Vives v. N.Y. City Dep't of Correctionss

Decision Date27 March 2019
Docket Number15-CV-06127 (MKB)
PartiesCARMEN A. VIVES, Plaintiff, v. NEW YORK CITY DEPARTMENT OF CORRECTIONS, THE CITY OF NEW YORK, GREGORY MCLAUGHLIN, JOSEPH PONTE, and SANDRA LOWE, Defendants.
CourtU.S. District Court — Eastern District of New York
MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiff Carmen A. Vives commenced the above-captioned action on October 26, 2015 against Defendants the New York City Department of Corrections (the "DOC"), the City of New York, Gregory McLaughlin, Joseph Ponte, and Sandra Lowe. (Compl., Docket Entry No. 1.) Plaintiff filed an Amended Complaint on July 6, 2016, alleging claims for failure to accommodate and discrimination in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), retaliation under the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"),1 and gender and racial/ethnic discrimination under Title VII of theCivil Rights Act, 42 U.S.C. § 2000 et seq. ("Title VII"). (Am. Compl., Docket Entry No. 14.) Currently before the Court is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.2 (Defs. Mot. for Summ. J. ("Defs. Mot."), Docket Entry No. 35; Mem. in Supp. of Defs. Mot. ("Defs. Mem."), Docket Entry No. 35-32.) For the reasons set forth below, the Court denies Defendants' motion as to Plaintiff's ADA and Title VII discrimination claims, and grants Defendants' motion as to Plaintiff's FMLA claim.

I. Background
a. Plaintiff's employment at the DOC and her injury

Plaintiff identifies as a 54-year-old Hispanic female. (Am. Compl. ¶ 7.) Plaintiff was employed by the DOC as a corrections officer from July 2, 1987 until her termination on September 9, 2014. (Defs. L. R. 56.1 Stmt. of Undisputed Material Facts ("Defs. 56.1") ¶ 2, Docket Entry No. 35-31; Pl. L. R. 56.1 Stmt. of Undisputed Material Facts ("Pl. 56.1") ¶ 2, Docket Entry No. 37.) From 2000 to the date of Plaintiff's injury, Plaintiff worked in the laundry on Rikers Island as part of the DOC's Support Services Division. (Defs. 56.1 ¶ 3; Pl. 56.1 ¶¶ 3, 136, 137; Defs. Response to Pl. 56.1 ("Defs. Reply 56.1") ¶ 136, Docket No. 40.) "In the laundry, inmates launder uniforms, linen and bedding" for use by the DOC and other cityagencies, and Plaintiff and other corrections officers were "responsible to oversee the inmates doing the work." (Aff. of Carmen A. Vives ("Vives Aff.") ¶¶ 3, 4, annexed to Decl. of Mark D. Risk ("Risk Decl.") as Ex. 1, Docket Entry No. 36-1.) This supervision "could be done from a glass walled office referred to as 'the bubble' from which [the officers] could see the inmates, by sitting at a desk outside the bubble, or by walking the floor." (Id. ¶ 4.)

On May 25, 2012, Plaintiff fell on uneven pavement on a sidewalk near her home and injured her right wrist and thumb. (Id. ¶ 8; Pl. 56.1 ¶ 153; Def. Reply 56.1 ¶ 153.) Plaintiff's medical records indicate that she sustained a "[r]ight thumb ulnar collateral ligament tear, internal derangement of metacarpophalangeal joint, and scarring of the radial sensory nerve," and underwent surgery to repair those injuries on June 6, 2012. (Forest Hills Hospital Operative Report 1736, annexed to Decl. of Eric Murrell in Supp. of Defs. Mot. ("Murrell Decl.") as Ex. M, Docket Entry No. 35-15; see also Pl. 56.1 ¶ 153; Defs. Reply 56.1 ¶ 153.)

Pursuant to DOC policy, Plaintiff reported to the DOC's Health Management Division ("HMD") shortly after her injury. (Defs. 56.1 ¶¶ 56, 69; Pl. 56.1 ¶¶ 56, 154.) HMD consists of physicians, physician's assistants, registered nurses, and uniformed corrections officers who are responsible for, inter alia, determining whether and when an employee who has reported sick may return to duty. (Defs. 56.1 ¶¶ 54-56; Pl. 56.1 ¶¶ 54-56.) HMD may recommend that an employee return to full duty, remain absent on sick leave, or return to work with one of three Medically Monitored Return ("MMR") designations. (Defs. 56.1 ¶ 61; Pl. 56.1 ¶ 61.) The three MMR designations are: (1) "no physical limitations — only overtime or tour restrictions"; (2) "some physical limitations — able to work a normal tour (in duration) where the job allows ample opportunity for sitting with some standing, walking, or climbing stairs (employee cannot be expected to do strenuous physical activity)"; and (3) "serious physical/psychologicallimitations — abilities are more limited and must be specifically described." (Defs. 56.1 ¶ 62; Pl. 56.1 ¶ 62.) The parties agree that "if [P]laintiff had been given MMR status by HMD, there would have been a job for her to do somewhere within DOC." (Defs. Reply 56.1 ¶ 150; Pl. 56.1 ¶ 150.)

DOC assigned HMD physician Sandra Lowe, M.D. to Plaintiff's case. (Defs. 56.1 ¶ 66; Pl. 56.1 ¶ 66.) Plaintiff states that she met with Dr. Lowe approximately every three weeks after her injury, "constantly asking to be returned to work." (Vives Aff. ¶ 9.) At her first visit with Dr. Lowe or shortly thereafter, Plaintiff told Dr. Lowe that she wanted to return to duty. (Defs. 56.1 ¶ 69; Pl. 56.1 ¶ 69.) Plaintiff states that she met with Dr. Lowe twice on May 29, 2012, four days after her injury, and showed Dr. Lowe "[a] note from [a] doctor at Methodist Hospital that stated that [Plaintiff] could be returned to work." (Vives Aff. ¶ 8.) Plaintiff also told Dr. Lowe on May 28, 2012 that she was "able to return to work either in the laundry or in a light-duty position under the DOC's [MMR] program." (Id.)

At each of Plaintiff's subsequent appointments with Dr. Lowe, Plaintiff provided Dr. Lowe with a Treating Physician Summary Report ("TPSR"), the medical documentation form used by HMD to evaluate whether a corrections officer should return to duty and, if so, in what capacity. (Defs. 56.1 ¶¶ 65, 67; Pl. 56.1 ¶¶ 65, 67.) Plaintiff's private physician, Dr. Salil Gupta, completed and signed Plaintiff's TPSRs, (Defs. 56.1 ¶ 67; Pl. 56.1 ¶ 67), and often indicated that Plaintiff had certain limitations, e.g., that she should not lift, carry, pull, or push anything with her right hand or arm, (TPSRs 1748, annexed to Murrell Decl. as Ex. P, Docket Entry No. 35-18), that her prognosis was "guarded," (id. at 1734), or that her "treatment" was "aggressive therapy" and "pain management," (id. at 1732).

Dr. Lowe testified at her deposition that even though Plaintiff indicated that she wanted to return to work, Dr. Lowe did not allow Plaintiff to return in any capacity because the TPSRs completed by Dr. Gupta indicated that Plaintiff's prognosis was "guarded" and did not "specifically say [that Plaintiff] should return to work" or to "limited duty." (Dep. of Sandra Lowe ("Lowe Dep.") 110:8-12, 116:8-117:4, annexed to Murrell Decl. as Ex. B, Docket Entry No. 35-4; see also Defs. 56.1 ¶ 76.) In addition, Dr. Lowe testified that she did not clear Plaintiff to return to work on MMR status because MMR is a "temporary assignment" reserved for employees whose conditions are "expected to just last a few months," and Plaintiff's limitations were "unknown or not determined" and she "did not know" where Plaintiff's "medical problem was headed." (Lowe Dep. 123:3-7, 147:5-148:3.) Dr. Lowe also testified that HMD doctors explain to employees "what their doctor needs to fill out on the form in order for them to return to work," and "does not give those instructions directly to the doctor." (Id. at 148:24-149:8.)

Plaintiff states that on January 15, 2013, she met with Dr. Gupta, expressed "frustration at not being able to return to work," and suggested that he specifically indicate on a TPSR that Plaintiff could be returned to "light duty." (Vives Aff. ¶ 15; see also Dep. of Carmen A. Vives ("Vives Dep.") 85:22-86:16, annexed to Murrell Decl. as Ex. A, Docket Entry No. 35-2.) Dr. Gupta complied with Plaintiff's request, completing a TPSR on January 15, 2013 indicating that Plaintiff could be returned to "light duty." (Defs. 56.1 ¶ 72; Pl. 56.1 ¶ 72.) Dr. Gupta also indicated that Plaintiff's prognosis remained "guarded." (Defs. 56.1 ¶ 72; Pl. 56.1 ¶ 72.) Dr. Lowe's contemporaneous notes indicate that Plaintiff presented the January 15, 2013 TPSR to Dr. Lowe February 13, 2013. (Lowe Dep. 178:20-179:8.) Despite the fact that the January 15, 2013 TPSR indicated that Plaintiff could return to "light duty," Dr. Lowe did not permit Plaintiffto return to work because "the prognosis [remained] guarded." (Pl 56.1 ¶¶ 183-85; Defs. Reply 56.1 ¶¶ 183-85; Lowe Dep. 179:20-25, 182:6-9.)

On February 26, 2013, Dr. Gupta authored a TPSR indicating that Plaintiff's prognosis was "good" and that she should "return to work for duty" on March 1, 2013, with "no restrictions." (TPSRs 1724; Pl. 56.1 ¶ 189; Defs. Reply 56.1 ¶ 189.) Upon review of the February 26, 2013 TPSR on February 28, 2013, Dr. Lowe did not permit Plaintiff to return to duty. (Pl. 56.1 ¶ 190; Lowe Dep. 191:16-192:5.) Dr. Lowe testified that she did not return Plaintiff to full duty because Plaintiff did not "permit[] a physical assessment," and did not return Plaintiff to duty on MMR status because Dr. Lowe "wasn't entertaining MMR" at that time. (Lowe Dep. 192:3-13.) Plaintiff disputes that Dr. Lowe requested a physical assessment. (Pl. 56.1 ¶¶ 192-94.) Plaintiff testified that Dr. Lowe "at no time asked [Plaintiff] to examine [her]" and that she "never would have refused" if Dr. Lowe had asked Plaintiff to do so. (Vives Dep. 227:2 -15; see also Vives Aff. ¶ 18 ("None of the HMD doctors ever asked to examine my hand. I would have gladly permitted them to do so.").) Plaintiff contends that the two sets of notes in her medical file from the February 28, 2013 meeting, one written by Dr. Lowe and the other written by the attending nurse, "make no mention of any request to examine [Plaintiff's] arm or any refusal by [Plaintiff]" to permit Dr. Lowe to do so. (Vives Aff. ¶ 18.) After Dr. Lowe refused to allow Plaintiff to return to work on February 28, 2013, Plaintiff requested that she be evaluated by an HMD...

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