The opinion of the court was delivered by: Trager, District Judge
Plaintiff, correction officer Sabrina Vinson ("plaintiff"), brought this action against the New York City Department of Corrections ("DOC") and William J. Fraser as Commissioner (collectively "defendants"). Plaintiff seeks relief under:
(1) the Americans With Disabilities Act, 42 U.S.C. § 12001 et seq. (the "ADA"); (2) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ("Title VII"); (3) the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. ("OSHA"); (4) the New York Public Health Law, §§ 12(1), 309(1)(f), 1399-n through 1399-x; (5) the New York Labor Law, Article 7, § 201-d; (6) the New York State Human Rights Law, N.Y. Exec. Law § 296 ("SHRL"); and (7) the New York City Human Rights Law, New York, N.Y., Admin. Code tit. 8, ch. 1, § 8-107 ("CHRL"). The root of plaintiff's complaint is that she alleges a sensitivity to cigarette smoke and, as a result, she claims to need a smoke-free work environment. Defendants now move for summary judgment.
(1) Plaintiff's Ailments According to plaintiff, a dentist at the Staten Island University Hospital Emergency Room diagnosed her with Lemierre's disease in 1997. (Def. Rule 56.1 Statement ("Def. 56.1") 2; Sabrina Vinson Dep. Def. Ex. R ("Ex. R") at 48.) Plaintiff claims the disease caused her to develop a blood clot in her right jugular vein and this clot eventually lead to respiratory problems. (Sabrina Vinson Dep. Def. Ex. B ("Ex. B") at 42.) Plaintiff remained in the university hospital for a month and continued on blood thinners for six months. (Ex. B at 46, 61.) This treatment cured the Lemierre's disease and dissolved the clot. Id. However, plaintiff claims that as a side effect of having the disease she still suffers from high blood pressure, has trouble breathing and "uncontrollable" bouts of coughing - all brought about by the Lemierre's disease. (Ex. B at 43-46.) She claims these symptoms are all made significantly worse when she is in the presence of cigarette smoke.*fn1 (Ex. B at 61.)
Plaintiff states that so long as she avoids cigarette smoke, she has no symptoms. Id. She also claims that before New York City instituted a ban on smoking in public enclosed areas, she had stopped frequenting bars, clubs or other casual establishments where people were smoking.*fn2 (Ex. B at 99.)
(2) History of Plaintiff's Claim When plaintiff returned to work following her treatment for Lemierre's disease, she discovered that the cigarette smoke present at the DOC facility where she was stationed exacerbated her respiratory problems. (Ex. B at 72.) As a result, in 1998 plaintiff requested the DOC transfer her to a smoke-free facility. (Ex. B at 49.) When the DOC did not act on this request, plaintiff filed a claim against the DOC with the U.S. Equal Employment Opportunity Commission (the "EEOC"), charge number 160-99-1517. (Ex. B at 53-54; EEOC Settlement Agreement Def. Ex. D ("Ex. D") at 1.) Through the EEOC mediation process the parties reached a settlement. (Ex. D at 1.) Under the settlement, defendants agreed to temporarily transfer plaintiff to a smoke-free building pending defendant's receipt and review of written information provided by plaintiff regarding her current medical status and her need for accommodation. (Ex. D at 2.)
In accordance with the settlement agreement, on September 15, 1999 the DOC transferred plaintiff from the Adolescent Reception Detention Center at Riker's Island Prison (the "ARDC") to Bellevue Hospital ("Bellevue"), a completely smoke-free facility. (Letter from Irma Ozer to Thomas Bello, (September 15, 1999) Def. Ex. E ("Ex. E").) In September 1999 the DOC sent plaintiff a letter requesting her medical information. Plaintiff, however, did not respond to the letter, and on January 28, 2000 the DOC sent plaintiff a second request for the information. (DOC Interdepartmental Mem. Def. Ex. F.) This second request also went unanswered. (Ozer Dep. Def. Ex. C (Ex. C) at 28.)
Despite her failure to provide her medical documentation, plaintiff remained at Bellevue through the end of 2000. (Ex. C 29.) In January 2001 the DOC transferred plaintiff back to her previous facility, the ARDC, where smoking was permitted. (Ex. C at 34.) In March 2001 the DOC posted plaintiff to Control Room No. 2, a Lexsan plastic enclosed, one person post, which according to the DOC is smoke-free. (Letter from Irma Ozer to Thomas Bello (March 8, 2001) Def. Ex. G ("Ex. G").)
Plaintiff requested that the DOC return her to Bellevue, and the DOC responded that they would do so only if she provided them with the requested medical information. (Ex. C at 34-35.) In response, plaintiff faxed the DOC a handwritten letter from Dr. David Manganaro, dated November 1, 1999. (Ex. R at 69; Ex. C at 35.) The letter stated that plaintiff had been diagnosed with Lemierre's disease, that she must avoid anything that would "thicken her blood such as smoke and secondhand smoke," and that she could return to work in a "smoke-free environment." (Letter form Dr. David Manganaro to Thomas Bello (November 1, 1999) Def. Ex. M ("Ex. M").)
The DOC reviewed Dr. Manganaro's letter, but was "puzzled by the diagnosis and the statement that secondhand smoke 'thickens' the blood." (Letter form David Goodman to Irma Ozer (January 25, 2001).) The DOC requested plaintiff provide more documentation to support the diagnosis, including test results and supporting medical literature. Id. In response, plaintiff sent the DOC additional literature on Lemierre's disease. (Ex. C at 43.) The DOC reviewed this new material but again found it to be insufficient to satisfy the settlement agreement. (Letter from Gregory Smith to Irma Ozer (June 8, 2001).)
During the time she was stationed at the ARDC, plaintiff claims that her health deteriorated. (Ex. R at 89.) She claims she had to go back on high blood pressure medication, which she had previously been taken off of. (Ex. R at 89.) Additionally, she claims she was taken from the facility on two occasions by emergency medical personal for breathing related issues. (Id.; Ex. C at 56.)
Since the DOC would not transfer her, and she believed she was becoming sicker, in June 2001 plaintiff chose to file a second complaint with the EEOC, charge number 160-A1-1935. (EEOC Compl. Def. Ex. J.) In July 2001 the EEOC dismissed the second complaint because the commission could not determine "that the information obtained establishes a violation of the statute." (EEOC Dismissal and Notice of Rights Def. Ex I.) Following this determination, plaintiff brought the present action in October 2001.
A court grants summary judgment where the evidence presented shows that there are no issues of fact upon which a reasonable jury could return a verdict for the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden. Sacay v. The Research Found. of the City Univ. of New York, 193 F. Supp. 2d 611, 624 (2d Cir. 2002). However, "the [non-moving] party must produce specific facts sufficient to establish that there is a genuine factual issue for trial." Id. (quoting Celotex Corp., 477 U.S. at 322-23).
Based on this standard defendants attack all of plaintiff's claims, arguing that the entire matter should be dismissed. They claim plaintiff cannot make out a prima facie case for either discrimination or retaliation under the ADA. They argue that plaintiff's Title VII claim should be dismissed because she failed to exhaust her administrative remedies. They contend that plaintiff's OSHA and New York Public Health Law claims should be dismissed because those laws lack private rights of action. They claim that the New York Labor Law is inapplicable in this situation, and lastly, defendants contend that the SHRL and CHRL claims should be dismissed because again plaintiff cannot show she has a prima facie case. These arguments will be evaluated in order.
Under the ADA To succeed in an ADA employment discrimination case the plaintiff must show that: (1) the employer is covered by the ADA; (2) the plaintiff is an individual with a disability; (3) the plaintiff, whether accommodated or not, can perform the essential functions of the job; and (4) the employer had notice of the plaintiff's disability and did not reasonably accommodate the disability. Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998); 42 U.S.C.A. § 12112 (a). In the present matter defendants concede that the DOC is a covered entity under the ADA. (Mem. Of Law in Supp. of Def's Mot. for Summ. J. ("Def's Summ. J.") at 5.) However, defendants argue that plaintiff is not an individual with a disability as defined by the ADA.
The ADA defines a disability inter alia as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual..." 42 U.S.C.A. § 12102 (2). Under this definition, "[m]erely having an impairment does not make one disabled..." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002). To determine whether a person has a disability as defined by the ADA, courts use the three-part analysis employed by the Supreme Court in Bragdon v. Abbott. 524 U.S. 624, 631 (1998); Colwell v. Suffolk County Police Department, 158 F.3d 635, 641 (2d Cir. 1998). First, does the plaintiff have a physical or mental impairment; second, what activities does the plaintiff claim are impaired and are those activities major life ...