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Grant v. County of Erie

United States District Court, W.D. New York

May 18, 2017

LINDA GRANT, Plaintiff,

          SANDERS & SANDERS Attorneys for Plaintiff HARVEY P. SANDERS, of Counsel.

          ALISA LUKASIEWICZ PLLC Attorneys for Defendants ALISA A. LUKASIEWICZ, of Counsel.

          PHILLIPS LYTLE LLP Attorneys for Defendants AMANDA L. LOWE, of Counsel.




         On Mach 3, 2014, the parties to this action consented pursuant to 28 U.S.C. § 636(c) to proceed before the undersigned (Dkt. 39). The matter is presently before the court on Defendants' motion for summary judgment (Dkt. 80), filed October 2, 2015.


         On July 10, 2012, Plaintiff commenced this action against Defendants alleging employment discrimination and retaliation in violation of Title I of the Americans with Disabilities Act of 1990 (“ADA), 42 U.S.C. § 12111 et seq., as amended by the ADA Amendments Act of 2008 (“ADAAA”), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., and New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296. Defendants to this action include Plaintiff's former employer County of Erie, New York (“County”), and Erie County Youth Defendant Services (“Youth Services”) (together, “Defendants”), for which Plaintiff was employed most recently as a Youth Detention Worker (“YDW”). On November 9, 2012, Defendants moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the Complaint for failure to state a claim. (Dkt. 11). In a Decision and Order filed January 2, 2013 (Dkt. 20) (“D&O”), District Judge William M. Skretny granted the motion to dismiss, entering judgment in favor of Defendants on January 3, 2013 (Dkt. 21), and closing the case. Grant v. County of Erie, 2013 WL 49707 (W.D.N.Y. Jan. 2, 2013). On February 4, 2013, Plaintiff appealed the dismissal (Dkt. 22), to the Second Circuit Court of Appeals. In its mandate dated October 17, 2013 (Dkt. 25), the Second Circuit affirmed the D&O as to the dismissal of the discrimination claim under the ADEA and the retaliation claims under the ADA and the ADEA, but vacated the D&O as to the ADA discrimination claim and all state law claims. Grant v. County of Erie, 542 Fed.Appx. 21, 24-25 (2d Cir. Oct. 17, 2013). In particular, the Second Circuit held the district court's reliance in dismissing the Complaint for failure to state a claim on one physician's statement questioning the wisdom of permitting Plaintiff to resume working as a YDW, in light of Plaintiff's age and history of work-related injuries, given that the physician nevertheless found Plaintiff was capable of performing the essential functions of the YDW job. Id. at 23-24. In reinstating the state law claims, the Second Circuit held their sua sponte dismissal by the district court for failure to file and serve a notice of claim was in error because Plaintiff was denied notice and an opportunity to address the issue. Id. at 24. On November 19, 2013, Defendants filed their answer (Dkt. 27).

         On October 5, 2015, Defendants filed the instant motion seeking summary judgment (Dkt. 80) (“Defendants' Motion”), attaching the Memorandum of Law in Support of Defendants' Motion for Summary Judgment (Dkt. 80-1) (“Defendants' Memorandum”), and the Statement of Undisputed Material Facts (Dkt. 80-2) (“Defendants' Statement of Facts”). Also filed in support of Defendants' Motion was the Amended Declaration of Alisa A. Lukasiewicz, Esq. (Dkt. 79) (“Lukasiewicz Declaration”), attaching Defendants' exhibits A through 0 (Dkts. 79-1 through 79-15) (“Defendants' Exh(s).___ ”).[1] On November 9, 2015, Plaintiff filed the Declaration of Linda Grant in Opposition to Defendants' Summary Judgment Motion (Dkt. 85) (“Plaintiff's Declaration”), attaching exhibits 1 through 27 (Dkts. 85-1 through 85-27) (“Plaintiff's Exh(s).___ ”), and separately filing the Memorandum of Law in Opposition to Defendants' Summary Judgment Motion (Dkt. 86) (“Plaintiff's Response”), and the Statement of Facts in Opposition to Defendants' Rule 56 Statement of Facts (Dkt. 87) (“Plaintiff's Statement of Facts”). On November 22, 2015, Defendants filed the Declaration of Alisa A. Likasiewicz, Esq. (Dkt. 88) (“Lukasiewicz Declaration”), attaching exhibits A through C (Dkts. 88-1 through 88-3) (“Defendants' Reply Exh(s). ___”), and the Memorandum of Law in Further Support of Defendants' Motion for Summary Judgment (Dkt. 88-4) (“Defendants' Reply”). Oral argument was deemed unnecessary.

         Based on the following, Defendants' Motion is DENIED in part and GRANTED in part.


         Plaintiff Linda Grant (“Plaintiff” or “Grant”), commenced working for Defendants County of Erie (“the County”), and Erie County Youth Detention Services (“Youth Services”) (together, “Defendants”), in 1983, and was last employed with Youth Services as a Youth Detention Worker (“YDW”), at the Youth Detention Center (“Detention Center” or “the facility”)). The Detention Center houses both male and female juvenile delinquents, juvenile offenders and, until 2008, children in need of supervision. Residents of the Detention Center ranged between 8 and 18 years of age. At all times relevant to this action, Plaintiff's supervisor at the Detention Center was Donald Watkins (“Watkins”), who held the highest employment rank at the Detention Center.

         As a YDW, Plaintiff was required to transport residents within the facility to and from classes, activities, and meals, and to escort residents to off-site locations such as to Family Court appearances. Detention Center residents were housed in separate rooms located within three different “pods” with up to 20 children in each pod. Each pod was designated for the various detention groups, e.g., male juvenile offenders in one pod, and male juvenile delinquents in another pod. There were three YDWs assigned to each pod for any given YDW work shift. Because physical altercations between two children or between a child and a staff member occasionally occurred, and children sometimes threatened to harm themselves or others, YDWs were trained as to various techniques to subdue unruly children. If an altercation or incident required physical intervention by YDWs, however, YDWs were not permitted to physically intervene unless there was sufficient staff available to safely do so. Accordingly, if a fight broke out, or if a child threatened harm, all available staff would be called to intervene and generally within moments of the request staff would arrive from other parts of the Detention Center including, inter alia, from other pods, the nurses' station, and administration, to assist with physically restraining the combative resident. All YDWs received training on proper restraint techniques prior to commencing employment at the Detention Center and Plaintiff had received training to instruct other YDWs on proper restrained techniques. Plaintiff estimates that at most, she was required to physically restrain a resident once a month. Plaintiff's Declaration ¶ 69.

         Twice during her tenure at the Detention Center, Plaintiff injured her non-dominant left hand[3] while restraining a child, with the first injury occurring in 2005 (“the earlier injury”), when Plaintiff was assisting with a “two-man takedown” of a combative resident who was refusing to comply with Detention Center orders. Plaintiff's Dep. Tr.[4]at 61-64. With regard to the earlier injury, Plaintiff maintains she was not injured by the resident she was assisting in restraining but, rather, sustained the earlier injury when she hit her left hand on a table in the process of “going down to the floor, ” fracturing the 3rd metacarpal bone in her left hand. Id. at 64. The injury was not painful and Plaintiff, who was able to restrain the combative resident despite the injury, did not realize she had broken a bone until after the resident was restrained and Plaintiff noticed her hand was swollen. Id. at 65. Although Plaintiff underwent surgery for the broken bone, and received physical therapy, the earlier injury resulted in some permanent damage to Plaintiff's left hand, with Plaintiff unable to completely close her left hand to make a fist, yet Plaintiff was cleared to return to work and was able to perform all her job duties as a YDW.

         The second, more recent injury occurred on February 17, 2008[5] (“the recent injury”), when Plaintiff and other YDWs were performing a controlled takedown while restraining a combative child during which Plaintiff fractured the 5th metacarpal bone in her left hand. Plaintiff did not realize she had injured her left hand until after the child was restrained, and finished working the rest of her shift before having her hand checked at the hospital where it was determined Plaintiff had broken her hand. Plaintiff underwent surgical reduction and K-wire fixation (pin) which was removed on August 15, 2008, when the fracture had healed. Treatment for Plaintiff's recent injury was provided by Dale R. Wheeler, M.D. (“Dr. Wheeler”), of the Hand Center of Western New York (“the Hand Center”). Plaintiff also received extensive physical therapy after the surgery for the injury. Following treatment for the recent injury, Plaintiff was able to close her left hand to the same extent as after treatment for the earlier injury. While out from work on disability for the recent injury, Plaintiff received Workers' Compensation benefits from February 17, 2008 through November 17, 2008.

         At the request of the Workers' Compensation Administration, on November 4, 2008, Plaintiff, whose Workers' Compensation benefits were about to expire, underwent a Fitness for Duty examination by Robert Durning, M.D. (“Dr. Durning”), with Superior Medical Consultants (“SMC”), the County's third-party Workers' Compensation independent medical examiners. Dr. Durning determined Plaintiff was no longer disabled by the recent injury and could return to “unrestricted work activity with the injured left hand.” Dr. Durning Report.[6] On November 17, 2008, Plaintiff was cleared to return to work with full duties by Dr. Wheeler, Dr. Wheeler Report, [7] but did not then do so.[8]

         By letter to Plaintiff dated November 25, 2008, Erie County Personnel Supervisor Joseph P. Dobies (“Dobies”) (“Dobies's Letter”), [9] advised that Plaintiff's failure to return to work after Dr. Wheeler cleared Plaintiff to do so without any restrictions rendered Plaintiff in violation of Erie County Work Rule Group A, Number 12 and subject to discipline including immediate discharge if Plaintiff did not return to work by December 1, 2008. Plaintiff was also advised to contact Emily Kaznica (“Kaznica”), Executive Director of Erie County Office for the Disabled, if she believed she was qualified for a reasonable accommodation. Id.

         On December 1, 2008, Plaintiff submitted to Watkins, her supervisor, a form titled Requests for Reasonable Accommodations under the ADA (“Accommodations Request”), [10] stating she was requesting as an accommodation of her “hand injury” an additional leave of absence until January 31, 2009, the date to which Plaintiff's primary care physician (“PCP”), Dana Drummond, M.D. (“Dr. Drummond”), had continued Plaintiff as temporarily totally disabled. In making the Accommodations Request, Plaintiff indicated that although her hand surgeon, Dr. Wheeler, had released Plaintiff to return to work on November 17, 2008, Plaintiff's PCP recommended Plaintiff remain off work until January 31, 2008. Plaintiff is described by Watkins as having “elected to stay out longer.” In a letter to Plaintiff dated December 1, 2008 (“December 1, 2008 Letter”), [11] Kaznica memorialized her conversation with Plaintiff earlier that day in which Plaintiff inquired about a reasonable accommodation under the ADA and NYSHRL, requesting Plaintiff provide medical documentation to assist Defendants with determining whether an accommodation could be provided. Enclosed with the December 1, 2008 Letter was the Physician Medical Certification for Request for Reasonable Accommodation forms (“Physician Certification”), to be completed by Plaintiff's physicians and returned by December 21, 2008.

         On a Physician Certification completed on December 3, 2008 by Dr. Drummond, Plaintiff's PCP (“Dr. Drummond's Certification”), [12] Plaintiff was not cleared to return to work but, instead, was reported as having limited use of her left hand, was “presently disabled, ” the duration for such disability was “undetermined, ” and no accommodations were recommended. Dr. Drummond separately stated Plaintiff was to remain off work through December 19, 2008.[13] On a separate Physician Certification completed on December 3, 2008, by Dr. Wheeler (“Dr. Wheeler's Certification”), [14] Plaintiff was reported as having a limitation with fine grasp with her left hand resulting from her left hand fracture, but although such limitation was considered permanent, Plaintiff was not limited in her ability to work and could perform her job without any work restrictions, referencing his November 17, 2008 report.

         By letter to Plaintiff dated December 9, 2008 (“December 9, 2008 Letter”), [15]Kaznica advised Plaintiff that based on Dr. Drummond's Certification, Dr. Wheeler's Certification, and the Request for Accommodation, the County was unable to provide any reasonable accommodation that would allow Plaintiff to perform the essential functions of her YDW position. As such, Plaintiff's case regarding her accommodation request was to be closed. Enclosed with the December 9, 2008 Letter was another Physician's Certification to be completed by Plaintiff's physician and returned to the Office for the Disabled if Plaintiff's medical condition improved.

         On December 18, 2008, Dr. Drummond examined Plaintiff and updated Plaintiff's disability status, indicating Plaintiff remained totally temporarily disabled through January 31, 2009.[16]

         On January 15, 2009, Watkins recommended Plaintiff's Accommodations Request be approved, but the Accommodations Request was denied that same day by the County's Appointing Officer.[17] By letter to Plaintiff dated January 16, 2009 (“January 16, 2009 Letter”), [18] Joseph P. Dobies (“Dobies”), Erie County Personnel Supervisor, advised Plaintiff that her leave of absence without pay, pursuant to which Plaintiff had been out of work since February 10, 2008, was set to expire on February 10, 2009, according to Rule XVIII of the Rules for the Classified Civil Service of the County of Erie, which limits leave of absence without pay to one year. Plaintiff was further advised that if she required additional time off, Plaintiff should contact Kaznica who would determine whether such additional time off would be considered a reasonable accommodation under the ADA, but that Plaintiff's failure to return to work would result in her termination from her YDW position, following which Plaintiff could request a reinstatement when she became physically able to return to work.

         On February 12, 2009, Dr. Drummond completed another Physician's Certification form (“Dr. Drummond's Second Certification”), [19] indicating Plaintiff remained unable to close her left hand to make a fist, that Plaintiff was limited in her ability to work insofar as Plaintiff could not lift, grasp or carry, or restrain or transfer residents, and that the limitations were expected to continue for an indefinite period of time, but that Plaintiff could work with accommodations, including work limited to writing, filing, answering the telephone, and driving with her right hand.

         By letter to Plaintiff dated February 23, 2009 (“Termination Letter”), [20] Kaznica advised she was in receipt of Dr. Drummond's Second Certification which established Plaintiff was unable to perform the essential functions of the YDW job with any reasonable accommodation. Kaznica also observed Plaintiff had been on leave without pay since February 18, 2009. Because granting Plaintiff additional leave without pay for an indefinite period of time would not be reasonable, Plaintiff would not be granted a reasonable accommodation and her case was closed. Plaintiff's employment with the County was terminated on February 24, 2009.

         On October 8, 2009, Plaintiff was examined by Dr. Drummond who cleared Plaintiff to return to work without any restrictions, and Plaintiff provided the report to the County. Despite being cleared to return to work by her PCP, the County required Plaintiff to undergo a Fitness for Duty evaluation performed on December 9, 2009, by orthopedic surgeon Marc Bergeron, M.D. (“Dr. Bergeron”), with SMC, Defendants' Workers' Compensation medical consultants. Dr. Bergeron reported that “[t]he main concern of the claimant is persistent symptoms of the left hand.” Dr. Bergeron's Report[21] at 1. Dr. Bergeron recounted the history of Plaintiff's work-related injuries as multiple injuries to her wrists and hands including a non-displaced fracture of her right scaphoid, Dequervain's tenosynovitis of the right wrist treated with a surgical procedure, fracture of the 3rd and then 5th metacarpal of her left hand, noting the last incurred injury to be the one sustained in February 2008, following which Plaintiff had not returned to work. Id. According to Dr. Bergeron, despite surgery and “extensive physical therapy, ” Plaintiff's lingering left hand problems prevented Plaintiff's return to her YDW job, with Plaintiff reportedly not confident she would be able to “immobilize unruly youth” who could be the size of adults, such that Plaintiff would be unable to perform the most demanding part of her work i.e., protecting herself and others. Id. Plaintiff also reported feeling there was a risk of reinjuring her left wrist and hand. Id. Although Dr. Bergeron's review of the YDW job description established Plaintiff was required to maintain order and discipline, enforce rules and regulations, and to be “physically capable of performing the essential functions of the position without a reasonable accommodation, ” there was “no mention of actually how physically demanding the job is.” Id. at 3. Dr. Bergeron reviewed more than 200 pages of Plaintiff's medical history, id. at 3-5, and, based on his medical history review and physical examination of Plaintiff, diagnosed Plaintiff with healed right scaphoid fracture, status post Dequervain's release, right wrist with good results, and status post open reduction and total fixation, left hand third metacarpal fracture and treatment of fifth metacarpal fracture for which the last surgical procedure was more than one year ago. Id. at 5. Dr. Bergeron found Plaintiff's left grip strength at only 50% of her right grip strength. Id. Addressing whether Plaintiff was fit for duty, Dr. Bergeron wrote

This is obviously difficult to answer owing to the nature of her work. The most demanding part is to be able to restrain youth that can be large in stature. Purely, a mechanical point of view, from an orthopedic stand point, it is my view that she could return to her regular work, she is right handed; she would be able to defend herself.
Whether this is reasonable, at her age, there are many other factors that need to be included. She is obviously at increased risk of significant injury with any restraint maneuver. That alone, in my opinion, would preclude her from doing that type of work at age 59 and with a history of multiple problems with her wrists and hands, and 3 fractures. Thus, overall it is my opinion that it is not appropriate for her to return her to full duty without restriction at [sic] the type of work where she would have to restrain physically strong people. The risk of re-injury, in my opinion, is unduly high. Otherwise, it is my opinion there is very little disability left from the multiple injuries, and that she has overall good function of her right and left upper extremities except for slightly decreased range of motion of the digits and wrists on the left, and some weakness.
It is my opinion that the level of disability, to give a point of reference, would be best stated at [sic] permanent and in between minimal and mild based on this examination.


         Although Dr. Bergeron references the physical requirements of Plaintiff's YDW job, Plaintiff denies having provided Dr. Bergeron with the job description such that Plaintiff found “curious” Dr. Bergeron's concern over the physical demands of the YDW position. Plaintiff's Declaration ¶¶ 109-14.

         By letter dated February 19, 2010 (“February 19, 2010 Letter”), [22] Susan V. Sizemore (“Sizemore”), Executive Director of Erie County Office for the Disabled[23]advised Plaintiff that based on Dr. Bergeron's Report and the fact that Plaintiff had separated from service, no reasonable accommodation was warranted and Plaintiff's case would remain closed.

         On July 16, 2010, Plaintiff filed an administrative complaint (“Administrative Complaint”), [24] with the New York State Division of Human Rights and the Equal Employment Opportunity Commission (“EEOC”), alleging employment discrimination based on age and perceived disability under the ADA, the ADEA, and NYSHRL, asserting that she had “promptly and effectively returned to work” following each of her previous work-related injuries, but that although it had “been nearly two years” since she had been cleared by her physicians as physically able to return to work with no restrictions limiting her ability to work as a YDW with the County, she had not been allowed to do so. On June 28, 2010, the EEOC issued Plaintiff a Notice of Right to Sue (“Right to Sue Notice”).[25] This action followed.


         1. Summary Judgment

         Summary judgment of a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). The court is required to construe the evidence in the light most favorable to the non-moving party. Collazo v. Pagano, 656 F.3d 131, 134 (2d Cir. 2011). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and if there is any evidence in the record based upon any source from which a reasonable inference in the non-moving party's favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, 477 U.S. at 322; see Anderson, 477 U.S. at 247-48 (“summary judgment will not lie if the dispute about a material fact is "genuine, " that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party”). “A fact is material if it ‘might affect the outcome of the suit under governing law.'” Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting Anderson, 477 U.S. at 248).

         “[T]he evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of summary judgment motions.” Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988)). A defendant is entitled to summary judgment where “‘the plaintiff has failed to come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on'” an essential element of a claim on which the plaintiff bears the burden of proof. In re Omnicom Group, Inc., Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010) (quoting Burke v. Jacoby, 981 F.2d 1372, 1379 (2d Cir. 1992)). Once a party moving for summary judgment has made a properly supported showing of the absence of any genuine issue as to all material facts, the nonmoving party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). “[F]actual issues created solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine' issues for trial.” Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir. 1996). “An issue of fact is genuine and material if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Cross Commerce Media, Inc. v. Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)).

         In the instant case, Plaintiff specifically claims that Defendants, in violation of the ADA, the ADEA, and NYSHRL, discriminated against Plaintiff with regard to her employment, and also retaliated against Plaintiff for complaining about the alleged employment discrimination. Although Judge Skretny, in the D&O, dismissed all claims for relief for failure to state a claim, all claims but those alleging retaliation were reinstated by the Second Circuit. Defendants now move for summary judgment on the reinstated employment discrimination claims asserted under the ADA, the ADEA, and NYSHRL.

         In support of summary judgment, Defendants argue Plaintiff cannot establish a prima facie case of employment discrimination under the ADA, Defendants' Memorandum at 5-11; the termination of Plaintiff's employment with the County was for the legitimate, non-discriminatory reason that Plaintiff's injured left hand rendered Plaintiff unable to defend herself and co-workers from unruly residents of the Detention Center, which is an essential function of the YDW job, id. at 11-12; Plaintiff's failure to timely file a notice of claim pursuant to N.Y. County Law § 52 requires dismissal of all claims under the NYSHRL, id. at 12; and Plaintiff has failed to establish the elements of an age discrimination claim under the ADEA. Id. at 12-13. In opposing summary judgment, Plaintiff argues she has established a prima facie case of employment discrimination under the ADA insofar as Defendants regarded Plaintiff as being disabled in performing the major life activity of working, Plaintiff's Response at 5-17; Defendants chose not to allow Plaintiff to return to work because Defendants did not want to be required to accommodate Plaintiff's disability, id. at 17-20; and Defendants have not moved for summary judgment with regard to Plaintiff's failure to accommodate claim because Defendants failed to engage in the interactive process as required. Id. at 21-25. In further support of summary judgment, Defendants reiterated that even assuming, arguendo, Plaintiff could establish a prima facie case of discrimination under the ADA, Plaintiff's employment was terminated for a legitimate, nondiscriminatory reason, i.e., Plaintiff's “compromised” condition presented a safety threat to Plaintiff and others for which no accommodation would be reasonable, Defendants' Reply at 2-6; the County did not ...

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