| Jacobsen v New York City Health & Hosps. Corp. |
| 2012 NY Slip Op 05478 [97 AD3d 428] |
| July 10, 2012 |
| Appellate Division, First Department |
| William Jacobsen, Appellant, v New York City Health andHospitals Corporation, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), forrespondent.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered July 19, 2011,which granted defendant's motion for summary judgment dismissing the complaint, affirmed,without costs.
Plaintiff alleges that he was wrongfully terminated from his position because of a disability,in violation of the New York State Human Rights Law (Executive Law § 296 [1] [a]) andthe New York City Human Rights Law (Administrative Code of City of NY § 8-107 [1][a]). In 1979, plaintiff began working as an assistant health facilities planner with defendant,New York City Health and Hospitals Corporation (HHC). Plaintiff monitored the independentcontractors on construction and renovation jobs at facilities operated by HHC. He would visit thejob sites one or two days a week to meet with facility directors, examine existing structures, andreview and supervise the contractors' work. Plaintiff would spend the remaining work week atHHC's central office in Manhattan, completing written and oral reports on the progress of variousprojects.
In 1982, plaintiff was promoted to Health Facilities Planner, and although this promotionassigned him to larger projects, his daily tasks remained the same. In August 2005, plaintiff wasassigned to the Queens Hospital Network, whose main hospital was undergoing majorrenovation. As a result of this reassignment, plaintiff's office was relocated to Queens Hospitaland he only worked at the central office once a week or every other week, to attend meetings.Plaintiff was also required to visit construction areas at Queens Hospital on a daily basis.
In September 2005, plaintiff was diagnosed with pneumoconiosis, an occupational lungdisease. In October 2005, plaintiff requested, and was granted, a medical leave of absence.Plaintiff's physician, Dr. Skloot, stated on plaintiff's application for leave that he "currentlycannot perform usual tasks" and that he was unable to perform any one or more of the essentialfunctions of his job since he "should not be exposed to inhaled dusts." In a December 2005 letterto HHC, Dr. Skloot cleared plaintiff to return to work on January 3, 2006, but directed that he notbe present at any construction site. HHC sent a follow-up letter to Dr. Skloot listing plaintiff'sduties and explaining that he is required to spend approximately 75% of his time in the fieldmonitoring construction sites. HHC asked for clarification as to whether or not, based on the[*2]provided information, plaintiff was cleared to fully performthe "essential functions of his duties."
On January 5, 2006, plaintiff's union representative sent a letter to HHC requesting thatplaintiff be permitted to return to work with an accommodation of being assigned work "that heis capable of doing in the office." On March 21, 2006, plaintiff provided another letter from Dr.Skloot stating that he was medically cleared to work in the field. Plaintiff returned to work at theQueens Hospital location on March 27, 2006.
From March until May of 2006, plaintiff did not request any further accommodation fromHHC and continued to make field visits during this time. On May 10, plaintiff sent a letter to hissupervisor in the central office, Vincent James, requesting relocation to that office as areasonable accommodation. James determined that plaintiff needed to spend approximately 80%of his time in the field, which included visiting construction sites, to fully complete the "essentialfunctions" of his position. James explained that eliminating all construction sites from plaintiff'sduties would make it impossible for him to perform his job.
By letter dated June 6, 2006, HHC informed plaintiff that he would be placed on unpaidmedical leave for six months and his job would be left open in the event that his conditionimproved. The letter explained that plaintiff's proposed accommodation, relocation to the centraloffice, was infeasible because plaintiff's position required that he visit facilities that have ongoingconstruction. In August 2006, Dr. Skloot wrote to HHC in response to a request for clarificationof plaintiff's medical condition. Dr. Skloot advised that plaintiff could never be medically clearedto perform the essential functions of his current duties because he should not be further exposedto any type of environmental dust. Dr. Skloot further stated that plaintiff was cleared to do officework only. On March 26, 2007, at the conclusion of the six months of unpaid leave, plaintiff'semployment was terminated.
Plaintiff subsequently commenced this action for wrongful termination because of adisability. Defendant moved for summary judgment, arguing that plaintiff's termination wasproper insofar as he was unable to perform an essential function of his position—namely,visiting construction sites to inspect the progress of construction. The motion court properlygranted summary judgment, finding that plaintiff's job, by his own admission, required him tospend substantial time at construction sites. The motion court further concluded that sinceplaintiff's own doctor determined that he could not spend time in the field, the inevitableconclusion was that he could never return to his duties.
The majority and the dissent agree on the basic law applicable to this case. To state a primafacie case of employment discrimination due to a disability, a plaintiff must demonstrate that heor she suffered from a disability and that the disability caused the behavior for which he or shewas terminated (Matter of McEniry v Landi, 84 NY2d 554, 558 [1994]). Once a plaintiffestablishes a prima facie case, the burden shifts to the employer, here HHC, to show that thedisability prevented plaintiff "from performing the duties of the job in a reasonable manner orthat the employee's termination was motivated by a legitimate nondiscriminatory reason"(id.). HHC met its burden by establishing that at the time of termination, plaintiff wasunable to perform the duties of his job because of his lung condition and that no reasonableaccommodation was available.
Under the Executive Law, a "reasonable accommodation" is defined as "actions taken by [an]employer which permit an employee . . . with a disability to perform in a reasonablemanner the activities involved in the job or occupation sought or held . . . provided,however, that such [*3]actions do not impose an undue hardshipon the business" (Pimentel v Citibank,N.A., 29 AD3d 141, 145 [2006], lv denied 7 NY3d 707 [2006], quotingExecutive Law § 292 [21-e]). Under the City's Human Rights Law, an employer "shallmake reasonable accommodation to enable a person with a disability to satisfy the essentialrequisites of a job" (Administrative Code § 8-107 [15] [a]). An employer is not required tofind another job for the employee, create a new job, or create a light-duty version of the currentjob (Pimentel, 29 AD3d at 148).
HHC established that plaintiff could not, even with a reasonable accommodation, performthe essential functions of his job (Executive Law § 292 [21]; Administrative Code §8-107 [15]). Vincent James, plaintiff's supervisor at the central office, testified that plaintiff'sposition required him to spend the majority of his time at construction sites. The only wayplaintiff would be able to report on construction progress was to be present at the site; therefore,it was not possible for plaintiff to complete his duties from the central office. HHC pointed toletters from Dr. Skloot and plaintiff's own deposition testimony in which he admits that he can nolonger visit construction sites, which was the bulk of his work. Although plaintiff claimed hecould perform all his duties from the central office, he failed to explain how he could monitor theprogress of construction and renovation projects, an essential function of his job, from the centraloffice without visiting the sites.
Under both New York's Executive Law and the City's Administrative Code, an employer isrequired to perform an individual assessment of an employee prior to terminating him (Bellamy v City of New York, 14 AD3d462 [2005]). This assessment must be part of a "good faith interactive process" (Phillips v City of New York, 66 AD3d170, 175 [2009]). Contrary to the dissent's finding, the record shows that HHC engaged in aninteractive process. HHC sought clarification from Dr. Skloot regarding plaintiff's medicalcondition and his ability to perform his job. Indeed, they kept plaintiff's job open during twoseparate medical leaves, during which time HHC was in communication with plaintiff and hisdoctor. HHC provided Dr. Skloot with plaintiff's job description and made her aware thatplaintiff was required to spend a portion of his time in the field at construction sites. It was onlyafter plaintiff's doctor and plaintiff himself confirmed that he could no longer work atconstruction sites that HHC terminated him.
Plaintiff also contends that HHC failed to make a reasonable accommodation by assigninghim back to Queens Hospital in March 2006 without providing him with proper respiratoryequipment that would prevent any further exacerbation of his lung condition. However, plaintifffocused below on HHC's denial of his request to work in an office, not on the adequacy of theequipment provided to him. In fact, plaintiff's affidavit in opposition to the motion for summaryjudgment stated that HHC could have relocated him to the central office. It is only on appeal thatplaintiff focuses on the argument that he could have remained at Queens Hospital full-time aslong as he had proper respiratory equipment.
The dissent contends that HHC did not engage in an interactive process regarding therespiratory equipment, and as support, points to plaintiff's deposition testimony that at somepoint in March 2006, he complained to his supervisor at Queens Hospital about the dust andrequested a respirator. However, plaintiff also stated at his deposition that after complainingabout the dust, he was provided with a dust mask. Plaintiff testified he did not consistently wearthat mask because it made it difficult to communicate. Thus, having failed to wear the maskgiven to him, plaintiff can hardly complain he never got protection. Further, although plaintiffnow argues that the dust mask was inadequate, he never made any additional complaints to hissupervisor or anyone else about it, nor did he request different equipment than what he was [*4]given. Finally, all of the letters that plaintiff relies on, from hisdoctor, union representative, and plaintiff himself, make a request for relocation to the centraloffice or an environment free of dust. None of the letters ask for a respirator so that plaintiffcould remain at the Queens Hospital location. In this case, HHC should not be held responsiblefor not engaging further with plaintiff about the respirator when plaintiff's own doctor provideddocumentation supporting a transfer to an office job as the solution for plaintiff's disability.
The motion court also properly dismissed plaintiff's claim of gross negligence since theaction was not commenced until more than three years after the claim accrued (seeMcKinney's Uncons Laws of NY § 7401 [2] [New York City Health and HospitalsCorporation Act § 20, as added by L 1969, ch 1016, § 1, as amended]). Plaintiff'sargument that the claim accrued on the date of his termination is without merit since the claimfor gross negligence arose from personal injuries caused by alleged exposure to asbestos and notfrom his termination. In any event, plaintiff's action is barred by operation of the Workers'Compensation Law (see Acevedo v Consolidated Edison Co. of N.Y., 189 AD2d 497[1993], lv dismissed 82 NY2d 748 [1993]; Workers' Compensation Law § 11).
We have considered plaintiff's remaining contentions and find them unavailing.Concur—Tom, J.P., Catterson, DeGrasse and Richter, JJ.
Manzanet-Daniels, J., dissents in part in a memorandum as follows: I agree with the majoritythat the motion court properly dismissed plaintiff's claim of gross negligence; I disagree,however, with the decision to the extent it affirms dismissal of plaintiff's claims for disabilitydiscrimination. Plaintiff alleges that defendant failed to provide him with the required safetyequipment, and denied his reasonable request for reassignment to a prior position or for arespirator to limit exposure to the asbestos and environmental dust he encountered at the worksite. It is undisputed that plaintiff, a long-time employee of HHC, suffers from disabling, chroniclung disease as a result of occupational exposure to construction dust.
For 26 years, plaintiff worked out of HHC's central office at 346 Broadway in Manhattan.While there, he worked principally in the office and made site visits, on average, once or twiceper week.[FN3]In August 2005, plaintiff's assignment was changed from the Bellevue Network to the QueensHospital Network, whose main hospital was undergoing major renovation, including asbestosabatement. Plaintiff had an office at Queens Hospital Center, and visited construction sites on adaily basis.[FN4]Plaintiff testified that at no time prior to his transfer, nor at any time [*5]thereafter, was he provided with respiratory equipment by hisemployer. He testified that he had been provided with a "dust mask" at Queens Hospital, butexplained that a dust mask is insufficient protection since, unlike a respirator, it is notspecifically designed to filter particulates. He testified that he had requested a respirator fromAnita O'Brien, his supervisor at the time, but that such request was never granted.
In September 2005, plaintiff was diagnosed with pneumoconiosis, an occupational lungdisease. On or about October 17, 2005, plaintiff's request for a medical leave of absence underthe Family and Medical Leave Act was approved retroactively for the period September 9, 2005to December 2, 2005. Plaintiff provided HHC with a letter from his pulmonologist, Dr. Skloot,dated December 6, 2005, indicating that his condition had improved with steroid treatment, andthat he was ready to return to work, but stating that it was "imperative that he not be furtherexposed to any type of environmental dust. Specifically, this means that he cannot be present atany construction site."
On January 3, 2006, when plaintiff returned to work, he was told there were "problems" andthat he should go home until called. On or about January 5, 2006, plaintiff's union representativerequested that a reasonable accommodation be made on plaintiff's behalf and that he be assignedwork capable of being performed in an office.
On March 21, 2006, Dr. Skloot wrote that plaintiff had demonstrated "significant clinicalimprovement," and was ready to return to work immediately. She stated that "he is medicallycleared to work in the field," further noting that she had advised plaintiff that it was "imperativethat he not be exposed to any type of environmental dust," and that plaintiff had assured her thathis field work would not include such exposure.
On March 27, 2006, plaintiff returned to work, and while he believed, based on his doctor'snote, that he would be returning to the central office and only occasionally visiting constructionsites, he was sent back to Queens Hospital to the same network manager position he hadoccupied before his medical leave. Plaintiff testified that he complained about the dust to hissupervisor at Queens Hospital on several occasions from March to May 2006, and requested arespirator as a reasonable accommodation. Plaintiff testified that in March 2006 he was capableof performing his job out of the central office. When required to visit construction sites, he coulddo so with proper respiratory protection.
On May 10, 2006, plaintiff requested immediate reassignment to the central office as areasonable accommodation. Plaintiff stated that he was able to perform any and all functions thathad been assigned to him prior to his relocation to Queens Hospital Center. In support of hisrequest, plaintiff submitted a letter from Dr. Stephen M. Levin of Mt. Sinai Hospital, who wastreating plaintiff for "severe, impairing scarring lung disease, the result of prior inhalationexposures to asbestos and other mineral dusts in his work environment." Dr. Levin stronglyrecommended that plaintiff be "placed in a work setting free from exposure to airborne irritant orfibrogenic dusts, fumes and gases."
The request was denied. On June 6, 2006, plaintiff was placed on unpaid medical leave andhis job was left open in the event that his condition improved. On March 26, 2007, at the end ofthe leave, plaintiff's employment was terminated.
It is undisputed that plaintiff suffers from severe, degenerative lung disease. He has sufferednumerous pulmonary complications as a result of his condition, including a pneumothorax, orcollapsed lung, and will eventually need a lung transplant.
On or about March 10, 2008, plaintiff commenced suit against HHC by service of a [*6]summons and verified complaint. Plaintiff's complaint allegeddisability discrimination in violation of the State Human Rights Law (Executive Law §296) and the New York City Human Rights Law (Administrative Code of City of NY §8-107), and gross negligence.
Defendant moved for summary judgment. The court granted the motion, finding that"[p]laintiff's own medical evidence, from his doctor's letter, leads to the inevitable conclusionthat the plaintiff cannot, for medical reasons, spend any time at a construction site, and therefor[sic], can never return to his old duties. By the plaintiff's own evidence, he has not beendiscriminated against." I disagree. Plaintiff's submissions raise triable issues of fact. Plaintifftestified that he was capable of performing his job during the spring of 2006. His doctor's lettergranting medical clearance stated that plaintiff was capable of performing his job so long as hisexposure to construction dust was limited. Defendant asserts that plaintiff was unable to visitconstruction sites, but plaintiff testified that he could visit sites so long as he was provided withproper respiratory protection. Thus, a triable issue of fact exists as to whether plaintiff wascapable of performing the essential functions of his job.
A triable issue of fact also exists as to whether defendant made a reasonable accommodationfor plaintiff's disability. Under the State Human Rights Law, an employer is obligated to "providereasonable accommodations to the known disabilities of an employee . . . inconnection with a job or occupation sought or held" (Executive Law § 296 [3] [a]; Pimentel v Citibank, N.A., 29 AD3d141, 145 [2006], lv denied 7 NY3d 707 [2006]). "Reasonable accommodation" isdefined as actions taken by an employer which "permit an employee . . . with adisability to perform in a reasonable manner the activities involved in the job or occupationsought or held . . . provided, however, that such actions do not impose an unduehardship on the business" (Executive Law § 292 [21-e]). Similarly, the City's HumanRights Law requires that an employer "shall make reasonable accommodation to enable a personwith a disability to satisfy the essential requisites of a job" (Administrative Code § 8-107[15] [a]).
There is no dispute that plaintiff suffered from a "disability" within the meaning of therelevant statutes. Plaintiff had asthma and pulmonary problems as of the date of his reassignmentfrom the main office to the Queens Hospital construction site. In September 2005, severalmonths after his reassignment, he was diagnosed with pneumoconiosis, an occupational lungdisease, and was found, upon biopsy, to have asbestos, silicates and other construction materialsin his lungs.
Under the Executive Law, "reasonable accommodation" includes, but is not limited to,"provision of an accessible worksite, acquisition or modification of equipment, support servicesfor persons with impaired hearing or vision, job restructuring and modified work schedules"(Executive Law § 292 [21-e]). The Division of Human Rights also recognizes that"reasonable accommodation" may include "reassignment to an available position" (9 NYCRR466.11 [a] [1], [2]).
Plaintiff testified that he complained to his supervisor about airborne dust several timesduring the March 2006 through May 2006 time frame, and that he specifically requestedrespiratory protection. He requested reassignment when his supervisor failed to grant his request.As plaintiff notes, defendant could have accommodated his disability by (1) reassigning him tothe central office, where, for more than 20 years, he performed field visits on a once a weekbasis; or (2) assigning him to the Queens Hospital construction site with the requisite respiratoryequipment to prevent further exacerbation of his condition. Defendant did neither. Indeed, thereis no evidence that defendant engaged in a good faith interactive process to assess the needs of[*7]plaintiff and the reasonableness of the accommodationrequested, the first step in providing a reasonable accommodation (see Phillips v City of New York, 66AD3d 170, 176 [2009]). We have stated that the failure to consider the requestedaccommodation by engaging in an individualized, interactive process is a violation of the stateand city statutes (id.).
As the majority notes, the record showed that defendant employer provided plaintiff with anordinary cloth dust mask. However, the provision of a dust mask, of the type to be found in anyhardware store, is not a "reasonable accommodation" for a worker who is exposed to asbestosdust on a daily basis. In this context, a specialized mask or respirator device designed to filter andprotect against airborne dust from known toxins and potential carcinogens would be the type of"reasonable accommodation" envisioned by the statute. Indeed, defendant was under anaffirmative legal obligation by various workplace safety regulations to provide adequateprotective equipment to employees assigned to work in construction sites in which they might beexposed to hazardous materials. It is certainly reasonable to expect that they would furnish suchequipment to plaintiff, who was already suffering from progressive lung disease as a result ofoccupational exposure.
I would accordingly modify to reinstate plaintiff's claims under the New York State HumanRights Law (Executive Law § 296 [1] [a]) and the New York City Human Rights Law(Administrative Code § 8-107 [1] [a]).
Footnote 3: Plaintiff served first as a healthfacilities manager, and later as a network manager. He testified that his duties remained the same,despite the change in job title.
Footnote 4: Plaintiff testified thatconstruction was also ongoing in his office at Queens Hospital, explaining that HHC wasinstalling a refrigeration air conditioning system for the building.