The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM DECISION and ORDER
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.
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
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
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
(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 ...