Conroy v. New York Dept. of Correctional

• Decision Date: 18 June 2003
• Docket Number: Docket No. 02-7415.
• Citation: 333 F.3d 88
• Parties: Deborah CONROY and Blake Swingle, individually and on behalf of all others similarly situated, Plaintiffs, Belinda Fountain, Plaintiff-Appellee, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Glenn Goord, individually, and in his official capacity as Commissioner of the New York State Department of Correctional Services, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

333 F.3d 88

Deborah CONROY and Blake Swingle, individually and on behalf of all others similarly situated, Plaintiffs, Belinda Fountain, Plaintiff-Appellee, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Glenn Goord, individually, and in his official capacity as Commissioner of the New York State Department of Correctional Services, Defendants-Appellants.

Docket No. 02-7415.

United States Court of Appeals, Second Circuit.

Argued: December 12, 2002.

Decided: June 18, 2003.

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Evelyn M. Tenenbaum, Assistant Solicitor General of the State of New York, Albany, N.Y. (Eliot Spitzer, Attorney General, Daniel Smirlock, Deputy Solicitor General, and Nancy A. Spiegel, Assistant Solicitor General, on the brief), for Defendant-Appellants.

Edward J. Greene, Jr., Hinman Straub P.C., Albany, N.Y., for Plaintiff-Appellee.

Ann Elizabeth Reesman, McGuiness, Norris & Williams, LLP, Washington D.C., for Amicus Curiae Equal Employment Advisory Counsel.

Stephen A. Bokat, Robin S. Conrad, and Ellen Dunham Bryant, National Chamber Litigation Center, Inc., Washington, D.C., for Amicus Curiae The Chamber of Commerce of the United States.

Daniel B. Korhman, AARP Foundation Litigation, and Melvin Radowitz, AARP, Washington, D.C., for Amicus Curiae AARP.

Before: CABRANES, POOLER, and KATZMANN, Circuit Judges.

POOLER, Circuit Judge.

Defendants-Appellants the New York State Department of Correctional Services ("DOCS") and Glen Goord, DOCS Commissioner appeal from the March 11, 2002, judgment of the District Court for the Northern District of New York (David N. Hurd, Judge), denying DOCS's motion for summary judgment and granting Plaintiff-Appellee Belinda Fountain's motion for summary judgment. The DOCS sick leave policy requires employees to submit general diagnoses as part of a medical certification procedure following certain absences. Fountain challenged the policy as violating Americans with Disabilities Act ("ADA") prohibitions against inquiries into the disabilities of a current employee. She sought a declaratory judgment that the relevant parts of DOCS's policy violates the statute and injunctive relief preventing DOCS from requiring her to comply with the general diagnosis requirement. Although we agree with the district court that the policy falls within the ADA's general prohibition, we find that genuine issues of material fact preclude summary judgment on the issue of the business necessity defense provided for in the statute. We therefore affirm in part and vacate and remand in part.

BACKGROUND

This case involves a DOCS Sick Leave Directive ("the Directive" or "the Policy") which Plaintiff contends violates the ADA's prohibition against inquiry into the disabilities of current employees. DOCS is the New York State agency responsible for the maintenance of correctional facilities throughout the state.

Under some circumstances, the challenged Directive requires that an employee bring medical certification upon returning to work after an absence. The certification must include a brief general diagnosis that is "sufficiently informative as to allow [DOCS] to make a determination concerning the employee's entitlement to leave or to evaluate the need to have an employee examined by [the Employee Health Service] prior to returning to duty." Certification is usually not required for absences of less than four days. However, the Directive indicates that "[i]n exceptional cases, a supervisor may exercise the right to request certification for any absence charged to sick leave or family sick leave regardless of duration." The Directive then references another DOCS directive, Controlling Unexcused and Unauthorized Absences, which reads "[m]edical certification may be required of any employee who requests to charge an absence to sick leave credits." However, this second directive may limit the reach of the requirement by clarifying that only "[e]mployees suspected of attendance abuse may be required to furnish medical certification for all absences which they seek to charge to sick leave." In addition to these directives, a memorandum indicates that when an employee has an attendance problem, and informal discussions have not remedied the problem, the supervisor should have a formal discussion with the employee, and instruct the employee that certification will be required for all future absences regardless of the duration of the illness. The guidelines for identifying attendance abusers explicitly leave a great deal of discretion in the hands of lower management.

Fountain is a Corrections Officer employed by DOCS since 1989. Fountain suffers from asthma and severe pulmonary obstructive disease. She has asked DOCS for accommodation because of these conditions in the past. Fountain filed a complaint about the Policy with the Equal Employment Opportunity Commission ("EEOC") in August of 1998. She received a Notice of Right to Sue letter on December 17, 1998, and this suit followed. Plaintiff alleged that the Policy's requirement of a general diagnosis violates provisions in the ADA prohibiting inquiries into disability. She sought declaratory relief that the general diagnosis requirement violates the ADA and an injunction prohibiting DOCS from requiring her to submit a general diagnosis.

The District Court for the Northern District of New York denied DOCS's motion for summary judgment, and granted Fountain's cross-motion for summary judgment. Fountain v. New York State Dep't of Corr. Servs., 190 F.Supp.2d 335 (N.D.N.Y.2002). The district court first found that even if the Directive required only general rather than specific diagnoses, this "could cause an employee in some circumstances to divulge a disability or perceived disability." Id. at 339. Thus, the court concluded that the certification requirement was an "inquiry" under the ADA. Id. The court then interpreted the Policy as "allow[ing] inquiry after only a single day's absence from work." Id. at 340. It found that because the Policy was not "based upon a reasonable expectation that the inquiry into the protected information would reveal that the employee was unable to perform work related functions or was a danger to the health and safety of the workplace," the Policy did not fall within the ADA's business necessity exception. Id.

This appeal followed. The Equal Employment Advisory Council and the Chamber of Commerce of the United States have filed a brief amici curiae in support of DOCS. AARP has filed a brief amici curiae in support of Fountain.

DISCUSSION

Fountain brings her challenge under a provision of the ADA which provides:

A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

42 U.S.C. § 12112(d)(4)(A). Our Court has not previously interpreted this provision. Indeed, relatively few courts have addressed either this ADA prohibition or the related subsections involving preemployment inquiries and employment entrance examinations. See 42 U.S.C. § 12112(d)(2)-(3).

We review a grant of summary judgment de novo, using the same standard that applied in the district court. Catlin v. Sobol, 93 F.3d 1112, 1116 (2d Cir.1996). The court, resolving all ambiguities and drawing all inferences in favor of the non-moving party, should grant summary judgment only if it determines that there is no genuine issue of material fact. Id.

In challenging the district court's judgment, DOCS first argues that Fountain is not a proper plaintiff to challenge the Policy. DOCS then contends that its general diagnosis requirement is not the type of inquiry prohibited by the statute. DOCS also defends its Policy as job-related and consistent with business necessity.

I. Fountain Has Standing To Challenge the Policy under 42 U.S.C. § 12112(d)(4)(A)

Before turning to the merits of the case, we address DOCS's contentions that Fountain is not a proper plaintiff to challenge the Policy. Because of their jurisdictional nature, we may of course address standing arguments, even where, as here, they were not raised in the district court. Thompson v. County of Franklin, 15 F.3d 245, 248 (2d Cir.1994). DOCS's basic contention is that because Fountain has disabilities of which it is already aware, the ADA authorizes it to make certain types of inquiries. Therefore, DOCS maintains, Fountain has suffered no injury from the Policy and she lacks standing to bring this challenge on her own behalf or on behalf of others.

Since Fountain has already revealed her disability to and requested accommodation from DOCS, DOCS argues that it can permissibly make inquiries into her disability that are "necessary to the reasonable accommodation process." 29 C.F.R. Pt. 1630, App. § 1630.14(c). This argument fails because DOCS submitted no evidence in the district court to support the conclusion that either the Policy generally or inquiries of Fountain specifically were intended to aid in the accommodation process. This alleged justification for the medical certification requirement appears nowhere in any of the directives or memorandums submitted as evidence, but only in DOCS's appellate briefs. "[M]ere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment." Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir.1996). DOCS's argument that inquiry is permissible in Fountain's case because it needs to receive updated information about her disability is not supported by the record.

Besides contending that its inquiries are a legitimate part of the accommodation process, DOCS also relies more generally on the ADA's approval of inquiries to determine "the ability of an employee to perform job-related functions." 42 U.S.C. § 12112(d)(4)(B). DOCS notes...