United States District Court, N.D. New York
MARIANNE T. O'TOOLE, as Trustee of the Chapter 7 Bankruptcy ESTATE OF DONALD R. SWARTZ and ROSE A. SWARTZ, Debtors,
ULSTER COUNTY, Defendant. Plaintiff,
MEMORANDUM-DECISION & ORDER
LAWRENCE E. KAHN, District Judge.
Plaintiff Marianne O'Toole ("Plaintiff") commenced this disability discrimination action against Defendant Ulster County ("Defendant"). Dkt. Nos. 1 ("Complaint"); 8 ("Amended Complaint"). Presently before the Court is Defendant's Motion for summary judgment. Dkt. No. 40 ("Motion"). For the following reasons, the Motion is denied.
A. Employment and Diagnosis
Plaintiff Rose Swartz began working for Defendant as a mental health specialist in August 1988. Dkt. Nos. 40-1 ("Statement of Material Facts") ¶¶ 1, 3; 54 ("Statement of Material Facts Response") ¶¶ 1, 3. In or about October 2003, Plaintiff was promoted to the position of clinical supervisor. See SMF ¶ 3; SMF Resp. ¶ 3; see also Dkt. No. 53 ("Swartz Affidavit") ¶ 4. Plaintiff's job responsibilities include supervising a clinical staff of social and clerical workers, and providing direct clinical and ongoing therapeutic services. SMF ¶ 11; SMF Resp. ¶ 11. To fulfill her duties, Plaintiff is required to, inter alia, type reports and other documents, facilitate and document phone intake for patient services, and file reports and other related documents. See SMF Resp. ¶¶ 12-13; Swartz Aff. ¶¶ 4-6, 13.
In July 2008, Plaintiff was diagnosed with carpal tunnel syndrome ("CTS") in her right hand. Swartz Aff. ¶ 9. In February 2009, Plaintiff underwent unsuccessful surgery on her right hand. Id . ¶ 10. Plaintiff was also diagnosed with CTS in her left hand in March 2010. Id . ¶ 11.
B. Voice Recognition Software
In February 2009, Plaintiff requested that Defendant install a user-based voice recognition software (the "Dragon Program") on her computer to alleviate the strain on her hands in typing reports. SMF ¶¶ 19-21; SMF Resp. ¶¶ 19-21; Swartz Aff. ¶ 15. Plaintiff was advised that if she wanted the Dragon Program, she would have to purchase it herself, which she did. Swartz Aff. ¶¶ 15-16. Defendant asserts that it later reimbursed Plaintiff for the cost of the Dragon Program, SMF ¶ 24, but Plaintiff disputes that she was ever offered reimbursement, Swartz Aff. ¶ 18. Defendant also claims that it instructed and trained Plaintiff on how to use the Dragon Program, SMF ¶ 27, but Plaintiff asserts that she was told she was "on [her] own, " Swartz Aff. ¶ 17. The parties also dispute whether the Dragon Program functioned properly over the next several months. SMF ¶ 28; SMF Resp. ¶ 19.
C. Personal Printer
In or about July 2009, the printer attached to Plaintiff's computer stopped working. Swartz Aff. ¶ 20; SMF ¶ 30. Plaintiff requested a new printer and even offered to provide one at her own expense. Swartz Aff. ¶ 23. However, Defendant denied this request because, at the time, Defendant had a policy that prohibited any external devices from being connected to Defendant's data system. SMF ¶¶ 31, 33; SMF Resp. ¶¶ 31, 33. Consequently, Plaintiff was required to use the central office printer, which was shared by approximately twelve other staff members. Swartz Aff. ¶ 20. Because the office printer was used by so many employees, Plaintiff often had to sort through voluminous documents to retrieve her own, which exacerbated her CTS. Id . ¶¶ 20-21. Approximately six to eight weeks after Plaintiff's request, a new printer was installed in her office. SMF ¶ 32; SMF Resp. ¶ 32.
D. Filing Assistance
On December 14, 2009, Plaintiff met with Linda Brewer ("Brewer"), Defendant's Program Supervisor, to discuss accommodations, including, inter alia, assistance with filing. Swartz Aff. ¶ 24. Brewer requested a doctor's note to justify the requested accommodations, and Plaintiff provided the note on January 27, 2010. Id . ¶ 25. A few days later, Plaintiff was called into a meeting with her immediate supervisor, Bruce Barrack ("Barrack"); Brewer; Kristin Carney; and Commissioner Brown ("Brown"), who joined by way of telephone conference. Id . ¶ 26. Brown stated that he would consider Plaintiff's request, but that if he found her current or any future requests unreasonable, she would be terminated. Id.
E. Duty Reallocation and Ergonomic Assessment
In April 2010, following an appointment with her treating physician, Dr. Kenneth Spaeth ("Spaeth"), Plaintiff spoke with Barrack to request "swapping duties" to assume responsibilities that required less strain on her hands. Swartz Aff. ¶¶ 30-31. Plaintiff also requested an ergonomic evaluation of her workspace. Id . ¶ 32. On June 6, 2010, an employee from Defendant's Safety Office performed an ergonomic assessment of Plaintiff's work station. Swartz Aff. ¶ 38; SMF ¶ 34. Plaintiff asserts that the evaluation was inadequate because (1) she was not present for the employee to analyze the workstation with regard to her individual needs, and (2) the employee had no professional expertise in performing ergonomic assessments. Swartz Aff. ¶ 38; SMF ¶ 35. Nonetheless, the employee recommended certain changes and accommodations be made to Plaintiff's workstation. Swartz Aff. ¶ 39. Plaintiff was provided with a new chair, but Plaintiff found the chair unhelpful and eventually brought in her own. SMF ¶¶ 37-38. Plaintiff was also provided with a new workstation approximately six months after the assessment. Swartz Aff. ¶ 54.
Because the Dragon Program had not been working properly, on June 9, 2010, Plaintiff made a request to use a dictaphone and have her notes and treatment plans transcribed for her. Swartz Aff. ¶ 40; SMF Resp. ¶ 131. Brown responded that Plaintiff's request could not be "reasonably accommodated in light of the fact that it would require the hiring of additional clerical staff." Swartz Aff. ¶ 43. Plaintiff responded by offering to pay privately for an employee to transcribe her notes after-hours, a practice which had been previously utilized by other professionals in her office. Id . ¶ 44. Defendant did not reply to Plaintiff's proposal. Id.
G. Initial Accommodations
In July 2010, Defendant requested that Plaintiff undergo an independent medical examination ("IME") to determine whether she should be placed on leave for disability pursuant to New York Civil Service Law § 72. SMF ¶ 71; Swartz Aff. ¶ 45. Plaintiff appeared as requested with Dr. Marc Bergeron on July 14, 2010. Swartz Aff. ¶ 49. Dr. Bergeron concluded that "the only function [Plaintiff] would have difficulty performing, which is definitely important in the type of work she is doing, would be prepar[ing] reports of narrative and statistical nature, as well as general correspondence; maintenance records [sic].'" Dkt. No. 41, Ex. N. at 4. Plaintiff acknowledged that she was having extreme difficulty keeping up with these job tasks due to her CTS. See id.
A few weeks after her exam, having received no response from Defendant, Plaintiff requested a meeting with Brenda Bartholomew ("Bartholomew"), Defendant's personnel officer. Swartz Aff. ¶ 50. Plaintiff informed Bartholomew that she intended to file a complaint with the Equal Employment Opportunity Commission ("EEOC") based on Defendant's conduct thus far. Id . A few days later, on August 2, 2010, Plaintiff received a letter from Bartholomew stating that Defendant would agree to provide the following accommodations: (1) a new computer to allow the Dragon Program to operate properly; (2) implementation of the security office employee's ergonomic recommendations; and (3) observation of Plaintiff in her work environment by an independent ergonomic reviewer after the other accommodations had been in place for a reasonable time period. Id . ¶ 52. Plaintiff was not placed on § 72 leave at that time. See SMF ¶ 75.
H. Touchscreen Monitor
During late October and November 2010, Patty Griffis ("Griffis"), Defendant's technical support technician, suggested that a touch screen monitor would be helpful in creating an ergonomic work environment for Plaintiff. Swartz Aff. ¶¶ 17, 64. Plaintiff communicated her request for a touchscreen monitor to Bartholomew, who said that she would follow up with Plaintiff; however, Plaintiff never heard back from Bartholomew. Id . ¶ 65.
I. Paperwork Deficiencies and Unpaid Leave
Defendant asserts that Plaintiff had been deficient in her paperwork responsibilities for several months and planned to place Plaintiff on "special review" in June 2010, but delayed the process to see if the accommodations would allow Plaintiff to regain satisfactory performance. SMF ¶ 62. Defendant states that Plaintiff showed improvement until October 2010, when an audit revealed missing paperwork. Id . ¶¶ 63-64. Defendant also states that Plaintiff improved in November, but when she again fell behind in December, she was placed on special review. Id . ¶¶ 51, 56, 66; Swartz Aff. ¶¶ 62-63. Plaintiff does not dispute that the October audit revealed substantial missing paperwork. See SMF Resp. ¶ 64. However, Plaintiff's supervisor claimed that Plaintiff was making significant progress and was on track to regain satisfactory performance. Id . ¶¶ 64-65.
On December 22, 2010, Plaintiff was informed that she was officially being placed on § 72 leave. SMF ¶ 81; SMF Resp. ¶ 81. Plaintiff states that she received a letter indicating that she would be placed on involuntary, unpaid leave because "[i]t is the opinion of [Defendant] that your request for the removal or reassignment of a significant part of your job duties and responsibilities is not reasonable based on the needs of [Defendant]." Swartz Aff. ¶ 87. Plaintiff contends that at the time she was placed on leave, Defendant had in its possession reports from five doctors indicating that Plaintiff could perform her job responsibilities with certain, reasonable ...