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Forman v. City of New York

United States District Court, S.D. New York

March 27, 2017

CITY OF NEW YORK, Defendant.


          LAURA TAYLOR SWAIN United States District Judge

         Plaintiff Michelle Forman (“Forman”) brings this action against Defendant the City of New York (“City”), asserting eleven causes of action. Specifically, Forman asserts disability discrimination claims for wrongful termination, failure to accommodate, and denial of reinstatement under: 1) the Americans with Disabilities Act (“ADA”); 2) the Rehabilitation Act; 3) the New York State Human Rights Law (“SHRL”); and 4) the New York City Human Rights Law (“CHRL”). Forman also asserts claims for: 5) a violation of Civil Service Law (“CSL”) § 73; 6) a violation of her Collective Bargaining Agreement (“CBA”); 7) a violation of Rule 6.1.1 of the New York City Personnel Rules and Regulations (“NYC PRR”); 8) a violation of Rule 6.1.9 of the NYC PRR; 9) negligence; 10) negligent hiring, training, retention, and supervision; and 11) respondeat superior.

         The Court has original jurisdiction of the federal claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction of the state and city claims pursuant to 28 U.S.C. § 1367(a). The City moves under Federal Rule of Civil Procedure 12(b) to dismiss each of the claims against it. (See docket entry no. 41.)[1] The Court has reviewed thoroughly all of the parties' submissions and arguments. For the following reasons, the City's motion is granted.


         Between 2002 and 2012, the City employed Forman as a School Safety Agent in the NYPD. (Am. Compl. ¶ 14.) As a School Safety Agent, Forman's duties primarily involved physical activity. For example, she was responsible for patrolling the school building and its vicinity to “maintain order” and “preserve the peace.” (Id. Ex. 7, at 1.) The job involved, among other things, identifying and removing unauthorized people from the premises; responding to and breaking up altercations between students and other people; and providing aid to sick or injured people. (Id.) Forman was also responsible for apprehending violators of the Penal Law, issuing them summonses or arresting them, and escorting arrestees to the local precinct. (Id. at 2.) Forman's more sedentary duties were related to the physically demanding ones. She was required, for example, to prepare reports about unusual and criminal events and the actions she took in response to them. (Id.)

         In February 2011, the City placed Forman on leave of absence so she could undergo a “medically-necessary bunionectomy.” (Id. ¶ 15.) The following year, Forman received a letter from the NYPD stating that, pursuant to CSL § 73, [3] her employment was terminated as of April 13, 2012. (Id. ¶ 17; Ex. 2.) The letter also stated that Forman could apply for reinstatement within a year if she was “physically and mentally fit to perform the duties of [her] former position.” (Id. ¶ 17; Ex. 2.)

         Forman applied for reinstatement in March 2013. (Id. ¶ 18.) Along with the application, Forman submitted a document from her physician stating that she had reported herself as disabled due to hypertension, osteoarthritis in her feet, and a herniated disc in her spine. (Id. Ex. 3, at 2.) Forman claims these conditions had the combined effect of substantially limiting her major life activities. (Id. ¶ 19.) The physician ostensibly certified that Forman was “fit to perform the duties of his/her position & should be reinstated.” (Id. ¶ 18; Ex. 3, at 2.) The physician clarified, however, that Plaintiff was only followed by the practice for hypertension and that the certification was given only “in regards to [Forman's] hypertension.” (Id. Ex. 3, at 2.)

         In response to the application, the City, through its agent the Department of Citywide Administrative Services (“DCAS”), performed its own physical examination of Forman. In April 2013, DCAS notified Forman that her application was denied because the results of the examination indicated she was “not medically fit to perform the duties of [her] position as a School Safety Agent.” (Id. ¶ 20; Ex. 4.) The same letter also advised Forman that she could reapply for reinstatement in the future. (Id. Ex. 4.)

         In June 2013, Forman enlisted the Center for Independence of the Disabled (“CID”) to send a letter to DCAS requesting that the NYPD accommodate her disability. The letter stated that, “Due to her herniated disc, high blood pressure and arthritis [Forman] is not able to sit or stand for long periods of time.” (Id. Ex. 5.) It continued, “Ms. Forman is requesting a transfer or job modification from her current position to another position that would accommodate her disability. For example she could be assigned to a position such as a receptionist that would allow her to rise from her desk when long sitting situations exacerbate her condition.” (Id.)

         In September 2013, DCAS denied Forman's request for an accommodation. (Id. ¶ 22.) In the denial, DCAS relayed the NYPD's findings that “based on their evaluation of [Forman's] medical condition and of the duties of the position, she would not be able to perform the essential duties of School Safety Agent, with or without a reasonable accommodation, ” and that “there were no vacant positions at the NYPD that would reasonably accommodate Ms. Forman's inability to stand or sit for long periods.” (Id. Ex. 6.) In support of the findings, DCAS noted that “Ms. Forman has provided no documentation that her condition has improved sufficiently since her most recent examination with the NYPD Medical Officer as to enable her with a reasonable accommodation to perform a School Safety Agent's essential functions.” (Id.)

         On September 30, 2013, Forman filed a Charge of Discrimination against the City with the Equal Employment Opportunity Commission (“EEOC”) and a Verified Complaint with the New York State Division of Human Rights (“SDHR”). (Id. ¶ 6; Ex. B to Kurland Decl.) The SDHR issued a Determination and Order After Investigation, concluding that “[t]he record does not support a finding that [the City] unlawfully discriminated against [Forman] by refusing to allow her to return to work since she is not medically able to perform her duties.” (Ex. 3 to Mou Decl. at 2, docket entry no. 49.) It also stated:

[Forman] contends that there are sedentary positions that she can perform and that [the City] has a policy to accommodate “qualified individuals with disabilities”; however, [Forman] would have to apply for specific jobs that she believes she could perform and she would still have to show that she is qualified for, and able to perform the essential duties of, such jobs. This would not constitute a reinstatement, but would be a new job application.

(Id.) The Verified Complaint was therefore ordered dismissed. (Id.)

         In May 2014, Forman received a Notice of Right to Sue from the EEOC. (Id. ¶ 7.)


         I. The ...

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