Giordano v. City of New York

• Decision Date: 01 August 2001
• Docket Number: DEFENDANTS-APPELLEES,PLAINTIFF-APPELLANT,Docket No. 01-7370
• Citation: 274 F.3d 740
• Parties: (2nd Cir. 2001) DAVID GIORDANO,v. CITY OF NEW YORK, HOWARD SAFIR, POLICE COMMISSIONER, NEW YORK CITY POLICE DEPARTMENT, MEDICAL BOARD, POLICE PENSION FUND, ARTICLE II,
• Court: U.S. Court of Appeals — Second Circuit

Page 740

274 F.3d 740 (2nd Cir. 2001)

DAVID GIORDANO, PLAINTIFF-APPELLANT v. CITY OF NEW YORK, HOWARD SAFIR, POLICE COMMISSIONER, NEW YORK CITY POLICE DEPARTMENT, MEDICAL BOARD, POLICE PENSION FUND, ARTICLE II, DEFENDANTS-APPELLEES

Docket No. 01-7370

August Term, 2001

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: October 25, 2001

Decided: December 21, 2001

Appeal from a judgment of the United States District Court for the Southern District of New York (Allen G. Schwartz, Judge) dismissing the plaintiff's complaint under Rule 56 of the Federal Rules of Civil Procedure. We affirm the dismissal of the plaintiff's federal claims under the Americans with Disabilities Act and 42 U.S.C. § 1983, of, respectively, employment discrimination on the basis of a disability, and violations of the Due Process and Equal Protection Clauses. We hold, however, that the district court erred by dismissing on the merits the plaintiff's pendent state-law claims under the New York State Executive Law and the New York City Administrative Code. Because we conclude that these claims would be more appropriately adjudicated in state court, we remand with instructions to the district court. Affirmed in part, reversed in part, and remanded with instructions to dismiss the remaining state-law claims without prejudice. [Copyrighted Material Omitted] Rosemary Carroll, Carroll & Friess, New York, Ny, for Plaintiff-Appellant.

Cheryl Payer, New York City Law Department (Michael D. Hess, Corporation Counsel of the City of New York; Stephen J. McGrath, of counsel), New York, Ny, for Defendants-Appellees.

Before: Van Graafeiland, Winter, and Sack, Circuit Judges.

Sack, Circuit Judge

Plaintiff David Giordano, a former longstanding employee of the New York City Police Department ("NYPD"), appeals from a judgment of the United States District Court for the Southern District of New York (Allen G. Schwartz, Judge) granting summary judgment to the defendants and dismissing his complaint in its entirety. The complaint alleges violations of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Due Process and Equal Protection Clauses of the United States Constitution, the New York State Executive Law, and the New York City Administrative Code.

Giordano's claims arise from his discharge from the NYPD following a hearing before the defendant Medical Board, Police Pension Fund, Article II ("Article II Board"), which recommended that Giordano "be separated from the Police Department because of [his need for] life long anticoagulation." Giordano alleges that the defendants discharged him in violation of the ADA because they mistakenly "regard[ed] him as disabled" because of his regimen on the drug Coumadin, an anticoagulant. He further alleges that by discharging him without affording him a personal physical examination by the Article II Board and by continuing to employ another full-duty police officer, Thomas Rowe, who also takes Coumadin daily, the defendants violated his constitutional rights under, respectively, the Due Process and the Equal Protection Clauses of the Fourteenth Amendment. Finally, Giordano alleges that the defendants' actions violated his right "to be free of intentional discrimination based on disability," Compl. ¶¶ 57, as defined by the New York State Executive Law and the New York City Administrative Code.

We affirm the district court's dismissal of Giordano's ADA claim because we agree that he failed to offer evidence from which a reasonable juror could conclude that the defendants "regarded him as disabled" within the meaning of the ADA. We also affirm the court's dismissal of Giordano's § 1983 claims. The record contains nothing to suggest that the alleged disparate treatment of Giordano and Officer Rowe resulted from any illicit motivation of the defendants. We recognize that we have not yet decided whether the Supreme Court's decision in Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam), altered this Circuit's rule that a "class of one" plaintiff such as Giordano must show an illicit motivation in order to state a cognizable equal-protection claim. See Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. Nov.2001). We affirm without reaching this issue, however, because Giordano did not in any event introduce evidence to show that the defendants "intentionally treated [him] differently from others similarly situated." Olech, 528 U.S. at 564 (emphasis added). Finally, we agree with the district court that contrary to Giordano's assertion, due process of law did not require the members of the Article II Board to conduct a personal physical examination of Giordano before recommending his discharge from the NYPD.

Because we hold that Giordano failed to introduce evidence to suggest that the defendants "regarded him as disabled," we do not reach the other ADA issues discussed by the district court: whether patrol duty is an "essential function" of police work, and, if so, whether Giordano was able to perform this function with or without reasonable accommodation. Finally, we disagree with the district court's conclusion that Giordano's pendent state-law claims necessarily fail because even though those laws "have a broader definition of disability than does the ADA," they otherwise "use the same analytical framework as the ADA." Giordano v. City of New York, No. 99 Civ. 3649, 2001 WL 204202, at *7, 2001 U.S. Dist. LEXIS 2039, at *19 (S.D.N.Y. Feb. 28, 2001). We therefore reverse the district court's grant of summary judgment against Giordano on his pendent state-law claims and remand with instructions to dismiss them without prejudice to their renewal in an appropriate state forum.

BACKGROUND

Giordano began working for the NYPD on January 21, 1985, at the age of twenty. After he graduated from the Police Academy, he spent approximately three years in training in a precinct in Queens. The NYPD then assigned him to patrol duty elsewhere. According to Giordano, patrol duty means "police duty in a radio car or on foot in a sector," Appellant's Br. at 11 n.6, and according to the testimony of NYPD Personnel Chief Michael A. Markman, it involves, inter alia, "rendering all necessary police service in an assigned area . . . [and] giving attention to crime hazards."

In April 1991, the NYPD reassigned Giordano to the Central Park Precinct in Manhattan. There, he initially performed patrol duty; later, he served in the Street Narcotics Enforcement Unit. He continued to work in the latter capacity until 1998. His performance evaluations indicate that he fulfilled his duties not only competently, but at a level above average.

In 1998, Giordano's physicians diagnosed an aneurism in his aortic root. On May 19, 1998, Dr. Donato Sisto, a surgeon, performed corrective surgery to replace the root with an aortic valve prosthesis. The operation was successful, and on May 24, 1998, Dr. Sisto authorized Giordano's discharge from the hospital. To prevent the danger of blood clotting, a risk associated with the presence of an artificial aortic valve in the body, Giordano's physicians instructed him to take five milligrams of Coumadin, an anticoagulant blood thinner, daily. It is expected that Giordano will be required to take Coumadin for the rest of his life.

In all other respects, according to Dr. Demetrios Georgiou, one of Giordano's cardiologists, "Mr. Giordano can conduct a normal lifestyle, including regular exercise training." Letters provided by Giordano's physicians at his attorney's request affirm that he remains in good health, takes his medication as directed, and complies meticulously with the periodic monitoring schedule recommended by his physicians. Giordano also emphasizes that he exercises regularly, controls his diet, and neither smokes nor drinks.

Giordano apparently recovered from his operation rapidly. On July 9, 1998, then-Police Commissioner Safir ¹ authorized him to return to work on "restricted duty," which, according to Personnel Chief Markman, limits an officer to "clerical, administrative and other non-patrol duties." ²

On September 14, 1998, Dr. Eliscer Guzman, Giordano's district surgeon and a cardiologist by training, recommended Giordano for "survey" --i.e., an investigation -- "to ascertain whether [an NYPD employee] is incapacitated for the performance of duty and ought to be retired." ³ Giordano testified that Dr. Guzman "told [him] that because [he] take[s] Coumadin [he] could bleed to death in the event of a blow or physical attack and that [he] should put in [his] papers to retire." Concluding that he "had no option," Giordano applied for accident-disability retirement on the same day.

On September 17, 1998, the NYPD referred Giordano's case to Dr. Robert Thomas, Supervising Chief Surgeon of the NYPD. Dr. Thomas testified that he "prepared a memorandum to the Police Commissioner recommending the plaintiff not be permitted to perform any patrol duties and be considered for disability retirement." He based this recommendation on the views of "a number of physicians, including two department vascular surgeons," who "were of the opinion that the anticoagulation needed for plaintiff's prosthetic aortic valve would preclude plaintiff from performing full duty because plaintiff could sustain catastrophic bleeding from even minor injuries."

On September 21, 1998, Giordano consulted Dr. Gregory Fried, Executive Chief Surgeon of the NYPD. Dr. Fried testified that over the course of his career with the NYPD, he has examined thousands of police officers -- including others who, like Giordano, must take Coumadin --in order to assess their fitness for duty. He further testified that he generally considers two principal questions to determine whether such officers can be returned to patrol duty: first, the nature and extent of other physical impairments, if any; and second, "the wishes of the officer." At his deposition, Dr. Fried explained that:...