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Jones v. City of New York

United States District Court, S.D. New York

January 8, 2020

ERIN JONES, Plaintiff,



         Plaintiff, 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.


         The 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. 2011).

         I. September 2014 Request for Reasonable Accommodation

         From 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).

         On 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. ¶ 31.

         Under 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.

         Plaintiff 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”)[2] 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. ¶¶ 72, 74-76.

         On 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.

         Plaintiff's 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. ¶ 96.

         II. September 2016 Request for Reasonable Accommodation

         On 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.

         Along 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.

         The 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.

         By 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. ¶¶ 119-120.

         On 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.

         III. Termination of Employment

         By 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.

         Plaintiff 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.


         I. Le ...

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