MEMORANDUM-DECISION AND ORDER*fn1
Before the Court is a Motion for summary judgment, pursuant to Rule 56, filed by Defendants Deborah Dammer, Deborah Dominski, Matthew Guinane, Ann Fiorello, William Myers, Marilyn Kaltenborn, Michael Parada, Carla Adsit-Vassari, Robin Gray, Thomas Heinz, and Andrew Eristoff. (collectively, "Defendants"). Defs.' Mot. for Summ. J. (Dkt. No. 57) (hereinafter "MSJ"); Fed. R. Civ. P. 56. The action arises out of Plaintiff Sandra Brady's ("Plaintiff" or "Brady") employment with the New York State Department of Taxation and Finance ("Department"), and includes events occurring between 2001 and 2004. See Am. Compl. (Dkt. No. 20). Each Defendant is a current or former employee of the Department. Plaintiff's Amended Complaint alleges thirteen separate causes of action under the federal constitution, state constitution, and federal and state statutes. Id. at 18-21.
Plaintiff Sandra Brady initiated this action against Defendants on September 27, 2004. Dkt. No. 1. Defendants filed a Motion to dismiss the Complaint. Defs.' Mot. to Dismiss (Dkt. No. 3). In a Memorandum-Decision and Order on August 3, 2005 ("2005 Order"), the Court dismissed several of Plaintiff's claims with prejudice, dismissed other claims without prejudice, and, because "Plaintiff's pleading is a lengthy, over-inclusive Complaint that asserts every cause of action that counsel could dream up," sua sponte struck the remaining portions of the Complaint for failure to comply with Rule 8. 2005 Order at 23-25 (Dkt. No. 19). Plaintiff filed an Amended Complaint on August 17, 2005. Am. Compl. Defendants filed an Answer, interposing an array of defenses that are discussed at length below, on October 4, 2005. Answer at 8-9 (Dkt. No. 31). Lengthy discovery proceedings before the Honorable David R. Homer, U.S. Magistrate Judge, ensued. Defendants filed the instant Motion for summary judgment on June 15, 2007. Defs.' MSJ. The Motion is now ripe for consideration by the Court.
Plaintiff Sandra Brady was employed as a Sales Tax Technician in the New York State Department of Taxation and Finance throughout the period in which the following events occurred, and continuously until her retirement in 2006. Brady Dep. (Dkt. No. 57, Attachs. 6-8). Plaintiff claims she was wrongfully denied a promotion in June 2001.*fn2
Plaintiff claims that in October 2001, Defendant Ann Fiorello "began treating plaintiff differently than other employees" in retaliation for a complaint against one of Fiorello's supervisors that Plaintiff had filed with the Affirmative Action Administrator, Ellen Mindel. Am. Compl. ¶ 10. Plaintiff subsequently filed a similar complaint against Fiorello. Then, on December 19, 2001, Plaintiff left work without personally notifying or seeking permission from her direct supervisor, Defendant Ann Fiorello. Plaintiff had informed a co-worker that she was leaving, who relayed the information to Fiorello. At Plaintiff's request, the co-worker also told Fiorello that Plaintiff told him that she had left a note to that effect, but Fiorello did not find a note. Fiorello contacted the Department's Labor Relations Bureau for advice with regard to the imposition of discipline on Plaintiff for the absence. At the suggestion of the Labor Relations Bureau staff, Fiorello met with Plaintiff on December 26, 2001. Plaintiff agreed to the need to notify management prior to leaving work. No formal disciplinary action was taken against Plaintiff as a result of this absence.
On December 27, 2001, Plaintiff left work after informing Fiorello that she was ill. Plaintiff also provided to Fiorello a note from an on-site nurse, who had recommended that she leave work. Plaintiff told Fiorello that she might need to be absent until the middle of the following week. On December 28, 2001, Fiorello informed Plaintiff that she needed to bring medical documentation for the absence with her when returning the following week, or by the following Friday if she did not return during that week. Plaintiff did not return to work and subsequently, on January 8, 2002, submitted a reasonable accommodation request under the Americans With Disabilities Act to the Department's Affirmative Action Office. In this request, Plaintiff asked for a transfer away from the Technical Services Department in order to obtain a supervisor other than Fiorello, who she claimed was aggravating her anxiety disorder. Plaintiff provided supporting documentation from her treating psychologist and physician, who opined that Plaintiff's ongoing conditions of depression and anxiety were being exacerbated by her work environment, and that this environment was causing Plaintiff to experience symptoms of labile hypertension.
In a letter dated January 16, 2002, signed by Defendant Dammer in her capacity as Director of Human Resources Management, Plaintiff was notified that the documentation was sufficient and that she was authorized for up to three months of sick leave. The letter stated further that Defendant Dammer had received Plaintiff's reasonable accommodations request and that, in accordance with section 72 of the New York Civil Service Law, Plaintiff would need to undergo an examination with the Department of Civil Service's Employee Health Service to determine her fitness to return to work and the reasonableness of the requested relocation away from the Technical Services Department. Brady Dep. Exh. 7 (Dkt. No. 57, Attach. 8).*fn3 Defendant Guinane, Assistant Director of Labor Relations, sent a form to the Employee Health Services requesting the exam. On January 30, 2002, Plaintiff was examined by a physician and a psychiatrist. Under section 72, if the examining doctor determines an employee is unable to perform her position, the doctor may recommend that the employee is placed on "Involuntary Leave." N.Y. Civ. Serv. § 72. Here, the examining medical officers recommended that Plaintiff could return to work but recommended transferring her to a different supervisor.
On February 13, 2002, the Department granted Plaintiff's ADA request, giving her a choice of two offices. Plaintiff chose the Sales Tax Desk Audit. She returned to work on February 14, under the supervision of Michael Bond, who was supervised by Defendant Adsit-Vassari. It is undisputed that Plaintiff was able to perform all of her duties during the time that she worked under Adsit-Vassari, and received positive work evaluations during that time. Plaintiff filed another reasonable accommodation request asking that she be required to do only limited traveling due to her anxiety. This request was granted.
Around this time, Plaintiff claims Defendant Adsit-Vassari prohibited her union representative, Lawrence Gorski, from visiting her at her work station in retaliation for the reasonable accommodation request. She also claims that Defendants Guinane, Dammer, and Dominski "attempted to have her new supervisors discipline plaintiff for not fulfilling her job duties," and that they disciplined her when her new supervisor refused to do so. Defendants deny these allegations.
On May 24, 2002, Plaintiff filed a discrimination complaint against Defendant Guinane with the Department's Affirmative Action Office. The complaint alleged that the section 72 exam violated various rights, including her ADA rights. On July 9, 2002, Plaintiff filed discrimination complaints against Defendants Dammer and Dominski for allegedly retaliating against her for filing the complaint on May 24, 2002. On July 11, 2002, Plaintiff filed discrimination complaints "against Defendants Kaltenborn (retaliation for having filed a Worker's [sic] Compensation claim), Parada (retaliation for having filed a Worker's [sic] Compensation claim) and Meyers (retaliation by misrepresenting that Plaintiff had accessed his personal computer files)." Defs.' Stmnt. Mat Facts at 7. On July 26, 2002, Plaintiff lodged discrimination complaints against Defendants Gray, Guinane, Dominski, and Dammer, alleging that the request for medical documentation regarding Plaintiff's work absence in late December was an act of retaliation against her for filing a Workers' Compensation claim.
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is proper when "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); Beard v. Banks, 548 U.S. 521, ---, 126 S.Ct. 2572, 2578 (2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). If the moving party meets its initial burden of demonstrating that no genuine issue of material fact exists for trial, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). The non-movant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 251 (citation omitted). The nonmoving party "may not rest upon the mere allegations or denials" of the pleadings; bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. Fed. R. Civ. P. 56(e); Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).
A court must "'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (quoting Cifra v. General Electric Co., 252 F.3d 205, 216 (2d Cir. 2001)). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summar y judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court is required to enter summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Beard, 126 S.Ct. at 2578 (quoting Celotex, 477 U.S. at 322).
A. Americans With Disabilities Act
Plaintiff invokes the Americans with Disabilities Act (ADA) as grounds for several causes of action. Am. Compl. at 19-21. The Court has generously construed the Amended Complaint as an attempt to utilize Title I, Title II, and Title V of the ADA. Nevertheless, the Court finds that Plaintiff has failed to produce evidence suggesting that a genuine issue of material fact exists as to the elements of a claim under any ADA provision.
Title I prohibits a state employer from "discriminat[ing] against a qualified individual with a disability because of the disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms conditions, and privileges of employment." 42 U.S.C. § 12112(a), quoted in Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 360-61 (2001). In Garrett, the Supreme Court held that the Eleventh Amendment bars suits by state employees against a state for money damages arising from violations of Title I of the ADA. Garrett, 531 U.S. at 360. It is clearly established that when an action against a state for money damages is barred by the Eleventh Amendment, a suit against a state officer in his or her official capacity seeking money damages is likewise barred, because "the real party in interest is the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citation omitted). Thus, Plaintiff's Title I claim against Defendants is barred to the extent that she seeks monetary relief from Defendants in their official capacities as employees of the State of New York.
Furthermore, this Court's 2005 Order dismissed all claims brought under the ADA against Defendants in their individual capacities. See 2005 Order at 18. Thus, Plaintiff's claims for money damages under Title I cannot survive the present Motion for summary judgment.
To the extent that Plaintiff seeks declaratory relief under Title I, the claim is barred because Plaintiff failed to comply with the administrative exhaustion requirement of Title I. See 42 U.S.C. § 12117. Like a Title VII claimant, a plaintiff must bring a disability discrimination claim to the EEOC prior to filing a Title I complaint in federal court. Id. Plaintiff did not pursue a claim with the EEOC for any of the allegedly discriminatory acts upon which she is now attempting to ground her Title I claim, and she has not suggested any reason that this requirement should be waived or tolled on equitable grounds. Brady Dep. at 207; Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 398 (1982). Therefore, her Title I claim is barred in its entirety.
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. From the pleadings, it appears that Plaintiff has attempted to utilize Title II as a basis for her claim that Defendants discriminated against her in employment. This pleading assumes that Title II reaches discrimination committed by a public employer against an employee.
If this claim does fall within the proper scope of Title II, it enables Plaintiff to avoid having the claim barred for failure to file an EEOC claim, because no such administrative exhaustion scheme applies to Title II claims.
There is no clear answer to whether or not this claim is valid under Title II. This claim actually raises two separate threshold questions: (1) whether the Eleventh Amendment bars a claim based on the specific conduct Plaintiff alleges; and (2) whether employment discrimination is conduct prohibited by Title II. In United States v. Georgia, the Supreme Court held that "insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity." 546 U.S. 151, 159 (2006) (emphasis in original); see also Tennessee v. Lane, 541 U.S. 509, 518 (2004). For conduct that does not violate the Fourteenth Amendment but does violate Title II, the Supreme Court directed district courts to determine, on a claim-by-claim basis, "whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid." Id. See also Garcia v. State Univ. of New York Health Sci. Ctr., 280 F.3d 98, 110-112 (2d Cir. 2001); Olson v. State of New York, 2007 WL 1029021, *7 (E.D.N.Y. Mar. 30, 2007) (citing cases and describing that district courts in the Second Circuit have "adopted divergent positions" about how to evaluate conduct that violates Title II but not the Fourteenth Amendment).
The second unresolved issue, which the Supreme Court explicitly declined to decide in Garrett, is whether Title II is available for a claim of employment discrimination. Garrett, 531 U.S. at 360 n.1. Since Garrett was decided, this question has not been resolved by the Second Circuit, and there is a split among the circuits, and between district courts within the Second Circuit, as to the proper answer. See, e.g., Fleming v. State Univ. of New York, 502 F. Supp. 2d 324, 330-334 (E.D.N.Y. 2007) (citing cases).
Evaluating the present Motion, the Court can avoid delving further into those issues because it is clear that Plaintiff cannot establish a prima facie case of employment discrimination on the basis of disability. To establish the prima facie case, Plaintiff must come forth with evidence that would allow a reasonable jury to find that (1) her employer is subject to the ADA; (2) she was disabled within the meaning of the ADA; (3) she was otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation; and (4) she suffered adverse employment action because of her disability. Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 169 (2d Cir. 2006) (citation omitted).
Putting the other elements aside,*fn4 Plaintiff's claim must fail because there is no evidence in the record to support a factual finding that she suffered adverse employment action because of her alleged disability. Plaintiff's Amended Complaint and opposition papers abound with accusations that various Defendants retaliated against her for filing discrimination claims and reasonable accommodation requests, but nowhere does Plaintiff assert that she was subject to an adverse employment action by any Defendant because of her disability. See Am. Compl. at ¶¶ 84, 93-95, 118-120; see also Pl.'s Resp. Mem. at 3-4 (Dkt. No. 61) ("Plaintiff submitted a reasonable accommodation [request] under the Americans with Disabilities Act . . . . Shortly after submitting this request, in January 2002, plaintiff was subject to an adverse employment action by defendants Dammer, Dominski and Guinane in that she was placed upon involuntary leave . . . . [and ordered] to submit to examinations pursuant to New York Civil Service law § 72."; "Further retaliatory action was taken after she filed her request for a reasonable accommodation . . . ."). In her deposition, Plaintiff did not testify that any of the allegedly adverse employment actions were taken because of her disability; rather, she repeated her accusations that Defendants took the actions ...