Jacobsen v.

• Decision Date: 27 March 2014
• Citation: 2014 N.Y. Slip Op. 02098,22 N.Y.3d 824,11 N.E.3d 159,988 N.Y.S.2d 86
• Parties: William JACOBSEN, Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent.
• Court: New York Court of Appeals Court of Appeals

22 N.Y.3d 824

11 N.E.3d 159

988 N.Y.S.2d 86

2014 N.Y. Slip Op. 02098

William JACOBSEN, Appellant,

v.NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent.

Court of Appeals of New York.

March 27, 2014.

McCallion & Associates, LLP, New York City (Kenneth F. McCallion of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Elizabeth S. Natrella, Leonard Koerner and Maxwell Leighton of counsel), for respondent.

OPINION OF THE COURT

ABDUS–SALAAM, J.

The issue before us is whether, on a motion for summary judgment disposing of an employee's disability discrimination claims under the New York City Human Rights Law ( see Administrative Code of City of N.Y. § 8–107) and the New York State Human Rights Law ( seeExecutive Law § 296), an employer's failure to consider the reasonableness of a proposed accommodation for a generally qualified employee's disability via a good faith interactive process precludes the employer from obtaining summary judgment. In resolving this issue, we reiterate that the State Human Rights Law and the City Human Rights Law set forth distinct legal standards for establishing the existence of a covered disability that can be reasonably accommodated. Despite those differing standards, we conclude that both statutes generally preclude summary judgment in favor of an employer where the employer has failed to demonstrate that it responded to a disabled employee's request for a particular accommodation by engaging in a good faith interactive process regarding the feasibility of that accommodation.

I

A

In 1979, plaintiff William Jacobsen began his employment with defendant New York City Health and Hospitals Corporation (HHC). Plaintiff joined HHC as an assistant health facilities planner. In this role, roughly twice a week, plaintiff had to visit construction sites within the Manhattan area hospital network to which he was assigned. On those visits, plaintiff met with project directors, inspected the structures of HHC buildings and supervised the progress of HHC construction projects. For the rest of each week, plaintiff worked at HHC's central office at 346 Broadway in Manhattan, completing reports on the site visits and performing any other necessary office work. In 1982, plaintiff was promoted to health facilities planner and assigned to HHC's Bellevue network. Although plaintiff was assigned to larger projects, his responsibilities remained the same, and he continued to make site visits only once or twice a week. In June 2005, plaintiff was diagnosed with a form of pulmonary dysfunction.

In August 2005, HHC reassigned plaintiff to its Queens hospital network, and he primarily oversaw projects at the Queens Hospital Center (QHC), where HHC was conducting extensive renovations and asbestos abatement. As a result of this transfer, plaintiff had to relocate his office to QHC and visit construction sites more frequently. Plaintiff could no longer visit the central office in Manhattan on a regular basis. In September 2005, plaintiff received a new diagnosis of pneumoconiosis, an occupational lung disease caused by repeated and prolonged inhalation of asbestos or other dust particles.

In October 2005, plaintiff requested a three-month medical leave of absence, during which he would submit to an open lung biopsy to further evaluate his condition. In support of plaintiff's application for medical leave, his physician, Gwen Skloot, M.D., certified to HHC that plaintiff “currently [ ] [could not] perform usual tasks” and “should not be exposed to inhaled dusts.” In December 2005, Dr. Skloot sent a letter to HHC informing the corporation that, because plaintiff “ha[d] been treated with systemic corticosteroids and ha[d] demonstrated clinical improvement,” he was “ready to return to work.” However, Dr. Skloot cautioned that plaintiff could “not be further exposed to any type of environmental dust” or “be present at any construction site.” In a reply letter, HHC asked Dr. Skloot to identify the “exact date [plaintiff] c[ould] return” to work and inquired as to whether plaintiff was “medically cleared to fully perform the essential functions of his duties.” A list of plaintiff's job duties attached to HHC's letter specified that plaintiff “spen[t] approximately 75% of his working hours in the field monitoring several construction projects and attend[ed] construction management meetings on site,” and that he “spen[t] approximately 25% of his working hours in the office.”

In January 2006, while waiting for Dr. Skloot to respond, HHC filed a Workers' Compensation Board report, which stated that plaintiff had been exposed to asbestos dust at an HHC facility and that plaintiff's supervisor had been aware of his injury since January 2005. Around the same time, plaintiffs union representative wrote to HHC that the union was “requesting a reasonable accommodation for [plaintiff] that he be allowed to return to work and assigned work that he is capable of doing in the office.”

In March 2006, Dr. Skloot replied to HHC's inquiry about plaintiff's return date and ability to perform his essential job functions, stating:

“[plaintiff] is ready to return to work immediately (as of the date of this letter). He is medically cleared to work in the field so that he can attend project meetings. I have advised him that it is imperative that he not be exposed to any type of environmental dust, and he has assured me that his field work will not include such exposure.”

Thereafter, plaintiff returned to QHC and performed regular site visits until May 2006. During this post-leave work period, according to plaintiff's subsequent affidavit in opposition to summary judgment, plaintiff told his supervisor, Vincent James, that he was having difficulty breathing. Plaintiff asked James to provide him with protective respiratory equipment and to reassign him to the central office in Manhattan. Plaintiff also complained to Anita O'Brien, HHC's director of the QHC facility, that he was having trouble breathing. O'Brien provided plaintiff with a dust mask, but he did not use the mask at times because it impeded his ability to communicate. Plaintiff requested that O'Brien supply him with a respirator, by which he meant a device that was “fit tested by an industrial hygienist” and “specifically designed to filter the particulates [one] [is] exposed to” in “asbestos abatement projects.”

In May 2006, plaintiff wrote to HHC requesting a transfer back to the central office, and he maintained that he was “able to perform any and all functions, which [had been] assigned to [him] prior to [his] relocation to QHC.” Plaintiff attached to his request a letter from another physician, Stephen M. Levin, M.D. Dr. Levin stated, “[i]t is my strong recommendation that [plaintiff] be placed in a work setting free from exposure to airborne irritant or fibrogenic dusts, fumes and gases, if his current lung condition is not to be made worse by such exposure.” Apparently in response to plaintiff's request, Vincent James sent a memorandum to HHC's Human Resources Department in which he observed:

“[plaintiffs] job responsibilities require that he spend 80% of his working hours in the field and 20% of his working hours in central office.... It was my understanding that [plaintiff] was cleared by (HR) to return to work at full capacity. Due to the high volume of work at Queens Hospital Center, it is imperative that we have a network manager cover the projects at that facility.”

Plaintiff's union counsel then wrote to HHC, insisting “that HHC find an appropriate place in the agency for him to work where he is not regularly assigned to construction sites.”

On or about June 5, 2006, plaintiff filed a disability discrimination complaint against HHC with the New York State Division of Human Rights. ¹ Approximately two days later, HHC placed plaintiff on unpaid medical leave for six months, offering to let him return to his position if his medical condition improved. HHC declared:

“[G]iven the nature of your duties as a Health Facilities Planner, there is no position in your title available in the Corporation that would not, of necessity, involve your working in conditions hazardous to your health. Therefore, we must conclude that at present you are not able to perform the essential functions of your job.”

In an August 2006 letter to HHC, Dr. Skloot wrote that “ [plaintiff] w [ould] never be medically cleared to ‘fully perform the essential functions of his duties' ” because “it [wa]s imperative to his health that he not be further exposed to any type of environmental dust.” Dr. Skloot continued, “[Plaintiff] recently attempt[ed] to return to the field and developed significant worsening of his respiratory status, requiring a course of systemic steroids,” adding, “Therefore, the only work he is cleared to do is office work.” At the end of plaintiff's involuntary medical leave in March 2007, HHC terminated plaintiff.

B

In March 2008, plaintiff commenced this action for damages by filing a complaint in which he alleged that HHC had unlawfully discriminated on the basis of disability in violation of the State Human Rights Law (State HRL) and City Human Rights Law (City HRL). He further claimed that HHC had engaged in gross negligence by exposing him to environmental dust without providing him with protective respiratory equipment. Plaintiff alleged that HHC could have reassigned him to the central office and “provided him with the protective and respiratory equipment necessary to protect him from further respiratory damage if and when it may have been necessary for him to visit a construction site.” HHC answered, and it moved for summary judgment and to dismiss the complaint. HHC contended that it had terminated plaintiff as a result of his inability to continue to conduct field visits, which was an essential function of his position as a health facilities planner. According to HHC, the relevant three-year statute of limitations barred p...