The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Lisa Chiesa ("plaintiff" or "Chiesa") commenced suit against her former employer, the New York State Department of Labor ("DOL"), and several employees within the DOL: Bob Clark, Celia Hamblin, Debra O'Brien Jordan, and Michael Bloss (collectively "defendants"), on December 22, 2006. She brought claims under the Americans with Disabilities Act ("ADA"), the Civil Rights Act of 1964 ("Title VII"), and the New York State Human Rights Law. All claims related to alleged discrimination during her employment at the DOL.
Defendants moved for summary judgment on October 16, 2008. Plaintiff opposed. Oral arguments were heard January 9, 2009, in Utica, New York. Decision was reserved.
Chiesa began working as a Keyboard Specialist for the DOL on November 15, 2001. During her employment, she had Reactive Airways Dysfunction Syndrome ("RADS") and chemical sensitivity. Both are toxic inhalation injuries. Symptoms of RADS include recurrent coughing, occasional shortness of breath or infections, and irregular need for an inhaler and medications. RADS is permanent but lessened somewhat through medication. Plaintiff began seeing two doctors soon after developing RADS. She continues to see one doctor once a year, and did not give the frequency of appointments with the second doctor. During her employment with the DOL, plaintiff met with her doctors as needed. The defendants allowed her the time off for appointments without adverse consequences.
Plaintiff started applying for promotions in 2002. Her employer granted her one interview during the time she sought promotion. During that interview, in 2004, defendant Michael Bloss ("Bloss"), the assistant director for the Information Technology department, indicated she did not receive the promotion because supervisors and administrators believed her disability made her lose her mental faculties. Bloss filled the position with a different person. Plaintiff also alleges that defendant Bob Clark ("Clark"), the director of Information Technology, told her choosing to come to work while coughing so much was a bad idea and that the coughing made him doubt her ability to perform her work responsibilities. Bloss and Clark deny making the statements.
After her interview with Bloss, Chiesa filed an internal complaint against Clark and Bloss with a division of the state, referred to variously as the Division of Equal Opportunity Development ("DEOD"), Equal Employment Opportunity ("EEO"), and the Equal Employment Opportunity Commission ("EEOC") in the record. The complaint resulted in mediation and an order that Clark provide a positive letter of reference for plaintiff.
Typically, when a position becomes vacant within the state, the position is designated as competitive or noncompetitive. That designation is a partial indicator of what criteria will be looked at to fill the position. When an agency needs to fill a competitive position, it creates a profile of the skills the ideal candidate for the position would possess. The Civil Service Department goes through its information and creates a list of current employees with the matching training and experience to the profile. The candidates are often listed in order of the closest match to the ideal profile to the farthest match. If the agency's profile looks at a test score, the candidates may be ordered from the highest score to the lowest. When the Civil Service Department creates a list for an agency, the candidates' eligibility on the list is not necessarily permanent, nor is the list's validity. In some instances, a person may need to wait a certain amount of time before being placed back on the list. The expiration can also be beneficial. By the time someone reapplies, the person may have improved on some skill in the profile and rank higher on the list. Noncompetitive positions are filled by varying means.
During the spring of 2005, Clark suggested to Chiesa that she apply for a "55-b designation." The name refers to a section of the New York Civil Service Law. The provision permits state agencies to fill a number of employment positions through non-competitive appointments with a preference for qualified disabled individuals. An individual's 55-b designation indicates to the hiring entity the person must be preferred over other applicants. The head of the Workers with Disabilities Program stated that the usual practice designates only entry level positions, though the text does not specifically indicate so. Plaintiff applied for the designation and received two letters from the Department of Civil Service pertaining to the application. The first letter, dated April 5, 2005, informed plaintiff that she qualified for the designation. The second letter, dated June 24, 2005, said the designation could not be used to seek anything other than an entry-level position. Since plaintiff already worked above entry level and was not seeking a new entry level position, she was declared ineligible for the 55-b designation.
Chiesa applied for the vacant position of Information Specialist 1, Grade 14 in the spring of 2005. However, the position was declared competitive, resulting in the compilation of a list of candidates for the job. Her application for 55-b designation had no impact under the new standards for listing candidates for the position. Defendants indicated her low test scores caused her not to be listed in the top 140 candidates. Chiesa filed two complaints with the EEOC after she realized her placement precluded her from the position.
Thereafter, federal funding changed and defendant Cecelia Hamblin ("Hamblin"), the Chief Information Officer at the DOL, eliminated approximately fifty-six positions in order to remain within the monetary allocation. She chose to eliminate the vacant Information Specialist position for which Chiesa had applied.
Plaintiff received notice of the right to sue as a result of the EEOC complaints and as previously noted now alleges violations of the Americans with Disabilities Act, Title VII, and the New York State Human Rights Law. She also alleges discrimination and retaliation after she exercised her protected right of filing a complaint.
III. Summary Judgment Standard
Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. FED. R. CIV. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. FED. R. CIV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552 (1986). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986).
When the moving party has met the burden, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. at 1356. At that point, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56; Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. at 2511; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. at 1356. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a ...