissioner and the doctor's letter if he would have granted Raffaele an accommodation, Pepper replied,
Quite honestly, if I had received this as a package . . . I probably would have recused myself from the entire process. . . . It makes statements that are untrue. It makes accusations that are inflammatory. And, I would not have dealt with this, whatsoever. I would have had someone else deal with it completely.
Id. at 148-149.

  Raffaele's wife was diagnosed with colon cancer in November of 1999. On November 10, 1999, Raffaele requested a transfer from Brown via Jean Vital so that he could be closer to home to help care for his wife and son. (Ex. O). Thirty-four days later he had yet to receive a response to his request. (Ex. P). On December 15, 1999, Raffaele forwarded his request to Gittlitz. Id.

  Because Raffaele felt his requests were not being responded to in a timely manner, he also wrote a letter to Pepper's supervisor, Gerard Barbara, Chief of Fire Prevention, alerting him to this perceived problem. (Ex. R). Chief Barbara responded on January 26, 2000 that he had instructed Raffaele's supervisors to respond to his requests in a timelier manner. Id. He reiterated that Raffaele only need report to the Bronx twice a week. Id. He also stated that the Bureau would approve and be as flexible as possible under FDNY guidelines in allowing Raffaele to take leave time. Id. In addition, Chief ...


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