Goonan v. Fed. Reserve Bank of N.Y.

• Decision Date: 07 January 2013
• Docket Number: No. 12 Civ. 3859(JPO).,12 Civ. 3859(JPO).
• Citation: 916 F.Supp.2d 470
• Parties: Bruce GOONAN, Plaintiff, v. FEDERAL RESERVE BANK OF NEW YORK, Defendant.
• Court: U.S. District Court — Southern District of New York

916 F.Supp.2d 470

Bruce GOONAN, Plaintiff,

v.FEDERAL RESERVE BANK OF NEW YORK, Defendant.

No. 12 Civ. 3859(JPO).

United States District Court,

S.D. New York.

Jan. 7, 2013.

Valdi Licul, Lara Rose Corchado, Vladeck, Waldman, Elias & Engelhard, P.C., New York, NY, for Plaintiff.

Katherine Rosemary Steele Landy, Davis Polk & Wardwell L.L.P., New York, NY, for Defendant.

MEMORANDUM AND ORDER

J. PAUL OETKEN, District Judge.

The Federal Reserve Bank of New York (“the Fed”) has filed a motion to dismiss the First Amended Complaint (“Compl.”) filed by Bruce Goonan (“Plaintiff”). Plaintiff alleges discrimination and retaliation under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the New York State Human Rights Law, Executive Law § 290 et seq., and the Administrative Code of the City of New York, § 8–101 et seq. The Fed has moved to dismiss Plaintiff's claims on the ground that it offered him reasonable accommodations and Plaintiff subsequently caused a breakdown in the interactive process. The Fed argues in the alternative that Plaintiff's state and city law claims are preempted by the Federal Reserve Act, 12 U.S.C. § 341 (Fifth) (“the FRA”). For the reasons that follow, the Fed's motion to dismiss is denied.

I. Background

The following facts are drawn from the First Amended Complaint and are presumed true for purposes of this motion.

Plaintiff worked for twenty-five years in the Fed's Information Technology Department. (Compl. at ¶ 11.) Just before his employment ended, Plaintiff had spent ten years in the Fed's Technology Services Group (“TSG”), where he “consistently met overall expectations,” was “progressively promoted to more senior positions with salary increases,” and “received an incentive bonus in 2009.” ( Id. at ¶ 11–12.) Until the events giving rise to this lawsuit, he never received a poor performance warning. ( Id. at ¶ 13.)

On September 11, 2001 (“9/11”), Plaintiff was working in the N.Y. Fed Office located at 2 Federal Reserve Plaza, two blocks from the World Trade Center (“WTC”). ( Id. at ¶ 14.) “After the planes crashed into the towers, Plaintiff was trapped in his office and believed he was going to die.” ( Id.) Plaintiff attended several in-house 9/11 counseling sessions sponsored by the Fed and, when his condition worsened in 2005, Plaintiff sought support from an employee assistance program. ( Id. at ¶ 15) This treatment helped Plaintiff learn to cope with downtown New York City and allowed him to continue his career from 2001 to 2010. ( Id. at ¶ 16.)

In January 2010, the TSG moved to a new office located on the 23rd floor of 3 World Financial Center (“WFC”). ( Id. at ¶ 17.) That office overlooked Ground Zero. ( Id.) To this day, in addition to its 3 WFC location, the Fed retains offices at 2 Federal Reserve Plaza and a “Main Building” ( id. at ¶ 20)—and has set aside “hoteling sites” in the Main Building for use by Application Developers ( id. at ¶ 21.) When the Fed moved staff to 3 WFC, it planned to install new technology, including webcams, to facilitate team productivity across buildings. ( Id.)

To reach his new office at 3 WFC, Plaintiff “had to walk past the WTC site where a new tower was rising.” ( Id. at ¶ 24.) As a result of having to walk past and work next to the rising tower, Plaintiff “began suffering flashbacks to the events of 9/11 and developed severe difficulty sleeping, among other things.” ( Id.) His symptoms made it “difficult to concentrate at work,” as he “dreaded walking around the area of his office and became anxious and depressed as a result of being so close to the new rising tower at Ground Zero.” ( Id.) Plaintiff feared that “there could be another attack at the WTC site” and that “3 WFC would be badly damaged and he would not survive.” ( Id. at ¶ 25.) “As Goonan had survived the 9/11 attacks when he was in 2 [Federal Reserve Plaza], he felt that he would be safer in the Main Building ... which was a few blocks away from the WTC site.” ( Id.)

In October 2010, Plaintiff sought treatment at the WTC Health Clinic. ( Id. at ¶ 26.) Before an appointment scheduled for early December, Plaintiff “began having suicidal thoughts” and called a helpline maintained by the Fed. ( Id. at ¶ 27.) A psychiatrist diagnosed him with PTSD and recurrent Major Depression, and prescribed medication. ( Id.) “As a result of the symptoms associated with the move to 3 WFC,” Plaintiff received a “below standard” rating in late 2010—his first such rating from his supervisor, Julie Sun–Jannes. ( Id. at ¶ 28.) He was not placed on written performance warning or subjected to increased supervision. ( Id. at ¶ 29.)

In March 2011, Plaintiff spoke with Sun–Jannes about his health-related difficulties and requested permission to telecommute from home or move to the Main Building, “where the N.Y. Fed still had offices and his group already had some telecommuting cubicles set up.” ( Id. at ¶ 30.) She promptly told him to contact Dr. Gerald Stagg in the Fed's medical department to ask about an accommodation ( id.), but warned him that he would get this accommodation only if his performance improved because telecommuting is a “privilege.” ( Id. at ¶ 31.) The Fed “was aware that Plaintiff's request for an accommodation was reasonable” because “[m]any of his essential job functions could be, and often were, performed remotely.” ( Id. at ¶ 32.)

Indeed, while located in WFC 3, Plaintiff “rarely” spoke in person with Sun–James, because she was located down the floor from his cubicle. ( Id. at ¶ 22.) Instead, they communicated mainly through phone calls and e-mail. ( Id.) Plaintiff telecommuted on Fridays, Sun–Jannes telecommuted on Mondays, and Plaintiff performed most of his work and client interaction remotely. ( Id. at ¶ 23.) “As of 2011, approximately 70% of TSG employees telecommuted; 50% of those employees telecommuted on a regular schedule”—some from “as far away as North Carolina, Tennessee, Vermont and Minnesota.” ( Id. at ¶ 33.)

Plaintiff e-mailed Dr. Stagg, who told him to set up a meeting with the Fed's nurse, Lois Hitchcock, and to bring explanatory letters from his doctors. ( Id. at ¶ 34.) Plaintiff met with Hitchcock on March 22, 2011 and again requested that his PTSD be accommodated by a change of location to allow time for his therapy to become effective. ( Id. at ¶ 35.) He supported this request with letters from his physicians; one clinician explained that Plaintiff had begun to experience “flashbacks, nightmares ... severe difficulty sleeping, anxiety, avoidance behavior and episodes of severe depression among other symptoms” when his “work setting was moved to an area directly adjacent to the site of the towers where the new tower is rising.” ( Id. at ¶ 36.) His psychiatrist added that “working in the area and seeing the sight of the tragedy stirred up past trauma,” noting that Plaintiff had “developed severe symptoms with nightmares so severe that he dreaded going to sleep each night” and that “[h]is work performance suffered because he found it harder and harder to concentrate.” ( Id. at ¶ 37.) The psychiatrist recommended that Plaintiff “work in an environment where he won't be exposed frequently to the memories of trauma that causes [sic] his anxiety and depressive symptoms.” ( Id.)

Hitchcock made Plaintiff promise that he would not hurt himself. ( Id. at ¶ 38). Nearly one month later, during which time Plaintiff “continued to struggle with his severe psychiatric symptoms” and became suicidal, the Fed responded to his request for an accommodation. ( Id. at ¶ 39.) Specifically, Harry Zimbalist, Vice President of Application Development, informed Plaintiff that his request was denied due to poor performance and the need for supervision. ( Id. at ¶ 40.) Zimbalist also offered a number of proposed alternative accommodations:

He suggested moving [Plaintiff's] cubicle to the other side of the floor, limiting [Plaintiff's] exposure to the windows facing the WTC site; using a white noise or environmental sound machine; listening to soothing music using a headset; providing a multi-spectrum light for [Plaintiff's] work area; dividing large assignments into smaller tasks and steps; weekly meetings with a supervisor or manager to determine if goals are being met; and assignments provided in writing via e-mail.

( Id. at ¶ 41.) Plaintiff felt that none of these solutions would have resolved his crippling fear that 3 WFC would be destroyed in an attack ( id.), and determined in consultation with his doctors that each of these options was insufficient because he would still have to travel to the WTC site for work, thereby limiting the effectiveness of his treatment ( id. at ¶ 42). Plaintiff accordingly contacted Leon Taub, Senior Vice President and Ombudsman, to discuss the denial of his request for an accommodation:

[Plaintiff] told Taub that he was concerned that management did not understand the seriousness of his condition. He asked Taub to have management review its denial. Taub, like Sun–Jannes and Zimbalist, told [Plaintiff] that his request for an accommodation was denied because he was a poor performer. Taub told [Plaintiff] that the decision to reject his request was based on [Plaintiff]'s purportedly poor performance over many years, which was untrue as [Plaintiff] was consistently rated as having met overall expectations until [the Fed] moved him to a building adjacent to Ground Zero. [Plaintiff] was not given any opportunity to object as Taub told [Plaintiff] that [the Fed] was not going to change its mind.

( Id. at ¶ 43.)

Despite these statements, the Fed did not increase Plaintiff's level of supervision. ( Id. at ¶ 44.) Plaintiff continued to telecommute on Fridays, Sun–Jannes continued to telecommute on Mondays, and they maintained “infrequent contact[.]” ( Id.) Plaintiff applied for several internal positions that would not require him to work at 3 WFC, but these applications were unsuccessful. ( Id. at ¶ 45.)

“Because [the Fed] refused to accommodate ...