Montague v. Nat'l Grid USA
| Decision Date | 20 November 2020 |
| Docket Number | 17-CV-3S |
| Parties | BERNICE MONTAGUE, Plaintiff, v. NATIONAL GRID USA, Defendant. |
| Court | U.S. District Court — Western District of New York |
This is an Americans With Disabilities Act, 42 U.S.C. §§ 12101, et seq. ("ADA"), case, where Plaintiff alleges her employer failed to furnish her with reasonable accommodation for her condition. She sought assignment with a non-smoking partner so as to avoid eye irritation. Instead, after months of such assignments upon her request, Defendant National Grid USA reassigned Plaintiff to a desk job and then offered her reassignment to a remote location to avoid eye irritation from her exposure to tobacco smoke. She also alleges violations of ADA in Defendant retaliating when she complained (Docket No. 1, Compl.).
Before this Court are (1) Defendant National Grid's Motion1 (Docket No. 31) and (2) Plaintiff's cross Motion2 (Docket No. 34) for Summary Judgment.
For the reasons stated herein, Defendant's Motion for Summary Judgment (Docket No. 31) is granted and Plaintiff's Summary Judgment Motion (Docket No. 34) is denied.
Although both parties present their own Statements of Material Facts in support of their respective motions (Docket Nos. 32, Def. Statement; 35, Pl. Statement), the material facts here generally are not in dispute (see generally Docket No. 52, Pl. Statement of Disputed Facts/Pl.'s Response to Def.'s Statement (hereinafter "Pl. Responding Statement"). Although Defendant argued Plaintiff's Statement misrepresented relevant evidence, failed to acknowledge certain material facts and evidence, and incorrectly asserted that certain facts are "material" to the outcome of this action, Defendant acknowledges an absence of genuine issue of material fact (Docket No. 53, Def. Response to Pl.'s Statement at 1 (hereinafter "Def. Response Statement")). For convenience, this Court will cite Defendant's Statement (Docket No. 32) and Plaintiff'sStatement (Docket No. 35) where not repetitive of Defendant's Statement and uncontested, while noting (when relevant) the opponent's differences.
This ADA action arises from Defendant's consideration of Plaintiff's chronic corneal condition and its purported effect on her ability to work. First diagnosed in 2002 or 2003, Plaintiff was diagnosed with Fuchs' corneal dystrophy and keratoconus, which she claims precludes her from work that exposes her eyes to tobacco smoke (Docket No. 32, Def. Statement ¶ 12).
Corneal Dystrophy results in the pointing of the cornea, while keratoconus (defined as conical protrusion of the center of the cornea without inflammation, Taber's Cyclopedic Medical Dictionary 969 (16th Ill. Ed. 1989)), causes the cornea to deteriorate (id. ¶ 14). See also Jackson v. New York State Dep't of Labor, No. 97CV483, 1998 U.S. Dist. LEXIS 17202 (N.D.N.Y. Oct. 26, 1998), describing symptoms. Plaintiff adds that she was also diagnosed with keratitis (Docket No. 52, Pl. Responding Statement ¶ 12), the inflammation of the cornea, Taber's Cyclopedic Medical Dictionary, supra, at 968. Exposure to smoke causes irritation to her eyes (Docket No. 32, Def. Statement ¶¶ 23-24).
Despite these impairments, Defendant contends that Plaintiff could work and drive her personal vehicle (id. ¶ 17), but Plaintiff disputes this given her symptoms (Docket No. 52, Pl. Responding Statement ¶ 17).
Plaintiff worked for Defendant in its Buffalo, New York, office in the Customer Metering Service ("CMS") department as a Service Representative A (or "SR-A") . There, Plaintiff would read meters, usually driving in a two-person crew to check them (Docket No. 35, Pl. Statement ¶ 3; cf. Docket No. 53, Def. Response ¶ 3). This job requires driving and riding in proximity with a colleague inside and outside of Defendant's company vehicles (Docket No. 35, Pl. Statement ¶ 4). Plaintiff adds that the crew was given discretion to pick the driver, hence safe operation of the company's vehicles was not a job requirement (id. ¶¶ 4, 5).
Plaintiff's ophthalmologist, Dr. Nicholas Stathopoulos, issued a prescription to Defendant on or about May 12, 2015 . There, Dr. Stathopoulos stated (Docket No. 33, Ex. H).
Plaintiff submitted this note and her medical record to Defendant's medical staff to support her request for driving restrictions of placement in a two-person car without a smoker (Docket No. 32, Def. Statement ¶ 18). Defendant temporarily accommodated Plaintiff's specific request (id. ¶ 19), either assigning Plaintiff to a solo vehicle or pairing her with non-smokers until August 24, 2015, consistent with her doctor's prescription (Docket No. 35, Pl. Statement ¶¶ 34-35; see Docket No. 53, Def. Response Statement ¶¶ 34-35 (admitting Plaintiff's allegations)).
One of Plaintiff's supervisors, Mark Davis, later questioned the duration of this accommodation (Docket No. 32, Def. Statement ¶ 20). Plaintiff points out that Davis thought that she was "abusing the situation by trying to pick and choose who she rides with and not being a driver" (Docket No. 52, Pl. Responding Statement ¶ 20).
According to Plaintiff's moving papers, from Davis' inquiry Defendant's staff exchanged emails inquiring about the duration and necessity of Plaintiff's restrictions (Docket No. 35, Pl. Statement ¶¶ 21, 22). In response to Plaintiff's motion, Defendant admits these factual allegations and adds the texts of these emails (Docket No. 53, Def. Response Statement ¶¶ 21-22; Docket No. 38, Pl. Atty. Decl., Ex. H). Kathleen Kerr, registered physician assistant-certified with Defendant (Docket No. 35, Pl. Statement ¶ 17 & n.1), also noted in this email exchange that Defendant's company policy did not allow smoking in company vehicles, so Plaintiff probably was exposed to the smell of smoke on someone's clothes or in homes of smoking customers (Docket No. 38, Pl. Atty. Decl., Ex. H; Docket No. 53, Def. Statement ¶ 22).
On July 24, 2015, Ms. Kerr asked Dr. Stathopoulos whether there was a medical reason prohibiting Plaintiff from driving company vehicles although she drove her own vehicle. She also asked if Plaintiff was able to ride in a vehicle with a smoker "who does not actively smoke inside the vehicle?" (Docket No. 32, Def. Statement ¶¶ 21-22; Docket No. 33, Exs. I, J).
Dr. Stathopoulos answered (which Defendant received on August 4, 2015, Docket No. 32, Def. Statement ¶ 23) that there was a medical reason for prohibiting Plaintiff from driving company vehicles although she could drive her own, that (Docket No. 33, Ex. J; Docket No. 37, Dr. Stathopoulos ¶ 13, Ex. B).
Dr. Stathopoulos answered the second question that Plaintiff could not ride in a vehicle with a smoker even if that person was not actively smoking because (Docket No. 33, Ex. J; Docket No. 37, Dr. Stathopoulos ¶ 13, Ex. B). Dr. Stathopoulos' response listed Plaintiff's three ailments (Docket No. 37, Stathopoulos Decl. Ex. B).
In response to that note, Defendant considered reassigning Plaintiff to alternative internal position that did not require driving a company vehicle and claimed it began an interactive process with Plaintiff to devise a permanent accommodation (Docket No. 32, Def. Statement ¶ 26; see Docket No. 52, Pl. Response ¶ 26; Docket No. 35, Pl. Statement ¶ 36; Docket No. 53, Def. Response Statement ¶ 36 (); but cf. Docket No. 52, Pl. Response ¶ 26 ()). CMS department manager Andrea Pustulka did this because she could not guarantee that Plaintiff would not be exposed to smoke in the field (Docket No. 32, Def. Statement ¶ 9; Docket No. 53, Def. Response Statement ¶¶ 36, 37). Later Ms. Pustulka reported that she could not guarantee that Plaintiff could be paired with a non-smoker or that she would not enter a customer's property with a chain smoker or fumes present (Docket No. 35, Pl. Statement ¶ 40; see Docket No. 53, Def. Response Statement ¶ 40; Docket No. 36, Pl. Atty. Decl. Ex. U). Defendant's staff then considered other options to accommodate Plaintiff's condition (such as issuing her goggles or assignment to a non-driving position) (Docket No. 32, Def. Statement ¶ 28) without consulting Plaintiff about these options.
On August 24, 2015, Defendant reassigned Plaintiff to the office (see Docket No. 32, Def. Statement ¶ 26). Plaintiff counters that there was no interactive process priorto this reassignment, with the interactive process later conducted on November 2, 2015 (Docket No. 52, Pl. Responding Statement ¶ 26). Defendant contends that Plaintiff continued to receive her full salary and benefits (Docket No. 32, Def. Statement ¶ 27), while Plaintiff argues that she lacked opportunities with this new assignment for overtime that she had as an SR-A (Docket No. 52, Pl. Responding Statement ¶ 27). Plaintiff further objects that her material responsibilities in her job were diminished while she performed mere "'busy work' for several months" in the office (Docket No. 51, Pl. Memo. at 3). She also contends she was not told why she was placed on office duty and removed her from SR-A,...
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