Wernick v. Federal Reserve Bank of New York

• Decision Date: 06 August 1996
• Docket Number: No. 1405,D,1405
• Citation: 91 F.3d 379
• Parties: 5 A.D. Cases 1345, 17 A.D.D. 774, 8 NDLR P 258 Irene WERNICK, Plaintiff-Appellant, v. FEDERAL RESERVE BANK OF NEW YORK, Defendant-Appellee. ocket 95-9049.
• Court: U.S. Court of Appeals — Second Circuit

Page 379

91 F.3d 379

5 A.D. Cases 1345, 17 A.D.D. 774, 8

NDLR P 258

Irene WERNICK, Plaintiff-Appellant, v.FEDERAL RESERVE BANK OF NEW YORK, Defendant-Appellee.

No. 1405, Docket 95-9049.

United States Court of Appeals Second Circuit.

Argued April 24, 1996.

Decided Aug. 6, 1996.

Jeffrey M. Bernbach, New York City, for Plaintiff-Appellant.

Martin C. Grant, Federal Reserve Bank of New York, New York City(Thomas C. Baxter, Jr., General Counsel, Michael T. Fois, James J. Hilton, Federal Reserve Bank of New York, New York City, of counsel), for Defendant-Appellee.

Before VAN GRAAFEILAND, MAHONEY, and WALKER, Circuit Judges.

WALKER, Circuit Judge:

PlaintiffIrene Wernick appeals from a final judgment granting the motion for summary judgment filed by Defendant Federal Reserve Bank of New York ("the Fed") and dismissing Wernick's claims under the Americans with Disabilities Act of 1990("ADA"), 42 U.S.C. § 12111 et seq., the Rehabilitation Act of 1973("Rehabilitation Act"), 29 U.S.C. § 701 et seq., and the Human Rights Law of New York, N.Y.Exec.Law § 296(1)(a), before the United States District Court for the Southern District of New York(Kevin T. Duffy, District Judge ).On appeal, Wernick claims that the district court erred: (1) in finding that, as a matter of law, Wernick was not disabled when she was terminated from her employment by the Fed; (2) in failing to find that the Fed unlawfully refused to reasonably accommodate Wernick's disability; and (3) in dismissing Wernick's pendent New York state law claim.¹

The judgment of the district court is affirmed.

BACKGROUND

In May 1990, a decade after Wernick began her employment as a manager with the Fed, she suffered a back injury wholly unrelated to the performance of her duties.Wernick claims that this injury rendered her disabled and led the Fed to discriminate against her.

Between May and September 1990, Wernick was on medical leave intermittently for a total of three weeks, for which she received full pay.From September 1990 until February 1991, she was placed on a part-time work schedule, again at full pay.

In February 1991, Wernick returned to work full-time, but in July 1992, she again requested, and was granted, medical leave so that she could undergo physical therapy for her back because her condition had flared up.Prior to being placed on leave for the second time, Wernick expressed dissatisfaction with the working relationship she had with her supervisor, Richard Passadin.Five months earlier, in February 1992, Passadin had received counseling from the Fed in an effort to improve his working relationship with Wernick.

On August 13, 1992, Dr. Howard Glazer, Wernick's psychologist, wrote a letter to the Fed recommending that Wernick return to work but that she be assigned to a position that did not involve extensive typing or data entry and that did not require her to work under the same supervisor.Soon thereafter, the Fed's staff physician, Dr. Gerald L. Stagg, having received Dr. Glazer's letter, made the following recommendations to the Fed with respect to accommodating Wernick: provide her with appropriate ergonomic furniture, allow her the flexibility to get up and move around periodically, and have management discuss with Passadin the interpersonal relationship issues raised by Wernick with a view toward eliminating any problems between the two.

Starting in February 1992 and continuing throughout that year, the Fed's personnel department sought to locate a suitable job transfer for Wernick.She was considered for approximately thirty positions, but none was suitable.The Fed also considered whether to change Wernick's reporting relationship so that she would not have to report to Passadin, but decided that such a change would create an undue administrative burden.

In a letter dated December 31, 1992, Dr. Theodore Fields, Wernick's physician, advised that Wernick, who had been on medical leave since July, could return to work if the Fed made the following accommodations: (1) not require her to sit for prolonged periods without providing her sufficient opportunity to move around and stretch; (2) provide her with the use of ergonomic furniture; and (3) assign her to a work environment having considerably less stress than her current position.With respect to the last accommodation, Dr. Fields referenced Dr. Glazer's August 13, 1992 letter.

On January 6, 1993, Robert C. Scrivani, an assistant vice president in the Fed's personnel department, met with Wernick to discuss her return to work.At the meeting, Wernick reported that her back condition had improved and that she was ready and able to return to work but that she could not return to her current position because the stress caused by Passadin would aggravate her back condition.In a letter dated January 27, 1993, Scrivani offered Wernick two options: (1) to return to work in her current position (under her current supervisor), receive reasonable accommodations for her back, and continue to receive assistance in finding a position elsewhere at the Fed; or (2) to resign from the Fed, receive assistance from the Fed in finding employment elsewhere, and receive an outplacement assistance package, which would consist of twenty-six weeks of severance pay and continuation of medical benefits for six months.The letter made clear that if Wernick did not choose either option, her decision would be interpreted as a decision to resign and she would not receive a separation package.

A few days later, Wernick renewed her request for a different job placement and stated that the proposed severance package was inadequate.When she failed to return to her job or to accept the proposed severance package, she was discharged.Throughout the period that Wernick was on medical leave, she received her full salary of $65,800 per year.

DISCUSSION

I.Summary Judgment Standard

A district court properly may grant summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c).In ruling on a motion for summary judgment,

[a] judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-movant] on the evidence presented.The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202(1986).Furthermore, a district judge must view the evidence in the light most favorable to the non-moving party and must draw all inferences in favor of that party.SeeHayes v. New York City Dept. of Corrections, 84 F.3d 614, 619(2d Cir.1996);Hanson v. McCaw Cellular Communications, Inc., 77 F.3d 663, 667(2d Cir.1996);Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 721(2d Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1095, 130 L.Ed.2d 1063(1995).

When reviewing the grant of a summary judgment motion, we must determine whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party."Anderson, 477 U.S. at 250, 106 S.Ct. at 2511.

II.Wernick's Condition

The first question for resolution is whether the district court correctly determined that, when she was discharged, Wernick was not disabled within the meaning of the Rehabilitation Act and the ADA ("the disability acts").

A plaintiff who raises a disability discrimination claim bears the initial burden of establishing a prima facie case.Heilweil, 32 F.3d at 722.In order to satisfy this burden, the plaintiff must show: (1) that she is a handicapped person under the disability acts; (2) that she is otherwise qualified to perform her job; (3) that she was discharged because of her handicap; and, with respect to Rehabilitation Act claims; (4) that the employer is a recipient of Federal financial assistance.Id.;see alsoBorkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 135(2d Cir.1995).In order to demonstrate that she is handicapped, she must prove two elements: (1) that she has a physical or mental impairment; and (2) that such impairment substantially limits one or more of her major life activities.Heilweil, 32 F.3d at 722.

The Fed concedes that, at the time of her discharge, Wernick had a physical impairment, but argues that this impairment did not substantially limit any of her major life activities.The regulations define major life activities as "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."45 C.F.R. § 84.3(j)(2)(ii)(Rehabilitation Act);see29 C.F.R. § 1630.2(h)(2)(i)(ADA).Wernick did not allege specifically which major life activities were affected by her impairment.However, because the pleadings indicate concern over her ability to work, the district court reasonably and properly concluded that the function at issue in this case was Wernick's ability to work.

Because the record is incomplete, we are unable to determine whether Wernick's impairment rises to the level of a disability.The record evidence is scant as to whether Wernick would have required ergonomic furniture and the opportunity to move around and stretch periodically in order to be able to perform any job at the Fed (or elsewhere) or whether these accommodations were only necessary to enable her to continue to work in her current job because the stress of working for Passadin aggravated her back condition.On the one hand, Dr. Fields did not expressly condition his recommendation--that Wernick not be required to sit for prolonged periods and...