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
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
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
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
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 ...