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Michelle Albertelli v. Monroe County

September 13, 2012

MICHELLE ALBERTELLI, PLAINTIFF,
v.
MONROE COUNTY, PATRICK O'FLYNN, SHERIFF, MONROE COUNTY;
GARY CAIOLA, UNDERSHERIFF, MONROE COUNTY SHERIFF'S DEPARTMENT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; &
DR. BORRIS SCHMIGEL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, AND ROBERT BILSKY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Plaintiff Michelle Albertelli ("Albertelli" or "Plaintiff"), represented by counsel, filed the instant proceeding against the named Defendants charging them with, inter alia, violations of the Americans with Disabilities Act, the New York State Human Rights Law; and her rights to equal protection, substantive due process, and procedural due process under the United States Constitution. The Court granted Defendants' motion to dismiss all the claims in the complaint except Plaintiff's contention that Defendants deprived her of her right to disability benefits under New York General Municipal Law § 207-c without procedural due process.

Defendants have filed a motion for summary judgment dismissing the sole remaining claim in the complaint, and Plaintiff has opposed the motion. For the reasons that follow, Defendants' motion for summary judgment is granted.

II. Factual Background

On July 15, 2004, Albertelli injured her shoulder while working as a deputy sheriff assigned to the Monroe County Jail. She remained out of work for several years and collected benefits pursuant to New York General Municipal Law ("G.M.L.") § 207-c.*fn1 See

Affidavit of Ronald Harling ("Harling Aff."), Jail Superintendent for the Monroe County Sheriff's Office ("MCSO"), ¶ 4 (Dkt. #20-15).

In September 2008, Plaintiff was asked to attend an Independent Medical Examination ("IME") to assess her shoulder injury. See Defs' Ex. I at 32-33.*fn2 Plaintiff was examined by Dr. Charles M. Totero, who issued a report on September 16, 2008, concluding that although Plaintiff was not capable of returning to regular duty as a deputy jailor, she was capable of restricted duty work. See Defs' Ex. B.

On October 31, 2008, Dr. Boris M. Schmigel, a contractor with the MCSO, concluded that Plaintiff was able to work on "limited duty" and could return to work on November 3, 2008. Id, ¶ 5 (citing Defs' Ex. D). Dr. Schmigel placed the following restrictions on Plaintiff: may work on the computer with proper positioning of keyboard; may have limited inmate contact; no lifting over 20 pounds; no reaching above shoulders; and no twisting, pushing, pulling, or climbing. See Defs' Ex. D.

Also on October 31, 2008, Plaintiff's treating physician, Dr. Michael Maloney, notified the MCSO that Albertelli could return to work as of that day with the following restrictions: "No use of left arm. Use Right Arm only." Defs' Ex. C.

Plaintiff returned to work on November 3, 2008, and apparently was undergoing re-training in a classroom setting. Although MCSO employees typically do not enjoy the privilege of choosing which light duty assignment they would prefer, Defendants accorded that opportunity to Plaintiff. See Defs' Ex. J. On November 24, 2008, Plaintiff and her union representatives met with members of the MCSO administration, who provided her the following options as far as work assignments: working any shift inside the control room; working the catwalk at night during lockdown; or working at the visitation window during the day shift. Id. Plaintiff chose the visitation window assignment. Id.

However, issues soon arose with this assignment. Defendants characterize Plaintiff's complaints as baseless, while Plaintiff contends that Defendants failed to accommodate her physical limitations. In particular, Plaintiff contends that she was placed in situations where the use of force was necessary and she was not able to defend herself because she was not carrying a weapon due to her physical disabilities. See Plaintiff's Statement of Material Facts at 14-15, ¶¶ 18-21 (Dkt. #22-1).

Based upon the pay records submitted by Defendants, it appears that at the end of November 2008, Plaintiff stopped reporting for work and began collecting G.M.L. § 207-c benefits again.

In early January 2009, MCSO staff attempted to contact Plaintiff by telephone to obtain an update as to when she would be returning to work. See Defs' Ex. F. However, she ignored their requests. Despite receiving a hand-delivered order from Major Edward Krenzer directing ...


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