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Linda Grant v. County of Erie

December 31, 2012


The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge



Plaintiff Linda Grant commenced this action in July 2012 asserting causes of action for employment discrimination based on a perceived disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq. , and based on age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., as well as related retaliation and state law claims. Pending before this Court is Defendants' motion to dismiss for failure to state a claim.*fn1 For the reasons discussed below, this Court finds the matter fully briefed and oral argument unnecessary, and concludes that Defendants' motion should be granted.


Plaintiff was employed by Defendants from 1984 until February 2009, with her most recent position being that of a youth detention worker. (Compl. ¶¶ 7-8, 19.) As alleged in her Complaint, Plaintiff sustained a hand injury in February 2008 while performing a restraint, and she was out of work until November of that year. (Id. ¶¶ 8-9.) She then underwent an examination requested by Defendants' Workers' Compensation Administrator, who cleared her to work without restrictions. (Id. ¶¶ 10-11.) Plaintiff was also cleared to return to work by her hand surgeon at that time. (Id. ¶ 12.) She further alleges that on December 3, 2008, her primary physician cleared her for "light duty . . . but could not suggest job-specific reasonable accommodations because the doctor did not have Plaintiff's job description." (Id. ¶ 13.) As submitted by Defendants, this December 3, 2008 letter from Plaintiff's primary physician indicates that Plaintiff was "still totally temporarily disabled due to her left hand injury." (Decl. of Attorney Alisa A. Lukasiewicz, Ex C, Docket No. 12.)*fn2

According to Plaintiff, she asked to return to work, but despite the fact that she had been cleared by two physicians to work without restriction, "Defendants denied that request, stating there was no reasonable accommodation that could be provided." (Id. ¶¶ 16-17.) Plaintiff then alleges that shortly "[t]hereafter, Plaintiff's primary care physician informed Defendants that Plaintiff was temporarily disabled until January 31, 2009," and Plaintiff submitted a "Medical Certification Form as requested by the Erie County Office for the Disabled listing what duties she could perform." (Compl. ¶ 18.) This form is entitled "Physician Medical Certification for Request for Reasonable Accommodation." (Lukasiewicz Decl. Ex. E (February 12, 2009 form).) Her primary physician indicated therein that Plaintiff was unable to make a fist or close her hand, and that she was "[i]ndefinitely" limited in her ability to perform her job duties because she could not lift, grasp, or carry, restrain clients, or "transfer." (Lukasiewicz Decl. Ex. E.) Plaintiff's physician further opined that she could write, file, and answer the telephone. (Id.) Defendants responded to this request by letter dated February 23, 2009, and informed Plaintiff that they could not accommodate her. (Comp. ¶ 18; Lukasiewicz Decl. Ex. F.) It was stated in that letter that, based on the medical information provided "and the duration of your limitations, you are unable to perform the essential functions of your job as a Youth Detention Worker with any reasonable accommodation." (Lukasiewicz Decl. Ex. F.) Plaintiff was terminated from employment on February 24, 2009. (Compl. ¶ 19.)

Plaintiff's primary care physician cleared her to return to work with no restrictions in October 2009, within the one-year period in which she could seek reinstatement pursuant to New York Civil Service Law § 71.*fn3 (Compl. ¶¶ 20-21; Attorney Declaration of Harvey P. Sanders, Esq., Ex. 5 (preprinted form indicating that Plaintiff was examined on October 8, 2009, and could "return to work/school/day care/physical education" at "full level").)

Plaintiff further alleges:

At the request of Defendants' third-party Workers' Compensation Administrator[,] an independent physician examined Plaintiff on December 9, 2009 and ruled she could perform the job duties of defending herself and restraining others. Notwithstanding his concession that she could return to work, the physician who examined Plaintiff questioned "whether this is reasonable, at her age." (Compl. ¶ 22.)

Defendants submitted the report of the independent physician who examined Plaintiff on December 9, 2009. (Lukasiewicz Decl. Ex. G.) This orthopedic surgeon stated, under penalty of perjury, that Plaintiff reported to him that: the most demanding part of her work is to have to immobilize unruly youth. These youth can be the size of an adult. Not only does she have to protect herself[ and] the youth, but she also has to be available to do [a] similar function to help her co-workers. She feels she would not be able to do that, that there would be a risk of re-injuring her wrist and hand. (Lukasiewicz Decl. Ex. G. at 3, 7.) The orthopedic surgeon further indicated that the only question before him was Plaintiff's fitness for duty:

This is obviously difficult to answer owing to the nature of her work. The most demanding part is to be able to restrain youth that can be large in stature. Purely, a mechanical point of view, from an orthopedic stand point, it is my view that she could return to her regular work, she is right handed; she would be able to defend herself.

Whether this is reasonable, at her age, there are many other factors that need to be included. She is obviously at increased risk of significant injury with any restraint maneuver. That alone, in my opinion, would preclude her from doing that type of work at age 59 with a history of multiple problems with her wrists and hands, and 3 fractures. Thus, overall it is my opinion that it is not appropriate for her to return . . . to full duty without restriction at the type of work where she would have to restrain physically strong people. The risk of re-injury, in my opinion, is unduly high. Otherwise, it is my opinion there is very little disability left from the multiple injuries, and that she has overall good function of her right and left upper extremities except for slightly decreased range of motion of the digits and wrists on the left, and some weakness.

It is my opinion that the level of disability, to give a reference point, would be best stated at permanent and in between minimal and mild based on this examination. (Lukasiewicz Decl. Ex. G. at 6 (emphasis added).)

Plaintiff alleges that "[n]otwithstanding this fourth doctor who cleared Plaintiff to return to work, the Office for the Disabled still refused to allow Plaintiff to return to work on February 19, 2010." (Compl. ΒΆ 24.) By letter dated that date, Plaintiff was informed that, based on the independent medical examination, "and the fact that you are separated from service, it has been determined ...

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