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Ralph Forgione v. the City of New York

September 13, 2012

RALPH FORGIONE,
PLAINTIFF,
v.
THE CITY OF NEW YORK, DEPUTY INSPECTOR THOMAS KAVANAGH, DR. LEA DANN,*FN1 NYPD POLICE SURGEON, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES,
DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge:

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

A P P E A R A N C E S

Ralph Forgione brings this action for equitable relief and damages against the City of New York (the "City"), Deputy Inspector Thomas Kavanagh, and Dr. Lea Dann, alleging employment discrimination on the basis of a perceived psychological disability and actual physical disability. Defendants move to dismiss the Second Amended Complaint (the "Complaint"), and I grant in part and deny in part their motion for the reasons that follow.

BACKGROUND

A. Factual Background

According to the Complaint, the well-pleaded factual allegations of which I assume to be true on a motion to dismiss, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), the dispute in this case arises from the following:*fn2

On September 28, 2009, Forgione, a captain and 20-year veteran of the New York City Police Department ("NYPD"), was transferred to a new precinct. Compl. ¶¶ 14-15. Within six weeks of his transfer, his superior officer at that precinct, Kavanagh, began to "harass" him about his personal life and childhood. Compl. ¶¶ 15-16. Kavanagh erroneously believed that Forgione suffered from psychological disorders, including Post Traumatic Stress Disorder ("PTSD"), stemming from a traumatic childhood experience. Compl. ¶ 16. Although Forgione had not been having problems at work, Kavanagh told him that he needed to see a psychiatrist and needed therapy. Compl. ¶¶ 16-17. Forgione told Kavanagh that he did not suffer from PTSD or need therapy, and he immediately complained to Kavanugh's supervisor, Chief Pizutti, about "Kavanagh's harassment and creation of a hostile work environment." Id.

On or around Thursday, January 7, 2010, Forgione informed Kavanagh that he planned to complain to another of Kavanagh's supervisors, Chief Gomez, about Kavanagh's treatment of him. Compl. ¶ 20. Kavanagh asked Forgione what he would say to Gomez. Compl.¶ 21. He also called Forgione a "fuck-up" and told him that he "should fucking retire." Id.

The next day, when Forgione arrived at Gomez's office to complain, Kavanagh told Forgione to report to the NYPD Psychological Services Unit ("PSU"). Compl. ¶ 22.

Forgione went as told. Id. When he returned to work thereafter, Kavanagh threatened him, "threatened [his] work schedule," and told him his complaining was "making [Kavanagh] look like an asshole." Id. Kavanagh then questioned Forgione as to why he brought his gun home with him and asked, "[H]ow do I . . . know you're not going to go home and kill your wife and kids[?]" Id.

Forgione immediately called Gomez to complain about Kavanagh and to request a transfer to another precinct where he would not be under Kavanagh's supervision. Id. Gomez did not grant Forgione's transfer request, and when Forgione returned to work the following Monday, January 11, 2010, Kavanagh was "distant and hostile" towards him "for having complained." Compl. ¶ 23.

Around this same period Forgione also asked Pizutti for a transfer to another precinct. Pizutti denied his request, explaining that there were no open positions to which he could transfer. Compl. ¶ 24. Some time later, on or about January 12, 2010, a position opened up in another precinct and Forgione again asked Pizutti to transfer him, in light of the "hostile work environment" he encountered in his current precinct. Compl. ¶ 25. Pizutti told Forgione that he needed help and asked him if he wanted to leave the borough. Id. Forgione explained that he did not and that he simply wanted to transfer to an open captain position in a different precinct. Id. Pizutti again refused Forgione's request to transfer and, the next day, ordered Forgione to go to the PSU. Compl. ¶¶ 25, 27. Forgione complied and was found to be fit for duty. Compl. ¶ 28. Soon thereafter, Pizutti told Forgione he would not be leaving the 108th Precinct "anytime in [the] near future." Id.

As a result of anxiety related to his interactions with Kavanagh, Forgione developed urinary incontinence at some point between November 2009 and January 2010.

Compl. ¶ 18. During this period, Forgione asked Kavanagh "for a reasonable accommodation for time off so that he could take care of his medical issue," but Kavanagh refused his request. Id. On January 12, 2010, Forgione asked Pizutti for the same accommodation -- for "time off to address a medical urological condition." Compl. ¶ 25. Pizutti granted Forgione permission to take off the following day for a medical appointment. Compl. ¶ 26.

The next week, on January 18, 2010, Forgione reported out sick in order to see a doctor at the NYPD Medical Division ("MD") about his urinary incontinence. Compl. ¶ 29. He met with Dann, a surgeon, who recommended that Forgione refrain from working for at least a week and return thereafter for a follow-up appointment. Compl. ¶ 30. The next day, however, the MD called Forgione, told him that his medical folder was a "hot potato," and ordered him to return to see Dann immediately. Compl. ¶ 31. Forgione did so the following day, at which time Dann informed Forgione that he had no urological problems and should return to work right away. Compl. ¶ 32.

Forgione then contacted Pizutti and asked for a reasonable accommodation to take two additional days off to attend medical appointments for his urinary incontinence. Compl. ¶ 33. His request was granted, but a few days later, on January 25, 2010, when Forgione reported out sick and saw Dann again, Dann told him that there was nothing wrong with him and that every time he went out sick Dann would "put [him] back to work." Compl. ¶ 34.

Forgione complained to Pizutti about Dann and asked for "some time off so he could address his medical condition." Compl. ¶ 35. Pizutti refused Forgione's request. Id. Forgione then produced a note from his urologist "placing [him] out sick" and told Pizutti he would be forced to retire if denied time off. Id. Pizutti still refused to grant his request. Id.

As a result, on January 26, 2010, Forgione filed paperwork requesting leave pending retirement. Compl. ΒΆ 36. In other words, because he had a period of vacation leave accrued, he chose to utilize that vacation leave prior to retiring and enter retirement upon the exhaustion of his accrued leave. However, before Forgione exhausted his accrued leave, he resolved his urinary incontinence, ...


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