Bielski v. Green

• Decision Date: 11 December 2009
• Docket Number: No. 06-CV-6230L.,06-CV-6230L.
• Citation: 674 F.Supp.2d 414
• Parties: Rosemarie BIELSKI, Plaintiff, v. Michael GREEN, Monroe County District Attorney, The County of Monroe, Defendants.
• Court: U.S. District Court — Western District of New York

674 F.Supp.2d 414

Rosemarie BIELSKI, Plaintiff, v. Michael GREEN, Monroe County District Attorney, The County of Monroe, Defendants.

No. 06-CV-6230L.

United States District Court, W.D. New York.

December 11, 2009.

COPYRIGHT MATERIAL OMITTED

Nira T. Kermisch, Rochester, NY, for Plaintiff.

Sean T. Hanna, James L. Gelormini, Office of the New York State Attorney General, Rochester, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

This action was brought by a former employee of the Monroe County (New York) District Attorney's Office ("DA's office"), Rosemarie Bielski ("Bielski"), against Monroe County ("County") and District Attorney Michael Green, alleging claims under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law ("HRL"), N.Y. Exec. L. § 290 et seq. Plaintiff alleges that defendants failed to accommodate her physical limitations while she was employed as a stenographer for the DA's office, and that defendants discriminated against her on the basis of her sex. Both sides have moved for summary judgment.

FACTUAL BACKGROUND

Bielski began working for the DA's office as a grand jury stenographer, or reporter, in 1977. In 1995, she was involved in an automobile accident, but was not seriously injured, and was able to return to work full time.

The following year, however, plaintiff was in another car accident, and this time she required back surgery as a result. Plaintiff went back to work in January 1997, but asked that she not be scheduled to work any afternoons because she tended to suffer from back spasms in the afternoon. Her then-supervisor Ellen Amarosa accommodated that request, and assigned Bielski to work mornings only.

In 2002, Amarosa retired, and David DiRaimo took her place as plaintiffs supervisor. In the fall of that year, DiRaimo began scheduling plaintiff to work afternoons on some days, and mornings on other days.¹ Plaintiff alleges that "as a result [of these afternoon sessions, her] back condition was aggravated and [she] started suffering a great deal of pain." Bielski Aff. (Dkt. 20-2) ¶ 21.

Plaintiff states that she again asked not to be required to work afternoon sessions, and that in support of that request she submitted a letter from her doctor, Waseem Ghazoly, stating in part, "It is my advice that Mrs. Bielski's court sessions be scheduled during the morning hours, so she can avoid the prolonged sitting conditions in the . . . court room in the afternoon. With prolonged sitting, the patient experiences increased pain and muscle spasm." Id. Ex. B. Plaintiff alleges that this request was not honored, however, and that she continued to be scheduled for afternoon grand jury sessions.

Defendant Green became the Monroe County DA in January 2004. The following month, Assistant District Attorney Bruce Goldman began supervising the stenographers.

In a memorandum to Goldman dated February 26, 2004, Green stated, "Based upon a review of the medical reports submitted by her doctor, we have determined that Rosemarie Bielski should no longer be scheduled for afternoon Grand Jury sessions," save for "exceptional situations," which Green defined as "situation[s] that exist[ ] when due to Grand Jury coverage demands there is a lack of flexibility in scheduling taking into account the number, time and availability of all the stenos as a group." Green added, "Please be sure she gets regularly scheduled breaks during these times." Id. Ex. C.

Plaintiff states that she was assigned to work mornings only for a few weeks after this memo was issued, but that after Goldman became her supervisor, he began again scheduling her for afternoon sessions as well. In a memo to Green dated April 6, 2004, Goldman stated that some recent changes in the way in which felony cases were prosecuted had necessitated changes in the scheduling of court stenographers. He stated that he had attempted to balance Bielski's health needs against considerations of fairness for all the reporters, he had been "able to create a schedule which had Rosemarie Bielski in grand jury for ten (10) mornings and only two (2) afternoons." Id. Ex. D. He added that "[t]he two (2) afternoons were on Fridays where if she didn't feel well she would have the entire weekend to feel better." Id.

Goldman also stated, however, that Bielski was unhappy with this change, and that she had told him that "this wasn't going to fly." He stated that "[t]his continued to be a bone of contention for Rosemarie Bielski," and that "[t]his situation needs to be addressed," with consideration given to Bielski's needs, the effect that accommodating her requests would have on her fellow stenographers, and the needs of the DA's office with respect to grand jury proceedings. Id.

On September 7, 2004, Green sent another memo to Goldman, stating that he was "modify[ing his] February 26, 2004 memorandum," and that his prior statement about scheduling Bielski only in "exceptional situations" was "rescinded effective immediately. This means that Rosemarie Bielski should be scheduled for grand jury testimony situations the same as the other full time stenographers irrespective of whether the grand jury session is in the morning or the afternoon." Dkt. # 15 Ex. Z. Green stated that this rescission of his prior directive was based on recent changes in grand jury proceedings, staffing concerns, and budgetary restrictions. Id. He added that "[t]his modification should not be considered a temporary change, but rather a change made for the foreseeable future." Id.

Bielski did begin working more afternoon sessions. Although she still was never assigned to work both a morning and afternoon session on the same day, she alleges that after she began to be assigned to afternoon sessions, her back problems got significantly worse. In October 2004, Bielski was placed on medical leave because of her complaints of back pain.

Bielski returned to work in January 2005. In accordance with the terms of a letter to her dated December 21, 2004 and signed by District Attorney Administrator Richard Christopher, Bielski was to work initially only on a "daily, part-time basis," and her duties were limited to fulfilling requests for transcripts of grand jury testimony that she had taken previously. She was not assigned to take any grand jury testimony. Bielski was to be paid her regular salary for the hours that she worked, and half pay for the balance of her regular seven-hour work day. Dkt. # 20-2 Ex. E. Christopher also informed Bielski that once she had finished all of the requested transcripts, she would be "placed back on half-pay sick leave pending the results of [her] doctor's re-evaluation." Id.

Christopher added that Bielski would not be allowed to take grand jury testimony "until [she] could return to work on a full time basis without restriction." He stated that it was "the position of the District Attorney's Office that one of the essential functions of a full time Grand Jury Stenographer is to be available" whenever needed, and that all stenographers "must be available to take [grand jury] testimony during work both morning and afternoon sessions without restriction." Id.

Plaintiff alleges that she believed that she was "being setup to be terminated," and that she therefore went back to Dr. Ghazoly and "asked him to remove all restrictions and to allow [her] to return to work on a full time basis." Id. ¶ 71. Dr. Ghazoly gave Bielski a statement to that effect (which does not appear to be in the record before me), but plaintiff alleges that when she provided her supervisors with a copy of that statement, they insisted that she submit to a medical examination "by their own doctor" before she would be allowed to return to work. Id. ¶ 72.

Bielski was examined in mid-February by a nurse practitioner at the offices of Karl Auerbach, M.D., a physician with the Department of Occupational and Environmental Medicine at Strong Memorial Hospital in Rochester. In a letter to Bielski dated March 2, 2005, Marie Murray, a Senior Personnel Technician with the Monroe County Department of Human Resources, stated that "[a]s a result of the medical examination conducted on February 17, 2005, the determination has been made that you are not medically qualified to perform the essential functions of your position without restrictions. . . . Therefore, you will continue on a leave of absence." Id. Ex. F. Murray added that Bielski's leave would last for one year, but that during that time, Bielski could "apply for a medical examination to determine whether [she was] able to perform [her] job," and that if she were determined to be able to perform her job without restrictions, she would be reinstated. Id.

Plaintiff did request such an examination, and on April 8, 2005, she was examined by Dr. Auerbach. In a letter to Murray dated April 14, 2005, Dr. Auerbach stated that he was of the opinion that "Ms. Bielski has a medical condition that requires that she not sit for more than an hour without the opportunity to stand and stretch for at least 5 minutes." Dkt. # 15 Ex. CC.

Dr. Auerbach also noted that Bielski had indicated to him that she believed that it was necessary for her not to work "back to back" grand jury sessions in which she was taking live grand jury testimony in the afternoon and again the following morning. Dr. Auerbach stated that although he agreed that Bielski should not work two note-taking sessions in the same day, he could not "medically support a need for avoiding note taking sessions separated by an overnight." He opined that "there may be employee relations type issues involved in the request for the limitation of no `back to back' rather than medical issues." Id.

On May 4, 2005, Christopher wrote Bielski another letter, which stated that based upon Dr. Auerbach's opinion that plaintiff could work, if...