Mazza v. Bratton

• Decision Date: 04 August 2000
• Docket Number: No. 94 CV 50695(NG)(CLP).,94 CV 50695(NG)(CLP).
• Citation: Mazza v. Bratton, 108 F.Supp.2d 167 (E.D. N.Y. 2000)
• Parties: Gary MAZZA, Plaintiff, v. William BRATTON, as Commissioner of the New York City Police Department, Raymond P. Kelly, as Commissioner of the New York City Police Department, Lee P. Brown, as Commissioner of the New York City Police Department, The New York City Police Department and The Police Pension Fund Article II of the New York City Police Department, Defendants.
• Court: U.S. District Court — Eastern District of New York

Page 167

108 F.Supp.2d 167

Gary MAZZA, Plaintiff, v. William BRATTON, as Commissioner of the New York City Police Department, Raymond P. Kelly, as Commissioner of the New York City Police Department, Lee P. Brown, as Commissioner of the New York City Police Department, The New York City Police Department and The Police Pension Fund Article II of the New York City Police Department, Defendants.

No. 94 CV 50695(NG)(CLP).

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

August 4, 2000.

Alan E. Wolin, Wolin & Wolin, Jericho, NY, for plaintiff.

Lisa Weiss, Elisa Baldwin, Corporation Counsel of the City of New York City, for defendant.

OPINION AND ORDER

GERSHON, District Judge.

Gary Mazza was terminated as a probationary patrolman with the New York City Police Department ("NYPD") on February 25, 1993, after he had been out sick almost ten months with severe ulcerative colitis. He filed a claim of disability discrimination with the Equal Employment Opportunity Commission ("EEOC"), which rejected his claim on the ground that, although Mazza was disabled, he was not a qualified person with a disability because, at the time of termination, he could not perform the essential functions of his job as a police officer, with or without accommodation. (Def.Ex.H).¹ This action followed, naming as defendants several former NYPD Commissioners, the NYPD and an NYPD Pension Fund (referred to herein collectively as "NYPD" or "defendant"). The complaint alleges disability discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. and the New York State Human Rights Law, N.Y.Exec.L. §§ 290 et seq. Plaintiff seeks reinstatement, back pay and benefits, and damages. Plaintiff also claims that he was wrongfully deprived of a pension and/or the opportunity to apply for a pension. Although the complaint is unclear as to whether the claims relating to the pension are based on federal as well as state law, plaintiff has explained in his memorandum and at oral argument of this motion that the claims are based on alleged violation of his rights under his contract and provisions of the New York State Constitution and state law, not the federal Constitution or statutes.

Defendant now moves for summary judgment on the ADA claim, on the grounds that plaintiff has not raised factual issues that he was disabled, qualified, wrongfully denied a reasonable accommodation, or improperly terminated. Defendant argues that plaintiff cannot establish: (1) that his condition substantially limited major life activities, as required to show a "disability" under the ADA; (2) that plaintiff could perform the essential functions of a police officer, with or without reasonable accommodation; and (3) that he ever requested a reasonable accommodation. Defendant also argues that plaintiff's claims relating to a pension should be rejected as a matter of law, contending that any rights plaintiff may have had as a probationary patrolman were automatically extinguished upon his termination, and further that the court should not exercise supplemental jurisdiction over the state law claims upon dismissal of the federal claims.

A. The Facts

Unless otherwise indicated, the facts set forth below are undisputed.

Gary Mazza was employed as a probationary police officer with the NYPD beginning October 15, 1990. He graduated from the Police Academy in April 1991, and entered upon duty as a police officer. Before he developed the colitis condition, plaintiff had been recorded as being out sick on six occasions, leading automatically to his designation by computer as a "chronic category B officer" because of the total number of illnesses and days of work missed within a year.²

When plaintiff returned from vacation toward the end of April 1992, he began suffering diarrhea and bloody stool. On May 2, 1992, plaintiff collapsed and was taken to St. Vincent's Medical Center in Staten Island, where he was diagnosed and treated for severe ulcerative colitis. Plaintiff was admitted to St. Vincent's and treated three or four times between May 2 and June 14, 1992, and remained hospitalized for over thirty days in that period. (Pl.Exs.L, M, N). While hospitalized, plaintiff experienced numerous bloody bowel movements, averaging about eight per day during severe periods, and was described as dehydrated and "quite symptomatic" upon his second admission. (Pl. Ex.M). Colitis is inflammation of the colon, part of the gastrointestinal tract. In severe cases, the patient also can experience severe abdominal pain, cramps and "bowel urgency" (a feeling of having to make a bowel movement immediately) in addition to the symptoms described above. (Pl.Ex.P). When symptomatic, a person with colitis will need to relieve himself very suddenly, and can soil himself. During and after his hospitalizations, plaintiff was placed on numerous anti-inflammatory and other medications, including corticosteroids. (Pl.Exs.N, V). Plaintiff continued to be medicated in the following years, and apparently will have to take some medications for the rest of his life. In some cases, medication is not successful in controlling the inflammation and surgery to remove the affected area is required. (Pl.Ex. S, at 5).

Plaintiff in his deposition (Tr. 276-80) described his symptoms during and in the months following his hospitalizations as diarrhea loose and bloody stool, cramps (including stomach cramps resulting from medication), nausea, gas, bowel urgency, weight loss, dehydration, fatigue, pain and hemorrhoids. Plaintiff explained that at the relevant time he had good and bad days, and that there were days that he suffered few or no symptoms and other days where he would have to make bowel movements ten times (Id. at 279). Plaintiff's affidavit submitted in opposition to the summary judgment motion (at ¶ 45) describes the symptoms he experienced as "severe diarrhea, bloody and loose stool, inflammation, severe cramps, nausea, loss of appetite, loss of weight, gas, severe pain in different degrees, dehydration, fever, sleep deprivation, fatigue, mood changes, sexual disfunction, severe joint pain and anemia, due to loss of blood ... [and] fissures, hemorrhoids and cracks to my rectal area [that] were very painful." He alleges in his affidavit (at ¶ 46) that as a result, he "had difficulty cooking, cleaning, shopping, showering, engaging in personal hygiene, sitting up in bed, washing clothes and changing clothes," avoided "social activities," and was "bedridden" at times. Plaintiff's affidavit fails to describe the degree of "difficulty" he allegedly had in performing these activities.

Plaintiff further testified at his deposition (Tr. 292-93) that his condition improved "around the time of the termination" in February 1993 with the use of the medications. Thereafter, although he suffered flareups, including incidents where he soiled himself, and lacked energy some days, plaintiff's bowel movements and cramping decreased, and his condition did not affect his ability to bathe, go shopping, drive, learn, exercise, do recreational activity or work. (Id. at 292-97). Plaintiff maintained that he would have been able to work with only the accommodation of being allowed to use bathrooms as needed. (Id. at 300-02). Plaintiff's testimony in this respect differs significantly from the allegations of the complaint, which alleges that his condition rapidly improved after his hospital discharge on June 14, 1992, that in July he began requesting that he be restored to duty with reasonable accommodations in anticipation of his return to full duty, and that the symptoms of his disease had disappeared before he was terminated (Comp.¶¶ 29-31).

Dr. Stanley Edelman, a NYPD District Surgeon, saw plaintiff on June 29, 1992. He reviewed the hospitalization records that showed that plaintiff had experienced severe episodes of bleeding ulcerative colitis, and that he had been placed on various medications. (Edelman Tr. 26). In subsequent biweekly visits, Dr. Edelman continued plaintiff on sick leave. (Id. at 29-31). After plaintiff's visit on August 28, 1992, Dr. Edelman recommended that plaintiff's employment be terminated, a recommendation that plaintiff claims without contradiction was concealed from him before his actual termination almost six months later, although Dr. Edelman continued to meet with plaintiff regularly to extend his sick leave. Dr. Edelman explained that, as of August 28, he had concluded that plaintiff was very sick, that he had a very serious and debilitating case of ulcerative colitis complicated by bleeding, multiple bowel movements and weight loss, and that he would eventually require major colon surgery. Dr. Edelman concluded that plaintiff's prognosis was poor. Plaintiff had failed to improve clinically despite multiple medications, including steroids, and Dr. Edelman felt that plaintiff was unable to work, would be unable to perform the functions of his job in the near future and that his future ability to be a full-duty police officer was in serious doubt. (Id. at 29-30, 34).

Dr. Edelman acknowledged that plaintiff would have been capable of doing clerical work if his condition had been under better control with medication, although even then plaintiff's ability to perform the full range of police work remained highly questionable. (Id. at 37, 41-42). Dr. Edelman testified that plaintiff had not stated that he was able to work as of the time that termination was recommended. (Id. at 32). Although Dr. Edelman did not recall ever having discussed with plaintiff the possibility of modifying his job duties to enable him to continue working as a police officer (id. at 47), the transcript of a conversation between plaintiff and Dr. Edelman in October 1992 shows that in fact, Dr. Edelman had suggested that plaintiff return to light duty or clerical work, perhaps at his local precinct so that he would not have to travel, but that plaintiff insisted he was completely...