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Rebecca S. Serdans v. the Presbyterian Hospital In the City of New York

September 26, 2011


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:


Plaintiff Rebecca S. Serdans alleges that Defendant The Presbyterian Hospital in the City of New York ("the Hospital") discriminated against her in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law ("NYSHRL"), Executive Law § 296 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107 et seq. The Complaint alleges that Defendant discriminated against her because of her alleged disability -- a neurological disorder called dystonia*fn1 -- and then retaliated against her after she sought a reasonable accommodation.*fn2

Defendant has moved for summary judgment, and also moved to strike portions of Plaintiff's opposition. For the reasons stated below, Defendant's motion for summary judgment will be granted and Defendant's motion to strike will be denied as moot.


Plaintiff is a registered nurse ("RN") qualified to work in an intensive care unit ("ICU"). (Def. R. 56.1 Stmt. ¶ 11)*fn3 The Hospital operates a variety of specialized care units, including a Cardiac Care Unit ("CCU"), a Cardio-Thoracic Intensive Care Unit ("CTICU"), a Medical Intensive Care Unit ("MICU"), and a Surgical Intensive Care Unit ("SICU"). (Id.) For most of the period between August 1998 and November 2007, Plaintiff worked as a per diem RN for the Hospital. (Id. ¶ 10; Pltf. Dep. 12) Between November 2004 and January 2006, however, Plaintiff's status was that of a part-time nurse at the Hospital. (Def. R. 56.1 Stmt. ¶¶ 19, 27; Pltf. Dep. 12)

Per diem RNs are paid a salary but do not receive medical benefits. (Def. R. 56.1 Stmt. ¶ 12) Their work schedule is determined as follows: the RN provides her or his availability to the Hospital's nursing office, and the nursing office then offers assignments based on the per diem RN's stated availability and the Hospital's staffing needs. (Id. ¶ 13)

Part-time RNs working at the Hospital must make a commitment to work a scheduled number of hours each week, and receive a salary and medical benefits pursuant to a collective bargaining agreement entered into between the New York State Nurses Association and the Hospital. (Id. ¶ 21)

On or about November 22, 2004, Plaintiff requested that Defendant change her employment status from per diem to part-time, making her eligible to receive medical benefits. Plaintiff requested the change because she was about to undergo a medical procedure called Deep Brain Simulation ("DBS") in order to alleviate her symptoms from dystonia. (Id. ¶ 19) Defendant granted Plaintiff's request and changed her status to that of a part-time RN. (Id. ¶ 20)

On or about December 30, 2004, Plaintiff underwent the DBS procedure. (Id. ¶ 22) Following her surgery, Plaintiff's doctors authorized her return to work without any restrictions.*fn4 (Pltf. Dep. at 91-92; Topel Aff., Ex. 8) A March 4, 2005 "To Whom It May Concern" letter from Dr. Michael G. Kaplitt, Plaintiff's neurosurgeon, described the DBS procedure and made certain recommendations concerning Plaintiff's work assignments at the Hospital:

My patient, Rebecca (Beka) Serdans, RN, underwent the procedure Deep Brain Stimulation to control her symptoms related to dystonia on Dec. 30, 2004. Deep brain stimulation (DBS) uses surgically implanted medical devices, similar to cardiac pacemakers, to deliver electrical stimulation to precisely targeted areas within one or both sides of the brain. Stimulation of these areas blocks the signals that cause the disabling symptoms of primary dystonia. She has just returned to fulfill her academic studies as well as her employment obligations (14 February 2005). Although Beka is recovering nicely with the frequent programming sessions (every 2 to 4 weeks) that must be undertaken for the next twelve months[, s]he is at risk for device and lead migration and breakage, electromagnetic interference, dyskinesias, speech disorders and other neurological side effects. Thus, it is in her best interests that she work in the ICU setting and avoid any floor work including step-down units until further notice from me. Many patients see minimal benefit until 3 months out, and it's becoming increasingly clear that there are subtle, long-term improvements continuing out to 6 months to 1 year or possibly more. At this time she is less than 2 months out of the procedure and, therefore, has not yet reached the full benefits of the procedure.

It is my recommendation that Beka work primarily in the controlled setting of an ICU only so that I can continue to monitor and readjust her DBS settings as needed on a regular basis until she has gained full benefits of the procedure. (Topel Aff., Ex. 8)

On December 20, 2005, Plaintiff requested that Defendant "change her employment status from part-time RN back to a per diem critical care float RN." (Def. R. 56.1 Stmt. ¶ 25) "Float RNs" work in different ICUs on an as-needed basis. (Id. ¶ 26) Defendant granted Plaintiff's request, and converted her employment status to that of a per diem RN effective January 16, 2006. (Id. ¶ 27) The return to per diem status offered Plaintiff higher hourly compensation but no medical benefits. (Id. ¶ 28)

In a January 12, 2006 email, Kristin Strybing, a Nurse Practitioner affiliated with Dr. Kaplitt, informed Defendant that Plaintiff could return to work on January 13, 2006:

Ms. Rebecca Serdans is cleared to return to work on 1/13/06. Her dystonic symptoms persist but do not preclude her fulfilling her duties as an ICU nurse. The only limitation she has is she cannot be exposed to MRI [magnetic resonance imaging], as this can cause complications with her deep brain stimulating system. . . . (Topel Aff., Ex. 11; Def. R. 56.1. Stmt. ¶ 29)

On February 8, 2006, Dr. Kaplitt wrote another "To Whom It May Concern" letter concerning Plaintiff. The February 8, 2006 letter quotes Kaplitt's March 5, 2005 letter in full, but adds the following postscript concerning Plaintiff's condition:

Since the time of [my March 5, 2005] letter, it is my understanding that a new MRI machine has been installed within one of the units in which she works (I believe it is the 8th floor ICU). While Beka has had significant improvement from surgery, at times she has developed some resistance to therapy and has had some other issues which have required ongoing programming and therapy. Several weeks ago she improved substantially following an adjustment, but after an evening working in the unit near this MRI machine, her symptoms significantly worsened again. Use of her personal screener suggested that the battery may have been turned off. I cannot emphasize how important it is for Beka to remain distant from MRI machines and any other sources of powerful electromagnetic fields, since this can both turn her battery off as well as change the settings. (Topel Aff., Ex. 12)

There are no MRI machines in most of the Hospital's intensive care units, including the CTICU, SICU, MICU, and CCU. (Def. R. 56.1 Stmt. ¶ 35)

On January 29, 2007, Plaintiff asked to return to part-time RN status as a float nurse in the CTICU, SICU, and CCU in order to receive medical benefits. (Id. ¶ 31). On February 7, 2007, Catherine Halliday, the Hospital's Director for Cardiac Care, informed Plaintiff that the Hospital did not have any positions available in the float pool, but offered -- as an accommodation to Plaintiff -- to convert a full-time position in the CCU to part-time. (Topel Aff., Ex. 14) Plaintiff rejected the offer, stating that while she would work in the CCU on a float basis, she could not "work on a permanent basis in the CCU due to the fact that they use magnets to alter pacemaker settings." (Id., Ex. 15) (emphasis in original). The Hospital thereafter continued to offer Plaintiff per diem assignments allowing her to float between the various ICUs. (Def. R. 56.1 Stmt. ¶ 43)

In July 2007, Plaintiff asked Stacie Williams, the Hospital's Director of Labor and Employee Relations, to assign her to work only in the CTICU, because that unit had "less magnets." (Pltf. R. 56.1 Counter-Stmt. ¶ 44) On July 25, 2007, Williams responded to Plaintiff's request:

. . . . Since we do not have part-time float positions in the Hospital, we offered you a part-time RN position in the CCU in an effort to meet your request for part-time employment. However, you declined the offer, citing that you are unable to work solely in CCU even though you currently float to CCU.

In an effort to understand the limitations you have identified and your current needs, we are asking that you meet with Leslie Knodratowicz in Occupational Health Services (OHS). Ms. Knodratowicz will review with you and your healthcare provider your current needs.

Once you have met with OHS, I will follow up with you and do what we can to assist you in addressing your concerns. (Topel Aff., Ex. 17)

On August 3, 2007, Plaintiff responded to Williams' letter. (Id. Ex. 18) Plaintiff stated that she was "exhausted from 'fighting the system'" "when few understand . . . dystonia . . . how it impacts movement, how I have been able to deal with it and how DBS affects me both positively and negatively and why I suggested a [part time] float pool position be created." (Id.) Stating that she would "speak [with her] healthcare provider and legal counsel before proceeding with a[n] OHS evaluation," Plaintiff noted that she had been "evaluated and cleared to work in ICU areas except for Neuro, which has an MR[I] on its premises." (Id.) Finally, Plaintiff stated that she had not "currently worked in CCU because CTICU has ...

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