The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Catherine Lundy, a former officer in the Town of Brighton (N.Y.) Police Department, brings this action against the Town of Brighton ("Town") and Brighton Chief of Police Thomas Voelkl. Plaintiff Lundy, a former Town of Brighton police officer, asserts a variety of claims arising out of a dispute over disability leave that she took as a result of an on-the-job injury in 2003.
On November 9, 2007, the Court issued a Decision and Order in this case, 521 F.Supp.2d 259, familiarity with which is assumed, in which I granted defendants' motion to dismiss several of plaintiff's claims. As a result, there are currently three claims remaining in this action: a claim against the Town, alleging unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; a claim against both defendants alleging unlawful retaliation in violation of the New York State Human Rights Law ("HRL"), N.Y. Exec. Law § § 290 et seq.; and a claim against the Town under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.*fn1
Defendants have now moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, dismissing plaintiff's remaining claims. For the reasons that follow, defendants' motion is granted in part and denied in part.
Plaintiff began her employment as a Brighton police officer in 1982, eventually rising to the rank of sergeant. In the summer of 2002, plaintiff injured her shoulder on the job, when an apparently mentally unstable individual accosted her outside the Brighton Town Hall. Although plaintiff received medical treatment for that injury, she did not take any disability leave at that time.
In March 2003, Voelkl sent a letter to the president of the Brighton police union informing him of certain changes regarding the accrual of vacation time and similar benefits during a period in which an officer is on leave under § 207-c of the New York General Municipal Law. That statute provides, in part, that
[a]ny ... member of a police force of any ... town or village ... who is injured in the performance of his duties ... so as to necessitate medical or other lawful remedial treatment shall be paid by the municipality ... by which he is employed the full amount of his regular salary or wages from such employer until his disability arising therefrom has ceased, and, in addition such municipality ... shall be liable for all medical treatment and hospital care necessitated by reason of such injury or illness.
In his letter, Voelkl noted that Officer Thomas E. Sleep, who had been on § 207-c leave since August 2002 due to injuries received in a duty-related motor vehicle accident, had recently given notice of his intent to retire effective March 28, 2003. Def. Ex. F (Dkt. #28-7) at 2. Voelkl stated that there was initially some uncertainty about how to calculate Sleep's benefits, because § 207-c does not explicitly address the accrual of benefits during a period of leave, nor was there any precedent within the Brighton Police Department for such a situation.
Voelkl stated that he had "requested legal guidance" on the matter, and that it had been determined that Sleep was not entitled to additional leave accruals or other fringe benefits during his § 207-c leave. Nevertheless, he added, "the decision has been made to include the benefits accrued during Officer Sleep's 207-c leave. This action will apply only to Officer Sleep's unique situation and does not establish a past practice with respect to future determinations. I am therefore placing you on notice that from this point forward, it will be the policy of the Town of Brighton and the Brighton Police Department to suspend the accrual of fringe benefits during periods of 207-c leave ... ." Id. at 2-3.
In June 2003, plaintiff had surgery on her shoulder to repair a muscle tear that she had suffered in the Summer 2002 incident. Following that surgery, plaintiff went on disability leave under § 207-c.
In March 2004, plaintiff returned to "light duty" work, consistent with the restrictions recommended by her physicians. She testified that the assignment she was given involved sitting at a desk for long periods, and that this bothered her neck and shoulder. Plaintiff's Deposition Transcript ("Tr."),Def. Ex. C (Dkt. #28-4) at 190; Lundy Decl. (Dkt. #37) ¶ 36.
Plaintiff brought this up with Voelkl, and in May 2004, she was transferred to the records department. Tr. at 195. Apparently this did not bother her physically, but she objected to having to wear a uniform in that assignment. Plaintiff was not allowed to wear her firearm, and she testified that she did not want to be "exposed to the public and in uniform and unable to defend [her]self" if a violent situation arose. Tr. at 199.
In the meantime, plaintiff had discovered, around the end of 2003, that she had not been accruing any sick leave or vacation leave while she was on § 207-c leave. In August 2004, plaintiff filed a complaint with the New York State Division of Human Rights ("SDHR"), alleging that unlike Officer Sleep, she had not received or accrued her full benefits while on leave, and that this disparate treatment was an "indirect [sic] result of [her] gender ... ." Def. Ex. D (Dkt. #28-5) at 3 ¶ 6. The SDHR complaint was ultimately dismissed as untimely on August 11, 2005, because it was filed over a year after Voelkl implemented the new policy concerning 207-c leave, and fourteen months after plaintiff went on leave.
Plaintiff alleges that around the same time that she filed her SDHR complaint, Voelkl summoned her to his office, and informed her that she was going to be sent to an elementary school in Brighton to teach Drug Abuse Resistance Education, commonly known as "D.A.R.E." Plaintiff told Voelkl that she did not want to teach D.A.R.E., because she was concerned for her safety, "roaming the [school] halls in uniform with no gun ... ."*fn2 Tr. at 211. Voelkl was initially insistent that plaintiff carry out the D.A.R.E. assignment, but on or about September 10, 2004, he informed her that she would not be going to D.A.R.E. after all. Instead, Voelkl stated, plaintiff would be attending Instructor Development School ("IDS") beginning September 14. IDS was a program that trained officers so that they could qualify to instruct other officers in various subject areas.
At her deposition, plaintiff testified that among some officers, IDS training is "sought after," because it is looked upon as something that might help advance their careers. Def. Ex. C at 228. Plaintiff, however, did not want to attend IDS, for personal reasons. She testified that she told Voelkl that she "d[id]n't think [she was] equipped to do this [IDS] right now" because she was "under a lot of stress" and had "doctor's appointments coming up ... ." Tr. at 231-32. Voelkl allegedly responded, in sum and substance, that "it was just the way it was going to be," and that plaintiff had no other choice but to attend IDS. Tr. at 233.
On September 14, 2004, plaintiff showed up for her first day of IDS. She became very upset, however, and during the lunch break, she went to the police department building to speak to one of her superiors, Captain Principe. After speaking with plaintiff, Principe told her she should go home and take the rest of the day off, which she did.
Plaintiff testified that Voelkl called her later that day at her home, and asked her why she was not at IDS. She replied that she "was having some emotional difficulties," and Voelkl allegedly told her to "[r]eport to work for the rest of [her] shift" that day. Tr. at 239. Plaintiff testified that she responded, "I can't come in. I need to take some sick time," to which he replied, "You can't take sick time." Plaintiff asked if she could "take comp time," and Voelkl said, "I suppose so," adding, "But I expect you to be at training tomorrow." When plaintiff responded that she had an appointment with a psychiatrist the next day, Voelkl allegedly stated, "Then I want a written excuse that precludes you from going to training." Id.
Plaintiff did not go back into work that day, and she took the following two days off as well. She testified that she took "[e]ither comp or holiday" time for the rest of that afternoon. The following day, plaintiff took sick time for her psychiatric appointment, and, because she did not have enough comp time left, either vacation or holiday time for the balance of the day. The day after that, plaintiff had a medical appointment, and again she took a half day of sick time and a half day of vacation or holiday time. Tr. at 241-42.
Plaintiff then returned to work, and apparently she did not go back to IDS. She continued to perform light-duty work, such as transcribing wiretap recordings.
Plaintiff alleges that around this time, her "work hours started to change constantly with no prior conversation or notice." Amended Complaint ¶ 58. Plaintiff testified that this was particularly difficult for her because she had a child, and she had recently gotten married. She stated that "[w]hen [she] would ask [Voelkl], "Can you give me at least a month or two that I know I'm going to be working?' he said, 'I will change your hours at my whim for whatever meets the needs of the department[.]'" Tr. at 209.
Plaintiff testified that these work hour changes occurred "[e]very couple of months." Tr. at 258. The changes involved switching from one eight-hour shift to another, so that "[o]ne week [she] would be working until ten o'clock at night and the next week [she] would be working from eight to four. The next week [she] would be working two to ten. The next week noon to eight," and so on. Id.*fn3
In October 2004, plaintiff reinjured her shoulder while on duty. She immediately went and informed Voelkl what had happened. He called in Captain Cavallaro, and according to plaintiff, Voelkl said to Cavallaro, "She's alleging she hurt her shoulder again." Amended Complaint ¶ 59; Tr. at 263. Cavallaro, who was present when plaintiff reinjured her shoulder, allegedly replied, "No. She's not alleging. I saw it and that's what happened." Tr. at 263. Cavallaro then filled out and filed a Workers Compensation report.
On August 3, 2005, plaintiff was informed by Voelkl that he had filed a disability retirement application for her. Voelkl did so pursuant to Gen. Mun. L. § 207-c(2), which provides that if a police officer is permanently disabled because of a job-related injury, the head of the police force may apply for disability retirement on the officer's behalf.*fn4 Plaintiff testifed at her deposition that prior to August 3, 2005, one or more of her physicians had expressed the opinion that plaintiff's injury was permanent. Tr. at 265.
Plaintiff does not appear to deny that Voelkl was authorized under New York law to submit that application. See Tr. at 273. She takes issue, however, with the wording of the application, the manner in which it was filed, and with the type of benefits she was awarded.
Under the New York statutory scheme applicable to plaintiff, there are two types of disability retirement benefits: "accidental" and "performance of duty" disability retirement benefits. For purposes of this Decision and Order, it is not necessary to set forth that scheme in detail, but in general, accidental ...