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O'Dette v. Fisher

United States District Court, E.D. New York

November 21, 2014

FERN A. FISHER, in her capacity as Deputy Chief Administrative Judge for the New York City Courts, Defendant.


I. LEO GLASSER, Senior District Judge.

Plaintiff Michael O'Dette ("O'Dette") brings this action against the Honorable Fern A. Fisher ("Judge Fisher" or "Defendant"), in her capacity as Deputy Chief Administrative Judge for the New York City Courts, alleging violations of Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111, et seq. Judge Fisher moves, pursuant to Federal Rule of Civil Procedure 56, for summary judgment. For the reasons that follow, the motion is GRANTED.


The following facts are undisputed, except where noted. O'Dette is a fifty-six-year-old man who suffers from Obsessive Compulsive Disorder ("OCD") and Tourette's Syndrome ("Tourette's"), a neurological disorder characterized by involuntary motor and vocal tics. See Defendant's Local Rule 56.1 Statement of Facts ("D SOF") ¶ 22[1]; Am. Compl. (Dkt. No. 13) ¶ 26. He testified that as a result of his Tourette's, he has the uncontrollable urge to release motor and vocal tics hundreds of times a day for five to ten minutes at a time. D SOF ¶ 24. When ticcing, he opens and closes his jaw, shrugs his shoulders, waves his hands, jerks his legs, and makes "choo choo" sounds. Id. His verbal tics also "on infrequent occasions" include repeating obscenities-a symptom associated with Tourette's known as coprolalia. See O'Dette Certification (PX 2) ¶ 5; O'Dette Testimony (PX A) at 80:11-16. He testified that his Tourette's and OCD do not interfere with his ability to sleep, make decisions, think, or work. D SOF ¶ 37. Additionally, his expert, Dr. Stephen Reich, opined that his symptomology has never prevented him from "working, being productive, and being independent." Id. ¶ 39.

I. O'Dette's Employment at the New York Unified Court System

From 2000 through 2009, O'Dette worked as a New York State Court Officer ("Court Officer"), providing courthouse security services for the New York Unified Court System ("UCS"). His official responsibilities as a Court Officer included providing courtroom security, patrolling the courthouse, maintaining order and control in emergencies, and guarding judicial staff. D SOF ¶¶ 28, 30. From March 2000 through October 2001, he was assigned to the Bronx Family Court. Id. ¶ 3. On November 1, 2001, he became a Senior Court Officer for the Civil Term of the New York County Supreme Court, where he was assigned primarily to the 60 Centre Street courthouse ("60 Centre Street") and temporarily to the 71 Thomas Street courthouse ("71 Thomas Street"). Id. ¶ 3.

At 60 Centre Street, he worked at the X-ray machines and magnetometers (collectively, the "magnetometers"), located at the front and back entrances. Id. ¶ 7. He used empty jury rooms, bathrooms, courtrooms, and judge's robing rooms to release his tics. Id. ¶ 27. On April 2, 2009, his supervisor, Major Gerard Fennell, told him that he was being transferred to 71 Thomas Street, which he knew did not have private areas for him to release his tics. Id. ¶ 4. The next day, in a meeting with Chief Clerk John Werner and Captain Michael Castellano, he disclosed that he had Tourette's and needed a private place to release his tics; this was the first time he shared this information with anyone at the UCS. Id. ¶ 5. His supervisors permitted him to remain assigned to 60 Centre Street. Id. ¶ 6.

II. Instances of Misconduct

A few months later, he was involved in two episodes in which he loudly cursed in public at another Court Officer while on the job. On July 8, 2009, he screamed "fuck you" repeatedly at Officer Kimberly Moses in the public courthouse lobby after she refused to relieve him as a pusher on the magnetometers and allegedly called him a "retard." D SOF ¶¶ 7-10. On November 5, 2009, he refused Lieutenant Kenneth Schustal's order to relieve another Court Officer at the magnetometers because he believed he was still on his lunch break. Id. ¶¶ 11-15. He screamed "fuck you" repeatedly at Schustal over the phone in the public lobby, and again in a meeting with his supervisors. Id. He alleges that because he has coprolalia, he could not control either cursing incident. Plaintiff's Local Rule 56.1 Statement of Facts ("P SOF") ¶¶ 8, 10, 13, 15.

As a result of these incidents, on November 5, 2009, he was placed on paid administrative leave. D SOF ¶16. He reported back to work on December 2, 2009. Id. ¶ 17. His supervisors assigned him to 71 Thomas Street, in hopes of giving him a "fresh start" in a quieter, less stressful work environment than at 60 Centre Street. Id. ¶¶ 18-19. On the day he returned to work, he told Sergeant Terence McNulty-one of his superior officers at 60 Centre Street-that he needed a private room at 71 Thomas Street to release his tics. P SOF ¶ 21; DX 13 at 109:15-110:11. McNulty arranged for a meeting that day with Castellano, who advised O'Dette that he needed to request this accommodation from his superior officers at 71 Thomas Street. D SOF ¶ 20; DX 13 at 109:15-110:11; DX 41 at 24:22-25. He told Castellano that he "wasn't going to go over [to 71 Thomas Street]" and Castellano told him to go home. DX 13 at 110:8-13.

On December 14, 2009, he submitted forms completed by his psychiatrist, Dr. Ruth Dowling-Bruun, to assist the UCS in evaluating whether he was capable of returning to work. D SOF ¶ 48. In one of the forms, Bruun stated that there were no known problems that would interfere with him returning to work so long as he had access to a separate room to release his tics. See id. ¶ 49. That same day, Fennell notified O'Dette in writing that he could not return to work. Am. Compl. ¶ 52. On September 14, 2010, the UCS filed disciplinary charges against him based on the July 8, November 5, and December 2, 2009 incidents of alleged misconduct. DX 1-2.

III. Disciplinary Hearing

On December 12 and 13, 2011, the State of New York Office of Court Administration held a two-day disciplinary hearing before Judicial Hearing Officer ("JHO") Herbert J. Adlerberg. JHO Adlerberg issued a Report and Recommendation ("R&R"), dated February 6, 2012, which found that O'Dette had committed misconduct on all three occasions. DX 2. In particular, he found that the first two instances of misconduct-in which O'Dette cursed at a fellow Court Officer and his supervisor-were only partially attributable to Tourette's or OCD, and that O'Dette's direct refusal of Schustal's order to report to 71 Thomas Street was not attributable to O'Dette's alleged disabilities. DX 2 at 12. He reasoned that "the most important rule" governing the Court Officer position was to operate within a chain of command and that O'Dette's "intentional and steadfast refusal to report to the assignment at 71 Thomas Street... [was] a blatant violation of that rule and can in no way be attributed to an ...

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