The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
Following remand from the Second Circuit, Finch Pruyn & Company, Inc. ("Finch Pruyn") has renewed its summary judgment motion seeking dismissal of the Americans with Disabilities Act ("ADA") claim of its employee, George Graves.*fn1 The sole issue is whether Graves was denied a reasonable accommodation when Finch Pruyn refused to give him two weeks unpaid leave.*fn2 An objective evaluation of the circumstances existing at the time of Finch Pruyn's decision reveals that it had already accommodated Graves for a year, it was confronting a business hardship because of Graves's absence, and it had no assurance that the requested accommodation would likely result in Graves's successful return to work. Accordingly, Finch Pruyn's decision was reasonable as a matter of law, its motion for summary judgment is granted and Graves's complaint is dismissed.
Over a lengthy career, Graves worked his way up from laborer in the wood room of paper manufacturer Finch Pruyn to a position of paper inspector in the quality-assurance department. He was promoted to that position in 1991 and successfully performed his duties until he began having problems with a bone spur on his heel in late 1999. Paper inspectors are on their feet 85% of their shifts, frequently lift up to 30 pounds of paper and move rolls weighing up to 3500 pounds. By early 2000, Graves could no longer perform these essential job duties without surgical repair and treatment of the bone spur.
In anticipation of impending surgery and as an accommodation to Graves's disability, Finch Pruyn assigned him light duty work from January through May 10, 2000. If consistent with its operational business needs, Finch Pruyn's employment policy authorized temporary light duty assignments for those with a short-term medical prognosis of returning to the full-time duties of their regular job.
On May 10, Graves left work on temporary disability in order to surgically repair his heel. Finch Pruyn's temporary disability policy provided six months of benefits, and Graves received full pay until his post-surgical return on September 4, 2000. When he returned, he still experienced foot pain and could not perform his essential job functions. Again, Finch Pruyn accommodated his disability, and gave him a light duty, full pay assignment of training two new paper inspectors. That assignment ended on October 30, 2000, Finch Pruyn told Graves that it had no further light duty assignments consistent with its operational needs. Accordingly, Graves again left work on temporary disability leave. His six months of entitlement ended in December 2000, but Finch Pruyn continued his full-time pay through January 4, 2001.
On January 4, 2001, Michael Strich, Finch Pruyn's Human-Resources Director, gave Graves three options: (1) return to full-duty work immediately; (2) take a 64% pay cut and work at a desk job; or, (3) have a doctor state that Graves was totally disabled and take disability retirement with resulting disability pension benefits of $269,000. The details of the January 4 Strich and Graves conversation and the ensuing events are at the heart of the Circuit's remand. See generally, Graves, 457 F.3d at 184-186.
For purposes of Finch Pruyn's renewed motion, the Circuit has concluded that Graves responded to Strich's options by requesting a finite two week unpaid leave of absence in order to determine his chances for rehabilitation by consulting a foot specialist, Dr. O'Connor. This additional two weeks would not have required Finch Pruyn to hold open Graves's position indefinitely. See id. at 185-86. In this court's original oral decision, it referred to this request for two weeks leave as "indefinite." That statement violated the summary judgment rule requiring the resolution of disputed facts in favor of Graves, the non-moving party. See id. at 186. As is sometimes unfortunate with oral decisions, the court was not as clear as, in hindsight, it should have been.
Unquestionably, Graves sought a finite period of two weeks to consult with Dr. O'Connor. However, the reasonableness of that request requires analysis of what the two weeks would have accomplished regarding the feasability of his return to work. In support of its summary judgment motion and this issue, Finch Pruyn cites a January 10, 2001, report authored that day by Dr. Welch, Graves's primary physician. (See Defendant's Supplemental Rule 7.1(a)(3) Statement of Material Facts ("Def. SMF") at ¶ 2; Dkt. No. 60-3.) In that report, Dr. Welch opined that Graves was totally incapable of performing his job, and his physical limitations would preclude the resumption of full-time employment for a period of at least six months. (See id.) In his response, Graves admitted the Welch prognosis, but argued that the report was drafted at his request so that it would support his disability election. (See Plaintiff's Response ("Pl. SMF") to Def. SMF at ¶ 2; Dkt. No. 64.) He further averred that Dr. Welch supplied Finch Pruyn with a different report six days earlier on January 4, 2001. (See id.) According to Graves, that report noted: he was seeking a consultation with Dr. O'Connor; a surgical procedure might relieve the foot disability; and, after two or three months of recuperation from surgery, he might be able to return to gainful employment. (See id.) Graves now argues that the January 4 report provided assurances that he would return to full-time work. (See Graves Memorandum of Law ("MOL") at 8-11; Dkt. No. 63.)
As the court recently observed, conclusory allegations, conjecture and speculation do not create disputed factual issues sufficient to thwart summary judgment. Often, the cogent facts are self-evident in the underlying record. See Reinhart v. City of Schenectady Police Dep't, Nos. 1:05-CV-630 (Lead), 1:04-CV-317 (Member), 2009 WL 383756, at *1 & fn. 5 (N.D.N.Y. Feb. 10, 2009). As it relates to Graves's ability to return to full-time employment, the January 4 report actually states:
... it is unlikely that he will be able to return to his previous occupation. We anticipate that he will be left with a permanent restriction of activities. This restriction will include not being on his feet for more than an hour to an hour and a half total in an eight hour day. Secondly, this hour to hour and a half must be broken up into frequent intervals of not more than three to five minutes each at a frequency of at least two per hour.... He also cannot be in a situation that he has to lift or carry anything weighing more than 5 to 7lbs. This is basically describing an extremely sedentary job which is totally different then (sic.) anything that he has been doing up until the present time." (See Ex. Tab 10 to Wallender Aff.; Dkt. No. 21:21.) As it relates to future recovery post-consultation with an orthopedic surgeon, the report states:
... [i]f there is something surgically that can be done to relieve the symptomatology in his foot, it is likely that it will take another two to three months of recovery following such surgery before he could return to any kind of gainful employment, and even then there will probably [be] some restrictions in the amount of standing walking lifting and carrying that he can do.
I have asked George to try to obtain copies of job descriptions of both his current job title as well as any potentially lighter job titles that might come close to matching the above description. If no such job is going to be available on a permanent basis, then we will probably be forced next week to make the assumption he will be permanently disabled from working at Finch Pruyn.... I've tried very hard to explain to George that the impairment he has will remain unchanged regardless of whatever jobs may or may not be available. We are both in agreement that... this overall disability is probably not total in that he could indeed handle a ...