Korenyi v. DEPT. OF SANITATION OF CITY OF NEW YORK

• Citation: 699 F. Supp. 388
• Decision Date: 16 September 1988
• Docket Number: No. CV 86-3626(RR).,CV 86-3626(RR).
• Parties: Donald KORENYI, Plaintiff, v. DEPARTMENT OF SANITATION OF the CITY OF NEW YORK and the City of New York, Defendants.
• Court: U.S. District Court — Eastern District of New York

699 F. Supp. 388

Donald KORENYI, Plaintiff, v. DEPARTMENT OF SANITATION OF the CITY OF NEW YORK and the City of New York, Defendants.

No. CV 86-3626(RR).

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

September 16, 1988.

Steven C. McGowen, Leeds & Morelli, Carle Place, N.Y., for plaintiff.

Peter L. Zimroth, Corp. Counsel of the City of New York by Isaac Klepfish, Asst. Corp. Counsel, New York City, for defendants.

MEMORANDUM AND ORDER

RAGGI, District Judge:

Plaintiff Donald Korenyi, a ten-year employee of the New York City Department of Sanitation, sues the Department and the City pursuant to 42 U.S.C. § 1983 for alleged deprivations of constitutional and statutory rights in connection with his employment. Specifically, Korenyi claims that defendants' refusal to allow him to return to "light duty" work after he sustained a spinal injury discriminated against him because he was handicapped and, therefore, violated his rights under both the Federal Rehabilitation Act, 29 U.S.C. § 701 et seq. (1985 & Supp.1988), and the Equal Protection Clause of the Fourteenth Amendment. Korenyi further alleges that the Department's sick leave rules and regulations are facially invalid in violation of the First Amendment, and are invalid as applied in violation of the First, Fourth, Ninth and Fourteenth Amendments. Korenyi also attacks that portion of his employment contract requiring non-resident City employees to pay to the City an amount equal to the City personal income tax paid by resident employees as violative of the Federal Kickback Act, 18 U.S.C. § 874 (1976). A pendent state tort claim is also raised.

Plaintiff and defendants cross-move for summary judgment. For the reasons stated on the record of oral argument on March 18, 1988, this court denies both parties' motions for summary judgment with respect to the claim of discrimination against the handicapped and the claim that the sick leave rules and regulations were unconstitutionally applied to plaintiff. Resolution of real factual disputes as to these matters requires a plenary trial.

For the reasons stated in this opinion, the court grants summary judgment in favor of defendants as to plaintiff's facial attack on the constitutionality of Department sick leave rules and regulations and his claim pursuant to the Kickback Act.

I. Factual Background

A. Plaintiff's Employment History

On May 29, 1978, plaintiff was hired pursuant to the Comprehensive Employment and Training Act, 29 U.S.C. § 801 et seq. (1982), as an auto mechanic at the Department of Sanitation's central repair shop in Woodside, New York. On June 6, 1979, he attained permanent civil service status.

Prior to commencing work, plaintiff, on May 4, 1978, had signed an agreement with the City, pursuant to section 822 of the New York City Charter, whereby he agreed that, if he were or became a non-resident while employed by the City, he would pay the City an amount equal to that paid by resident employees as City personal income tax, and that such payment could be effected through payroll withholding.

Plaintiff suffered a job-related injury to his spine on June 23, 1983. Treating physicians at North Shore University Hospital diagnosed his condition as "cord compression" and "anterior wedging of the spine," and recommended consultation with an orthopedist. Physicians at the Department of Sanitation Medical Clinic, on the other hand, on June 27, 1983, diagnosed plaintiff's condition as arthritis. He was instructed to return to work the following day and to see his own physician.

On June 27, 1983, plaintiff was also examined by Dr. Stanley D. Reed of HIP in Hempstead, New York. Dr. Reed prescribed ten days bed rest, and directed plaintiff to see an orthopedist and to refrain from lifting heavy objects in the interim.

In early November 1983, plaintiff reported to the Department of Sanitation clinic for an examination. Doctors found that plaintiff was indeed injured, and placed him on workers' compensation retroactive to June 28, 1983, with authorized sick leave to October 17, 1983.¹

In late 1983, clinic doctors recommended that plaintiff be placed on light duty as of January 4, 1984. No light or "tissue" duty² then existed for plaintiff, and so his supervisors created a position for him taking inventory in the stock room. Plaintiff returned to work in this capacity on January 10, 1984 and continued in the position for the next two years.

On February 6, 1986, plaintiff was notified by the Department of Sanitation that there was no longer any "tissue duty" available for him. Because he was still physically unable to resume his former duties as an auto mechanic, plaintiff was placed on authorized sick leave status, with daily walking privileges from 10:00 a.m. to 12:00 noon to aid in his recuperation. Pursuant to Department sick leave rules and regulations, plaintiff was otherwise required to remain in his home from 7:00 a.m. until 9:00 p.m. with the exception of Sundays and legal holidays. Employees on sick leave are subject to home visits by Department of Sanitation investigators to insure that they are actually at home during the times required.³

On June 12, 1986, plaintiff's paid sick leave allowance for 1986 was exhausted. At or about this time, plaintiff unsuccessfully sought to return to tissue duty.

Pursuant to the collective bargaining agreement between the sanitation workers union and the Department of Sanitation, plaintiff was restored to the City's payroll as of January 1, 1987, and was again eligible for paid sick leave. On March 17, 1987, plaintiff reported to the Department clinic and requested that his walking privileges be increased to six hours a day. Clinic doctors denied this request. Plaintiff exhausted his paid sick leave benefits by May 12, 1987.

Plaintiff was re-examined by Department physicians on June 22, 1987, who made no objective findings of disability. Plaintiff was directed to return to work on June 23, 1987. Upon failing to do so, plaintiff was deemed absent without official leave.

On January 1, 1988, pursuant to the collective bargaining agreement, plaintiff was returned to the City payroll and placed on sick leave with two hours walking privileges.

Plaintiff alleges that, while on paid sick leave from 1983 to the present, he on numerous occasions requested and was denied permission to leave home for the following purposes:

1. Have his taxes prepared;

2. See his lawyer;

3. Pursue his workers' compensation claim;

4. Visit elected officials;

5. Go to court absent a subpoena;

6. Vote in local elections;

7. Go to the bank;

8. Shop for food;

9. Go to the post office;

10. Get his laundry done;

11. Go to and from the Department clinic;

12. Get his car inspected and repaired;

13. Renew his driver's license;

14. Make mortgage payments in person;

15. See his insurance agent;

16. Seek alternative employment;

17. Go to the Social Security Department;

18. Go to the Department of Labor; and

19. Go to the Equal Employment Opportunity Commission.

Defendants respond that plaintiff's walking privileges provided him with ample time to meet these needs. Plaintiff claims he did not think he could use his walking privileges for these reasons.

B. The Sick-Leave Regulations

The Department of Sanitation provides unlimited paid sick leave to its uniformed employees, and 90 days annual paid sick leave to employees, such as plaintiff, in trade titles. To prevent abuse of this liberal leave policy and to encourage employees to return to work as soon as possible, strict rules and regulations govern employee conduct while on paid sick leave. As already noted, employees on paid leave are required to remain at home between 7:00 a.m. and 9:00 p.m., with the exception of Sundays and legal holidays, unless otherwise authorized pursuant to Department guidelines.

These guidelines permit an employee to leave home without prior authorization if (1) he is coming to the Department of Sanitation clinic; (2) he is picking up his paycheck between 7:00 and 11:00 a.m. on pay day; or (3) he is confronted with a medical, dental or other life-threatening emergency. Prior authorization is required for other specified purposes, such as undergoing doctor-prescribed physical therapy, shopping at drug or grocery stores, mailing a certain form to the Department and attending wakes and funerals. Authorization is granted if an employee can show that another person could not reasonably perform the activity for him, or that he could not use the mails for the matter. When authorization to leave home is granted, the employee is required to provide appropriate verification.

The guidelines explicitly state that an employee will be denied permission to leave his house for any of the following reasons:

1. Appointments with lawyers;

2. Moving cars;

3. Walking dogs;

4. Going to church or other religious services;

5. Picking up children from school or other locations;

6. Police;

7. Self-prescribed physical therapy;

8. Pick up paychecks after 3:00 p.m.

In an affidavit submitted in connection with these motions, Sidney Glassberg, Chief of the Department Sick Leave Unit, states that, despite the guidelines, requests to attend church or religious services would not be perfunctorily denied in cases of "very important religious holy days, such as Good Friday."

Unannounced home visits to ensure compliance with the Department's rules and regulations are generally made daily. The employee signs a departmental form as proof that he was in fact at home when visited. Suspected violators or malingerers are subject to multiple daily visits. If an employee does not appear to be home when a visit occurs, a Department investigator will telephone. If no response is obtained, a message is left on the employee's door instructing him to call the Department and explain his absence.

II. Discussion

I. Facial Attack on Constitutionality

Plaintiff seeks a declaration that the Department of Sanitation's sick leave rules and regulations are...