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Berger v. New York City Police Department

United States District Court, S.D. New York

March 30, 2018

SARA BERGER, Plaintiff,

          Marshall B. Bellovin Kristian E. Alfonso Ballon, Stoll, Bader and Nadler, P.C. New York, New York Counsel for Plaintiff

          Heather M. Martone Sean R. Renaghan Evan M. Piercey New York City Law Department New York, New York Stephen P. Pischl Clifton Budd & DeMaria, LLP New York, New York Counsel for Defendants

          OPINION & ORDER

          Vernon S. Broderick United States District Judge

         Plaintiff brings this action alleging (1) failure to accommodate in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112 et seq., New York State Human Rights Law (the “NYSHRL”), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law, (the “NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq.; (2) unlawful medical examination in violation of the ADA; (3) disability discrimination in violation of the ADA, NYSHRL, and NYCHRL; and (4) hostile work environment in violation of the ADA, NYSHRL, and NYCHRL. Before me is Defendants' motion for summary judgment. For the reasons that follow, Defendants' motion for summary judgement is GRANTED in all respects, except it is DENIED concerning the failure to accommodate causes of action.

         L Background[1]

         Plaintiff is employed by the New York City Police Department (“NYPD”) as a Computer Specialist Level III. (Pl.'s Counter 56.1 ¶ 1.)[2] Plaintiff began her employment with the NYPD in September 1989 as a civilian employee, and her office was originally located on the seventh floor of One Police Plaza. (Id. ¶¶ 10, 12.) However, in October 2011, Plaintiff's unit-the Network Design and Standard Section (“NDSS”)-was moved to the eighth floor of One Police Plaza. (Id. ¶ 13.)

         In response to Plaintiff's claim that she suffers from acid reflux disease that is exacerbated by dust and, specifically, was exacerbated by dust on the eighth floor, Defendants offered to purchase an air purifier for Plaintiff's workstation. (Id. ¶¶ 14-16.) Although Plaintiff disputes whether or not she initially rejected the offer to purchase the air purifier, she admits that she told her employer that the air purifier that was offered could not eliminate the dust that had been triggering her acid reflux. (Id. ¶ 16; Pl.'s 56.1 ¶ 1.)[3] Defendants then scheduled Plaintiff for a medical examination, and Plaintiff ultimately refused to attend the medical examination, (Pl.'s Counter 56.1 ¶¶ 17-18), although Plaintiff states that she ultimately refused to attend because her request to have her lawyer present during the exam was denied, (Pl.'s 56.1 ¶¶ 7-8). In addition to offering to purchase an air purifier, Defendants also offered to clean and vacuum the eighth floor to address Plaintiff's dust complaints. (Pl.'s Counter 56.1 ¶ 27.)

         Each party retained experts to perform air quality tests. Plaintiff's expert, Kenneth S. Winberg of Safdoc Systems, LLC, collected “total dust and respirable dust samples” from the eighth floor in May 2016 and found that the “samples did not demonstrate excessive levels of either type of dust.” (Id. ¶ 23.) Defendants' expert, Amir Rasheed of the NYPD's Occupational Safety and Health Section reported that in December 2011, the highest concentration of dust particles on the eighth floor measured 0.001 mg/m, which is within permissible limits. (Id. ¶ 24.) Mr. Rasheed also measured the dust levels on the eighth floor in September 2013 and September 2014, and the measurements taken in those months also were within permissible limits. (Id. ¶¶ 25-26.) Plaintiff's desired accommodation was to be moved back to the seventh floor. (Id. ¶ 19; see also Pl.'s 56.1 ¶ 5.) The parties disagree about the viability of this proposed accommodation, with Defendants maintaining that they could not move Plaintiff to the seventh floor because it would involve her sitting apart from her unit and her supervisors, would prevent face-to-face communication with her colleagues, and would be inefficient, and Plaintiff contending that it was possible to supervise her work on the eighth floor and that her duties and responsibilities did not require constant, in-person supervision. (Pl.'s Counter 56.1 ¶ 20.) However, Defendants offered Plaintiff the option of moving back to the seventh floor and changing units to the Local Area Network (“LAN”) group, which would have entailed giving Plaintiff a supervisory role. (Id. ¶ 21; Pl.'s 56.1 ¶ 4.)[4] Plaintiff turned down this suggested accommodation claiming (1) the position involved “desktop support” rather than the “internet content filtering” she performed in NDSS, (Pl.'s Counter 56.1 ¶ 21), and (2) the position “would be less challenging and essentially function as [a] demotion - or a step backwards in Plaintiffs career, ” (Pl.'s 56.1 ¶ 4). Plaintiff remembers her supervisor, Wayne Scibelli, talking about her NYPD EEO Complaint “out loud by [her] desk so anybody that was around or would walk by could have heard him.” (Pl.'s Counter 56.1 ¶ 30.) Plaintiff does not remember her supervisor, Andrew Krimsky, ever making any disparaging remarks about her alleged disability. (Id. ¶ 31.) Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on July 31, 2012 and received a Notice of Right to Sue letter dated May 23, 2013. (Id. ¶¶ 7-9.)

         II, Procedural History Plaintiff filed her Complaint on August 28, 2013. (Doc. 1.) The case was referred to mediation on January 10, 2014, (Doc. 16), and I held a pre-motion conference to address the parties' anticipated motions for summary judgment on April 23, 2015, (Dkt. Entry Apr. 23, 2015). Briefing was thereafter adjourned to satisfy the parties' desire to test the air quality on the eighth floor at One Police Plaza, as well as to address an alleged spoliation issue and related motion for sanctions. (Docs. 42, 43, 60, 64.) I held a second pre-motion conference on November 28, 2016, (Doc. 75; Dkt. Entry Nov. 28, 2016), during which Plaintiff noted that she would not be filing a motion for summary judgment.

         In accordance with the deadlines set, (see Doc. 80), Defendants filed their motion for summary judgment on February 13, 2017, (Docs. 81), along with the declaration of Heather Martone, (Doc. 82), a Rule 56.1 Statement of Undisputed Material Facts, (Doc. 83), and a memorandum of law in support, (Doc. 84). Plaintiff filed her opposition on March 27, 2017, (Docs. 85), as well as the affirmation of Marshall B. Bellovin, (Doc. 86), a Counter-Statement to Defendants' Rule 56.1 Statement, (Doc. 87), and a separate Rule 56.1 Statement of Disputed Facts, (Doc. 88).[5] Defendants filed their reply on April 10, 2017. (Doc. 93.)

         III. Legal Standard

         Summary judgment is appropriate when “the parties' submissions show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir. 2002); see also Fed. R Civ. P. 56(a). “[T]he dispute about a material fact is ‘genuine[]' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law, ” and “[f]actual disputes that are irrelevant or unnecessary will not be counted.” Id. On a motion for summary judgment, the moving party bears the initial burden of establishing that no genuine factual dispute exists, and, if satisfied, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial, ” Id. at 256, and to present such evidence that would allow a jury to find in his favor, see Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).

         To defeat a summary judgment motion, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . . .” Fed.R.Civ.P. 56(c)(1). In the event that “a party fails . . . to properly address another party's assertion of fact as required by Rule 56(c), the court may, ” among other things, “consider the fact undisputed for purposes of the motion” or “grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it.” Fed.R.Civ.P. 56(e)(2), (3).

         Additionally, in considering a summary judgment motion, the Court must “view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (citation and internal quotation marks omitted); see also Matsushita, 475 U.S. at 587. “[I]f there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party, ” summary judgment must be denied. Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002).

         IV. Discussion

         A. Timeliness

         Defendants argue that Plaintiffs Complaint is time-barred since it was filed more than ninety days after Plaintiff received her right-to-sue letter. (Defs.' Mem. 3-4.)[6] Defendants contend that the presumption that a plaintiff has received the notice of a right to sue within three days after mailing applies here, thus rendering Plaintiffs Complaint untimely. (See id.) The presumption, however, is rebuttable, and I find that Plaintiff has rebutted this presumption.

         “If a claimant presents sworn testimony or other admissible evidence from which it could reasonably be inferred either that the notice was mailed later than its typewritten date or that it took longer than three days to reach her by mail, the initial presumption is not dispositive.” Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996). Here, Plaintiff not only submitted a certified mail receipt that had accompanied the right-to-sue letter bearing a stamp from her counsel's office as having been received on May 30, 2013, (Doc. 1-2), but Plaintiff also submitted an affidavit from the head paralegal at her attorney's law firm attesting to the firm's practice of affixing such a time stamp “to each incoming piece of mail with the date it is received in the office, ” (Doc. 86-16 ¶ 2). This evidence sufficiently rebuts the presumption that Plaintiff received the notice on May 26, 2013, and her Complaint was thus timely. See Sherlock, 84 F.3d at 526 (“We hasten to note that we would not regard the presence of a self-serving date-of-receipt notation on the claimant's copy of a right-to-sue letter (there was no date-of-receipt notation on Sherlock's copy) as evidence rebutting the presumption that the letter was received three days after its typewritten date, unless the claimant also presented an affidavit or other admissible evidence of receipt on the noted date.” (emphasis added)); see also Hogarth v. N.Y.C. Health & Hosps. Corp., No. 97 Civ. 0625(DAB), 2000 WL 375242, at *4 (S.D.N.Y. Apr. 12, 2000) (“[T]he presumption of delivery can be successfully rebutted with a sworn affidavit giving a detailed description of the mail procedures followed at a company for all incoming mail supporting the conclusion that the mail was never received.”).

         B. Disability Discrimination

         1. ...

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