The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiffs Anthony Stylianou, via Gregory Messer, Esq., as trustee of the bankruptcy estate of Anthony Stylianou, and Linda Tieber (collectively "plaintiffs"), bring the present employment discrimination action against the Board of Education of the City of New York ("BOE"), Joel I. Klein, Chancellor of the New York City Public Schools, Dr. Susan Erber ("Superintendent Erber"), individually and as Superintendent of District 75, Marta Rojo, ("Principal Rojo"), individually and as Principal of P.35M, Trustees of the Teachers' Retirement Board, the Teachers' Retirement System of the City of New York ("TRS"), Donald Miller, as Executive Director of the Teachers' Retirement System of the City of New York, and unidentified John Does 1-7 in their official capacities as Trustees of the Teachers' Retirement Board (collectively "defendants").*fn1
Presently before the Court is defendants' motion for summary judgment on all claims pursuant to Fed. R. Civ. P. 56. For the reasons that follow, defendants' motion is granted in part and denied in part.
1. Plaintiff Stylianou's Employment History With the BOE
The following facts are taken from the parties' depositions, declarations, exhibits and respective Local Rule 56.1 statements of facts.*fn2 Upon consideration of a motion for summary judgment, the Court construes the facts in the light most favorable to the nonmoving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2005). Thus, with regard to defendants' motion for summary judgment, the Court shall construe the facts in favor of plaintiffs.
Plaintiff Anthony Stylianou has been employed with the Board of Education of the City of New York for approximately twentyeight years. (Pls.' Statement of Undisputed Facts ("Pls.' 56.1 Stmt."), ¶ 8.) In 1970, he became a school teacher, and in 1987 was licensed as a school psychologist. (Pls.' 56.1 Stmt., ¶ 8.) In September 1988, he was assigned as a school psychologist to P.35M (which was previously designated as P.58M) in District 75, the Division of Special Education. (Pls.' 56.1 Stmt., ¶ 9.) District 75 schools serve students suffering from physical, mental and emotional disabilities. (Bardavid Declaration [hereinafter "Bardavid Decl."], Ex. C.)
At some point, Mr. Stylianou informed the principal of the school, Sol Walker, that he suffered from asthma and migraine headaches. (Pls.' 56.1 Stmt., ¶ 10.) Principal Walker permitted Mr. Stylianou to work in an airconditioned room in order to relieve his symptoms. (Id.) Principal Walker's interim successor, Patricia Mulholland, permitted Mr. Stylianou to continue working in the same airconditioned room. (Pls.' 56.1 Stmt., ¶ 11.) In or about May 1998, Marta Rojo became interim principal, and then principal, of P.35M. (Bernstein Decl., Ex. D.) Prior to joining P.35M, Principal Rojo had served as an executive assistant to the District 75 superintendent, Dr. Susan Erber, from 1996 through 1997. (See Bardavid Decl., Ex. D.)
In August 1998, Mr. Stylianou met with Principal Rojo to discuss accommodations for his migraine headaches and asthma. (Pls. 56.1 Stmt., ¶ 16.) During the meeting, Principal Rojo told Mr. Stylianou, "if you require an accommodation you should get yourself a job that doesn't require an accommodation." (Bardavid Decl., Ex. B.) When Mr. Stylianou disagreed with this statement, Principal Rojo responded "I would tell any person with disabilities to get themselves a job that they can do without need for any reasonable accommodation." (Id.) At another time, referring to a guidance counselor who had been removed from her position allegedly due to learning disabilities, Principal Rojo told Mr. Stylianou, "you're next." (Id.) Principal Rojo further stated that she planned to investigate Mr. Stylianou's teaching license in search of any deficiencies or problems. (See id.)
a. First Application for ILOD Benefits
Under BOE regulations, injury in the line of duty (hereinafter "ILOD") status permits the victim of an on-the-job injury to take leave from work with pay and without charge to sick leave. (Bardavid Decl., Ex. H.) Pursuant to the BOE's regulations as set forth in Special Circular No. 32, dated November 19, 1989, such leave will be granted if:
(1) The principal . . . has been notified of the accident or incident and the injured employee submitted an application for injury in the line of duty leave in accordance with Section III of this Policy; and (2) [t]he Superintendent's office has determined that the causative accident or incident occurred in the line of duty; and (3) [t]he Medical Bureau has determined that unfitness for service was the direct result of the causative accident or incident.
(Bardavid Decl., Ex. H.) Special Circular No. 32 provides that an injured employee must report an injury on the job within twenty-four hours by completing a comprehensive accident report, along with an application for sick leave, Form OP 198. (Id.) Upon notification about an on-the-job injury, the school principal is required to submit the comprehensive accident report to the superintendent within twenty-four hours. (Id.) Pursuant to the regulations, the principal "shall conduct a thorough investigation and shall present as complete a record as possible to the responsible superintendent." (Id.) In turn, the superintendent must inform the principal of her determination of the claim within five days of receipt. (Id.)
On December 7, 1998, Mr. Stylianou collided with a student in the hallway of P.35M. (Bernstein Decl., Ex. 20.) The next day, he submitted an accident report to Principal Rojo stating that the student had "slammed [him] in the chest." (Bardavid Decl., Ex. E.) Following the incident, Mr. Stylianou reported to work on December 8, 9 and 10. (Pls.' 56.1 Stmt., ¶ 34; BOE and TRS Defendants' Statement of Undisputed Facts ("Defs.' 56.1 Stmt."), ¶ 10.) Mr. Stylianou did not return to work on December 11, 1998, or thereafter. (Defs.' 56.1 Stmt., ¶ 10.)
On December 15, 1998, pursuant to BOE regulations, Principal Rojo obtained a witness statement from the custodian who had observed the incident involving Mr. Stylianou. (Bardavid Decl., Ex. CC.) Principal Rojo did not obtain statements from any of the other witnesses to the event, including a counselor, a school security officer, and a student. (Id.) According to plaintiffs, despite several requests to Principal Rojo for the proper forms to file a request for injury in the line of duty benefits (see Bernstein Decl., Ex. 19), she did not provide Mr. Stylianou with the requisite forms until shortly before the December holiday break. (Bardavid Decl., Exs. N, DD.) On January 12, 1999, Mr. Stylianou applied for ILOD benefits, requesting leave from work with pay and without loss of sick leave, retroactively from December 11, 1998, until February 12, 1999. (Bardavid Decl., Ex. F.)
On January 15, 1999, Principal Rojo denied Mr. Stylianou's application for ILOD benefits, noting on the application that there was a "lack of credible evidence to substantiate ILOD." (Bardavid Decl., Exs. F, MM.) She also sent a letter to Mr. Stylianou stating that his application for an ILOD had been "administratively denied." (Bardavid Decl., Ex. J.) Principal Rojo then gave the form to the school's payroll secretary, who forwarded it to the District 75 office. (Bardavid Decl., Ex. D.) At some point, Superintendent Erber noted on the application, in the box reserved for completion by a physician, that the application was "disapproved pending medical." (Bardavid Decl., Ex. K.) This notation was not one of the three determinations provided for by the BOE: (1) "approved without medical evaluation," (2) "approved subject to medical evaluation," and (3) "disapproved." (Id.) Superintendent Erber also added the notation "denied" on Mr. Stylianou's accompanying comprehensive accident report. (Bernstein Decl., Ex. 3.) In addition, she circled the date of the application and added an exclamation point. (Id.)
Generally, the BOE's Medical Bureau, which examines injured employees and makes a medical determination of whether and in what amount ILOD status should be awarded, would not have been able to conduct an evaluation of Mr. Stylianou until the administrative bar imposed by Superintendent Erber had been raised. (Bernstein Decl., Ex. 5.) On February 25, 1999, pursuant to the terms of the collective bargaining agreement between the teachers' union and the Board of Education (hereinafter, the "CBA"), Mr. Stylianou filed a "Step II grievance" requesting a lift of the administrative bar in order to proceed with a medical review by the BOE's medical bureau. (See Bardavid Decl., Ex. L.) A hearing officer sustained Mr. Stylianou's grievance on March 17, 1999, and the administrative bar was lifted. (Bardavid Decl., Ex. L.) The hearing officer's decision held that Mr. Stylianou's application for ILOD benefits was to be "administratively approved and forwarded to the B.O.E.'s Medical Bureau for their review." (Id.) On March 19, 1999, Mr. Stylianou was evaluated by the Medical Bureau for the first time.*fn3 (Bardavid Decl., Ex. M.) He also submitted medical reports from his treating doctors. (Id.) However, on May 17, 1999, a doctor from the Medical Bureau noted on Mr. Stylianou's application for ILOD benefits that the claim had been "denied administratively."*fn4 (Bardavid Decl., Ex. K.)
Following this decision, the documents relating to Mr. Stylianou's ILOD benefits application, including the various notations of administrative denial, were forwarded to the BOE's Medical Bureau on June 3, 1999 with a cover letter noting that Principal Rojo had denied the application.*fn5 (Bardavid Decl., Ex. DD; Bernstein Decl., Ex. 4.) On June 4, Mr. Stylianou was again examined by the Medical Bureau, which deemed him "fit to work" as of June 4, 1999. (Pls.' 56.1 Stmt., ¶¶ 52, 54.) Mr. Stylianou did not return to work until September 7, 1999. (Defs.' 56.1 Stmt., ¶ 22.) On December 2, 1999, the Medical Bureau formally denied Mr. Stylianou's application for ILOD benefits from December 11, 1998 until September 7, 1999.*fn6 (Defs.' 56.1 Stmt., ¶ 23.) Mr. Stylianou was not notified of the Medical Bureau's final decision denying him ILOD benefits until six months later, on May 3, 2000. (Bardavid Decl., Exs. N, S.)
b. Second Application for ILOD Benefits
From December 11, 1998 through September 6, 1999, Mr. Stylianou was on unpaid leave from his position as a school psychologist at P.35M. (Bardavid Decl., Ex. N.) When Mr. Stylianou resumed his work as a school psychologist on September 7, 1999, he was assigned (at his request) to P.169M, also a District 75 school for students with disabilities.*fn7 (Bardavid Decl., Ex. N.) On December 1, 1999, a student at P.169M assaulted Mr. Stylianou, who was taken by ambulance to the hospital. (Bardavid Decl., Ex. N.) Mr. Stylianou did not return to work after the incident. (Defs.' 56.1 Stmt., ¶¶ 25, 29.) The next day, Mr. Stylianou's counsel drafted an incident report and faxed it to P.169M. (Bardavid Decl., Ex. N.) According to Mr. Stylianou, Peter Dubin, principal of P.169M, and Superintendent Erber failed to sign the requisite forms, including a comprehensive accident report and an OP 198, supporting Mr. Stylianou's application for ILOD benefits based upon the incident, in a timely manner. (Id.) On December 8, 1999, Mr. Stylianou filed his second application for ILOD benefits, based upon the December 1 incident. (Bardavid Decl., Ex. O.) On December 10, 1999, Principal Dubin approved the application subject to a medical evaluation. (Id.) An accompanying comprehensive accident report was signed by Principal Dubin on December 15, 1999. The report included the notation "approved subject to medical evaluation," which was signed by Superintendent Erber. (Bardavid Decl., Ex. P.) On September 13, 2000, the medical bureau issued a decision awarding Mr. Stylianou ILOD benefits for six weeks, from December 8, 1999 through January 19, 2000. (Bardavid Decl., Ex. Q.) Mr. Stylianou objected to the decision on the basis that he had not been awarded ILOD benefits for his absence from work subsequent to January 19. (Bardavid Decl., Ex. T.)
c. Medical Arbitration of ILOD Applications
Pursuant to the terms of the CBA, on May 9, 2000 and September 19, 2000, Mr. Stylianou requested medical arbitration of the denial and partial denial of his two applications for ILOD benefits. (Bardavid Decl., Exs. S, T.) However, Mr. Stylianou refused to proceed with the medical evaluation and arbitration process, because he objected to the chosen arbitrator. (See Defs.' 56.1 Stmt., ¶ 38.)
On April 26, 1999, the health insurance benefits of Mr. Stylianou and his domestic partner, Linda Tieber ("Ms. Tieber"), were terminated retroactively to February 22, 1999.*fn8 (Pls.' 56.1 Stmt., ¶ 55.) Plaintiffs did not learn that their benefits had been terminated until May 6, 1999, and did not receive notice pursuant to COBRA, prior to the April 26, 1999 termination of benefits.*fn9 (Pls.' 56.1 Stmt., ¶ 56.) In May, Mr. Stylianou and Ms. Tieber complained to the BOE, and their health insurance benefits were restored retroactive to April 26, 1999. (Defs.' 56.1 Stmt., ¶ 41.)
On June 26, 2000, while Mr. Stylianou was out of work following the second incident, plaintiffs' health insurance was terminated retroactively to February 28, 2000. (Bardavid Decl., Ex. W; Bernstein Decl., Ex. 20.) Mr. Stylianou and Ms. Tieber were not provided with COBRA notice prior to the February 28, 2000 termination of benefits. (Bardavid Decl., Ex. W; Bernstein Decl., Ex. 20.) Ms. Tieber then complained to the BOE. (Bardavid Decl., Ex. X; Ex. AA.) On May 2, 2001, the BOE offered plaintiffs the opportunity to obtain health coverage retroactive to February 28, 2000, with the requirement that plaintiffs pay the retroactive premiums. (Bardavid Decl., Ex. Y.) Plaintiffs rejected this offer on the basis that they did not wish to pay the premiums. (See Bardavid Decl., Ex. W; see also Ex. BB.) During the period when plaintiffs were uninsured, they "delayed seeing doctors or did not see a doctor or paid out of pocket the street cost of seeing doctors and buying medications." (Bardavid Decl., Ex. W.) On May 17, 2001, the BOE permitted plaintiffs to purchase prospective COBRA benefits commencing on June 1, 2001. (Bardavid Decl., Ex. Z.) Plaintiffs elected to purchase health care coverage for an eighteen-month period commencing on June 1, 2001. (Bardavid Decl., Ex. AA.)
On September 24, 2001, Mr. Stylianou applied for Social Security Disability Insurance Benefits ("SSDI"), alleging that he was unable to work. (Bardavid Decl., Ex. GG.) Though his application was initially denied, Mr. Stylianou sucessfully appealed the decision and the matter was remanded for further evaluation. (Bardavid Decl., Ex. HH.) After a hearing, in which Mr. Stylianou was represented by counsel, his application for SSDI benefits was granted. (Id.) On February 13, 2004, an Administrative Law Judge deemed Mr. Stylianou disabled as of December 11, 1998, and found him unable to perform the requirements of his past relevant work. (Id.)
4. Mr. Stylianou's Retirement From the BOE
On May 22, 2000, the BOE sent a letter to Mr. Stylianou noting that his period of coverage under ILOD benefits had expired, and requesting that he either resign, return to service, or apply for leave without pay within twenty days, or face termination for abandonment of position. (Bernstein Decl., Ex. 25.) In response, Mr. Stylianou submitted an application for a leave of absence "[u]nder extreme protest" on June 19, 2000. (Bernstein Decl., Ex. 26.) In November 2001, following the SSDI determination in his favor, Mr. Stylianou filed an application with the TRS for an Accident Disability Retirement Pension, claiming that he was not able to continue working as a school psychologist.*fn10 (Pls.' 56.1 Stmt., ¶ 80.) Mr. Stylianou was scheduled for two appointments for a medical examination by TRS. (Pls.' 56.1 Stmt., ¶¶ 81- 85.) One appointment was cancelled by TRS, and the other by Mr. Stylianou. (Id.) According to plaintiffs, despite Mr. Stylianou's repeated attempts to schedule an examination, one was not scheduled until February 26, 2003. (Bardavid Decl., Ex. JJ.) Based upon the examination by a TRS doctor, Mr. Stylianou's application for Accident Disability Retirement was denied on March 6, 2003. (Id.) On March 11, 2003, Mr. Stylianou filed an application with TRS for a Service Retirement. (Pls.' 56.1 Stmt., ¶ 92.) A stipulation of the parties providing for Mr. Stylianou's Service Retirement from the BOE, retroactive to March 1, 2002, was "so ordered" by Magistrate Judge Cheryl L. Pollack on October 1, 2003. (Pls.' 56.1 Stmt., ¶ 92.)
Mr. Stylianou alleges that prior to December 7, 1998, he complained to the BOE that there were unsafe conditions at P.35M and that there was a pattern of inconsistent discipline of students at P.35M on the basis of race. On February 23, 1999, Mr. Stylianou wrote a letter to Superintendent Erber alleging that he was being discriminated against on the basis of his disability. (Bardavid Decl., Ex. CC.) On July 22, 1999, Mr. Stylianou wrote to Dr. Margaret Harrington, Chief Executive of School and Support Services for the BOE. (Bardavid Decl., Ex. DD.) In the letter, Mr. Stylianou alleged that he was being discriminated against on the basis of disability and that there were unsafe conditions at P.35M. (Id.) On April 26, 2000, Mr. Stylianou sent a similar letter to Harold Levy, then-Interim Chancellor for the BOE. (Bardavid Decl., Ex. EE.) On May 1, 2000, Mr. Stylianou sent a second letter to Chancellor Levy, alleging the same conduct. (Bardavid Decl., Ex. FF.)
Mr. Stylianou filed the instant action on September 13, 2001, alleging the following claims: discrimination and retaliation under the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, the New York State Human Rights Law, N.Y. Exec. Law §§ 292, 296, and New York City Human Rights Law, N.Y. City Admin. Code § 8-107; failure to comply with the Chancellor's Regulations; violations of due process under the United States Constitution, the New York State Constitution and New York State Education Law § 3020; violations of the Consolidated Omnibus Budget Reconciliation Act of 1986 ("COBRA"), 29 U.S.C. §§ 1161-69; and state claims of intentional infliction of emotional distress, constructive discharge and loss of consortium.
On November 10, 2006, defendants moved for summary judgment on all claims. By letter motion dated November 13, 2006 ("Pls.' Ltr. Mot."), plaintiffs cross-moved to strike certain of defendants' exhibits. Oral December 8, 2006. At oral argument, plaintiffs explicitly abandoned their discrimination and retaliation claims ...