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Garvey v. Town of Clarkstown

United States District Court, S.D. New York

February 22, 2018

TOWN OF CLARKSTOWN, NEW YORK, TOWN BOARD OF THE TOWN OF CLARKSTOWN, ALEXANDER J. GROMACK, Individually, and as Supervisor for the Town of Clarkstown, New York, MICHAEL SULLIVAN, Individually, and as Chief of Police for the Town of Clarkstown, New York, and JOHN AND JANE DOES “1-10”, Defendants.

          OPINION & ORDER

          KATHERINE B. FORREST United States District Judge.

         On January 9, 2008, Sergeant Michael Garvey, a police officer employed by the Town of Clarkstown, injured his knee while making an arrest. Over the next two years, he received disability benefits under N.Y. Gen. Mun. Law § 207-c (“§ 207-c”) and was not required to work. In April 2010, defendants[1] requested a physical examination pursuant to the collective bargaining agreement (“CBA”) between the Town of Clarkstown (“the Town”) and Garvey's union. The doctor determined that the 2008 injury had healed and that any remaining injury was due to a pre-existing “gouty” condition. As a result, defendants ordered Garvey to return to work and offered him a transitional “light duty” position. This spurred a complicated chain of events-described in detail below-that involved a § 207-c hearing, an adjudication that Garvey has a permanent disability that did not occur in the line of duty, several state court proceedings, and even a surprise early-morning quarrel on a Saturday at 6:30 a.m. in the police station. These events gave rise to the instant action, which Garvey filed in federal court on November 20, 2013, during the pendency of state court proceedings.

         Here, Garvey asserts five causes of action: an Americans with Disabilities Act (“ADA”) claim for failure to make a reasonable accommodation available; an ADA claim for retaliation; two analogous state law claims; and a First Amendment claim under 42 U.S.C. § 1983. In July-September 2017, the parties cross-moved for summary judgment. Initially, the Court denied that motion, (ECF No. 233), as there seemed to be a question of fact as to whether a reasonable accommodation was available for plaintiff.

         However, upon review of the parties' submissions in advance of trial, it became clear to the Court that, in reality, no question of fact exists. As will be discussed more fully below, the Clarkstown police department does not have positions that require only “light duty”-and it was never the case that it did. While three other officers have served in a light duty capacity, this position does not exist as a matter of course; when it has existed, it was for a previously-specified period of time, and in two instances, it was the specific result of a sui generis settlement. Garvey-who rejected a similar settlement-has not raised a triable issue of fact as to whether a reasonable accommodation existed; it is clear from the evidence presented that one did not.

         For the reasons presented below, the Court GRANTS summary judgment in favor of defendants.

         I. BACKGROUND[2]

         A. The Role of a Police Sergeant and Various Past Accommodations

         The Town of Clarkstown has three roles to which sergeants may be assigned for a particular shift: patrol sergeants, turnout sergeants, and, as particularly relevant here, desk sergeants. There is one desk sergeant per shift, and he or she “takes command of communications, takes command of the dispatch, . . . [and] [h]as responsibility for interfacing with lieutenants, the captains and chiefs during the day tours. It's the point person for the tour, but you're inside.” (ECF No. 201-3, Dorfman Decl. in Supp. of Def.'s Mot. for Summ. J. (“Dorfman Decl.”), Ex. C (“Garvey Dep.”) at 63:5-11, 70:11-12.) The desk sergeant also supervises officers with perpetrators or suspects in the cell area. (Id. at 74:21-75:3.) All police sergeants-including desk sergeants-must be able to walk, stand, sit, run for prolonged periods of time and/or over rough terrain, stoop, bend, kneel, crawl, crouch, reach, twist, carry things and people, subdue people, tackle people, and wrestle with people. (ECF No. 201-26, Dorfman Decl., Ex. K (“May 18, 2012 § 207-c Hearing Tr.”) at 190-93 (Garvey's testimony).) Typically, sergeant roles are assigned anew for each shift; no sergeant is permanently designated as “the desk sergeant.”

         At certain times, however, when a police officer or sergeant is injured, the Town works with him or her to devise a specific resolution such that the officer may continue to work in some “light duty” capacity until he or she has healed.[3] The Town has no formal policy defining when officers or sergeants may serve on “light duty.” Its only policy, General Order 215, became effective on December 5, 1988 and states that the “Chief of Police shall retain complete discretion in approving or denying any officer the privilege of light duty.” (ECF No. 201-63, Dorfman Decl., Ex. NN.)

         Other injured sergeants and officers who required a “light duty” post were assigned the desk sergeant or desk officer roles for a longer-than-usual period of time (i.e., for more than one shift at a time). In at least one case, the assignment involved additional restrictions, such as an inability to sit for more than forty-five minutes at a time. Often, the specific accommodations would be coordinated pursuant to settlement agreements. Each instance of a “light duty” post presented by the parties has differed, as each was tailored to specific restrictions that arose from a particular officer's injury. The position of desk sergeant never existed as a permanent assignment for any officer-nor did any other “light duty” post.

         For example, Sgt. No. 1[4] served in the role of desk sergeant from August 2011 until his retirement in January 2013 pursuant to a settlement agreement with the Town. The agreement limited his assignment to 18 months in a “restricted or light duty capacity at police headquarters, ” which allowed him to reach twenty years of service and retire. (ECF No. 201-65, Dorfman Decl., Ex. PP.) Sgt. No. 1 was restricted from standing or sitting for long periods of time; he was not subject to restrictions regarding physical contact with the public or prisoners, nor did he have to be insulated from emergency situations. Neither the cause of his injury nor its permanence was determined at any formal hearing.

         Separately, Sgt. No. 2 was given a light duty assignment under § 207-c due to line of duty injuries to both of his ears, which caused significant hearing loss. When Sgt. No. 2's doctor found that he was permanently disabled, he subsequently “filed for service retirement, ” remarking in his notice that it “was a pleasure to be of service to the residents of the Town of Clarkstown for the past 22 years.” (ECF No. 225-7, Dorfman Decl., Ex. MMM.) The Town submitted a letter to the union noting that it did not offer any “permanent ‘light duty' positions and the filing of [Sgt. No. 2's] service retirement should in no way be interpreted . . . as [Sgt. No. 2] having voluntarily removed himself from the workforce.” (ECF No. 225-9, Dorfman Decl., Ex. OOO.)

         Police Officer No. 3 (“P.O. No. 3”) also suffered a line-of-duty injury. Like Sgt. No. 1, he entered into a settlement agreement with the Town to continue his § 207-c status until he was granted a New York State disability retirement or was eligible for service retirement. Pursuant to his settlement agreement, P.O. No. 3 would only be ordered back to work when his disability ended or when he became capable of performing a light duty assignment. Like Sgt. Nos. 1 and 2, he was never adjudicated permanently disabled.

         B. Garvey's History and Adjudication

         On January 17, 1994, Garvey was hired by the Town of Clarkstown as a police officer. At that time, he was fit for full duty-that is to say, he was able to perform all of the essential functions of a police officer. In 2004, Garvey was promoted to sergeant, a supervisory position within the department. On January 9, 2008, Garvey injured his left knee in the line of duty while making an arrest. Defendants accepted the injury as occurring in the line of duty under § 207-c, afforded Garvey disability benefits, and assumed responsibility for the medical costs associated with his left knee. (ECF No. 201-73, Dorfman Decl., Ex. XX (“Decision and Order of Hon. Gerald E. Loehr, dated February 21, 2013”) at 2.) On July 20, 2008, Garvey underwent arthroscopic surgery on his left knee. (Id.)

         Under the CBA between the Town and the Rockland County Patrolmen's Benevolent Association, Inc. (“PBA”), the Town could have Garvey medically examined from time to time to determine whether the disability had ceased or whether Garvey was able to physically perform his duties. (ECF No. 201-60, Dorfman Decl., Ex. KK at 15.) Accordingly, on April 5, 2010, Garvey was examined by Dr. John Mazella, a Board-certified orthopedic surgeon. Dr. Mazella concluded that Garvey had a pre-existing “gouty” condition in his left knee that was exacerbated by his injury on January 9, 2008, but that the line-of-duty injury had “resolved to status quo ante through the orthopedic treatment . . . and that [Garvey's] complaints of continuing pain were not supported by his physical condition.” (Decision and Order of Hon. Gerald E. Loehr, dated February 21, 2013.)

         In response, the Town notified Garvey on April 19, 2010 that he was to report for full duty on April 22, 2010-more than two years after the line-of-duty injury occurred-and that his § 207-c benefits were terminated. However, Garvey requested time to see his own doctor before returning to work. On April 26, 2010, the Town sent Garvey a letter notifying him that he could “start [his] return on transitional, restricted-duty status to allow [him] time to reacquaint [him]self with the relevant procedures and routines of [his] position.” (Id.) On May 12, 2010, Garvey's own physician, Dr. Jordan Simon, disputed Dr. Mazella's conclusion that Garvey could return to full duty as a police officer, though he noted that “light duty” would be an option if available. The Town again directed Garvey to report for “restricted duty.” However, Garvey refused to return to work, even in this capacity-which both doctors had approved. He received an additional letter instructing him to return on May 29, 2010 to work in a transitional, restricted duty capacity consistent with the limitations described by Garvey's own physician. Thus, on May 29, 2010, Garvey returned to work in a restricted desk sergeant position.

         However, on May 26, 2010, Garvey had requested a § 207-c hearing; the Town denied the request on June 2, 2010. The PBA, pursuant to the CBA, then requested a hearing on Garvey's behalf to determine, inter alia, whether Garvey was fit for full duty. The Town denied that request because all doctors agreed that Garvey could at least perform a light duty position, which he had been offered. On October 19, 2010, the PBA demanded arbitration to resolve whether a § 207-c hearing was required. While arbitration was pending, defendants had Dr. Mazella reexamine Garvey; on April 25, 2011-over a year after defendants' first order- defendants issued another order that directed Garvey to return to full duty on May 2, 2011. (Dorfman Decl., Ex. DD.) In May 2011, Garvey sought an injunction in state court prohibiting the Town from terminating him based on his refusal to return to full duty. In response, the Town represented in open court that it would not take an adverse employment action against Garvey while the arbitration was pending. Thus, Garvey's action for injunctive relief was dismissed as moot. On July 14, 2011, the Town issued a letter re-instituting Garvey's restricted duty status pending the determination of whether a hearing would be granted. (ECF No. 201-53, Dorfman Decl., Ex. DDD.)

         On January 7, 2012, the Arbitrator ruled that under the CBA, Garvey had the right to a § 207-c hearing. In accordance with the arbitrator's decision, a hearing officer was appointed to determine (1) whether Garvey was able to perform his regular police duties and (2) whether his left knee complaints are related to an injury in the line of duty.[5]

         At the time of the Arbitrator's ruling, Garvey had been serving as a desk sergeant for eighteen months (since May 2010) and he had received at least one positive performance evaluation from his supervisors. (Garvey Dep. at 78:9-81:22.) But after the Arbitrator's decision, Garvey took the position that he no longer had to report for restricted duty. (ECF No. 201-56, Dorfman Decl., Ex. GG.) This decision was not connected in any way with the condition of his knee injury. (Garvey Dep. 85:21-86:1.) Rather, it was Garvey's position that he was not required to work until the hearing was held and a conclusion was reached. Sullivan informed Garvey that if he failed to fulfill his light duty assignment, he would be considered absent from duty without proper authorization. (ECF No. 201-57, Dorfman Decl., Ex. HH.) Nevertheless, Garvey did not return to work.[6]

         Between March 23, 2012 and August 10, 2012, the § 207-c hearing was held over seven days. Garvey, Town representatives, three doctors, and a physical therapist testified. During those proceedings, Garvey testified that his knee condition was permanent and that he could not perform various functions of a police officer. (See, e.g., ECF No. 201-29, Dorfman Decl., Ex. L (“May 24, 2012 § 207-c Hearing Tr.”) at 444:17-445:19; Garvey Dep. at 55:7-12.) Garvey testified that, as of the hearing, the problem with his knee was that it buckled once in a while, but less than it did immediately after the injury. (May 24, 2012 § 207-c Hearing Tr. at 241:4-242:6.) Specifically, he identified two occasions on which his knee buckled on the slanted ramp to the lower-level food court in Grand Central Station-neither of which is alleged to have been related to any activity in Garvey's capacity as a police sergeant. (Id. at 242:7-19.)

         The hearing officer ultimately determined that Garvey was permanently unable to perform regular police duties, but that this inability was the result of his pre-existing gout condition, rather than the January 9, 2008 line-of-duty incident. Notably, during the hearing, defendants offered Garvey a settlement similar to Sgt. No. 1's agreement.[7] However, Garvey rejected the offer, “waved his hand in the air and said, I'll get what I want in Federal Court.” (ECF No. 201-8, Dorfman Decl., Ex. D-3 at 228:15-17.)

         On November 20, 2012, the Town accepted and adopted the hearing officer's Findings of Fact and Recommendations. (ECF No. 201-62, Dorfman Decl. Ex. MM.) In the same resolution, the Town terminated Garvey's § 207-c benefits, as the adjudicator had decided his knee condition was not connected to a line-of-duty injury. The Town further determined that the arbitrator's grant of the § 207-c hearing did not excuse Garvey from continuing the transitional light duty assignment he had received; accordingly, the leave time Garvey had used up was not re-credited as he had demanded.

         As a result of the hearing, Garvey's attorney, Dennis Lynch, sent the Town's attorney, Amy Mele, a letter on November 8, 2012 requesting, inter alia, that the Town advise Garvey of the reasonable accommodation that would be made for him pursuant to the ADA, as he is not “physically able to perform ‘regular police duties' at this time.” (ECF No. 201-66, Dorfman Decl., Ex. QQ.) Chief Sullivan determined that a light duty position was not available for Garvey, as light duty positions were provided only on a temporary basis-there was no permanent position for someone with permanent restrictions.[8] On November 28, 2012, Mele notified Lynch that Garvey was due to run out of his accrued leave time on December 7, 2012 and requested more information about Garvey's request under the ADA. (ECF No. 201-68, Dorfman Decl., Ex. SS.) Specifically, she asked how Garvey is disabled, what barriers to job performance his disability created, and what reasonable accommodation Garvey suggested that would permit his return to work without eliminating any of the essential functions of a police officer. (Id.)

         On Saturday, December 1, 2012 at 6:30 a.m., after almost eleven months of absence and without any prior notification, Garvey arrived at the police station and attempted to relieve the desk sergeant. He was informed that there was no position available for him. Sullivan went to the station to respond to Garvey's surprise grandstanding, and he advised Garvey that Garvey could make a formal request for a light duty position under General Order 215; Sullivan then sent Garvey home. Garvey maintains that his arrival at work was in response to the May 27, 2010 letter-which he had received 18 months earlier-ordering him back to work. (Garvey Dep. at 89:10-18.)

         On December 4, 2012, Sullivan sent a memo to Garvey reminding him that the correct course of action-rather than simply showing up at the station and “attempt[ing] to order a working sergeant to stand down so [Garvey] could assume the desk”-was to request a temporary light duty assignment under General Order 215. (ECF No. 205-30, Marzolla Decl., Ex. CC.) Sullivan also noted that he would consider Garvey's previous request to return to work as a request under General Order 215, and informed him that such request requires “a doctor's note advising the nature of the injury, the duration that light duty will be required and any restrictions and limitations the doctor feels should be followed.” Because Garvey's previously submitted doctor's note did not indicate a period of time, Sullivan would not consider his request. (Id.) Garvey responded in an email the same day, arguing that by asking for a doctor's note, Sullivan was “directing me to follow a futile exercise when you know (more so than anyone in the administration) my medical situation and have a position currently available for me . . . .” (ECF No. 205-12, Marzolla Decl., Ex. L.)

         Also on December 4, 2012, the parties' lawyers were in communication. Mele notified Lynch that based on Garvey's testimony at the § 207-c hearing, he could not perform the essential functions of a police officer, including “taking resistant persons into custody, breaking up fights, carrying a distressed child, extracting accident victims from a motor vehicle or subduing a physically attacking person.”[9](ECF No. 201-69, Dorfman Decl., Ex. TT.) Again, Mele requested a response as to “what ‘reasonable accommodation(s)' . . . Sgt. Garvey envision[s] as allowing him to safely overcome his impairment.” (Id.) On December 5, Garvey's attorney responded, claiming that the “Town has continued to refuse to engage in the ADA's interactive process” and that the “Town is aware of Sergeant Garvey's physical conditions, his limitations, and his suitability for a Desk Sergeant post or office work.” (ECF No. 201-70, Dorfman Decl., Ex. UU.) While the letter accused the defendants of “retaliatory conduct” and advised that this would be Lynch's “final reply letter, ” it failed to provide the information previously requested and did not describe in any detail the position Garvey sought. It did contend that another individual with similar limitations-presumably Sgt. No. 1-had been given a “desk sergeant” position as a reasonable accommodation and assert a view that “the position is currently available.” (Id.)

         By December 7, 2012, Garvey's leave had depleted; he was accordingly removed from payroll and notified of a termination of his medical benefits. The next day, Sullivan sent Garvey a memo advising him that he was “not authorized to return to work at this time and any attempt to do so will be considered a direct violation of orders.” (ECF No. 205-31, Marzolla Decl., Ex. DD (emphasis in original).) The memo also stated that it was “not true” that Sullivan knows the “true nature” of Garvey's disability, and if he was “truly serious about returning to work, ” he would have “called my secretary and set up an appointment to discuss.” (Id.) Sullivan also notified Garvey that, “[o]ut of concern for your family I have contacted the Personnel Department and you will be receiving a letter stating how you can arrange to have your family medical benefits continue uninterrupted while these issues are worked out.” (Id.) On December 12, 2012, Sullivan sent Garvey a letter informing him that “until your employment status can be worked out, you are no longer authorized to act as a police officer under the authority of the Clarkstown Police Department” and directing him to turn in his badge, identification, and firearm. (ECF No. 205-42, Marzolla Decl., Ex. OO.)

         On December 18, 2012, Garvey commenced a proceeding in state court to annul the Town's November 20, 2012 Resolution. The New York Supreme Court denied that request but transferred the proceedings to the Appellate Division for determination of whether the hearing officer's findings were supported by the evidence. While that action was pending, Garvey filed this federal action on November 23, 2013. On June 24, 2015, the Appellate Division confirmed the hearing officer's determination, which held that there was

no dispute that the petitioner was able to perform a light-duty assignment. In May 2010, he received and followed an order to return to work and perform a restricted duty assignment, for which he received his full salary. On January 17, 2012, he refused an offer to continue performing this light-duty assignment, although he remained able to [do] so. Under the statute, the granting of a General Municipal Law § 207-c hearing did not excuse him from performing his light-duty assignment. The petitioner later received an unequivocal order to return to his light-duty assignment, and he again refused, electing instead to use his accumulated leave time. Since the petitioner refused to return to his light-duty assignment commencing January 17, 2012, the Town was entitled to discontinue his benefits without a hearing. Accordingly, the Town's determination not to re-credit the accumulated leave time . . . was not arbitrary and capricious and must be confirmed.

(ECF No. 201-74, Dorfman Decl., Ex. YY, Decision, Order & Judgment of the Appellate Division, at 4.)

         Subsequently, on July 7, 2015, the Town notified Garvey that it intended to terminate his employment pursuant to Civil Service Law § 73, which states that “when an employee has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability other than a disability resulting from occupational injury . . . his employment status may be terminated . . . .” (ECF No. 201-75, Dorfman Decl., Ex. ZZ.) (At this point, Garvey had been absent for more than three years due to an injury that had been adjudicated non-duty related, not including his two-year absence while he received § 207-c benefits between 2008-2010.) Garvey objected in a letter dated August 4, 2015, arguing, inter alia, that his injury was work-related and that he was entitled to a ...

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