Berger v. N.Y.C. Police Dep't

304 F. Supp. 3d 360
CourtDistrict Court, S.D. Illinois
DecidedMarch 30, 2018
Docket13–CV–6084 (VSB)
StatusPublished
Cited by63 cases

This text of 304 F. Supp. 3d 360 (Berger v. N.Y.C. Police Dep't) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berger v. N.Y.C. Police Dep't, 304 F. Supp. 3d 360 (S.D. Ill. 2018).

Opinion

VERNON S. BRODERICK, United States District Judge:

Plaintiff brings this action alleging (1) failure to accommodate in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 et seq. , New York State Human Rights Law (the "NYSHRL"), N.Y. Exec. Law § 290 et seq. , and the New York City Human Rights Law, (the "NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. ; (2) unlawful medical examination in violation of the ADA; (3) disability discrimination in violation of the ADA, *364NYSHRL, and NYCHRL; and (4) hostile work environment in violation of the ADA, NYSHRL, and NYCHRL. Before me is Defendants' motion for summary judgment. For the reasons that follow, Defendants' motion for summary judgement is GRANTED in all respects, except it is DENIED concerning the failure to accommodate causes of action.

I. Background 1

Plaintiff is employed by the New York City Police Department ("NYPD") as a Computer Specialist Level III. (Pl.'s Counter 56.1 ¶ 1.)2 Plaintiff began her employment with the NYPD in September 1989 as a civilian employee, and her office was originally located on the seventh floor of One Police Plaza. (Id. ¶¶ 10, 12.) However, in October 2011, Plaintiff's unit-the Network Design and Standard Section ("NDSS")-was moved to the eighth floor of One Police Plaza. (Id. ¶ 13.)

In response to Plaintiff's claim that she suffers from acid reflux disease that is exacerbated by dust and, specifically, was exacerbated by dust on the eighth floor, Defendants offered to purchase an air purifier for Plaintiff's workstation. (Id. ¶¶ 14-16.) Although Plaintiff disputes whether or not she initially rejected the offer to purchase the air purifier, she admits that she told her employer that the air purifier that was offered could not eliminate the dust that had been triggering her acid reflux. (Id. ¶ 16; Pl.'s 56.1 ¶ 1.)3 Defendants then scheduled Plaintiff for a medical examination, and Plaintiff ultimately refused to attend the medical examination, (Pl.'s Counter 56.1 ¶¶ 17-18), although Plaintiff states that she ultimately refused to attend because her request to have her lawyer present during the exam was denied, (Pl.'s 56.1 ¶¶ 7-8). In addition to offering to purchase an air purifier, Defendants also offered to clean and vacuum the eighth floor to address Plaintiff's dust complaints. (Pl.'s Counter 56.1 ¶ 27.)

Each party retained experts to perform air quality tests. Plaintiff's expert, Kenneth S. Winberg of Safdoc Systems, LLC, collected "total dust and respirable dust samples" from the eighth floor in May 2016 and found that the "samples did not demonstrate excessive levels of either type of dust." (Id. ¶ 23.) Defendants' expert, Amir Rasheed of the NYPD's Occupational Safety and Health Section reported that in December 2011, the highest concentration of dust particles on the eighth floor measured 0.001 mg/m, which is within permissible limits. (Id. ¶ 24.) Mr. Rasheed also measured the dust levels on the eighth floor in September 2013 and September 2014, and the measurements taken in those months also were within permissible limits. (Id. ¶¶ 25-26.)

Plaintiff's desired accommodation was to be moved back to the seventh floor. (Id. ¶ 19; see also Pl.'s 56.1 ¶ 5.) The parties disagree about the viability of this proposed *365accommodation, with Defendants maintaining that they could not move Plaintiff to the seventh floor because it would involve her sitting apart from her unit and her supervisors, would prevent face-to-face communication with her colleagues, and would be inefficient, and Plaintiff contending that it was possible to supervise her work on the eighth floor and that her duties and responsibilities did not require constant, in-person supervision. (Pl.'s Counter 56.1 ¶ 20.) However, Defendants offered Plaintiff the option of moving back to the seventh floor and changing units to the Local Area Network ("LAN") group, which would have entailed giving Plaintiff a supervisory role. (Id. ¶ 21; Pl.'s 56.1 ¶ 4.)4 Plaintiff turned down this suggested accommodation claiming (1) the position involved "desktop support" rather than the "internet content filtering" she performed in NDSS, (Pl.'s Counter 56.1 ¶ 21), and (2) the position "would be less challenging and essentially function as [a] demotion-or a step backwards in Plaintiff's career," (Pl.'s 56.1 ¶ 4).

Plaintiff remembers her supervisor, Wayne Scibelli, talking about her NYPD EEO Complaint "out loud by [her] desk so anybody that was around or would walk by could have heard him." (Pl.'s Counter 56.1 ¶ 30.) Plaintiff does not remember her supervisor, Andrew Krimsky, ever making any disparaging remarks about her alleged disability. (Id. ¶ 31.) Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on July 31, 2012 and received a Notice of Right to Sue letter dated May 23, 2013. (Id. ¶¶ 7-9.)

II. Procedural History

Plaintiff filed her Complaint on August 28, 2013. (Doc. 1.) The case was referred to mediation on January 10, 2014, (Doc. 16), and I held a pre-motion conference to address the parties' anticipated motions for summary judgment on April 23, 2015, (Dkt. Entry Apr. 23, 2015). Briefing was thereafter adjourned to satisfy the parties' desire to test the air quality on the eighth floor at One Police Plaza, as well as to address an alleged spoliation issue and related motion for sanctions. (Docs. 42, 43, 60, 64.) I held a second pre-motion conference on November 28, 2016, (Doc. 75; Dkt. Entry Nov. 28, 2016), during which Plaintiff noted that she would not be filing a motion for summary judgment.

In accordance with the deadlines set, (see Doc. 80), Defendants filed their motion for summary judgment on February 13, 2017, (Docs. 81), along with the declaration of Heather Martone, (Doc. 82), a Rule 56.1 Statement of Undisputed Material Facts, (Doc. 83), and a memorandum of law in support, (Doc. 84). Plaintiff filed her opposition on March 27, 2017, (Docs. 85), as well as the affirmation of Marshall B. Bellovin, (Doc. 86), a Counter-Statement to Defendants' Rule 56.1 Statement, (Doc. 87), and a separate Rule 56.1 Statement of Disputed Facts, (Doc. 88).5 Defendants filed their reply on April 10, 2017. (Doc. 93.)

III. Legal Standard

Summary judgment is appropriate when "the parties' submissions show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law."

*366Fay v. Oxford Health Plan ,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
304 F. Supp. 3d 360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berger-v-nyc-police-dept-ilsd-2018.