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Jacobsen v. New York City Health and Hospitals Corporation

United States District Court, Second Circuit

August 28, 2013



J. PAUL OETKEN, District Judge.

Pro se Plaintiff William Jacobsen alleges violations of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("the ADA"); the Fourteenth Amendment of the U.S. Constitution, pursuant to 42 U.S.C. § 1983; and the Occupational Safety and Health Act ("OSHA"), 29 U.S.C. 651, et seq., together with regulations promulgated by the Occupational Safety and Health Administration. Plaintiff asserts his claims against the New York City Health and Hospitals Corporation ("HHC"); Alan D. Aviles, President and Chief Executive Officer of HHC; Phillip W. Robinson, Senior Vice President of HHC; Vincent James, Plaintiff's supervisor and an HHC employee; Mondo Hall; and the City of New York ("the City"). Before the Court is Defendants' motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons that follow, Defendants' motion is granted.

I. Background[1]

A. Factual Background

Plaintiff William Jacobsen began working for HHC in 1979, and remained employed there for nearly three decades. Plaintiff served as an Assistant Health Facilities Planner until 1982, when he was promoted to Health Facilities Planner. During his tenure at HHC, Jacobsen also held the title of Network Manager. Plaintiff's primary job responsibilities involved reviewing proposals submitted by consultants and hospitals, along with assisting in planning and development of major hospital projects. The "overwhelming majority" of these responsibilities were performed from HHC's corporate offices, and involved duties such as written progress reports. Plaintiff's position required him to work in the field one to two days per week, for four to five hours at a time, to meet with hospital directors, examine existing structures, and supervise the work of consultants. These field meetings generally took place inside offices; however, during his early years at HHC, Plaintiff did inspect asbestos abatement projects. Due to this asbestos exposure, Jacobsen's lungs were permanently damaged, as a result of which he began taking medication for asthma and bronchial dysfunction.

In June 2005, Jacobsen was evaluated by a physician, after which he informed his supervisor, Vincent James, that he was suffering from pulmonary and breathing problems. In August 2005, Jacobsen was permanently assigned to Queens Hospital Center ("QHC"), where he was required to report on a daily basis. Plaintiff attended biweekly meetings at his former workplace-the HHC corporate offices-but was primarily assigned to QHC, which was an active construction site. Plaintiff's office at QHC was in close proximity to the ongoing construction activities, and Plaintiff was therefore consistently exposed to airborne dust. An asbestos investigation and abatement contract were also underway during Jacobsen's tenure at QHC.

In September 2005, Plaintiff was diagnosed with pneumoconiosis, an occupational lung disease, by Dr. Gwen Skloot, a pulmonologist. Dr. Skloot provided Jacobsen with a physician's note for his employer, detailing that Jacobsen was suffering from pulmonary disease and would require tests and examinations, and would mandate his occasional absence from work. In October 2005, after an open lung biopsy and as part of a request for medical leave, Plaintiff submitted a certification from Dr. Skloot stating that Plaintiff "should not be exposed to inhaled dust." After submitting this certification, Jacobsen was informed by letter from Mondo Hall, of HHC, that the request for a medical leave of absence had been approved through December 2, 2005. On December 16, 2005 Plaintiff reported to HHC. However, Dr. Skloot had noted in another letter that while Plaintiff was ready to return to work, it was "imperative" that Jacobsen "not be exposed to any type of environmental dust." In January 2006, Plaintiff's union representative sent a letter to HHC requesting that he be permitted to return to work with an accommodation of being assigned work capable of completion from the office, rather than work requiring presence in the field. In March 2006, Dr. Skloot provided another letter stating that Jacobsen was medically cleared for work in the field, and accordingly, Jacobsen returned to work at QHC in March 2006.

From March to May 2006, Jacobsen continued to make field visits, and did not request any further accommodation from Defendants. On May 10, 2006, however, Plaintiff sent a letter to his supervisor, James, and again requested relocation to an office. After determining that Plaintiff's position required him to spend 80% of his time in the field, including visits to construction sites, James informed Plaintiff that visiting construction sites was an essential function of Plaintiff's position. Jacobsen contests this characterization of his position, contending that his position, over the course of decades of work for HHC, entailed a far smaller proportion of field work. On June 6, 2006, HHC informed Jacobsen that he would be placed on unpaid medical leave for six months, and that his job would be left open in case his medical condition improved, claiming that Jacobsen's proposed accommodation-relocation to the central corporate office-was not feasible, given that his position required that he visit facilities where there is ongoing construction.

Also in June 2006, Jacobsen filed a complaint with the New York State Division of Human Rights ("the NYSDHR"), alleging discrimination based on disability and age, in violation of New York State Human Rights Law ("NYSHRL") and the ADA. Later, in March 2007, at the conclusion of Jacobsen's six months of unpaid leave, as his medical condition had not improved, Jacobsen's employment was terminated.

B. State Court Proceedings

Plaintiff later brought a state court action against HHC in New York Supreme Court, alleging violations of the NYSHRL and the New York City Human Rights Law ("NYCHRL"). Justice Geoffrey D. Wright, of Supreme Court of New York County, granted HHC's motion for summary judgment, and Jacobsen appealed to the First Department. The Appellate Division affirmed the lower court's decision, determining that "HHC established that plaintiff could not, even with a reasonable accommodation, perform the essential functions of his job." Jacobsen v. New York City Health and Hosps. Corp., 97 A.D.3d 428, 431 (1st Dep't 2012). The court noted that HHC, through the testimony of Jacobsen's supervisor, James, who explained that "plaintiff's position required him to spend the majority of his time at construction sites, " established that Jacobsen could not, even with a reasonable accommodation, perform his job's essential functions. Id. In his testimony, James had also stated that "[t]he only way plaintiff would be able to report on construction progress was to be present at the site; therefore, it was not possible for plaintiff to complete his duties from the central office." Id. Additionally, Jacobsen's own testimony that he could "perform all his duties from the central office, " was belied by the fact that he had "failed to explain how he could monitor the progress of construction and renovation projects, an essential function of his job, from the central office without visiting the sites." Id. The court further explained that the record established that, as required by the NYSHRL and NYCHRL, HHC had performed an "individual assessment of [Jacobsen], prior to terminating him, " id. at 431-32 (citation omitted), highlighting that HHC kept Jacobsen's job open during two medical leaves and repeatedly dialogued with his doctor about his capabilities, id. at 432. The court also cited to the fact that "it was only after plaintiff's doctor and plaintiff himself confirmed that he could no longer work at construction sites that HHC terminated him." Id.

On appeal to the First Department, Jacobsen also argued that HHC had refused to provide him with adequate respiratory equipment, contending that he could have remained at QHC had HHC provided him with a respirator, rather than an inadequate dust mask. Id. The court, however, disagreed, noting that despite arguing that the dust mask was inadequate, Jacobsen had "never made any additional complaints to his supervisor or anyone else about it, nor did he request different equipment than what he was given." Id. Moreover, the letters from his doctor and union representative, upon which Plaintiff relied, made "request[s] for relocation to the central office or an environment free of dust[, ]" rather than asking "for a respirator so that plaintiff could remain at the Queens Hospital location." Id. at 432-33. In sum, the court determined that HHC had interactively engaged with Jacobsen sufficiently under the NYSHRL and NYCHRL, affirming the lower court's dismissal of Jacobsen's case. Id.

C. Procedural Background

Jacobsen filed the Complaint in this action on October 4, 2012. (Dkt. No. 1.) Defendants filed their motion for judgment on the pleadings on January 17, 2013 (Dkt. No. 14), and Jacobsen filed his affirmation in opposition to the motion on March 27, ...

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