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United States District Court, E.D. New York


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


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.



  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.


  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.


  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.


  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 Barbara informed Raffaele that "[b]ased on the needs of the Bureau," he supported and would not overrule the previous decisions made by Raffaele's supervisors. Id.

  Pepper informed Gittlitz that Raffaele's request was denied. (Ex. Q).*fn10 Pepper claims that he denied Raffaele's transfer request because in the request Raffaele stated that he "would like to take short leaves during The [sic] day to transport [his wife] for treatment, and also to care fore [his] six year old son." (Ex. G at 96 and Ex. O). As a supervisor, Pepper felt he could not give an employee "carte blanche" to leave his work "at any time he wished." Id. at 97. Pepper pointed out that he did not deny categorically the request. Id. at 98. Rather he gave Raffaele permission to take whatever leave time Raffaele had "in the bank" to take care of his family. Id. Furthermore, when Raffaele needed to use his leave time he would not be disciplined nor have to go through the regular FDNY policy of requesting leave time seventy-two hours in advance. Id. at 98-99.

  In January of 2000, Lawrence Bacci replaced Pepper as Director of the Headquarters Inspection Group of the Bureau of Fire Prevention. (Ex. F at 15).

  On May 12, 2000, Raffale submitted to Gittlitz a request for a department vehicle under the ADA. (Ex. S). According to Raffaele, the vehicle was necessary due to his "well documented" medical condition that prohibits him from using public transportation because of the excessive walking involved. Id. In the request Raffaele acknowledged that he has used his personal vehicle for the same purpose for the past seven years. Id. Nor does he explain why he cannot continue to use his personal vehicle. Id. Raffaele testified that the fire alarm inspection unit did not have cars permanently assigned to it. (Ex. E at 104). However, according to Raffaele, three persons in his unit had access to department vehicles: Mark Remalino, Christopher Afuwa and Barry Brown. (Ex. E at 97-99). Mr. Remalino is the only one of those three who is either at or below Raffaele's employment level. Id. at 99. Gittlitz testified that no employee in his unit had regular access to a department vehicle and that persons in the unit only received permission to use a vehicle on rare occasions. (Ex. F at 107-108). He defined rare occasion as inspections that involve another FDNY unit which has its own department vehicles. Id. at 108. On those occasions, Gittlitz's unit may use the other unit's vehicle to aid in an inspection. Id.

  On May 15, 2000, in response to Raffaele's request and statement that he would no longer use his personal vehicle, Gittlitz instructed Raffaele to return his parking placard "as soon as possible." (Ex. T). In his reply he did not mention nor comment on Raffaele's request for a Department vehicle. Id.

  On May 16, 2000, Raffaele sent Gittlitz a request for a personal parking space at Fire Department headquarters as an accommodation under the ADA for his medical condition. (Ex. V).*fn11 On that same day, Gittlitz responded more fully to Raffaele's May 12, 2000 accommodation request. (Ex. W). In his letter, Gittlitz informed Raffaele that the Bureau of Fire Prevention's records did not contain information that either stated or implied that Raffaele could not use public transportation. Id. Gittlitz instructed Raffaele to submit any such medical documentation "immediately." Id. Raffaele immediately replied via memorandum that his attorney sent his full medical documentation to the Fire Commissioner in May of 1999. (Ex. X).*fn12 Gittlitz replied to this memo on May 17, 2000. (Ex. Z). He requested that Raffaele have his attorney "immediately" fax the Bureau the full set of documents that he sent to the Commissioner. Id. Also on May 17, 2000, Gittlitz returned to Raffaele his parking placard. (Ex. Y).


  On June 29, 2000, Raffaele commenced this lawsuit.

  On November 27, 2000, Raffaele resubmitted his request for a Department vehicle to Gittlitz along with a new letter from Dr. Ripoll. (Ex. BB). Dr. Ripoll's letter concentrated on Raffaele's breathing problems; she did not mention his diabetes and/or hypertension.*fn13 (Ex. AA). In the November 2000 letter, Dr. Ripoll writes that Raffaele has had pulmonary problems with "two episodes of pneumothorax with sclerosing."*fn14 Id. According to the letter, Raffale takes medication for this condition. Id. Dr. Ripoll further writes that recent tests also displayed chronic obstructive pulmonary disease. Id. The disease makes breathing difficult when doing extended walking and exertion. Id.

  Gittlitz replied on January 5, 2001 to Raffaele's November 27, 2000 letter. (Ex. CC). He informed Raffaele that FDNY policy, PA/ID 1-00 requires all employee accommodation requests under the ADA to be submitted to the EEOC. Id. He attached PA/ID 1-00 for Raffaele's reference. (Ex. CC and Ex. DD).

  Raffaele completed and submitted his accommodation request to the EEOC on approximately January 19, 2001. (Ex. EE at 3). In his request he lists COPD, diabetes and hypertension, as well as pneumothorax, as his impairments. Id. at 2. Furthermore, he writes that his diabetes causes him difficulty walking, breathing and foot pain. Id. He finds it difficult to take mass transit. Id. Raffaele states that these conditions are permanent. Id.

  On August 29, 2001, Lai-Sun Yee, Assistant Commissioner for EEOC, wrote to Dr. Ripoll and Dr. Michael Castellano of Staten Island Pulmonary Associates to request copies of Raffaele's medical records. (Ex. FF and Ex. HH). Dr. Ripoll faxed Raffaele's medical records in October of 2001. (Ex. FF). It is unclear when Dr. Castellano sent in his set of records.

  The medical chart that Dr. Ripoll submitted for Raffaele begin on October 3, 2000 and end on August 13, 2001. (Ex. HH). At the October 3, 2000 examination, Dr. Ripoll noted that Raffaele's blood pressure was 134/80.*fn15 Id. Dr. Ripoll wrote that his diabetes was controlled acceptably. (Ex. H at 29). Furthermore, Dr. Ripoll prescribed exercise for Raffaele. Id. Raffaele's next recorded visit occurred on January 23, 2001. (Ex. HH). At that visit his blood pressure was 140/86. Id. On that date, Dr. Ripoll notes, "Diabetes Mellitus, DM, questionable control. Check labs." (Ex. H at 54). However, there is no further information about the lab results. Id. at 55. Raffaele saw Dr. Ripoll on August 9, 2001. Id. Finally, the chart indicates that Dr. Ripoll examined Raffaele on August 13, 2001. Id. At that appointment, Raffaele's blood pressure was 142/80. Id. Dr. Ripoll's note for that date state, "The hypertension; blood pressure stable on treatment." (Ex. H at 28). Raffaele's diabetes medications at that time are unchanged from his January 23, 2001 appointment. Id. at 57. Dr. Ripoll did prescribe Zocor, which is a medicine to lower cholesterol, between January 23, 2001 and August 13, 2001. Id. at 59. Dr. David Prezant, the FDNY's reviewing doctor, testified that cholesterol has no effect on diabetes. Id. at 60.

  Dr. Castellano's records indicate that he once examined Raffaele on November 4, 2000 at the behest of Dr. Ripoll. (Ex. JJ at 1). His records show that Raffaele weighed 368 pounds and stood 75.5" tall. Id. Raffaele's blood pressure was 164/70,*fn16 and Raffaele had a respiratory rate of 16. Id. In addition, Dr. Castellano commented that Raffaele was a smoker up until approximately October of 2000. Id. The records note that Raffaele has Type II diabetes and hypertension, as well as "moderate airway obstruction." Id. Dr. Castellano also noted Raffaele's past episodes of pneumothorax, and stated that "[s]ince [Raffaele's decortication procedure],*fn17 he has been doing well except for pain over the surgical sites." Id. Raffaele's chest examination revealed his breath to be normal with "no significant rales, wheezing, or rhonchi." Id. at 1-2. His heart showed "no major auscultatory abnormalities." Id. at 2. Dr. Castellano prescribed Flovent-220 in addition to Dr. Ripoll's Combivent prescription. Id. A pulmonary function report conducted on January 22, 2001 by Dr. Castellano concluded that Raffaele had a "mild obstructive lung defect." (Ex. II). The pulmonary test indicated that his forced vital capacity was at 83%. Id. Dr. Prezant testified that 83% is within the normal limits — a range from 80% to 120%, for the general population. (Ex. H at 31-32).

  On January 28, 2002, the FDNY granted Raffaele permission for a Family Medical Leave for his back surgery. (Ex. KK). The leave dated from December 29, 2001 to March 19, 2002.*fn18 Id.

  During his leave period, on February 11, 2002, the FDNY denied Raffaele's accommodation request. (Ex. LL at 1). The Fire Department's Bureau of Health Services ("BHS"), in which Dr. Prezant was the reviewing doctor, reviewed Raffaele's submitted medical documentation, which encompassed in full Dr. Ripoll's April 14, 1999 and November 20, 2000 letters, Dr. Ripoll's medical charts, Dr. Castellano's November 4, 2000 letter and the January 21, 2001 pulmonary function test report. Id.*fn19 BHS concluded that "these records do not establish that [Raffaele's] condition prevents [him] from performing the essential functions of [his] position . . . without a Fire Department vehicle." Id. In making this determination, BHS relied on Dr. Ripoll's charts which indicate that Raffaele's blood pressure has been stabilized with medications and his cessation of smoking has improved his breathing. Id. Although Dr. Ripoll's November 20, 2000 letter states that "extended walking and exertion" cause difficulty with Raffaele's COPD, Dr. Ripoll also prescribes exercise for Raffaele. Id. at 1-2. Furthermore, Dr. Castellano's report shows that surgeries corrected Raffaele's pneumothorax and that Raffaele's breathing and heart are normal. Id. at 1.

  The FDNY's denial letter highlights that Raffaele has never complained of having difficulties with the inspections themselves. Id. at 2. In addition, the Department already allowed Raffaele to use his personal vehicle for traveling to and from inspection sites and reimburses him for its use. Id. Furthermore, the letter states that Dr. Ripoll's April 14, 1999 letter does not relate to the performance of Raffaele's employment duties "but to the convenience of attending to various matters during [his] non-working hours. This does not provide a ground for [his] request for a Department vehicle." Id. In closing, the letter informs Raffaele that he may appeal the denial to the Fire Commissioner. Id.*fn20

  Subsequent to the denial, on July 22, 2002, Raffaele requested extended medical leave time. (Ex. NN). On August 31, 2002, Raffaele informed the FDNY that he had applied for disability retirement. (Ex. OO). The New York City Employee's Retirement System approved his application for retirement and set a retirement date of September 20, 2002. (Ex. RR).*fn21



  Subject Matter Jurisdiction

  A district court only has jurisdiction over ADA claims that are either contained in an EEOC charge or subsequent conduct that is "reasonably related" to the act(s) alleged in a charge. See Butts v. City of New York Dept. of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993) (superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Service Care, 163 F.3d 684 (2d Cir. 1998)). When a plaintiff brings a Title VII, ADA, or ADEA claim that is not contained in an EEOC charge or that is not "reasonably related" to a charge, that claim is barred. See id.

  The Second Circuit has recognized three instances where subsequent conduct is closely related enough to the initial EEOC charge to dispose of the exhaustion requirement. Id. at 1402. The first situation is the "loose pleadings allowance." Id. Claims not contained in an EEOC charge are allowed so long as 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.'" Id. (citing Smith v. American President Lines, Ltd., 571 F.2d 102, 107 n. 10 (2d Cir. 1978)). The second category allows claims that allege retaliatory conduct by an employer against an employee for filing an EEOC charge. Id. However, the retaliatory conduct must be in close proximity to both the initial discriminatory act(s) and the subsequent filing of the charge. Id. The third situation is where the claim alleges additional conduct of the same kind complained of in the EEOC charge. Id. at 1402-03.

  Raffaele's EEOC charge, filed October 21, 1999, alleged that the commute from Staten Island to the Bronx was "jeopardizing [his] health and interfering with [his] medical treatment for [his] diabetes and hypertension," and that he "believe[d] that Respondent, through the conduct of its agents, violated [his] rights under the ADA, the Rehabilitation Act of 1973, and the First Amendment." (Ex. C at ¶¶ 21-22). All of Raffaele's subsequent claims are "reasonably related" to these initial charges. Raffaele alleges the denials of his requests for a transfer, a department vehicle and a parking space were unlawful because defendants failed to reasonably accommodate his disability and because the denials were retaliatory.


  The Americans with Disabilities Act

  A. "Qualified Individual with a Disability"

  There are four requirements under the ADA for a plaintiff to prove that his employer discriminated against him based on his disability. First, plaintiff's employer must be subject to the ADA. Second, plaintiff must establish that he is a qualified individual with a disability as defined by the ADA. 42 U.S.C. § 12111(8). Third, plaintiff must show he could perform the essential functions of his job with or without reasonable accommodation. Fourth, he must prove that his employer engaged in discriminatory practices against him based on his disability. See Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 149-150 (2d Cir. 1998). Defendants do not dispute that plaintiff met the first and third requirements prior to December 29, 2001.

  The ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). Plaintiff argues that he has an impairment that substantially limits a major life activity or, in the alternative, that he was regarded as having such an impairment.

  To find a person disabled under subsection (A), a court must first analyze whether or not an individual had a physical or mental impairment. Next, the court must look to see if a personal or work-related activity was limited by the impairment and whether the limited activity was a major life activity. Finally, the court must determine whether the impairment substantially limited the major life activity. Bragdon v. Abbott, 524 U.S. 624, 631 (1998).

  Although no federal agency is specifically granted the right to interpret "disability" under the ADA, the EEOC has developed regulatory guidelines. Sutton v. United Airlines, Inc., 527 U.S. 471, 479 (1999). The EEOC defines "physical impairment" to include "[a]ny physiological disorder, or condition, . . . affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine." 29 C.F.R. § 1630.2(h)(1). See Sutton, 527 U.S. at 480. Plaintiff's hypertension, Type II Diabetes and COPD qualify as physical impairments.

  The EEOC lists examples, which are not meant to be exhaustive, of major life activities as follows: "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). Plaintiff asserts that his hypertension, Type II Diabetes and COPD limit his ability to walk and breathe, which are considered major life activities by the EEOC.

  Since plaintiff's physical impairments limit major life activities, his assertion of disability under subsection (A) hinges on whether his physical impairments substantially limit his ability to walk and breathe. According to the EEOC, "substantially limits" means "[u]nable to perform a major life activity that the average person in the general population can perform" or "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j). See Sutton, 527 U.S. at 2145. In Sutton, the Supreme Court held that "the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment." 527 U.S. at 2143 (requiring the corrective effect of glasses and contact lenses on an individual's myopia be taken into account). Therefore, the corrective effect of plaintiff's medical treatment on the degree to which his physical impairments substantially limit his ability to walk and breathe must be taken into account.

  In her November 20, 2000 letter, Dr. Ripoll writes that plaintiff's COPD "causes difficulty when doing extended walking and exertion." (Exhibit AA). Plaintiff must prove that his ability to walk is limited to such an extent that he is "unable" to walk, or is "significantly restricted" in his ability to walk, as compared with the average person. Epstein v. Kalvin-Miller Intern., Inc., 100 F. Supp. 2d 222, 226 (S.D.N.Y. 2000). "Extended" walking is not the same as "unable" to walk or even "significantly restricted" in his ability to walk. See id. at 226-27 (finding plaintiff not disabled under the ADA where "plaintiff's type 2 diabetes, as treated, does not affect his ability to walk" and "plaintiff's heart disease limits his ability to undertake strenuous activities, including strenuous walking" but the doctor's "affidavit does not suggest that plaintiff's ability to walk is limited under normal circumstances"); Hazeldine v. Beverage Media, Ltd., 954 F. Supp. 697, 703-04 (S.D.N.Y. 1997). In fact, Dr. Ripoll prescribes exercise, which presumably includes walking, for Raffaele. In addition, Raffaele never asserts that he cannot walk nor is significantly restricted in his ability to walk. His only complaint is that he needs to use a vehicle to travel to and from job sites, because he claims that he cannot take public transit because it involves extended walking.

  Moreover, according to plaintiff's medical records and the deposition of the FDNY's examining physician, Dr. Prezant, plaintiff's medical treatments, which include the use of medicine to control his blood pressure and an inhaler for his breathing problems, successfully mitigated the effect of his impairments on his major life activities. Plaintiff's October 3, 2000 examination by his treating physician, Dr. Ripoll, revealed that his diabetes was controlled acceptably. (Ex. H at 29). On that date, Dr. Ripoll also prescribed exercise, which presumably includes walking, to treat his conditions. Id. Although Dr. Ripoll, during plaintiff's next visit on January 23, 2001, noted that his diabetes was controlled questionably and directed "Check labs," there is neither further information in the chart about diabetes problems nor did Dr. Ripoll subsequently alter plaintiff's diabetes medication. Id. at 54-55, 57. At plaintiff's last appointment on August 13, 2001, Dr. Ripoll noted, "The hypertension; [sic] blood pressure stable on treatment." Id. at 28.

  The remaining medical records also support the conclusion that plaintiff's medical treatment corrected his potentially substantially limiting impairments. In his November 4, 2000 letter, Dr. Castellano, who examined plaintiff at the behest of Dr. Ripoll, stated that plaintiff had a "moderate airway obstruction." (Ex. J at 1). However, Dr. Castellano further noted that plaintiff's chest examination revealed his breath to be normal with "no significant rales, wheezing, or rhonchi" and that his heart displayed "no major auscultatory abnormalities." Id. at 1-2. A pulmonary function report conducted on January 22, 2001 by Dr. Castellano concluded that plaintiff had a "mild obstructive lung defect." (Ex. II). Although the test showed that plaintiff's forced vital capacity was at 83%, id., in his deposition, Dr. Prezant put this finding into context. He testified that plaintiff's test was within the general population's normal range, which is 80% to 120%. (Ex. H at 31-32). This is particularly significant given that the EEOC's definition of "substantially limits" measures the individual's limitation against that of the general population.

  Plaintiff's medical records clearly indicate that his medical treatment had mitigated the effects of his impairments on his major life activities of walking and breathing. Thus, plaintiff was not a qualified individual with a disability under subsection (A).

  Under subsection (C) of the ADA's definition of disability, an individual is disabled if she is "regarded as having" a physical or mental impairment that substantially limits one or more of the major life activities of such individual. 42 U.S.C. § 12102(2)(C). The Supreme Court outlined two ways that an individual can qualify under this definition: (1) an employer "mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities" or (2) an employer "mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities." Id. at 2149-2150. In Colwell v. Suffolk County Police Department, the Second Circuit explained that "whether an individual is `regarded as' having a disability `turns on the employer's perception of the employee' and is therefore `a question of intent, not whether the employee has a disability.'" 158 F.3d 635, 646 (2d Cir. 1998) (citing Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997)). Additionally, "[i]t is not enough . . . that the employer regarded that individual as somehow disabled." Id. The employee must show that "the employer regarded the individual as disabled within the meaning of the ADA." Id. Thus, plaintiff must establish that his employer regarded him as having an impairment that substantially limited a major life activity. Id.

  Raffaele has not met this burden. Raffaele implies that he remained at his Staten Island post from February 1995 to February 1999 because his supervisors were accommodating his medical condition. (Ex. M). However, Raffaele also acknowledges and defendant testimony supports the fact that his department suspended a mandatory rotation program during that time period; thus, none of the inspectors transferred posts. (Ex. E at 118, 121; Ex. F at 48; Ex. G at 121-122). Raffaele also argues that defendant Pepper's October 1997 approval of plaintiff's request to use his personal vehicle in Manhattan, in which Raffaele states that the request is for a "medical physical disability," evidences defendants' regarding him as being disabled.

  Colwell clearly holds that willingness to accommodate does not demonstrate that an employer believed itself legally obligated to accommodate under the ADA. 158 F.3d at 646 (2d Cir. 1998) ("An employer that accedes to minor and potentially debatable accommodations (a sensible way to avoid litigation, liability, and confrontation), does not thereby stipulate to the employee's record of a chronic and endless disability. Otherwise, costless accommodations to physical complaints . . . would entail large future costs, would discourage the employment of persons with minor limitations, and would promote litigation without assisting persons entitled to protection of the ADA.")

  Even if Raffaele's supervisors were aware of his diabetes and hypertension, and had these medical conditions in mind when they assigned him to Staten Island, this alone is not evidence that they regarded his difficulties breathing and walking to be more severe than they were in fact. Similarly, although Raffaele's request for a parking placard includes the word "disability," the October 1997 approval does not prove that defendants considered plaintiff disabled within the meaning of the ADA. The ADA should not be construed to discourage employers from accommodating less substantial impairments. Plaintiff has failed to show that defendants regarded him as having a disability within the meaning of the ADA. In fact, defendants consistently maintained that he was capable of performing all essential job functions of the Bronx assignment. Thus, plaintiff was not a qualified individual under subsection (C) of the ADA.

  Prior to Raffaele's back injury, his physical impairments did not substantially limit his walking and breathing, nor did his supervisors regard his abilities as substantially limited. As such, he was not a "qualified individual with a disability" entitled to the protections of the ADA.

  Raffaele was granted medical leave, for his back surgery, commencing December 29, 2001. Raffaele never returned to work after that date. Although he alleges that defendants' failure to provide reasonable accommodations contributed to his inability to work after his back surgery (see, e.g., Raffaele Aff. of April 26, 2003 ¶ 32), Raffaele provides no evidence that he would have been capable of performing essential job functions with reasonable accommodations after December 29, 2001. A letter dated July 18, 2002 from Dr. Ripoll reported that Raffaele was unable to work (Ex. MM), Raffaele told the Medical Board that he was permanently and totally disabled from performing his usual duties and could not do other work (Ex. RR), and the Medical Board agreed, recommending his request for diability retirement be granted, id. Since Raffaele did not attend work, did not request any accommodations, and essentially admitted he was unable to continue to perform essential job functions, he cannot show he was entitled to the protections of the ADA after December 29, 2001.

  B. Discriminatory Conduct

  Even assuming Raffaele was a qualified individual under the ADA, he must still prove that his employer engaged in discriminatory practices against him based on his disability. See Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 149-150 (2d Cir. 1998). An employer is liable for discrimination if he (1) engages in conduct that constitutes disparate treatment discrimination against a qualified disabled person; (2) adopts neutral practices that result in discrimination against a qualified disabled person because his practices screen or tend to screen such persons out; or (3) fails to provide a reasonable accommodation that would enable a qualified disabled person to perform the essential job functions of the position held or desired. 42 U.S.C. § 12112(b).

  Once an employee requests an accommodation, the EEOC instructs employers to use reasonable efforts to determine the best accommodation. 29 C.F.R. § 1630, App. § 1630.9. However, the "employer is not obligated to provide an employee the accommodation he requests or prefers, the employer need only provide some reasonable accommodation." Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996). Raffaele alleges that three of defendants' actions constitute failure to provide reasonable accommodations: (1) refusal to transfer him out of the Bronx,*fn22 (2) failure to accommodate his request for a department vehicle, and (3) failure to provide him a parking space at headquarters, in Brooklyn.

  i. Request for a Transfer

  The EEOC lists "reassignment to a vacant position" as a reasonable accommodation, 42 U.S.C. § 12111(9)(B); however, employers are not required to create new jobs or reassign disabled employees if no positions are vacant. See Norville, 196 F.3d at 99. Although Raffaele mentions in his deposition that he informed Mr. Brown about an employee who was willing to switch assignments with him, neither the co-worker nor Mr. Brown were deposed, and Mr. Gittlitz's deposition does not refer to any such proposed switch. (Ex. E at 119-120). Also, Raffaele's initial request for a transfer, which he sent to the Fire Commissioner in May of 1999, is exceedingly vague. (Ex. M at 5). His letter merely states that he wants a transfer in accordance with the attached letter from his treating physician, Dr. Ripoll. Id. at 5-6. Dr. Ripoll's letter only states that Raffaele has health conditions which necessitate medical testing and office exams on a timely basis and that the transfer has made receiving treatment more difficult. (Ex. N). Although Brooklyn and Staten Island positions may have been more conveniently located than the Bronx assignment Raffaele received, neither Dr. Ripoll's letter nor any other evidence suggests that Raffaele's impairments interfered with his ability to perform his job, or travel to the Bronx. Only the time spent on commuting is alleged to interfere with Raffaele's medical treatment needs.

  The ADA does not obligate the employer to meet the personal preferences of disabled employees. "The obligation to make reasonable accommodation . . . does not extend to the provision of adjustments or modifications that are primarily for the personal benefit of the individual with a disability." 29 C.F.R. Pt. 1630.9, App. Accommodations need only be "sufficient to meet the job-related needs of the individual being accommodated." Id. Difficulties commuting to a job need not be accommodated. See Pimentel v. City of New York, 2001 U.S. Dist. LEXIS 20426 at *52-55, No. 00 CIV 0326 (S.D.N.Y. Dec. 11, 2001) (finding a transfer to accommodate a reduction in commuting time for plaintiff to receive medical treatment was not required); Dicino v. Aetna U.S. Healthcare, 2003 WL 21501818 at *15, No. Civ. 01-3206 (D.N.J. June 23, 2003) (holding ADA did not obligate accommodation of requests "which essentially constitute commuting problems" when they had "nothing to do with [plaintiff's] ability to perform her job duties once she got where she needed to be"); Bull v. Coyner, 2000 WL 224807 at *9, No. 98-7583 (N.D.Ill. Feb. 23, 2000) ("Activities that fall outside the scope of the job, like commuting to and from the workplace, are not within the province of an employer's obligations under the ADA. . . . [Defendant], with full knowledge of [plaintiff's] vision problems, may have been insensitive or even malicious in requiring him to work at nights. But she had no legally-imposed obligation to be thoughtful . . ."); Salmon v. Dade County School Bd., 4 F. Supp. 2d 1157, 1163 (S.D.Fla. 1998) ("[P]laintiff also claims that the [defendant] failed to accommodate her disability by transferring her to a school with a shorter commute. But plaintiff's commute to and from work is an activity that is unrelated to and outside of her job.").

  Raffaele requested a second transfer from Mr. Brown via Jean Vital in November of 1999. (Ex. O). In this request, he claimed he needed a transfer in order to be take care of his wife and son throughout the workday. Id. He had did not receive an immediate response to his request so he forwarded the request directly to Gittlitz in December of 1999. (Ex. P). Pepper eventually denied the November 1999 request. (Ex. Q). Even if this denial was insensitive to the needs of plaintiff's family, it can not be a violation of the ADA because Raffaele did not claim the requested accommodation was related to his disability. See 29 C.F.R. 1630.8, App. ("[F]or example, an employee would not be entitled to a modified work schedule as an accommodation to enable the employee to care for a spouse with a disability. See Senate Report at 30; House Labor Report at 61-62; House Judiciary Report at 38-39.")

  ii. Request for a Department Vehicle

  Raffaele's denied accommodation requests for a department vehicle and a parking space in front of the Department's Brooklyn headquarters also fail to rise to the level of discrimination. Denial of his department vehicle request was not discriminatory because defendants offered him an alternative reasonable accommodation by giving him permission to use his personal vehicle to travel to and from appointments. (Ex. I). In his May 12, 2000 request and his November 27, 2000 letter, Raffaele does not explain why he can no longer continue to use his personal vehicle. (Ex. S and Ex. BB). Although Raffaele claims that three other employees in his Department were allowed to use department vehicles (Ex. E at 98-99), Gittlitz contradicts that allegation. He testified that no employee in his unit had regular access to a department vehicle and that persons in the unit only received permission to use a vehicle on rare occasions, such as inspections that involve another FDNY unit which has its own department vehicles. (Ex. F at 107-108). In any event, the availability of department vehicles to other employees is irrelevant for purposes of determining whether the employer's accommodation was reasonable under the ADA. Raffaele's personal vehicle met his job-related needs just as adequately as a department vehicle would have done. See 29 C.F.R. Pt. 1630.9, App.

  iii. Request for a Parking Space

  On May 15, 2000, Gittlitz told Raffaele to return his parking placard if he was no longer going to use his personal vehicle. (Ex. T). On May 16, 2000, Raffaele submitted a request to Gittlitz for a permanent parking space at Fire Department headquarters in Brooklyn. (Ex. V). Raffaele's request claims that he needs a personal parking space to accommodate his medical disability under the ADA. Id. However, Raffaele does not explain how the parking space will accommodate his disability, other than stating his inability to use public transportation. Presumably he requested the parking space in order to decrease the amount of walking that he would have to do to get from the parking lot and/or street to the headquarter buildings. Since the record lacks any comparative information about the normal distance the plaintiff would have to travel without the parking space, how many spaces existed, or the policy for distributing parking spaces, it is impossible to decide whether or not the requested accommodation was reasonable. On May 17, 2000, Gittlitz returned to Raffaele his parking placard. (Ex. Y). Plaintiff submitted no additional requests or follow-up memorandum for a parking space accommodation.*fn23

  For the aforementioned reasons, defendants did not deny plaintiff reasonable accommodations. Thus, defendants did not engage in discriminatory practices towards plaintiff. For this additional reason, plaintiff fails to meet his burden under the ADA.*fn24


  Constitutional Violations

  A. Retaliation Claim under the First Amendment

  When a person becomes a government employee she does not relinquish her first amendment right of free speech. However, "[a]t the same time it cannot be gainsaid that the State has interests as an employer in regulating speech of its employees that differ significantly from those it possesses in connection with the regulation of the citizenry in general." Pickering v. Board of Education, 391 U.S. 563, 568 (1968). The Supreme Court adopted a balancing test "between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id.

  To succeed on a First Amendment retaliation claim, a plaintiff "must show that (1) her speech was constitutionally protected; (2) she suffered from an adverse employment action; and (3) her speech was a motivating factor in the adverse employment action regarding her." Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002).*fn25

   Under Pickering, the employee has the burden to prove that her speech is "a matter of legitimate public concern." 391 U.S. at 571-572. "When an employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." Connick v. Myers, 461 U.S. 137, 146 (1983). To determine whether an employee's speech is a matter of public concern, a court must take into account "the content, form, and context of a given statement, as revealed by the whole record." Id. at 147-148.

   Raffaele asserts that on December 24, 1998 he "told Defendant Sam Pepper that his wife's affiliation with a fire guard company was against certain ethical rules" and that he "viewed his and his wife's affiliation with a fire guard company as a conflict of interest, unethical and a matter of public concern." (Aff. of Joseph Raffaele dated April 26, 2003 ¶ 17). Although Raffaele's belief was based on possibly erroneous information,*fn26 the Second Circuit has recognized that "public corruption or wrongdoing" is almost always a matter of public concern, Johnson v. Ganin, 342 F.3d 105, 113 (2d Cir. 2003) (citing Lewis v. Cowen,165 F.3d 154, 164 (2d Cir. 1999)), regardless of the "[i]nappropriate or controversial nature of a statement." Johnson, 342 F.3d at 113. Raffaele's statement must be evaluated without regard for its erroneous foundation. On its face, the content of his statement concerns a "wrongdoing," which is a matter of public concern, and, therefore, protected speech.

   Raffaele's speech is protected even though he expressed himself in a private conversation with Pepper. An employee's speech made in private to her employer is afforded the same First Amendment protections as speech made to the public at large. Givhan v. Western Line Consolidated School District, 439 U.S. 410, 413-414 (1979). Additionally, although Raffaele uttered the statement in the midst of a heated exchange with Pepper, an employee's "mixed motivations" for uttering the speech will not bar the employee's First Amendment protection. Johnson, 342 F.3d at 114 (citing Moore v. City of Kilgore, 877 F.2d 364, 371-372 (5th Cir. 1989); Schneiner v. N.Y. City Health and Hosp., 152 F. Supp. 2d 487, 495 (S.D.N.Y. 2001)). The content, form, and context of Raffaele's statement fulfills Pickering's threshold test. His statement is a matter of public concern.

   Next, the employee must prove that she suffered an adverse employment action. In Phillips v. Bowen, the Second Circuit held "that in order to prove a claim of First Amendment retaliation in a situation other than the classic examples of discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand, plaintiff must show that (1) using an objective standard; (2) the total circumstances of her working environment changed to become unreasonably inferior and adverse when compared to a typical or normal, not ideal or model, workplace." 278 F.3d at 109.

   Raffaele claims that his February 15, 1999 transfer amounts to an adverse employment action. His transfer was a lateral transfer that did not affect his salary, his rank, or his possibility for promotion, and thus does not resemble any of the "classic" examples of adverse employment actions. A round-trip commute twice a week of approximately 75 miles, while certainly inconvenient, is arguably not objectively adverse compared to a normal workplace. However, a reasonable jury could conclude, given all the circumstances of the case, including Raffaele's medical and family needs, that the transfer to the Bronx and refusals of requested transfers out of the Bronx were sufficiently adverse to qualify as actionable. There is a material issue of fact as to whether Raffaele suffered an adverse employment action.*fn27 Accordingly, Raffaele can recover under a retaliation claim, if defendants were motivated by his comments about Pepper's ethics.

   After an employee establishes that her speech is a matter of public concern and she has suffered an adverse employment action, she must then prove that the speech was at least a "substantial" or "motivating" factor in the adverse employment action. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977). The Second Circuit has found summary judgment to be inappropriate when "`questions of motive predominate in the inquiry about how big a role the protected behavior played in' the employment decision." Piesco v. City of N.Y. Dept. of Personnel, 933 F.2d 1149, 1155 (2d Cir. 1991) (quoting Peacock v. Duval, 694 F.2d 644, 646 (9th Cir. 1982)); see also Johnson v. Gamin, 342 F.3d 105 (2d Cir. 2003). "Without a searching inquiry into these motives, those intent on punishing the exercise of constitutional rights could easily mask their behavior behind a complex web of post hoc rationalizations." Piesco, 933 F.2d at 1155 (quoting Peacock, 694 F.2d at 646).

   Because, at the summary judgment stage, determinations must be made in a light most favorable to the non-movant, a genuine issue of material fact exists as to FDNY's motive behind reinstituting the rotation policy. Raffaele claims he overheard Pepper instruct Gittlitz to transfer Raffaele. (Ex. E at 136-137). He asserts that his co-worker, Mr. Remalino, heard the same thing. Id. at 141. Pepper and Gittlitz counter that the motivation behind the transfer was to re-implement a FDNY mandatory rotation program. (Ex. F at 48 and Ex. G at 121-122). Pepper testified, and Gittlitz corroborated, that his department put the rotation on the "back burner" in 1995 when the mayor required them to relocate the fire alarm inspectors to Department of Buildings' borough offices. (Ex. G at 113-114; see also Ex. F at 48). Pepper claims that this created confusion as to whether the FDNY or the Department of Buildings controlled the inspectors. (Ex. G at 114-115). Although Raffaele acknowledges the existence of the rotation program, he points out that the program had not been instituted for the previous four years and previously was implemented only twice since its inception in 1988. (Ex. E at 121 and Ex. G at 113). Furthermore, Raffaele was transferred to the location furthest from his residence. Additionally, the denial of Raffaele's request to switch assignments with the inspector assigned to Brooklyn, and the denial of his hardship transfer request both tend to support Raffaele's contention that the Bronx assignment was intended as punishment. Because a reasonable juror could accept Raffaele's version of events, Raffaele's protected speech could be a deemed a "substantial" or "motivating" factor behind his transfer to the Bronx location.

   Once the employee states a prima facie case of retaliation, the employer has two defenses for avoiding liability. First, the employer may establish that it would have instituted the adverse employment action in the absence of the protected conduct. White Plains Towing Corp., 991 F.2d 1049, 1059 (2d Cir. 1993) (citing Mt. Healthy City School District Board of Education, 429 U.S. at 286). The FDNY can reiterate its reason for instituting the transfer — the mandatory rotation program. However, the long delay between the implementation and re-implementation of the rotation program raises a material question of fact as to the validity of the FDNY's assertion. Furthermore, Raffaele claims the inspector who was going to be assigned to Brooklyn was willing to switch with him. Although there is no support in the record for this besides Raffaele's deposition testimony, neither have defendants offered any reason why permission would be denied for a mutually agreeable switch that met the requirements of the mandatory rotation program. Defendants have not established the denial of the proposed switch would have occurred independently of Raffaele's protected speech.

   Second, the employer may prove that "the employee's conduct interfered with the employer's `effective and efficient fulfillment of its responsibilities to the public.'" White Plains Towing Corp., 991 F.2d at 1059 (quoting Connick, 461 U.S. at 150). A court must balance "the extent to which the employee's speech touched upon matters of public concern against the extent to which the employee's conduct interfered with the functioning of the workplace." White Plains Towing Corp., 991 F.2d at 1059 (citing Connick, 461 U.S. at 150-152). In Pickering, the Supreme Court iterated the following factors which bear on that balance: whether the statement interferes with a superior's disciplinary ability, creates friction among co-workers, upsets the "close working relationships for which personal loyalty and confidence are necessary," interferes with the speaker's work performance or detrimentally impacts the operation of the place of employment. Rankin, 483 U.S. at 388 (citing Pickering, 391 U.S. at 570-573).

   Raffaele's speech did not disturb the efficient operation of his workplace. Raffaele made the statement in private. Raffaele did not incite his co-workers to take any actions against Pepper, Gittlitz or any person in the FDNY. Defendants can not justify Raffaele's transfer on the grounds that his statements interfered with the personal loyalty or confidence of a close working relationship with Pepper, see id., because Pepper and Raffaele's working relationship remained identical subsequent to Raffaele's transfer to the Bronx.

   Defendants are not able to categorically assert either of the two Pickering defenses. A genuine issue of material fact exists as to whether the FDNY would have denied Raffaele's repeated requests for relocation, regardless of Raffaele's speech. The second defense does not apply to the facts of this case.

   B. Monell Liability

   Municipalities may be sued directly under 42 U.S.C. § 1983 for constitutional deprivations inflicted upon private individuals pursuant to a custom, policy, ordinance, regulation, or decision of the municipality. Monell v. Dep't of Social Services, 436 U.S. 658 (1978). However, the municipal defendant may not be held liable for acts of its employees under a theory of respondeat superior. Id. at 690. The plaintiff must show a "causal link between an official policy or custom and the plaintiff's injury." Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). Policy and custom need not be shown through municipal actions, as "municipal inaction such as the persistent failure to discipline subordinates who violate [persons'] civil rights could give rise to an inference of an unlawful municipal policy of ratification of unconstitutional conduct." Id. at 397.

   Raffaele alleges that Gittlitz and Pepper transferred him to the Bronx, refused to accommodate his repeated requests for a transfer to another location, refused to allow him use of a departmental vehicle, refused to give him a parking space, and took other unspecified disciplinary actions against him in retaliation for Raffaele's accusations of ethical improprieties involving Pepper's wife's employment. Thus Raffaele paints a picture of a personal vendetta, in which these individuals used their supervisory positions to allegedly infringe on his First Amendment rights. An employee's supervisors are not considered "official policymakers" for purposes of establishing municipal liability. See City of St. Louis v. Praprotnik, 485 U.S. 112, 129 (1988). Raffaele presents no evidence of "the existence of an unconstitutional municipal policy" or that "retaliation was ever directed against anyone other than himself." Id. at 128. The Commissioner was notified by Raffaele's counsel of the situation in May of 1999. However, the fact that the Commissioner did not intercede on Raffaele's behalf and accommodate his request for a lateral transfer away from the Bronx is insufficient to show the kind of "persistent" inaction that might be considered a municipal policy or custom. Accordingly, plaintiff's claims under § 1983 can only be pursued against defendant Sam Pepper in his individual capacity.

   C. Conspiracy Under § 1985

   Plaintiff's proposed amended complaint does not assert a claim under 28 U.S.C. § 1985. Also, plaintiff's brief offered no counter argument to defendants' contention that the § 1985 claim must fail as a matter of law. Accordingly, plaintiff's § 1985 claim is deemed abandoned.


   Motion to Amend the Complaint

   Plaintiff has cross-moved for leave to amend the complaint to add claims under the New York State Human Rights Law, Executive Law Section 290 et seq. ("NYSHRL"), and the New York City Human Rights Law, Administrative Code Section 8-101 et seq. ("NYCHRL") in the event the complaint is construed not to already contain those claims.

   Because defendant is granted summary judgment on plaintiff's ADA claims, exercise of supplemental jurisdiction over any claims under city and state discrimination laws is declined. Accordingly, plaintiff's cross-motion to amend the complaint is denied.


   For the foregoing reasons, defendants are granted summary judgment on plaintiff's ADA claims. The City of New York and the FDNY are also granted summary judgment on plaintiff's § 1983 retaliation claims. However, summary judgment on plaintiff's § 1983 retaliation claims against defendant Sam Pepper is denied . Plaintiff's motion to amend the complaint is denied.


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