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June 23, 2005.


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



  Belinda Fountain ("Fountain" or "plaintiff") brought suit against New York State Department of Correctional Services ("DOCS") and Glenn S. Goord ("Goord") in his capacity as Commissioner of DOCS, (collectively, "defendants"). Plaintiff claims the defendants' sick leave policy violates the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(d)(4)(a). Both sides previously filed for summary judgment and those motions were decided in Fountain v. New York State Dep't of Corr. Servs., 190 F. Supp. 2d 335 (N.D.N.Y 2002). The decision was appealed and the Second Circuit affirmed in part, and vacated and remanded in part in Conroy v. New York State Dep't of Corr. Servs., 333 F.3d 88 (2d Cir. 2003). Following further discovery and pursuant to Fed.R.Civ.P. 56, defendants moved again for summary judgment. Plaintiff cross-moved for the same. Oral argument was heard on April 22, 2005, in Albany, New York. Decision was reserved.


  DOCS is an agency of the State of New York that maintains 71 correctional facilities throughout the state in which over 69,000 inmates are confined. DOCS employs a workforce of over 30,000 correction officers. Plaintiff is a corrections officer and works the midnight shift as a dorm officer at a minimum security prison operated by DOCS. She also suffers from asthma and severe pulmonary obstructive disease.

  At the previous summary judgment phase of this litigation, plaintiff alleged that DOCS's sick leave policy violated the ADA prohibition against employer inquiries into disabilities. The policy requires employees returning to work after an absence to provide a doctor's statement which includes a "brief diagnosis" of the employee's illness. The relevant portion of DOCS's policy is related in DOCS Directive No. 2202-Attendance Control Program (the "Directive") (Docket No. 79, Bloomingdale Aff. Ex. C). Inter alia, defendants argued that the diagnosis disclosure requirement fell within the business necessity exception of the ADA provision and was therefore permissible. Defendants argued that the policy served necessary business purposes; it addressed the problem of employees' abuse of sick time, it ensured that its corrections officers were physically able to perform their jobs and it helped prevent the spread of infectious diseases. Plaintiff's summary judgment motion was granted and the defendants' denied. Fountain, 190 F. Supp 2d at 340. The Second Circuit found that questions of fact remained as to the business necessity exception and remanded for further discovery and/or trial. Conroy, 333 F. 3d at 102.

  The policy under consideration in the previous decisions has since been changed. That policy did not include a minimum number of days of absence after which a doctor's certification and general diagnosis would be required. This fact was particularly noted in granting plaintiff's summary judgment motion.

[T]he sick leave policy provides no limitation on the ability of the defendants to ask for medical diagnosis. Employees may take an unplanned single day leave of absence for a myriad of reasons, the vast majority of which do not suggest an inability to do their job or a threat to their work environment. Examples of such reasons include the common cold or care of a sick child. Therefore, no reasonable fact finder could conclude that an inquiry triggered by a single day's absence from work is the type of reasonable expectation discussed above.
Fountain, 190 F. Supp.2d at 340.

  The current policy is briefly stated in a DOCS Memorandum issued to all employees reminding them of the requirement on March 1, 2005.

In accordance with Directive #2202 — "Attendance Control Program", for all absences greater than three days (four days for CSEA), all employees will be required to provide medical documentation that shall include the following:
1. A statement that the employee was unable to work.
2. Specific dates the employee was unable to work.
3. Prognosis — The date upon which the employee can return to work or a statement that the employee must remain out of work until his/her next appointment date (specific date).
4. A brief diagnosis for employee's illness (not required for illness in the employees family). (Docket No. 91, Engelbright Aff. Ex. A) (emphasis added.) See also Docket No. 79, Bloomingdale Aff. Ex. C.
  The change in the policy has not altered plaintiff's position, and as in the previous summary judgment motion, plaintiff still seeks declaratory relief that the general diagnosis requirement violates the ADA and an injunction prohibiting DOCS from requiring her to submit one. Defendants continue to argue that the business necessity exception applies. After it found that questions of fact as to the business necessity exception precluded summary judgment, the Second Circuit offered guidance to both the district court and the parties as to how to proceed on remand.
Up to this point, both parties have made only conclusory assertions regarding the benefits or lack thereof of the diagnosis requirement. Therefore, on remand, the district court should permit further discovery. It may be helpful to depose both expert and lay witnesses to testify on issues such as the essential functions of corrections officers and the ability of physicians to understand those functions and to assess whether the corrections officer can safely return to work. Factual development on the efficacy of general diagnoses (as opposed to certification without diagnoses) in improving workplace health and security and in curbing sick leave abuse is particularly necessary.
Conroy, 333 F.3d at 99. Accordingly, the parties have provided such information.
  Beginning with the issue of the essential functions of corrections officers, DOCS provided documents describing the class of employees known as correction officers. (Docket No. 79, Bloomingdale Aff., Ex F. Classification Standard: Occ. Code 8700100 — Correction Officer.) The distinguishing characteristics of the position are related as follows:
On assigned posts, Correction Officers are responsible for the security of the facility, inmate conduct and discipline, and for the enforcement of the rules and regulations governing the operation of the facility and the confinement, safety and general well-being of inmates. The direct responsibility of the maintenance of security and order within the facility combined with periodic anti-social behavior of some inmates presents a potential for immediate physical harm to a uniformed officer either in the form of a direct assault or in quelling of disruptive behavior or disturbances among inmates. In emergency situations, such as attempted or actual escapes, disruption of facility operations or riotous behavior, a Correction Officer may be required to use firearms, chemical agents and other safety and emergency equipment.

  Joseph Scott, a corrections officer and assistant grievance director within DOCS, testified that the actual job duties vary significantly across the 30,000 DOCS correction officers, and estimated that less than 18,000 officers face the daily risks suggested by DOCS. (Docket No. 91, Scott Aff. ¶ 12.) The actual duties of officers vary significantly in the amount of inmate contact required and in the type of contact — from direct supervision to security at gates. The risks also vary between maximum and minimum security facilities.

  To demonstrate that corrections officers may at any moment be involved in an incident requiring the use of force, defendants provide statistics gathered from its Unusual Incidents reporting system. Unusual incidents are defined as serious occurrences that may impact upon or disrupt facility operations or that have the potential for affecting DOCS's public image or that might arouse widespread public interest. (Docket No. 79 Vann Aff. Ex. H DOCS Directive 4004, Unusual Incident Report.) The number of reported incidents in which staff used force were tallied by year.

Calendar Year 2000 — 855 Incidents Calendar Year 2001 — 868 Incidents Calendar Year 2002 — 827 Incidents Calendar Year 2003 — 767 Incidents 1/1/04 — 11/15/04 — 665 Incidents
  (Vann Aff. Ex. I.) These numbers reportedly do not include numerous incidents where force was used to break up fights between inmates. (Vann Aff. ¶ 20.) James Bloomingdale, the Assistant Director of Personnel for DOCS, provided deposition testimony regarding how particular medical conditions may effect the safety of the facility.
An officer who is short of breath may be unable to assist a fellow officer in subduing an assaultive inmate. The medically compromised officer and/or the other officer could be hurt or killed, as could any other person in the area. Many officers carry keys. A medically or mentally compromised officer could be overwhelmed by inmates(s) and have her keys taken. This potentially puts the entire facility at risk. Officers transporting inmates outside correctional facilities, such as to hospitals or court appearances, are armed. The inability to properly perform her duty due to a medical or mental condition increases the risk that the inmate may escape and possibly obtain the firearm. This would put the officers and public at risk.
(Bloomingdale Aff. ¶ 35.) Bloomingdale explained that the diagnosis disclosure requirement will reveal disabilities that DOCS believes it should be aware of that employees would not otherwise choose to reveal.
Some illnesses or conditions are obvious even to casual observers, such as injuries that require the use of crutches or a sling. But many are not so obvious, such as knee braces that are covered by trousers. Hidden disabilities, such as heart disease, diabetes, seizure conditions and some mental illness, may have devastating effects on the individual and those around her. An officer suffering a heart attack or a diabetic having a severe hypoglycemic reaction or an epileptic having a seizure are not only unable to do their jobs, but they require others to react to their distress. Such emergencies in a correctional facility draw other officers and personnel from their posts, and inmates can take advantage of such situations.
(Bloomingdale Aff. ¶ 40.)

  The general diagnosis is used to determine whether or not the employee should be referred to work directly or sent to DOCS's Employee Health Service ("EMS") to determine if the employee is fit for duty. This determination is made according to the best judgment of staff in the personnel department after a facility brings the employee's absence to their attention. Only a small fraction of the medical documentation that is provided at facilities ever comes to the attention of the DOCS personnel office, and only a fraction of those require a referral to EHS. (Docket No. 93, Lindsay Reply Aff. ¶¶ 6-8.) "Employees returning to work after a bout of flu, even if ...

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