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Itzhaki v. Port Authority of New York and New Jersey

United States District Court, S.D. New York

January 17, 2017



          JESSE M. FURMAN, United States District Judge.

         Plaintiff Sylvia Itzhaki sues her employer, the Port Authority of New York and New Jersey (the “Port Authority”), alleging a violation of the Rehabilitation Act of 1973, 29 U.S.C.A. § 701 et seq. Specifically, Itzhaki alleges that the Port Authority, the recipient of federal funds, delayed promoting her to the rank of Sergeant in the Port Authority Public Safety Department because of a disability - namely, an injury she sustained on the job. The Port Authority now moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment. For the reasons discussed below, the motion for summary judgment is granted.


         The relevant facts, taken from the Amended Complaint and materials submitted in connection with the pending motions, are either undisputed or described in the light most favorable to Itzhaki. See, e.g., Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011).

         Itzhaki joined the Port Authority's Public Safety Department in July 2002. (Docket No. 29 (“Def.'s SOF”) ¶ 4). In January 2003, she was reassigned to the Central Police Pool, and on March 28, 2004, she was reassigned once again to the Police Academy, where she remained until April 2014. (Id. ¶¶ 5-6). On October 9, 2012, Itzhaki injured her knee during a training exercise at the Police Academy. (Id. ¶ 40). As a result of the injury, she remained out of work until January 2014, when she returned to limited duty; she returned to full duty on February 28, 2014. (Id. ¶ 42). During her extended absence, Itzhaki's doctor, Dr. Frank A. Cordasco, performed two surgeries on her knee. (Id. ¶ 43). For the duration of her absence, neither Dr. Cordasco nor the Port Authority cleared her to return to work. (See Docket No. 30 (“Lee Decl.”), Ex. J (“Dr. Cordasco's Notes”); Docket No. 36 (“Soto Decl.”), Ex. H (“Port Authority Notes”) 39).

         On March 3, 2010, the Port Authority issued a Promotional Evaluation Announcement, which included a job description for the position of Sergeant. (Def.'s SOF ¶¶ 9-10; Lee Decl., Ex. C (“PEA”)). The job description stated that the duties and responsibilities of Sergeant included supervising, reviewing, and instructing police officers; responding to potentially hazardous situations that might arise, including traffic conditions, emergencies, firefighting, and rescue work; and the protection of life and property. (Def.'s SOF ¶ 11; PEA 6). The Port Authority's process for evaluating applicants included both a written examination, conducted in April 2010, and an initial screening of candidates' attendance, discipline, and history of civilian complaints and internal affairs investigations. (Def.'s SOF ¶¶ 9, 14). Those who passed the initial screening then participated in a “qualifications review” meeting, after which they were rated by a Promotion Review Board in seven different categories. (Id. ¶¶ 15, 17-18). For each category, candidates were rated either “Outstanding, ” “Acceptable, ” or “Unacceptable.” (See Lee Decl., Ex. E (“Screening Standards”)).[1] Based on those ratings, the candidates were then placed into one of three groups: “Highly Recommended, ” “Recommended, ” or “Not Recommended.” (Def.'s SOF ¶ 20; Screening Standards). Any candidate who received no more than one Acceptable rating and Outstanding ratings in all other categories was placed in the Highly Recommended group; any candidate who received two or more ratings of Acceptable and no ratings of Unacceptable was placed in the Recommended group. (Id.).

         Itzhaki took and passed the written examination in April 2010 and was considered for promotion to Sergeant in November 2012. (Def.'s SOF ¶¶ 29-30). At that time, to receive an Outstanding rating in the “Breadth of Experience/Exposure” category, a candidate had to have at least one year of experience at two or more commands and more than two years of experience in certain special commands, including the Central Police Pool. (Id. ¶ 21; Docket No. 31 (“Ford Aff.”) ¶ 25; Screening Standards). To receive an Outstanding rating in the “Attendance” category, a candidate had to have had zero to three absence occasions since January 1, 2007. (Def.'s SOF ¶ 22; Screening Standards). Itzhaki was rated Acceptable in both categories because she had been assigned to the Central Police Pool for less than two years and because (not counting her absence for the injury she sustained on duty, which was exempt) she had been absent on four occasions between 2007 and 2012. (Ford Affidavit ¶¶ 26, 28). Accordingly, she was placed in the Recommended group rather than the Highly Recommended group. (Id. ¶ 29). In August 2013, the Port Authority promoted to Sergeant twenty-five officers who had qualified for the Highly Recommended group. (Id. ¶ 21). Itzhaki was not among them as she was only in the Recommended group. Itzhaki was ultimately promoted to Sergeant, however, in April 2014. (Id. ¶ 31).


         Summary judgment is appropriate where the admissible evidence and the pleadings demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (per curiam). A dispute over an issue of material fact qualifies as genuine “if the evidence is such that a reasonable jury could return a judgment for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Celotex, 477 U.S. at 322-23); accord PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam). In ruling on a motion for summary judgment, all evidence must be viewed “in the light most favorable to the non-moving party, ” Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004), and the court must “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought, ” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).

         Claims under the Rehabilitation Act are analyzed under the familiar three-step burden-shifting scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Yetman v. Capital Dist. Transp. Auth., No. 15-2683, 2016 WL 6242924, at *2 (2d Cir. Oct. 25, 2016). Under that scheme, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. See 411 U.S. at 802. “If the plaintiff does so, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for its action.” Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008) (internal quotation marks omitted). Once the defendant puts forward such a “legitimate, non-discriminatory reason, ” the plaintiff “may no longer rely on the presumption raised by the prima facie case, ” but rather must put forward evidence that would allow a reasonable jury to conclude that “the employer's determination was in fact the result of [unlawful] discrimination.” Id.

         Notably, the Second Circuit has cautioned that courts should be “especially chary in handing out summary judgment in discrimination cases, ” as the intent of the employer is often a central factual issue. Jamilik v. Yale Univ., 362 F. App'x 148, 149 (2d Cir. 2009) (internal quotation marks omitted). Nevertheless, it is “beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.” Abdu-Brisson v. Delta Air Lines. Inc., 239 F.3d 456, 466 (2d Cir. 2001). Indeed, just as in the non-discrimination context, “an employment discrimination plaintiff faced with a properly supported summary judgment motion must do more than simply show that there is some metaphysical doubt as to the material facts. She must come forth with evidence sufficient to allow a reasonable jury to find in her favor.” Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (citation and internal quotation marks omitted). That is, “[a] plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [defendant] were false, and that more likely than not [discrimination] was the real reason for the [employment action].” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (alterations in original) (internal quotation marks omitted). For their part, courts evaluating the sufficiency of evidence on a motion for summary judgment must “carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999).


         The Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The Act incorporates the standards of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12111 et seq., see Id. § 794(d), with one significant distinction: Unlike the ADA, the Rehabilitation Act requires proof that discrimination was “solely due to an individual's disability, ” Cheung v. Donahoe, No. 11-cv-0122 (ENV) (RLM), 2016 WL 3640683, at *5 (E.D.N.Y. June 29, 2016); see 29 U.S.C. § 794(d); see also Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999). A plaintiff can base a Rehabilitation Act claim on one or more of “three available theories: (1) intentional discrimination (disparate treatment); (2) disparate impact; and (3) failure to make a reasonable accommodation.” Tsombanidis v. West Haven Fire Dep't, 352 F.3d 565, 573 (2d Cir. 2003).

         Itzhaki claims that the Port Authority violated the Rehabilitation Act by denying her a promotion to Sergeant in August 2013. (Docket No. 34 (“Pl.'s Opp'n”) 1). More specifically, she brings claims based upon two theories: failure to make a reasonable accommodation and intentional discrimination. (Docket No. 18 (“Am. Compl.”) ¶ 23). The Port Authority argues that Itzhaki's claims fail because she was not disabled within the meaning of the Rehabilitation ...

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