United States District Court, E.D. New York
JOSEPH RAFFAELE, Plaintiff,
THE CITY OF NEW YORK, NEW YORK CITY FIRE DEPARTMENT, and SAM PEPPER, Defendants.
The opinion of the court was delivered by: DAVID TRAGER, District Judge
MEMORANDUM AND ORDER
Plaintiff Joseph Raffaele brought this action alleging his
employer failed to accommodate his disability as required by the
Americans with Disabilities Act of 1990 ("ADA"), and he was
retaliated against for speaking out on a matter of public concern
in violation of his First Amendment rights. In particular, he
alleges that he was transferred from Staten Island to the Bronx
in retaliation for expressing to defendant Sam Pepper ("Pepper")
that he believed Pepper's wife's work created an unethical
conflict of interest for Pepper. Raffaele also alleges that his
requests to be transferred out of the Bronx, to be given a
department vehicle, and to be given a parking space in front of
the Fire Department's Brooklyn headquarters were denied in
retaliation for his statements against Pepper. He further alleges
that these denials of requests for accommodation violated the
ADA. Raffaele has been diagnosed with hypertension, Type II
diabetes, and chronic obstructive pulmonary disease.
Defendants brought this motion for summary judgment pursuant to
Rule 56(b) of the Federal Rules of Civil Procedure. Plaintiff has
made a cross-motion to amend his complaint pursuant to 15(c)(2)
of the Federal Rules of Civil Procedure, seeking to add
supplemental claims under city and state discrimination laws.
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 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
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
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
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
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
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
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
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,
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
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.
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
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
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
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.