The opinion of the court was delivered by: Gary L. Sharpe Chief Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Michael Troeger commenced this action under the Americans with Disabilities Act (ADA),*fn1 alleging that, as part of a concerted discriminatory campaign, Ellenville Central School District ("the District") impermissibly docked his sick leave and failed, on multiple occasions, to reasonably accommodate his disability. (See Compl., Dkt. No. 1.) Pending is the District's motion for summary judgment. (Dkt. No. 12.) For the reasons that follow, the District's motion is granted in part and denied in part.
On November 19, 2004, Troeger, a school counselor in the employ of the District since 1995, injured his lower back while lifting a conference table. (Def.'s Statement of Material Facts (SMF) ¶¶ 1-2, 6-7, Dkt. No. 12, Attach. 15.) As a result of his injuries, Troeger was absent from work until March 2005. (Id. ¶ 8.) Seven months later, on October 19, 2005, Troeger was pushed into a filing cabinet by a 4th grade student, resulting, in the opinion of the school nurse, in a lower back contusion.*fn3 (Id. ¶¶ 23-25.) A previously-scheduled MRI performed the following day showed "[l]eft posterolateral annular tear with focal protrusion into the left L4 neural foramen." (Id. ¶ 27; Dkt. No. 16, Attach. 20 at 3.) Troeger left work a month later, on November 29, 2005, and remained absent until attempting to return to the District for the 2006-07 school year. (Id. ¶ 28; Pl.'s SMF ¶ 35, Dkt. No. 15.)
In notes dated August 24, 2006, Dr. Janet Tamai indicated that Troeger could return to work two days per week with restrictions, including four-hour work days, activity limitations and freedom from exposure to "excessive stressors." (Def.'s SMF ¶ 37; Pl.'s SMF ¶ 38; Dkt. No. 16, Attach. 9.) Superintendent Lisa Wiles responded to Dr. Tamai, requesting clarification on several aspects of her recommendations, including "what constitutes an 'excessive stressor.'" (Dkt. No. 12, Attach. 11 at 18.) On September 5, 2006, Dr. Tamai clarified Troeger's physical limitations, and opined that he "should not be involved in crisis intervention," and that his "interaction with all staff should be at a low level of stress." (Id. at 20.) Following an additional inquiry by Wiles, (see id. at 22), Dr. Tamai clarified that Troeger "should not be involved in any violent crisis intervention that is of a physical nature which would put him in the position of potentially re-injuring his back," but that "[h]e may interact with students in any other manner that is required by his job description," and that "his interaction with staff should be at a low level of stress, as much as one is able to control." (Id. at 24.) The District subsequently referred Troeger to Dr. John Lucas for a psychiatric evaluation pursuant to N.Y. Educ. Law § 913. (Id. at 26; Dkt. No. 12, Attach. 12 at 2.) In a November 30, 2006 report, Dr. Lucas determined that Troeger could not "perform the duties of a school guidance counselor at [that] time," and Troeger was not permitted to return to work during the 2006-07 school year. (Dkt. No. 12, Attach. 12 at 8-9; Def.'s SMF ¶ 48.)
Under the District's Collective Bargaining Agreement (CBA), absences resulting from on-the-job assaults are not charged against an employee's sick leave entitlement. (See Dkt. No. 12, Attach. 10 at 16.) On August 20, 2007, a Workers' Compensation Board (WCB) Panel found that Troeger "failed to meet his burden of establishing a causal relationship between his low back injury" and the October 19, 2005 work incident. (Dkt. No. 12, Attach. 12 at 13-15; Def.'s SMF ¶ 51.) The District subsequently charged the absences accrued by Troeger following the October 19, 2005 incident against his sick leave allotment. (Def.'s SMF ¶ 52.)
Before the 2007-08 school year began, the District asked Troeger to submit medical evidence of his physical and mental fitness to return to work. (Def.'s SMF ¶¶ 60, 63.) In a letter dated September 9, 2007, Dr. Megan McMullan*fn4 indicated that Troeger could return to work "in a capacity ad lib from part to full time," with accommodations such as an ergonomic chair and desk, and that "there should be efforts made to prevent him from having to physically restrain students." (Dkt. No. 12, Attach. 12 at 19.) The District sought clarification, (see id. at 23-24), and Dr. McMullan opined that Troeger could begin working twenty hours per week "and increase to full time rapidly" if his symptoms avoided aggravation. (Id. at 27.) Dr. McMullan further indicated that the type of ergonomic chair and desk required was "up to [the District's] discretion." (Id.) Following the November 2, 2007 receipt of a report from Psychologist Richard Ovens indicating that he could return to work (see Def.'s SMF ¶ 67), Troeger was instructed by the District to report for part-time employment on November 7, 2007. (Id. ¶ 68.) From his return on November 7, 2007, until the present, Troeger has worked in an In-School Suspension (ISS) room. (Id. ¶ 71.)
On August 25, 2008, Troeger filed a charge against the District with the Equal Employment Opportunity Commission (EEOC). (See Dkt. No. 1, Attach. 1 at 3-6.) On March 17, 2010, the EEOC issued Troeger a right-tosue letter after reaching an inconclusive determination as to his charge. (Dkt. No. 1, Attach. 2.)
The standard of review under Fed. R. Civ. P. 56 is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its decision in Wagner v. Swarts, No. 1:09-cv-652, 2011 WL 5599571, at *4 (N.D.N.Y. Nov. 17, 2011).
The ADA prohibits discrimination by a covered entity "against a qualified individual with a disability because of the disability of such individual in regard to . . . terms, conditions, and privileges of employment."
42 U.S.C. § 12112(a) (2008).*fn5 In order to establish a prima facie disparate treatment claim under the ADA, a plaintiff must show that: "(1) the employer is subject to the ADA; (2) [he] is disabled within the meaning of the ADA; (3) he could perform the essential functions of his job with or without reasonable accommodation; and (4) he suffered an adverse employment action because of his disability." Nader v. ABC Television, Inc., 150 F. App'x 54, 55 (2d Cir. 2005). Disparate ...