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Howard v. City of New York

United States District Court, S.D. New York

October 20, 2014

CHRISTOPHER HOWARD, Plaintiff,
v.
THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, and DR. CATHERINE LAMSTEIN, Defendants

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[Copyrighted Material Omitted]

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For Christopher Howard, Plaintiff: Alex Umansky, Phillips & Associates, Attorney at law, PLLC, New York, NY.

For The City of New York, The New York City Police Department, Dr. Catherine Lamstein, Individually, Defendants: Jane Elizabeth Andersen, LEAD ATTORNEY, New York City Law Department, New York, NY.

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OPINION & ORDER

VALERIE CAPRONI, United States District Judge.

Plaintiff Christopher Howard brings this action, alleging wrongful termination from the New York City Police Department (" NYPD" ) on the basis of his disability or perceived disability in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 1201 et seq. (" ADA" ), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq. (" NYCHRL" ). Defendants moved for summary judgment on the grounds that Howard could not fulfill the essential functions of work as a police officer or, in the alternative, that it was reasonable for them to think so when they terminated him. Because Plaintiff has not adduced evidence sufficient to create a genuine issue of material fact, Defendants' motion is GRANTED and the case is DISMISSED.

BACKGROUND

This is a sad case. Christopher Howard " wanted to be a cop for a long time." Umansky Decl. Ex. A at 103. In 2010, his dream was temporarily realized when he was appointed a Probationary Police Officer (" PPO" ) and graduated near the top of his class from the Police Academy. Compl. ¶ 21. But after graduation, his dream began to slowly unravel.

Within the first month on the job, Howard experienced significant physical symptoms (nausea and diarrhea) associated with anxiety.[1] Defendants' Rule 56.1 Statement of Undisputed Material Facts (" Defs. 56.1 Stmt." ) ¶ 26; Umansky Decl. Ex. A at 18-19. Those symptoms culminated in what appears to have been a full-fledged panic attack on February 22. Defs. 56.1 Stmt. ¶ 29. While on duty that day, Howard was eating a familiar meal at a restaurant where he had eaten before, when he suddenly became very sick -- he felt nauseated and hot, his face flushed and reddened, he started sweating, his heart was racing, and he felt enormous pressure on his chest.[2] Id. Howard called in sick the next two days and visited Dr. Hernandez again on February 24, 2011; the notes from that visit reflected Howard's complaints regarding stomach symptoms. Id. ¶ ¶ 30-32, Umansky Decl. Ex. D at PSYC 25. During that visit, Dr. Hernandez prescribed Zoloft, an antidepressant that is also used to treat anxiety. Defs. 56.1 Stmt. ¶ ¶ 33-34.

On February 25, 2011, still not feeling well, Howard called in sick for the third straight day. Id. ¶ 35. As required by NYPD procedures, Howard reported to the District Surgeon, Dr. Hornyak, who,

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with Howard's consent, placed him on sick leave for one week. Id. ¶ ¶ 35-36. During that week, Howard suffered hot flashes, nervousness, irritability and rapid heartbeat. Id. ¶ 37. On March 3, 2011, Howard began to see licensed clinical social worker (" LCSW" ) Steven Spirn, a psychotherapist and hypnotherapist; he saw Spirn approximately once or twice a week for a total of five to seven visits. Id. ¶ ¶ 38-39. According to Howard, Spirn suggested that he speak to his doctor about the side effects of Howard's medications. Umansky Decl. Ex. A at 35.

On March 4, 2011, Dr. Hornyak, unaware that Howard was taking Zoloft, cleared him to return to work. Defs. 56.1 Stmt. ¶ ¶ 41-42. Howard had regular days off scheduled for the next two days; on March 5, 2011, he checked in with Dr. Hernandez, who prescribed Xanax, an anti-anxiety benzodiazepine. Id. ¶ ¶ 43-44. Dr. Hernandez's notes from that visit reflect in part that Howard reported suffering from " [a]nxiety & panic diarrhea." Id. ¶ 45. On March 6, 2011, Howard " felt hopeless and helpless and just wanted to lie in bed; " he stopped taking Zoloft, which he believed was making his symptoms worse. Umansky Decl. Ex. C ¶ 5. The next day -- which would have been his first day back at work after approximately two weeks on sick leave -- he called the NYPD sick desk and reported heightened anxiety. Umansky Decl. Ex. A at 28. The NYPD sick desk referred Howard to the NYPD's Psychological Evaluation Section (" PES" ). Defs. 56.1 Stmt. ¶ 49.

On March 7, 2011, Dr. Catherine Lamstein, a psychotherapist with the PES, met Howard. Id. ¶ ¶ 9-13, 51. Although Dr. Lamstein and Howard have different recollections of what Howard said during their initial meeting, the differences are not material. Both agree that Howard related that he experienced stomach virus-like symptoms during a stressful time at the Police Academy and that he had recently experienced a full-blown panic attack and periods of anxiety. Umansky Decl. Ex. A at 31-32, Ex. B at 105-07, 96.

Dr. Lamstein and Howard discussed the stressors in Howard's life, including a romantic breakup. Umansky Decl. Ex. B at 96-97, 134. They discussed Howard's work as a police officer; Howard told Dr. Lamstein that he did not like car stops because they were " too dangerous." Id. at 103. Dr. Lamstein also spoke with Howard about his family. He reported that one of his parents has an anxiety disorder, one sibling suffers from anxiety following a traumatic event, and one is a recovering addict. Id. at 86-88.

Dr. Lamstein spoke with Dr. Hernandez and LCSW Spirn. Defs. 56.1 Stmt. ¶ ¶ 55, 57. Spirn shared with Dr. Lamstein his tentative diagnosis of Adjustment Disorder and his observation that Howard was " desperately" concerned about losing his job because of his medical issues. Id. ¶ ¶ 59-60.

Meanwhile, at Dr. Hernandez's suggestion, Howard began to see Dr. Anna Kharitonova, a psychiatrist. Id. ¶ 62, Umansky Decl. Ex. A at 37. Dr. Kharitonova's notes from March 8, 2011, reflect that Howard's " chief complaint" was " panic attack, anxiety, [illegible] depressed mood, low energy." Umansky Decl. Ex. F at PSYC 82. Under " history of present illness," Dr. Kharitonova mentioned stressors in Howard's life such as his new job and his breakup and also discussed physical issues, including " stomach virus for 3 weeks." Id.[3] Dr. Kharitonova diagnosed Howard

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with Adjustment Disorder with Mixed Anxiety and Depressed Mood[4] and Panic Disorder without Agoraphobia. Defs. 56.1 Stmt. ¶ 66. Dr. Kharitonova changed Howard's medications to Lexapro and Klonopin, medications used to treat anxiety. Id. ¶ 70.

On March 16, 2011, Howard, who was still on sick leave, returned to Dr. Kharitonova. The psychiatrist's notes from that visit reflect that Howard " report[ed] no panic attacks" in the eight intervening days " but still experience[d] a lot of anxiety, fe[lt] pressure" and suffered from " ...


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