Cody v. County of Nassau

Citation577 F.Supp.2d 623
Decision Date19 September 2008
Docket NumberNo. CV 05-2334(ETB).,CV 05-2334(ETB).
PartiesApril CODY, Plaintiffs, v. COUNTY OF NASSAU, New York and Nassau Community College, Defendants.
CourtU.S. District Court — Eastern District of New York

Wolin & Wolin, Esqs., by Alan E. Wolin, Esq. Jericho, NY, for Plaintiff.

Office of the Nassau County Attorney, by Donna A. Napolitano, Deputy County Attorney, Mineola, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

BOYLE, United States Magistrate Judge:

Plaintiff, April Cody ("Cody" or "plaintiff"), brings this employment discrimination action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the New York Executive Law §§ 296 and 297, alleging discrimination and retaliation on the basis of a disability. Before the Court is the motion of the defendants, County of Nassau (the "County") and Nassau Community College ("NCC"), for summary judgment. For the following reasons, the defendants' motion is granted in its entirety.

BACKGROUND

Plaintiff commenced her employment with Nassau Community College on March 22, 1985 as a "Computer Operator I." (Def. R. 56.1 Stmt. ("Def. R. 56.1") ¶ 1; Pl. R. 56.1 Stmt. ("Pl. R. 56.1") ¶ 1.) As such, plaintiff was a member of the Civil Service Employees Association ("CSEA") and was required to be physically examined by a Civil Service Commission physician. (Def. R. 56.1 ¶¶ 2-3; Pl. R. 56.1 ¶¶ 2-3.) During her physical examination, plaintiff advised the doctor that, although she suffered from osteoarthritis since junior high school, she did not foresee any limitations on her ability to perform her job responsibilities as a Computer Operator at NCC. (Dep. of April Cody, dated Aug. 18, 2006 ("Cody Dep."), 41-42.)

Plaintiff's supervisor upon her employment with NCC was John Carey ("Carey"), who reported to Dennis Gai ("Gai"), the Director of Management Information Systems. (Def. R. 56.1 ¶¶ 5-6; Pl. R. 56.1 ¶¶ 5-6.) As a Computer Operator I, plaintiff's employment duties required her to "run jobs" for other departments on campus, including printing labels, letters, transcripts and forms. (Def. R. 56.1 ¶ 17; Pl. R. 56.1 ¶ 17; Cody Dep. 9-10.) The labels that plaintiff used for printing came in boxes weighing approximately two to three pounds while letterhead was packaged in boxes weighing approximately fifteen or twenty pounds. (Def. R. 56.1 ¶ 7; Pl. R. 56.1 ¶ 7; Cody Dep. 11-12.)

In 1985, when plaintiff commenced her employment with NCC, the Computer Center in which she worked was located on the ground floor of Building B. (Def. R. 56.1 ¶ 9; Pl. R. 56.1 ¶ 9.) Plaintiff's employment shift at that time was from 7:30 a.m. to 3:15 p.m., which was considered the day shift. (Def. R. 56.1 ¶ 10; Pl. R. 56.1 ¶ 10.) Gai considered plaintiff's job performance while employed as a Computer Operator I as "good." (Dep. of Dennis Gai, dated July 27, 2006 ("Gai Dep."), 13-14.)

In or about 1987, while employed at NCC, plaintiff applied to the County for, and received, a handicapped parking permit because she had difficulties walking to the Computer Center from her designated parking area on the NCC campus. (Cody Dep. 48-49, 51; Def. Ex. C.) In support of her application, plaintiff provided the County with a letter from her physician, Dr. Sheldon Blau, which stated that plaintiff suffers from osteoarthritis and, as a result, is "unable to walk distances." (Cody Dep. 49; Def. Ex. D.) Neither of plaintiff's supervisors at the time, Carey or Gai, had to approve plaintiff's application for a handicapped parking permit. (Cody Dep. 49.) Nor did Carey or Gai see the letter from Dr. Blau indicating that plaintiff suffers from osteoarthritis at that time. (Cody Dep. 50.) At no point during plaintiff's employment as a Computer Operator I was she unable to perform the essential physical functions of her job. (Cody Dep. 63.)

Approximately four or five years after she began her employment with NCC, plaintiff was promoted to a "Computer Operator II," after passing the civil service examination for such a position. (Def. R. 56.1 ¶ 11; Pl. R. 56.1 ¶ 11; Cody Dep. 14-15.) Plaintiff's duties as a Computer Operator II were largely similar to those that she performed as a Computer Operator I; however, plaintiff did begin to take on more responsibility in that she had "more interaction with the people that had charge of the [computer] system" such that when a problem occurred, plaintiff would work with them to "troubleshoot why the system was down." (Def. R. 56.1 ¶ 12; Pl. R. 56.1 ¶ 12; Cody Dep. 18.) Plaintiff's employment shift as a Computer Operator II remained the same as when she was a Computer Operator I-7:30 a.m. to 3:15 p.m. — and plaintiff again reported to John Carey. (Def. R. 56.1 ¶ 13; Pl. R. 56.1 ¶ 13; Cody Dep. 18.) Dennis Gai considered plaintiff's job performance as a Computer Operator II to be "okay." (Gai Dep. 17.) There were no "major issues" with plaintiff's job performance while employed as a Computer Operator I or II. (Id. at 18.)

During her employment at NCC, plaintiff complained of having to move and lift boxes of forms, labels and paper because of her osteoarthritis and requested to have supplies contained within the Computer Center.1 (Def. R. 56.1 ¶ 17; Pl. R. 56.1 ¶ 17; Cody Dep. 70-71.) In response to plaintiff's request, a meeting was held with Dennis Gai and Frank Kanter ("Kanter"), the Assistant to the Director of Human Resources at NCC, Fred Downs, to discuss how plaintiff's request could be accommodated, as well as what reasonable accommodations could be made for plaintiff, pursuant to the ADA. (Def. R. 56.1 ¶ 19; Pl. R. 56.1 ¶ 19; Cody Dep. at 81-82, 84, 89.) At this meeting, plaintiff provided Gai with the letter from Dr. Blau, dated June 11, 1986, that plaintiff had submitted to the County in support of her request for a handicapped parking permit. (Def. R. 56.1 ¶ 20; Pl. R. 56.1 ¶ 20; Cody Dep. 84-85, 87.) The letter stated that plaintiff was being treated for osteoarthritis and as a result of her condition, she was "unable to walk distances." (Def.Ex.D.) The letter from Dr. Blau did not indicate the extent of plaintiff's disability. (Cody Dep. 86.) This was the only documentation regarding her disability that plaintiff provided to NCC at that time. (Id. at 87.)

In response to plaintiff's request, Gai suggested that she be given an equipment rolling cart that she could stock with the paper and supplies needed and then push throughout the building. (Id.) Plaintiff rejected this suggestion on the ground that she would be unable to push the cart due to her osteoarthritis. (Id.) No other reasonable accommodations were offered to plaintiff at that time. (Id.) However, the meeting concluded with an agreement that plaintiff would be contacted by a County physician for the purpose of an examination so that further accommodations could then be discussed. (Id. at 88.)

By inter-departmental memorandum dated November 2, 1994, NCC notified the Civil Service Commission that plaintiff had approached Human Resources concerning her osteoarthritis and had requested that a reasonable accommodation be provided to her, pursuant to the ADA. (Def.Ex.E.) The inter-departmental memorandum stated that plaintiff was "requesting that her job be restructured in such a manner that it would not require the lifting or moving of large or heavy objects." (Id.) The memorandum noted that the 1986 letter plaintiff provided from Dr. Blau supported her claim of disability but that NCC "require[d] more detail and a more recent report as to [plaintiff's] condition." (Id.) Accordingly, NCC requested that plaintiff be scheduled for an appointment with a physician of the Civil Service Commission's choice for an evaluation. (Id.) Plaintiff received a copy of this memorandum and understood this request for an examination to be the same examination discussed at the meeting with Gai and Kanter. (Cody Dep. 89-90, 101.) By letter dated November 16, 1994, the Civil Service Commission requested that plaintiff submit her medical records to the Commission physician for purposes of evaluating plaintiff's request for an accommodation.2 (Def.Ex.F.) No accommodation was ultimately provided to plaintiff, however, because she failed to submit the requested medical information. (Dep. of Fred Downs, dated July 27, 2006 ("Downs Dep."), 23-24.)

In early 1996, during the time that plaintiff was employed as a Computer Operator II, the Computer Center was moved from Building B to the basement or ground level of the NCC library. (Def. R. 56.1 ¶ 15; Pl. R. 56.1 ¶ 15; Cody Dep. 24, 72.) Shortly thereafter, in June 1996, plaintiff was promoted to a Computer Operator III. (Def. R. 56.1 ¶ 14; Pl. R. 56.1 ¶ 14; Cody Dep. 23.) As a Computer Operator III, plaintiff was provided the opportunity to "schedule the jobs" and was given more responsibilities such as "verifying work, how to do so, [and] creating work." (Cody Dep. 25.) Plaintiff also "developed procedures for problems that would occur on the hardware and the software" and worked "very closely" with the programming staff "to get those procedures down for operations." (Id.) Plaintiff's supervisor as a Computer Operator III was Katherine Flick ("Flick"). (Cody Dep. 24-25.) Plaintiff's employment shift as a Computer Operator III remained the same as it had previously been-7:30 a.m. to 3:15 p.m. (Cody Dep. 26.) Plaintiff performed her duties as a Computer Operator III "fairly well." (Gai Dep. 30.)

Between 1994 and July 2001, plaintiff was able to perform all of the job functions of a Computer Operator in the Computer Center. (Def. R. 56.1 ¶ 22; Pl. R. 56.1 ¶ 22.) In January 1998, however, plaintiff received a Notice of Personnel Action ("NOPA") for an incident that occurred on December 18, 1997, during which plaintiff refused to correct her time sheet,...

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