The opinion of the court was delivered by: John G. Koeltl, District Judge
The plaintiff, Alice Bresloff-Hernandez, brings this action against Martin F. Horn, in his capacity as Commissioner of the New York City Department of Correction ("DOC"). The plaintiff alleges that the defendant discriminated against her in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; New York State Human Rights Law ("NYHRL"), N.Y. Exec. Law § 296; and New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code § 8-107(1)(b). The plaintiff, a retired Correction Officer, alleges that her medical separation from employment in July 2003 was discriminatory and that the DOC failed to accommodate her disability when she was reinstated in March 2004. The plaintiff also alleges that the defendant violated the terms of a court-endorsed stipulation of settlement dated March 27, 1991, in Aversa v. City of New York, 90 Civ. 0138 (PKL).
The DOC now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56, arguing that the plaintiff cannot establish a prima facie case of disability discrimination because at the time she was medically separated from her position she could not perform the essential functions of the job, and further, that the defendant had a legitimate non-discriminatory reason for medically separating the plaintiff. The defendant also argues that the plaintiff's failure to accommodate claim must be dismissed because the plaintiff did not exhaust her administrative remedies by presenting this claim to the Equal Employment Opportunity Commission ("EEOC"). Further, the defendant argues that the plaintiff cannot establish a prima facie case of failure to accommodate because (1) she was not disabled at the time she made the request; (2) she did not provide notice that she was seeking an accommodation for an alleged disability; and (3) she requested an accommodation that was neither reasonable nor related to her alleged disability. Finally, the defendant argues that the plaintiff cannot establish that the defendant violated the stipulation of settlement in Aversa.
The following facts, unless otherwise noted, are undisputed. The plaintiff was employed by the DOC from 1986 until January 2007 as a Correction Officer. (Transcript of Nov. 16, 2006 Deposition of Alice Bresloff-Hernandez ("Dep. Tr."), at 14.) On or about January 25, 2000 the plaintiff was injured in an on-duty bus accident. (Def.'s Rule 56.1 St. ¶ 2; Pl.'s Resp. Rule 56.1 St. ¶ 1.)*fn1 Due to her injuries, the plaintiff's duty status alternated between light duty and paid sick leave until April 2002, when she went out permanently on paid sick leave. (Def.'s Rule 56.1 St. ¶ 3; Pl.'s Resp. Rule 56.1 St. ¶ 1.) On May 20, 2003, one year after the plaintiff went out on paid sick leave, the plaintiff submitted a treating physician's report from Dr. Jeffrey Spivak, which indicated that the plaintiff should continue her sick leave. (Def.'s Rule 56.1 St. ¶ 6; Treating Physician's Summary Report dated May 20, 2003, attached as Ex. C to the Declaration of Jonathan Bardavid dated Feb. 15, 2007 ("Bardavid Decl.").) The plaintiff remained on paid sick leave until July 25, 2003, when she was medically separated from the DOC pursuant to New York Civil Service Law § 71.*fn2 (Def.'s Rule 56.1 St. ¶ 4; Pl.'s Resp. Rule 56.1 St. ¶ 1.) More than one month prior to her medical separation, the defendant notified the plaintiff that she could contest the separation by submitting medical documentation indicating her ability to perform all of the functions of a Correction Officer. (Def.'s Rule 56.1 St. ¶¶ 12-13; Letter from DOC Assistant Commissioner Robert M. O'Leary dated May 20, 2003, attached as Ex. E to Bardavid Decl.) The plaintiff did not submit any such documentation. (Def.'s Rule 56.1 St. ¶ 15; Dep. Tr. 90, 93, 95.)
In March 2003, while the plaintiff was out on paid sick leave, the plaintiff applied for an accident disability pension from the New York City Employees' Retirement System ("NYCERS"). (Def.'s Rule 56.1 St. ¶ 8; Dep. Tr. 87.) In support of her application, the plaintiff stated that she could not perform the functions of a Correction Officer. (Def.'s Rule 56.1 St. ¶ 9; Dep. Tr. 88.) On July 25, 2003, NYCERS found the plaintiff disabled but denied the accident disability application because the plaintiff's on-duty injury was not an accident within the meaning of the NYCERS rules. (Def.'s Rule 56.1 St. ¶¶ 10-11; Letter from I.J. Stephen, Deputy Director of NYCERS, dated July 25, 2003, attached as Ex. D to Bardavid Decl.)
On October 21, 2003 the plaintiff filed a charge of discrimination with the EEOC alleging that her medical separation from the DOC violated the ADA and was in retaliation for a prior complaint, and that she was not offered a reasonable accommodation to return to work. (Def.'s Rule 56.1 St. ¶¶ 40-41; Pl.'s Letter to the EEOC dated October 21, 2003, attached as Ex. M to Bardavid Decl.) The EEOC subsequently found no evidence from which to infer that the defendant had discriminated against the plaintiff based on sex, age, race, or disability, or had retaliated against the plaintiff for engaging in a protected activity; the EEOC also found that the plaintiff did not request a reasonable accommodation and therefore the employer could not have denied such an accommodation. (Def.'s Rule 56.1 St. ¶ 43; Letter from EEOC to Pl. dated Oct. 21, 2004, attached as Ex. N to Bardavid Decl.)
In August 2003, during the time that the plaintiff was medically separated from employment from the DOC, she obtained full-time employment as an interviewer for Michael Vincent Michael Corporation ("MVM"). (Def.'s Rule 56.1 St. ¶ 31; Dep. Tr. 14.)
In or about August 2003, the plaintiff applied for reinstatement pursuant to New York Civil Service Law § 71.
(Def.'s Rule 56.1 St. ¶¶ 17-18; Pl.'s Resp. Rule 56.1 St. ¶ 1.) On February 9, 2004 a doctor from the New York City Department of Citywide Administrative Services ("DCAS") evaluated the plaintiff and determined that she was medically fit to return to her former position as a Correction Officer. (Def.'s Rule 56.1 St. ¶¶ 19-20; Letter from Dr. Joseph A. De Marco dated February 9, 2004, attached as Ex. G to Bardavid Decl.) On March 15, 2004 the plaintiff was reinstated to her position as a Correction Officer with the DOC and assigned to rotating shifts at the Eric M. Taylor Center. (Def's. Rule 56.1 St. ¶ 21; Pl.'s Resp. Rule 56.1 St. ¶ 1.) On March 20, 2004 the plaintiff submitted a request to the Warden of the Eric M. Taylor Center for a steady 5:00 a.m. to 1:31 p.m. tour or a 6 a.m. to 2:30 p.m. tour. (Def.'s Rule 56.1 St. ¶ 23; Mem. from Pl. to Warden Squillante dated March 20, 2004, attached as Ex. I to Bardavid Decl.) The plaintiff explained: "The reason for this request is that I must maintain a strict exercise program and routine to keep my health at its top performance due to the past surgeries" as the reason for the request. (Id.) The request was denied "at this time." (Id.)
Despite her reinstatement, the plaintiff remained employed with MVM full-time. (Def.'s Rule 56.1 St. ¶ 34; Pl's Resp. Rule 56.1 St. ¶ 1; Dep. Tr. 16-17.) DOC Directive # 2250R requires that a DOC employee seek and receive departmental approval before commencing off-duty employment and that any approved off-duty employment not exceed twenty hours per week. (Def.'s Rule 56.1 St. ¶ 33; Pl's Resp. Rule 56.1 St. ¶ 1; DOC Directive # 2250R, attached as Ex. K to Bardavid Decl.) On August 22, 2006 the plaintiff agreed to retire, effective January 31, 2007, to avoid being disciplined for unauthorized off-duty employment. (Def.'s Rule 56.1 St. ¶¶ 38-39; Pl's Resp. Rule 56.1 St. ¶ 1; Dep. Tr. 31-32.)
On March 27, 1991 the plaintiff entered into a stipulation of settlement in the case entitled Aversa v. City of New York, 90 Civ. 0138 (PKL).*fn3 The stipulation provides in pertinent part: "[t]he DOC agrees that any personnel action or discipline contemplated with respect to plaintiff shall first be approved by the Deputy Commissioner for Human Resources or, if he is not available, the Commissioner of the DOC." (Stipulation and Order of Settlement and Discontinuance in Aversa v. City of New York dated March 27, 1991, attached as Ex. P to Bardavid Decl., at ¶ 6) The plaintiff's medical termination from employment was signed by the Assistant Commissioner for Personnel, not the Deputy Commissioner for Human Resources or the Commissioner of the DOC. (See Ex. F to Bardavid Decl.) At the time the plaintiff's medical termination was signed the position of Deputy Commissioner for Human Resources no longer existed and had been subsumed by the Assistant Commissioner for Personnel. (Dep. Tr. 133-34.)
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of informing the district court of the basis for its motion and identifying those portions of the record which it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. T.R.M. Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its initial burden of showing a lack of a material issue of fact, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on ...