United States District Court, S.D. New York
ANALISA TORRES UNITED STATES DISTRICT JUDGE.
Erin Jones, proceeding pro se, alleges that
Defendant, City of New York (the “City”) violated
her rights under the Americans with Disabilities Act, 42
U.S.C. §§ 12101, et seq.
(“ADA”); the New York Human Rights Law, N.Y.
Exec. L.§§ 296, et seq.
(“NYSHRL”); and the New York City Human Rights
Law, N.Y.C. Admin. Code §§ 8-101, et seq.
(“NYCHRL”) on account of her cardiac and
respiratory disabilities. She alleges that the City denied
her reasonable accommodations, fired her, and retaliated
against her for requesting accommodations and for filing a
discrimination charge with the United States Equal Employment
Opportunity Commission (“EEOC”). Defendant now
moves for summary judgment on all claims. ECF No. 120. For
the reasons stated below, Defendant's motion is GRANTED
in part and DENIED in part.
facts discussed in this opinion are undisputed except where
otherwise noted. The Court has drawn all reasonable
inferences in favor of Plaintiff, as the nonmovant. See
Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir.
September 2014 Request for Reasonable Accommodation
2008 to 2015, Plaintiff was employed at the New York City
Police Department (“NYPD”) as a secretary. 56.1
¶ 1, ECF No. 130. She was assigned to the NYPD's
Brooklyn Court Section. Id. ¶ 14.
Plaintiff's duties included “performing moderately
difficult secretarial, typing, related office and/or
supervisor duties, with latitude for independent judgment, as
well as general office work, scheduling appointments, and
utilizing automated office systems.” Id.
¶ 17 (internal quotation marks and citation omitted).
September 26, 2014, Plaintiff requested an accommodation for
her disability, a cardiac medical condition. Id.
¶ 25. Plaintiff sought an assignment to a command that
would permit her to work “tours, ” or shifts,
from either 8:00 a.m. to 4:00 p.m. or 9:00 a.m. to 5:00 p.m.,
as well as an exemption from working mandatory overtime
weekend tours. Id. ¶ 40. Plaintiff resides in
Ozone Park, Queens and used public transportation to commute
to the Brooklyn Court Section, located in Brooklyn.
Id. ¶¶ 32-33. At her deposition, Plaintiff
testified that she considers an “evening shift”
to be a tour starting after 6:00 p.m. and a “night
shift” to be a tour starting after 9:00 p.m.
Id. ¶¶ 29-30. Plaintiff does not recall
ever working an evening tour, nor does she recall working a
night tour, weekends, or an overtime tour. Id.
NYPD policy, an employee is required to submit to medical
evaluation by the NYPD's physician before being provided
a reasonable accommodation. Id. ¶ 38. Employees
must also provide additional medical documentation. By letter
dated September 24, 2014, Plaintiff's personal physician,
Lubov Sychikov, M.D., advised the NYPD that Plaintiff was on
“two medications for her cardiac medical condition . .
. is unable to travel long distances due to her medical
conditions and is unable to work extended hours . . . can
work up to 7-8 hours a day” and that her
“medication will be monitored on the weekends.”
Id. ¶¶ 42-43; see also ECF 122-8
at 4. The Brooklyn Court Section required its staff to work
weekends and mandatory overtime, as indicated on multiple
forms signed by Plaintiff, dating back to September 2008.
56.1 ¶¶ 46- 47; see also ECF No. 122-10.
On October 6, 2014, Defendant denied Plaintiff's request
for a reasonable accommodation as insufficiently supported
and for failure to provide requested medical documentation.
56.1 ¶ 58.
did not appear for work on November 16 and 17, 2014,
id. ¶ 61, and two Brooklyn Court Section
Assistant Integrity Control Officers, Lieutenant Hans
Lafontant and Sergeant Sylvia Smith, visited Plaintiff's
residence on November 17, 2014 to investigate, id.
¶ 63. During the visit, Plaintiff claimed that she was
on child care leave and that she had requested such leave in
November 2014. Id. ¶ 63. Defendant claims that
the Brooklyn Court Section's Commanding Officer, Captain
William Tobin, confirmed with the NYPD's Military and
Extended Leave Desk (“MELD”) that Plaintiff
did not qualify for, and was not on, child care leave on
November 16 and 17, 2014; Plaintiff states that she cannot
substantiate this claim. Id. ¶ 64. Defendant
claims that Lafontant contacted Plaintiff by telephone on
November 21, 2014 and informed her that she would be
suspended if she did not appear for her shift that day,
scheduled to start at 3:00 p.m. Id. ¶ 67.
Plaintiff acknowledges that she received this call but cannot
confirm the date or time of the call. Id. Defendant
claims that Plaintiff did not appear for work that day;
Plaintiff does not recall whether this is the case.
Id. ¶ 68. Plaintiff maintains that she
submitted leave requests to the NYPD. Id. On
November 20, 2014, the NPYD suspended Plaintiff for 30 days
for “wrongfully engaging in conduct prejudicial to the
good order, efficiency or disciple of the
[d]epartment.” Id. ¶ 69; see
also ECF No. 122-19 at 1. After failing to appear for
her tour on December 23, 2014, the NYPD determined that
Plaintiff was absent without leave (“AWOL”) and
suspended her again, for 30 days. Id. ¶¶
January 22, 2015, Plaintiff submitted a Hardship Leave of
Absence application, which was granted, through March 31,
2015. Id. ¶ 78. This leave would allow
Plaintiff to care for her child, who had a disability.
Id. On July 16, 2015, Plaintiff requested a Sick
Leave of Absence Without Pay (“SLWOP”) from July
16 to October 1, 2015 due to exacerbation of her asthma.
Id. ¶ 80. The NYPD approved Plaintiff's
request and by letter dated July 28, 2015, advised Plaintiff
that her leave of absence without pay would not extend beyond
one year. Id. ¶¶ 83-84. Upon completion of
her leave, Plaintiff was required to provide a doctor's
note certifying her fitness to return to work. Id.
¶ 85. Before taking her leave, Plaintiff signed a form
which noted that upon her return, she would be
“assigned to a command according to the needs of the
[d]epartment, ” which included working night tours, day
tours, and weekends. Id. ¶ 86; see
also ECF No. 122-21.
leave of absence was extended through July 15, 2016. 56.1
¶ 87. By letter dated July 20, 2016, MELD informed
Plaintiff that if she was disabled, she was entitled to apply
for a reasonable accommodation, and that if she was not
physically and mentally fit to return to her position by
August 9, 2016, she would be released from her position
pursuant to § 73 of the New York State Civil Service Law
(“Civil Service Law”). Id. ¶¶
91-93. On August 23, 2016, Plaintiff appeared at the
NYPD's Medical Division for a medical evaluation.
Id. ¶ 95. NYPD's Deputy Chief Surgeon found
Plaintiff medically able to perform the duties of secretary
and fit for full and unrestricted duty. Id. ¶
September 2016 Request for Reasonable Accommodation
September 15, 2016, Plaintiff again requested an
accommodation for her cardiac and respiratory disabilities.
Id. ¶ 97. She sought the following
accommodations: assignment to daytime tours and a new work
location near her residence. Id. ¶ 98.
Plaintiff testified that she requested a work location closer
to home because it would lead to less asthma attacks, allow
her to arrive to work on time, and improve her time and
leave. Id. ¶ 100.
with her request, Plaintiff included a letter from her
personal physician, Walter Yee, M.D., which stated that Dr.
Yee reviewed Plaintiff's job functions and that she was
capable of performing those duties. Id. ¶ 104.
Dr. Yee's letter neither specified what medications
Plaintiff was taking, nor stated that Plaintiff's medical
conditions prevented her from traveling to her former
Brooklyn Court Section work location or working overtime
tours. Id. ¶ 105.
City asserts that on December 23, 2016, the NYPD temporarily
granted Plaintiff's request, transferring her to a
command closer to her home and assigning her to a morning
tour with no mandatory overtime, until January 31, 2017.
Id. ¶ 113; see also ECF No. 122-27.
Plaintiff asserts that she never received notice of this
decision. 56.1 ¶ 113. On December 26, 2016, Plaintiff
filed a charge of discrimination and retaliation with the
EEOC. Id. ¶ 4.
letter dated February 1, 2017, the NYPD's Office of the
Deputy Commissioner of Equal Employment Opportunity
(“DCEEO”) advised Plaintiff that she had failed
to provide documentation supporting her accommodation
request, and that her “reasonable accommodation
file” would be administratively closed if she failed to
submit the required documents by February 15, 2017.
Id. ¶ 116. That same day, MELD advised
Plaintiff, by letter, that she had been absent from work and
unable to perform the duties of her position for more than
one year. Id. ¶ 117. Plaintiff was required to
provide medical documentation by February 15, 2017,
certifying her physical and mental fitness to return to duty.
Id. ¶ 118. The letter informed Plaintiff that
if she was disabled, she was entitled to apply for a
reasonable accommodation, and if Plaintiff failed to return
to work by February 15, 2017, with or without an
accommodation, her employment would be terminated pursuant to
§ 73 of the Civil Service Law. Id. ¶¶
February 14, 2017, Plaintiff submitted to the DCEEO a letter
from Dr. Yee, stating that Plaintiff could not travel long
distances, work more than seven to eight hours per day, and
was medically fit to fulfill her duties as secretary.
Id. ¶¶ 122-123. On March 16, 2017, the
DCEEO advised Plaintiff that it closed her reasonable
accommodation case stating that Plaintiff had failed to
provide the NYPD with the required medical documentation.
Id. ¶ 124.
Termination of Employment
letter dated May 3, 2017, the NYPD fired Plaintiff pursuant
to § 73 of the Civil Service Law, due to her failure to
resume her duties as a secretary for more than one year.
Id. ¶ 127. The letter stated that she could
request reinstatement to her former position within one year
of the end of her disability by submitting a written
application to the City's Department of Citywide
Administrative Services (“DCAS”) for an
examination to determine her physical and mental fitness to
return to duty. Id. ¶ 128. The letter further
informed Plaintiff that she would be reinstated to her former
position if a vacancy existed, and if no vacancy existed,
Plaintiff would be placed on a preferred list for a period of
four years for reinstatement to her former civil service
title or a similar position. Id. ¶ 129.
initiated this action on June 28, 2017. Compl., ECF No. 1.
Plaintiff filed a second charge of discrimination and
retaliation with the EEOC in early February 2018.
56.1 ¶ 7.