Muller v. Costello

Decision Date01 August 1998
Docket Number98-7729,Docket Nos. 98-7491
Parties(2nd Cir. 1999) KEITH E. MULLER, Plaintiff-Appellee, v. JOSEPH J. COSTELLO, Individually and as Superintendent of Midstate Correctional Facility; SUSAN A. CONNELL, Individually and as Deputy Superintendent of Administration at Midstate Correctional Facility; JOHN DOE, Individually and as employee of the Midstate Correctional Facility; JOSEPH SGT. WARD, Sergeant, Individually and as an agent of the Midstate Correctional Facility and THOMAS KRASKO, Individually and as an employee of Midstate Correctional Facility, Defendants, THE STATE OF NEW YORK; NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICE, Defendants-Appellants, UNITED STATES OF AMERICA, Intervenor
CourtU.S. Court of Appeals — Second Circuit

Appeal from a judgment entered in the United States District Court for the Northern District of New York (Scullin, J.) awarding money damages to the plaintiff upon a jury verdict for discrimination in employment and retaliation under the provisions of the Americans with Disabilities Act, the court having rejected challenges based on Eleventh Amendment immunity and insufficiency of the evidence.

Judgment affirmed to the extent supported by the retaliation claim. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] NORMAN P. DEEP, Clinton, NY, for Plaintiff-Appellee.

ANDREA OSER, Assistant Attorney General, Albany, NY (Dennis C. Vacco, Attorney General of the State of New York, Albany, NY, Peter H. Schiff, John McConnell, Deputy Solicitor Generals, Nancy A. Spiegel, Assistant Attorney General, Albany, NY, of counsel) for Defendants-Appellants.

SETH M. GALANTER, Attorney, Department of Justice, Washington, DC (Bill Lann Lee, Acting Assistant Attorney General, Washington, DC, Jessica Dunsay Silver, Attorney, Washington, DC, of counsel) for Intervenor.

Before: WINTER, Chief Judge, and MINER and POOLER, Circuit Judges.

MINER, Circuit Judge:

Defendants-appellants New York State and the New York State Department of Correctional Service (collectively, "DOCS") appeal from a judgment granting damages and other relief to plaintiff-appellee Keith E. Muller by the United States District Court for the Northern District of New York (Scullin, J.), following a jury trial. Muller, a correctional officer formerly employed by DOCS, brought suit alleging that DOCS discriminated against him because of his disability of reactive airway disease, which substantially impaired his major life activities of working and breathing, and that DOCS had retaliated against him for seeking to enforce his rights under state and federal law, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. At trial, DOCS moved for judgment as a matter of law on the disability claim at the end of Muller's case, arguing that Muller had failed to present sufficient evidence from which a jury could conclude that Muller suffered from a disability within the meaning of the ADA. The court denied this motion. After DOCS presented its defense, the case was submitted to the jury, and the jury returned a verdict in favor of Muller on both the discrimination and retaliation claims. DOCS then renewed its motion for judgment as a matter of law. In this motion, DOCS argued, inter alia, that Muller had presented legally insufficient evidence to support a finding of disability and that the district court was without jurisdiction to consider Muller's claims because the Eleventh Amendment rendered the state defendants immune from suit under the ADA. The court denied the motions for judgment as a matter of law, finding that Muller had presented ample evidence that his ability to work was substantially limited and thus not addressing whether Muller's ability to breathe was similarly impaired. As to the Eleventh Amendment argument, the court concluded that the ADA represented a valid exercise of Congress's authority under § 5 of the Fourteenth Amendment and was consequently an effective abrogation of states' Eleventh Amendment immunity.

We affirm the judgment to the extent that it is supported by the retaliation claim, for the reasons that follow.

BACKGROUND

DOCS hired Muller in June of 1988 to serve as a correctional officer. After training and a probationary period, Muller received permanent assignment to Midstate Correctional Facility ("Midstate"), which is located in Marcy, New York, approximately one hour east of Syracuse.

In February of 1989, Muller fell ill with pneumonia. He continued to work for DOCS for the next two years, although his respiratory problems did not cease. As a result of these problems, he took a number of sick days. In November of 1991, Muller visited a doctor to assess his continuing respiratory ailment. The doctor diagnosed Muller with "severe bronchitis with a strong asthmatic component" and recommended that he have "no exposure to tobacco smoke while at work." Muller presented a note to this effect from his doctor to the personnel section at Midstate.

Since 1990, Midstate has had a written policy regarding smoking in the workplace. Under the policy, smoking is permitted in the housing units but generally prohibited in other areas of the facility. Under a "one-person-office" exception, a DOCS employee assigned to a one-person office may smoke in that office.

Upon his return to work on November 22, 1991, Muller was assigned to a housing unit. He became sick and went home. Muller returned to work the following day and was again assigned to a housing unit. Soon thereafter, he submitted a memorandum to his superior requesting a smoke-free environment and filed a formal complaint with the county health department.

During this period of time, Muller attempted a number of measures to limit his exposure to cigarette smoke. Through a seniority-based bidding system, he bid on and received assignments to the midnight shift to limit his exposure to cigarette smoke. At one point, Muller received permission to open windows in a housing unit but was later ordered to keep the windows closed after inmates complained about the cold air. During 1992, though Muller continued to work in the housing units, he was sick and absent from work only occasionally. Nonetheless, he filed numerous grievances with DOCS regarding the lack of healthy and safe working conditions at the facility. There is evidence that DOCS was responsive to some of these grievances; for example, the designation of the "chart office," which many officers were required to pass through, was changed from smoking to non-smoking. Although the smoking policy gradually grew more restrictive from its inception in 1990, Muller observed a number of incidents throughout his employment where inmates and employees violated the policy without repercussion.

In August of 1993, Muller received a list of smoke-free positions within Midstate. Despite his awareness of available smoke-free posts, Muller bid for and received a "vacation post," which entailed substituting for officers on vacation. Muller bid for this position although he knew that there was a likelihood that he would be stationed in an environment in which smoke was present. Over this period of time, however, Muller made others aware of his condition and requested that the administration place "No Smoking" signs in designated non-smoking areas.

In December of 1993, while working in one of the housing units, Muller reacted to secondhand smoke and went to the emergency room at a local hospital after being advised to do so by a Midstate nurse. Muller returned to work approximately one week later with another note from a doctor stating that he could not work in an environment where smoke was present. At this time, Muller's doctor filed a report with the New York State Education Department, Office of Vocational Educational Services for Individuals with Disabilities ("VESID"). On January 11, 1994, a VESID official wrote to the Superintendent of the prison stating that Muller was disabled and requesting that DOCS assign Muller to a smoke-free environment. Two weeks later, having received no response, the same official again wrote to the Superintendent, explaining that the Superintendent's failure to respond would be understood as a refusal to offer an accommodation, and VESID would be forced to continue with administrative procedures.

In February of 1994, DOCS responded by sending Muller an "application request for reasonable accommodations." After Muller submitted this application to DOCS, requesting a "smoke-free environment," DOCS sent him for an employee health physical in Albany, New York. The examining doctor stated that Muller could perform the essential functions of a correctional officer and recommended that Muller be provided with proper respiratory precautions from environmental irritants such as tobacco smoke.

Several days later, Muller received a telephone call from a DOCS official stating that he could return to work and that he would be provided a mask to wear. Muller was given a box of white paper masks to wear; these masks covered his mouth and nose and were held in place by a flexible metal nose piece and a rubber band that went around his neck. A statement on the box containing the masks warned that the masks did not "protect against fumes, gas or vapors." Consistent with its warning, the mask did not protect Muller from secondhand smoke in the facility. He continued to get sick while at work. Additionally, Muller felt humiliated by being forced to wear the mask and observed a loss of "credibility" in front of the inmates. Muller later forwarded a doctor's note to DOCS stating that the paper mask was inappropriate for Muller's medical condition.

In March of 1994, DOCS provided a different type of mask. The second mask was a rubber mask with detachment filters. After being fitted with the mask, a DOCS employee administered a "fit test" in which Muller was enclosed in a tent...

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