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Sherman v. County of Suffolk

United States District Court, E.D. New York

December 29, 2014


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For the Plaintiff: Linda Cronin, Esq., Dominick Peter Revellino, Esq., Mariam Ahmad, Esq., Moshe C. Bobker, Esq., Shahin Mashhadian, Esq., Susan P. Bernstein, Esq., Of Counsel, Cronin & Byczek LLP, New Hyde Park, NY.

For the Defendants: Elaine M. Barraga, Assistant County Attorney, Suffolk County Attorney's Office, Hauppauge, NY.

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ARTHUR D. SPATT, United States District Judge.

On May 26, 2011, the Plaintiff Steven Sherman (the " Plaintiff" ) filed the present action against the Defendants, his former employers the County of Suffolk (" Suffolk County" ); the Suffolk County Sheriff's Department, and his former supervisors a Corrections Officer with the surname Tschantre (" Tschantre" ), a Corrections Officer with the surname Hemmendinger (" Hemmendinger" ), Deputy Sheriff William Weick (Weick" ), and a Deputy Sheriff with the surname Korte (" Korte" )(together the " Individual Defendants" and collectively the " Defendants" ). The Plaintiff asserted violations of the Americans with Disabilities Act, 42 U.S.C. § § 12101 et seq. (" ADA" ); the Age Discrimination in Employment Act, 29 U.S.C. § § 621, et seq. (" ADEA" ); and New York Executive Law § 296 (" NYSHRL" ).

On October 26, 2011, the Plaintiff filed an amended complaint, this time for violations of the ADA, the NYSHRL, and 42 U.S.C. § 1983.

Following the completion of discovery, on March 27, 2014, the Defendants moved pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 56 for summary judgment dismissing the amended complaint.

For the reasons set forth, the Court grants in part and denies in part the motion for summary judgment.


A. Factual Background

Unless stated otherwise, the following facts are drawn from the parties' Rule 56.1

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Statements and attached exhibits, and have been construed in a light most favorable to the non-moving party, the Plaintiff. Triable issues of fact are noted.

In January 2010, the Plaintiff received and accepted a conditional job offer as a Correction Officer I from the Suffolk County Sherriff's Department. The duties of a Correction Officer I include guarding prisoners and maintaining order and security at Suffolk County detention and correctional facilities. Correction Officers must have a strong knowledge of the rules and regulations of the Suffolk County Correctional facilities, and are expected to possess intelligence, communicative ability, and physical and mental fitness commensurate with a position entailing risk to, and responsibility over, the safety of self and others. Prior to entering the Correction Officers Academy, the Plaintiff understood that his offer was conditional upon passing established academic and physical training requirements. The Plaintiff commenced the Academy's thirteen-week training program in January 2010.

The following events are structured in terms of events purportedly related to the alleged age discrimination, the alleged disability discrimination, the alleged hostile work environment, the Graduation at the Academy, and the Plaintiff's time both during and after his work at the Suffolk County Correctional Facility. These events, of course, overlap in certain respects.

B. The Alleged Age Discrimination Claim

At 55 years of age, the Plaintiff was the oldest recruit in his class. It is not uncommon for Correction Officer I recruit classes to contain members over the age of fifty and there is no maximum age limit for the position of Correction Officer I.

The Plaintiff alleges that on his second day at the Academy, Corrections Officer Tschantre asked the recruits who was the oldest in the class, and when he raised his hand, she remarked to him, " aren't you glad there's no age limit?"

C. The Alleged Disability Discrimination Claim

Recruits participate in physical training sessions where they do basic calisthenics. The Defendants assert that the " Mountain Climber" is a common callisthenic exercise generally administered to all academy classes throughout training. The Plaintiff asserts that both Cos. Tschantre and Hemmendinger considered the " Mountain Climber" an advanced exercise and could not recall such early administration to recruits.

On January 27, 2010, the Plaintiff injured his quad muscle in his left leg on the rubber-matted drill floor while doing the " Mountain Climber." The Plaintiff was able to change into his Academy uniform despite feeling pain in his leg. That day, the Plaintiff continued with the educational portion of the Academy training. The Plaintiff was also able to walk up the stairs to the second floor of the Academy.

On the day of the injury, the Plaintiff did not say anything about it to any instructor or recruit, and did not contact a physician. The Plaintiff maintains that he failed to do so because he was then unaware of the severity of the leg injury. The Plaintiff drove home that afternoon, and self-treated himself with pain medicine.

The following day, the Plaintiff visited his personal physician, who diagnosed him with a quad strain. The Plaintiff asked his physician if he could commence physical therapy as soon as possible.

On February 4, 2010, the Plaintiff was called to the command office to discuss his injury. The Plaintiff alleges that on his

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way to the office he ran into Tschantre and she apologized for what she considered to be the inappropriately early administration of the mountain climber.

At that meeting, Suffolk County Lt. L'Hommedeau discussed with the Plaintiff his option, in the wake of the injury, to leave and then rejoin the Academy in the following class of recruits. The parties dispute whether L'Hommedeau actively encouraged the Plaintiff to exercise this option. The Plaintiff, unsure of when the next class would be held, remained enrolled at the Academy and informed his supervisors that he had commenced physical therapy.

L'Hommedeau subsequently assured the Plaintiff that the Defendants would do " whatever they could to help him recover," including allowing him to use the elevator and accommodating any extra training he might need to do. L'Hommedeau told the Plaintiff " we'll work with you; we'll be there for you. We'll do everything we can to get you through the [A]cademy. I'm going to allow you to use the elevator to let your leg heal, and Tschantre will be there for you. Tschrante would say I'll be there for you. [sic]. If you need anything just ask me, you know I will help you through all the physicalness [sic] you have to do and extra training and everything else. I'll be there for you . . ." (The Plaintiff Dep., at 63.) The Plaintiff did not participate in physical fitness training for the remainder of the Academy program.

On February 11, 2010, the Plaintiff spoke to an Investigator with the surname Ponticello at the Medical Evaluation Unit. The Plaintiff alleges that Ponticello tried to persuade him to deny his injury and rejoin the physical training, saying that the Academy would " come after him because of his age."

On February 15, 2010, the Plaintiff submitted a letter from his physical therapist stating that failure to abstain from strenuous activity during the next 4-6 weeks could result in further injury.

On February 22, 2010, the Plaintiff submitted a letter to Tschantre asking her for help and advice on rehabilitating his injury. This letter went unanswered.

On April 2, 2010, the Plaintiff underwent an MRI performed on his leg. The test results showed no significant tear, but bursitis of the hip and tendinitis as a result, the Plaintiff contends, of being forced to use the stairs during the period following his injury. In the period between the injury and this evaluation, the Plaintiff successfully climbed stairs, changed in and out of uniform, and drove, though he contends that pain frequently accompanied these activities. The Plaintiff considered his leg injury a debilitating disability for life. The Defendants disagreed.

In July 2010, the Plaintiff participated in and completed firearms training, which included running. The Defendants maintain that this fact undermines any alleged claim of disability. The Plaintiff testified that he did not go against his physician's orders when participating in firearms training because " the leg was feeling well enough for [him] to attempt to do it, so [he] did it." (Id. at 65.)

D. The Alleged Hostile Work Environment Claim

The Plaintiff understood that training in the Academy was conducted in a paramilitary environment.

That said, according to the Plaintiff, beginning on March 5, 2010, he began to feel isolated from his fellow recruits. For example, on March 15, 2010, each recruit except the Plaintiff received handcuffs. The Defendants assert that the Plaintiff did not receive handcuffs because he did not participate in handcuff training.

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The Plaintiff counters that the Defendants' discriminatory animus on the basis of age and disability led to the decision not to give him handcuffs. In support of this assertion, the Plaintiff notes that the Defendants gave handcuffs to a recruit Paula DiCarlo, aged 39, despite her failure to participate in handcuff training. The Plaintiff asserts that he missed the handcuff training because he had been called to the Command Office.

Also, on March 15, 2010, the Plaintiff was called to the Command Office, where Weick allegedly chastised the Plaintiff for filing a form 6 standard report improperly and eleven days past the requested date. The form was returned to the Plaintiff stamped " Do Over."

On March 18, 2010, Korte spoke with the Plaintiff in the Command Office. The Plaintiff alleges that Korte berated him, and this incident was overheard by Darrell Mayo and Timothy Cable, other recruits, with whom he later discussed the incident.

Later that day, the Plaintiff was directed to copy military protocol regarding proper treatment of superior officers from the Academy guidebook. The Defendants contend that this was not punishment, but standard training procedure. The Plaintiff believes the exercise was intended to establish a " paper trail" to falsely document poor performance and to later justify his termination.

However, Mayo testified that the instructors at the Academy treated the Plaintiff the same as all of the other recruits and were trying to " get us to learn different things, and they were using team building skills to get everyone to learn and adapt to a new job." (Mayo Dep., at 24.) Mayo further testified that he did not recall instructors saying anything different to the Plaintiff than they did to other recruits or making comments with respect to the Plaintiff's age.

E. The Internal Complaint of Discrimination

On March 22, 2010, the Plaintiff filed an informal complaint, in writing, to Bob Draffin of Personnel Relations. (Defs' Exh. K.) In that letter, the Plaintiff alleges that he was " being treated in an unfair manner because of my age and my injury." (Id.) The discrimination apparently ceased after filing of the complaint.

On March 26, 2010, the Plaintiff withdrew the complaint, in writing, so as not jeopardize the Individual Defendants' careers.

On April 8, 2010, the Plaintiff wrote a letter to Debra Hallock, a superior, informing her of his reasons for not pursuing the discrimination complaint further and expressing to her his belief that the situation was resolved. Specifically, the Plaintiff wrote that " [it appears that the situation we spoke of has remedied itself, and I believe that the outcome will be satisfactory for all parties involved . . . I do not wish to pursue this further, unless the situation presents itself again." (Pl.'s Exh. L.).

F. The Graduation

On April 23, 2010, the date of Academy Graduation, the Plaintiff had not completed his physical training requirements. The Plaintiff was permitted to attend the ceremony in uniform, but was not allowed to participate within the proceedings. Rather, the Plaintiff sat in the audience with his wife. The Plaintiff contends that his exclusion from the proceedings on grounds of medical restriction was unprecedented, and reflected a discriminatory animus against him.

The Plaintiff further alleges that he was required to climb stairs in order to pose with his fellow recruits for a graduation picture, in contravention of medical orders and Lt. L'Hommedeau's authorization to

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allow him to abstain from using stairs. The Defendants maintain that he did so voluntarily.

The Plaintiff further states that he only received his badge after having to beg for it, causing him further humiliation. The Defendants characterize the conferral of a badge and diploma on the Plaintiff prior to completion of the physical requirements of the Academy and New York State as a " courtesy."

The Plaintiff was granted an extension of a year to satisfy his physical ...

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