United States District Court, N.D. New York
June 23, 2005.
BELINDA FOUNTAIN, Plaintiff,
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, and GLENN S. GOORD, Defendants.
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 absent
for several weeks, are not referred to EHS because there is no
reason to believe the person cannot fully perform the essential
functions of the job." Id. at ¶ 22.
who have been out of work for a relatively short
period of time (a week or two) are usually allowed to
return to work on the day of their return, even
without the medical certification on hand that day as
long as they are not on Step III or exhibiting an
observable disability or known to have taken sick
leave for a potentially debilitating condition. We
recognize that these employees do not have the
medical certification the first day returning to work
because they forgot about the requirement of simply
forgot the note. To require a medical certification
from these few employees on the day the report to
work prior to allowing them back on the job, would
result in an unacceptable amount of overtime to cover
for those who do not have the notes.
(Bloomingdale Aff. ¶ 20.)
In order to demonstrate that DOCS is not able to rely solely on
a doctor's certification, DOCS provided statistics on the
employees who are referred to EHS after their doctor has returned
them to duty. DOCS asserts that there is a significant error rate
in the doctor's certification. The error is attributed to the
fact that employees may not fully explain their job duties to
their physician. The statistics show the period of the employees
absence, the general diagnosis and whether or not EHS
subsequently found the employees fit for duty. Mary Beth Lindsay,
Assistant Director of Personnel for DOCS, reviewed the records of
employees who were referred to EHS from 2000 through July 2004.
(Docket No. 79, Lindsay Aff. ¶ 7-20.)*fn1 Lindsay found that 159 employees
were referred to EHS after their doctor's certified them fit for
duty and EHS subsequently found 58 of them unfit.
Of the total 159 employees sent to EHS for evaluation only 47
had been absent for two months or less. Of those 47, 10 (or
20.2%) were found to be unfit to return to duty. (Docket No. 91,
Green Aff. ¶ 24.) Only four of the 159 referrals were made after
less than a four day absence. Two of those four were found unfit
for duty. Id. at ¶ 25
Linda Klopf, Communicable and Infectious Disease Supervisor for
DOCS, provided testimony as to the importance of managing the
spread of communicable diseases with facilities. (Docket No. 79,
Klopf Aff.) Klopf explained DOCS's tuberculosis (TB) control
policy and program. All employees are required to participate in
the DOCS TB screening program. She noted that other infectious
and communicable diseases that may be introduced into the
facilities by employees returning from sick leave. "It is
impossible to measure how many employees returned to work with a
diagnosis of a communicable disease which were addressed on a
local level. A regional infection control nurse may have been
consulted and many employees may have gone home to fully
recover." (Lindsay Reply Aff. ¶ 20.) At the time of deposition,
she could only recall one employee identified with a communicable
disease through the attendance control procedures, a case of
chicken pox. III. DISCUSSION
A. Summary Judgment Standard
Summary judgment is granted only if there is no genuine issue
of material fact, and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Silver v. City Univ.,
947 F.2d 1021, 1022 (2d Cir. 1991). The court will not try issues
of fact on a motion for summary judgment, but, rather, will
determine "whether the evidence presents a sufficient
disagreement to require submission to a [fact finder] or whether
it is so one-sided that one party must prevail as a matter of
law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
"The party seeking summary judgment bears the burden of
establishing that no genuine issue of material fact exists and
that the undisputed facts establish her right to judgment as a
matter of law." Rodriguez v. City of New York, 72 F.3d 1051,
1060-61 (2d Cir. 1995). In determining whether a genuine issue of
material fact exists, a court must resolve all ambiguities and
draw all reasonable inferences against the moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d
Cir. 2002). Thus, "[s]ummary judgment may be granted if, upon
reviewing the evidence in the light most favorable to the
nonmovant, the court determines that there is no genuine issue of
material fact and the movant is entitled to judgment as a matter
of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).
A material fact is one that would "affect the outcome of the
suit under the governing law," and a dispute about a genuine
issue of material fact occurs if the evidence is such that "a
reasonable [fact finder] could return a verdict for the nonmoving
party." Anderson, 477 U.S. at 248; R.B. Ventures, Ltd. v.
Shane, 112 F.3d 54, 57 (2d Cir. 1997). The Court is "to grant summary judgment where the nonmovant's evidence is merely
colorable, conclusory, speculative or not significantly
probative." Schwimmer v. Kaladjian, 988 F. Supp. 631, 638
(S.D.N.Y. 1997) (citing Anderson, 477 U.S. at 249-50).
B. Business Necessity Exception
The ADA provides that a "covered entity shall not require a
medical examination and shall not make inquiries of an employee
as to whether such employee is an individual with a disability or
as to the nature or severity of the disability."
42 U.S.C. § 12112(d)(4)(A). Here, as the Second Circuit confirmed, the
general diagnosis requirement of the DOCS Directive is an
"inquiry" under that ADA provision. Conroy, 333 F.3d at 95.
Thus, the requirement violates the ADA "unless such examination
or inquiry is shown to be job-related and consistent with
business necessity." 42 U.S.C. § 12112(d)(4)(A). The issue for
determination in the pending motions is therefore a narrow one,
whether defendant has demonstrated that its general diagnosis
disclosure requirement after a three-day absence is a business
necessity for purposes of 42 U.S.C. § 12112(d)(4)(A).
Defendants offer two justifications for their policy.*fn2
First, the diagnosis allows DOCS to ensure that employees can
safely and securely perform the functions of a corrections
officer. Second, it provides DOCS with information needed to
guard against the severe disruption that would result from
infectious diseases spreading through the staff or inmate
"With respect to each justification, the [employer] must show
(1) that the claimed purpose is in fact a business necessity, (2)
that the policy genuinely contributes to it, and (3) is reasonably defined." Transp. Workers Union, Local 100 v. N.Y.
City Transit Auth., 341 F. Supp. 2d 432, 446-47 (S.D.N.Y. 2004).
1. Business Necessity
To prove that its policy serves a business necessity the
employer must first show that the asserted "business necessity"
is vital to the business. Conroy, 333 F.3d at 97-98. "An
employer cannot simply demonstrate that an inquiry is convenient
or beneficial to its business." Id. Neither one of the business
purposes asserted by DOCS are disputed.
DOCS is responsible for maintaining security and order in its
facilities for the protection of both its inmates and staff. This
must be accomplished through a fit staff of corrections officers.
Staff and other inmates are vulnerable to periodic anti-social
behavior of some inmates in the form of direct assaults and
attempts at escape. Correction officers may also be required to
use firearms, chemical agents, and other safety and emergency
equipment in cases of emergency. DOCS has demonstrated that many
of the duties of a correction officer require the mental and
physical ability to respond at the moment to protect the safety
Furthermore, DOCS must maintain the overall health of persons
within its 71 facilities. It is not disputed that limiting the
spread of communicable diseases in a staff of 30,000 and inmate
population of 69,000 is a valid business necessity under these
circumstances. See Conroy, 333 F.3d at 98. Large scale staff
absences disrupt prison operations, and large scale illness among
inmates strains the medical staff and disrupts inmate programs
and work details. 2. "Genuinely Serves" the Business Necessity
The Second Circuit emphasized that an "examination of whether a
policy actually contributes to the business necessity is vital."
Conroy, 333 F.3d. at 100.
The employer must also show that the examination or
inquiry genuinely serves the asserted business
necessity and that the request is no broader or more
intrusive than necessary. The employer need not show
that the examination or inquiry is the only way of
achieving a business necessity, but the examination
or inquiry must be a reasonably effective method of
achieving the employer's goal.
Id. Furthermore, "the business necessity standard is quite
high, and is not [to be] confused with mere expediency." Id. at
97 (citing Cripe v. City of San Jose, 261 F.3d 877
, 890 (9th
Cir. 2001)). "If DOCS can show that, due in part to its unique
staffing requirements, it has a reasonable basis for concluding
that such employees as a group pose a genuine health or security
risk, and that the general diagnosis requirement allows DOCS to
decrease that risk effectively, it can satisfy the business
necessity exception." Id. at 101.
a. Fitness to perform duties
Defendants assert that its sick leave policy serves its
business purposes by identifying officers who are not fit to
safely perform their duties despite certification by their
doctor. DOCS argues that employees absent from work for more than
three consecutive days trigger the need for a diagnosis because
experience and common sense has shown that an absence of that
length is most likely due to a serious illness or condition. DOCS
finds doctor's notes indicating an officer is fit for duty are
insufficient because the doctors are often unable to appreciate
the exact requirements of the corrections officer's position.
The issue here is not whether DOCS is ever justified in
requiring a general diagnosis after a return from sick leave.
Even the plaintiff rather generally concedes that the requirement may be justified after a two-month absence. The
specific question here is the timing of the requirement. DOCS
must demonstrate that the information it claims it requires must
be gathered at the time it has chosen in order to serve its
purpose after three days of absence.
First, the common sense portion of defendants' argument is
belied by DOCS practice and testimony. Common sense dictates that
a large portion of sick leave is taken due to the common flu
about which Lindsay stated: "Employees returning to work after a
bout of flu, even if absent for several weeks, are not referred
to EHS because there is no reason to believe the person cannot
fully perform the essential functions of the job." (Docket No. 93
Lindsay Reply Aff. ¶ 22.) Defendants did not provide statistics
to show what percentage of sick leave of any particular duration
is due to any particular type of diagnosis. But it did note that
employees returning from such absences are not strictly required
to immediately provide their medical documentation for
administrative reasons. Common sense would dictate that if such
employees were an unreasonable safety risk, the risk would be
greatest immediately upon their return. Regardless, the
acknowledgment that two-week absences are not significant in and
of themselves conflicts with defendants' assertion that three-day
absences likely denote serious conditions
Second, DOCS complains of doctor error in deeming employees fit
for duty. The statistics provided do not effectively demonstrate
error that would justify an inquiry into all corrections officers
after each three-day absence. First of all, no reasonable error
rate can be derived from a measure of 159 employee sick leave
applications which were later referred to EHS. Some account must
be taken of the hundreds and likely thousands of medical
documentations which DOCS receives and relies on regularly. DOCS has shown that out of 40,000 employees, tracked over four
years, two employees identified by their medical documentation
after less than a one-week absence were found unfit after a
doctor certified them. Demonstrating that DOCS considers some
doctor's certifications erroneous, whether made after three days
or many months, is not sufficient to show that the error rate is
high enough to justify any particular timing
requirement.*fn3 The defendant has not demonstrated that the
three-day mark is related to gathering the information it needs.
b. Containment of communicable diseases
The second justification DOCS offers for requiring the
diagnosis disclosure is that DOCS must guard against the spread
of infectious disease within correctional facilities. Defendants
again argue that common sense shows that a three-day absence is
most likely due to a serious condition, and it is essential that
an employee return to work free from an illness which would
infect others. It argues further that many of the common
communicable diseases such as mumps, measles, and the flu will
result in absences of more than three days, thus requiring a
diagnosis for such absences is likely to catch most of the
absences due to the communicable conditions.
DOCS's offer of evidence in support of this assertion is
two-fold. One part of its effort consists of providing
information on the risks involved in tuberculosis (TB) outbreaks,
and the DOCS' specific TB control policy. The program is a
comprehensive and effective but unrelated to the issue here. If
the diagnosis inquiry was considered necessary for preventing the spread of TB it would likely be part of the comprehensive
program as opposed to part of an attendance control program.
Furthermore, an employee's diagnosis of TB would be made known to
DOCS without the disclosure policy. The medical provider who
makes the diagnosis is required to notify the State Department of
Health which would in turn notify DOCS. (Docket No. 91, Greene
Aff, Ex. C, p 45).
Defendant's other effort to support this argument consists of
pointing to its policy need to prevent the spread of other
communicable diseases, like mumps, measles, the flu, chicken pox,
or meningitis. This argument is fatally undermined by its
admission that it allows employees to return to work who have
forgotten to bring their doctor's certification. In allowing a
return to work without a diagnosis, DOCS has engaged in
legitimate balancing process. It weighed its safety risks with
its administrative burdens and costs. DOCS has determined that
the risk of spreading communicable diseases is outweighed by
financial considerations such as overtime costs. Considering that
balancing process, the disease risks are not so grave that they
will be compromised by the enforcement of the ADA's privacy
Most importantly, DOCS has the burden to demonstrate that its
policy actually effects its purpose. Defendants' witness, Ms.
Klopf, a sixteen year employee, could only recall one case where
chicken pox was discovered through the attendance control policy.
Defendants claim that this fact is not persuasive as it does not
adequately measure all reports. Indeed, defendants have provided
testimony to the effect that only a small fraction of the medical
certifications that are provided at facilities ever come to the
attention of the DOCS personnel office, and only a fraction of
those require a referral to EHS. (Lindsay Reply Aff. ¶¶ 6-8.) It
was explained that "[i]t is impossible to measure how many
employees returned to work with a diagnosis of a communicable disease which
were addressed on a local level. A regional infection control
nurse may have been consulted and many employees may have gone
home to fully recover." (Lindsay Reply Aff. ¶ 20.) In fact, the
record does not contain any information, one way or the other, as
to the nature and effect of the bulk of sick leave documentation.
Thus, it is not possible to conclude anything in particular about
how the three-day policy serves the business necessity to contain
Defendants have not demonstrated that requiring a general
diagnosis upon return from a three-day absence has had or will
have any effect on the spread of communicable diseases in it
3. Class of Employees
While a court must always engage in a careful analysis as to
whether an ADA inquiry falls within the business exception, there
is an added dimension when the inquiry is part of a policy
applied to a group of employees. In Conroy, the court
emphasized the need to examine the way in which the employer
defined the class of employees to which the requirement is
applied. "In defining a class subject to a general policy, the
employer must show that it has reasons consistent with business
necessity for defining the class in the way that it has. The
court should grant some deference to the employer in determining
how to define a class subject to a general policy." Conroy,
333 F.3d at 101.
It has been determined that the DOCS policy does not meet the
business necessity exception. Therefore it is not necessary to
rule on the manner in which DOCS defined the class of employees
required to provide medical documentation in order to maintain
the safety of inmates and staff in their facilities. However, as
the policy must be redrafted, it is simply efficient to comment on the over breadth of DOCS's class
definition as that relates to time periods requiring medical
Despite the fact that the DOCS Directive refers to all
employees, DOCS has attempted to define the class subject to the
inquiry as applied only to security officers. Defendants
acknowledge that as the policy is written it applies to all
employees but insist that the instant case concerns only security
officers because plaintiff is a security officer. (Docket No. 93
Def. Reply Brief p. 9, Fn 1.) The policy must be interpreted as
written and this attempt at amendment by briefing is rejected.
Regardless, the proffered definition does not constitute a
narrowly tailored class of employees.
In Transportation Workers Union, Local 100 v. N.Y. City
Transit Auth., 341 F. Supp. 2d 432 (S.D.N.Y. 2004), the court
was called upon to apply the Conroy analysis to a general
diagnosis inquiry similar to the one at bar. The Transit
Authority required employees to disclose a diagnosis after
absences of two or three days depending on union participation of
the employee. The employer asserted two justifications for its
inquiry as it applied to two different types of employees.
The Transit Authority required all employees to self-diagnose
on their sick leave forms in order to curb sick leave abuse. Such
a universal sweep was considered unjustified as too broad. Id.
at 449. The policy could only be applied to the narrowly drawn
class of employees that the Transit Authority already suspected
as sick leave abusers and had already placed on a Control List.
The Transit Authority asserted that bus operators were a proper
class for the application of a doctor's diagnosis requirement to
serve the purpose of maintaining the safety of its customers and
the public at large. The court agreed it could be applied "to
any bus driver for any amount of sick leave because if a driver is sick
behind the wheel on even a single occasion, he may cause enormous
damage." Id. at 451 (emphasis in original). The court found
that bus drivers were a narrowly drawn class in a
safety-sensitive role and limited its ruling only to that group.
The court specifically declined to decide whether safety
considerations would justify the application of the policy to
other Transit Authority employee groups. Id. at 451.
DOCS's 30,000 corrections officers are engaged in a multitude
of tasks which involve a broad range of physical and mental
requirements in the context of different types of safety and
security risks. It is not reasonable to lump them all together.
The diagnosis inquiry is only justified by DOCS's need for
employee fitness as required according to the particular duties
that an employee must perform. It is recognized that categorizing
each employee by specific tasks for purposes of requiring medical
documentation after absences of different lengths presents an
administrative burden. However, the current policy lumping all
corrections officers together cannot be logically related to the
need for a general diagnosis. It is presumed that it is possible,
and likely already done in practice, to narrow the job titles of
correction officers to better reflect the risks and fitness
requirements involved with particular positions without
overburdening DOCS. The class as defined does not reflect any
effort to narrowly draw a class.
The court in Conroy discussed the importance of narrowing the
class of employees subjected to an inquiry requirement in the
context of curbing sick leave abuse. "[I]f the policy ultimately
affects a class of so-called attendance abusers that is much
larger than that small group of employees with truly egregious
attendance records . . . DOCS will find it more difficult to
prove business necessity." Conroy, 333 F.3d at 102 (quotations
omitted). Logically, if DOCS narrows the proffered class, or divides it
into several classes, it is more likely to be able to justify a
diagnosis requirement for a particularly safety-sensitive group
after a short absence. However, if DOCS insists on defining the
class as its entire staff of 30,000 corrections officers, then it
must set a significantly longer absence to justify the
requirement of medical documentation which includes a general
Plaintiff admits that the duration of an employee's absence is
a factor in determining when a diagnosis requirement is proper,
the longer the absence, the more likely the employee may be
unfit. Plaintiff notes that the statistics are more persuasive at
the two-month mark. However, neither party has requested, nor
would it be appropriate to judicially set an absence time period
between three days and two months. The time period or periods
must be justified by the defendants or by agreement of the
Defendants have not demonstrated that the three-day absence
general diagnosis inquiry requirement serves a business necessity
through either of its stated justifications; ensuring officers
can perform their duties or to prevent the spread of infectious
disease. Thus, as the inquiry does not fall within the exception,
and it is an inquiry which violates the ADA, plaintiff's
cross-motion for summary judgment must be granted.
Therefore, it is
1. Defendants, New York State Department of
Correctional Services and Glenn S. Goord's, motion
for summary judgment is DENIED;
2. Plaintiff Belinda Fountain's cross-motion for
summary judgment is GRANTED; 3. The defendants are permanently enjoined from
implementing their sick leave policy in so far as
such implementation is inconsistent with this
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.