Graham v. New York State Office of Mental Health

Appeal from an order of the Supreme Court (Ryba,

In December 2007, plaintiff — who has Tourette’s syndrome and spinal stenosis — began his probationary employment as a nurse at defendant Capital District Psychiatric Center (hereinafter CDPC), a psychiatric facility operated by defendant Office of Mental Health (hereinafter OMH). During his first year of employment at CDPC, plaintiff was primarily assigned to the crisis inpatient unit. However, in December 2008, at or around the time that he received a poor performance evaluation, plaintiff was transferred to CDPC’s admissions unit, unit M. The following month, plaintiff received another poor performance evaluation and his year-long probationary period was ultimately extended for a period of six months. Thereafter, defendant Julie Gorman — CDPC’s Director of Nursing — notified plaintiff by email that she was transferring him to the geriatric unit, unit H. Plaintiff declined the transfer, claiming that it would be too hard with his disabilities. Over the following days, plaintiff and Gorman exchanged several emails concerning plaintiff’s asserted need for a reasonable accommodation, with Gorman directing plaintiff to the human resources department to fill out paperwork regarding his specific medical limitations and required accommodations. Plaintiff did not avail himself of this process and, soon after, left on workers’ compensation leave.

While plaintiff was on workers’ compensation leave, plaintiff’s counsel, by letter dated February 24, 2009, stated that unit H was not an appropriate work environment for plaintiff because the work required on that unit would aggravate his symptoms of spinal stenosis and the elevated levels of stress and anxiety that accompanied such work caused “an increase in the severity and frequency of [plaintiff’s] neurological tics.” Plaintiff’s counsel requested that CDPC reasonably accommodate plaintiff’s disabilities by assigning him to either the crisis inpatient unit or unit M because they were “markedly less stressful and physically strenuous environments” for plaintiff. Counsel further stated that CDPC had on file a notice of plaintiff’s eligibility for employment pursuant to Civil Service Law §§ 55-b and/or 55-c, statutes that provide state employment opportunities in noncompetitive positions for veterans and other individuals who have been certified as having a physical or mental disability.

The February 2009 letter was received by defendant David J. Hernandez, CDPC’s Deputy Director of Administration.

In response to plaintiff’s cross motion to preclude consideration of the affidavits, defendants acknowledged that they did not disclose to plaintiff the identities of the three affiants— whose affidavits were submitted solely to interpret certain codes in plaintiff’s civil service employment records — prior to the filing of the note of issue and certificate of readiness. However, defendants’ counsel stated, in an affirmation, that the nondisclosure was “inadvertent” and the product of severe understaffing. Counsel further asserted that the documents that were the subject of the affidavits were disclosed to plaintiff roughly one year prior to the filing of the note of issue. Under these circumstances, Supreme Court found that there had been no showing of willfulness, and we decline to disturb the court’s determination to deny plaintiff’s cross motion to preclude the affidavits (see Armstrong v Armstrong, 72 AD3d 1409 , 1410 [2010]; compare Boyer v Kamthan, 130 AD3d 1176 , 1178-1179 [2015]).

Next, plaintiff claims that CDPC and OMH engaged in an unlawful discriminatory practice by refusing to provide reasonable accommodations for his disabilities. Executive Law § 296 (3) (a) provides, in pertinent part, that “[i]t shall be an unlawful discriminatory practice for an employer ... to refuse to provide reasonable accommodations to the known disabilities . . . of an employee . . . in connection with a job or occupation . . . held.” A reasonable accommodation “is one which‘permitís] an employee . . . with a disability to perform in a reasonable manner the activities involved in the job’ and does not impose an ‘undue hardship’ on the employer’s business” (Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824 , 834 [2014], quoting Executive Law § 292 [21-e]; see Matter of County of Erie v New York State Div. of Human Rights, 122 AD3d 1303 , 1304 [2014]). To establish a prima facie case of discrimination

The record discloses two instances in which plaintiff requested a reasonable accommodation for his disabilities: the first being in January 2009 when Gorman and plaintiff discussed a transfer to unit H and the second being in the February 2009 letter from plaintiff’s counsel. Review of both of these requests reveals that at no point did CDPC refuse plaintiff’s reasonable accommodation requests.

Plaintiff and Gorman’s January 2009 email exchange demonstrated that, after Gorman informed plaintiff of his transfer to unit H, plaintiff “decline [d]” the assignment on the basis that it “would be much . . . to[o] hard on a person with [his] disabilities.” Gorman replied that she was unaware of any disability that prevented plaintiff from performing the essential functions of his job on unit H and that, if he needed accommodations, he could request them through the human resources department. Plaintiff then stated, “With my disabilities [,] I would not be able to work unit H. I see this as a direct attempt to cause physical injury to an already pre existing [sic] condition. It would also interfere with my neurological deficit!,] which would cause more physical pain.” In response, Gorman asserted, “I am aware of some of your medical concerns [,] but do not know your full limitations. I know you have floated to [unit] H[,] so I am not sure what it is that you

In our view, Gorman’s response constituted an attempt to obtain more information regarding plaintiff’s specific needs and medical limitations so that she — and CDPC — could consider the feasibility of, and any potential burden imposed by, any reasonable accommodation requested by plaintiff (see Executive Law § 296 [3] [b]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d at 834-835 ). Indeed, the Human Rights Law requires an employee requesting a reasonable accommodation to “cooperate in providing medical or other information . . . that is necessary for consideration of the accommodation” (Executive Law § 296 [3] [c]; see Matter of Vinikoff v New York State Div. of Human Rights, 83 AD3d 1159 , 1162 [2011]). Rather than cooperate with Gorman’s request for further information, plaintiff unreasonably stated, “If you can find some way to stop the laughter of the patients and prevent employee! ]s from star! ]ing on [unit] H while I’m in [T]ourette’s crisis!,] that would be a start. I also don’t think [you’re] being fair to these [p]atients[,] as it seems many of them recoil from my tic[ ]s when I am trying to care for them.” Plaintiff’s response failed to identify the specific work associated with unit H that he was unable to perform due to his medical limitations. Nor did plaintiff’s response differentiate between patients on unit H and those on other units. In short, it was plaintiff’s unreasonable accommodation requests and lack of meaningful response to Gorman’s request for further information that caused a breakdown in the interactive process (see Matter of Vinikoff v New York State Div. of Human Rights, 83 AD3d at 1163-1164 ; Pimentel v Citibank, N.A., 29 AD3d at 148 ; Pembroke v New York State Off. of Ct. Admin., 306 AD2d at 185 ).

With regard to plaintiff’s second accommodation request, defendants’ submissions unequivocally established that CDPC and OMH did not refuse plaintiff’s request to be assigned to either the crisis inpatient unit or unit M as a reasonable accommodation. In this regard, defendants submitted, among other things, the affidavit of Hernandez, in which he averred that he forwarded counsel’s letter to Gorman and directed her to investigate the feasibility of plaintiff’s assignment requests. Gorman’s response to this directive was memorialized in an email, which defendants submitted on their motion. In this

The exchange between Hernandez and Gorman demonstrated that plaintiff’s accommodation request — made by counsel — prompted CDPC to, as required, consider and assess plaintiffs request and any undue hardship it might pose to the operation of CDPC (see Executive Law § 296 [3] [b]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d at 834-835, 837 ; Matter of Vinikoff v New York State Div. of Human Rights, 83 AD3d at 1163 ). However, before CDPC could proceed any further with its internal inquiry, engage in any necessary dialogue with plaintiff and ultimately grant or deny plaintiff’s accommodation request (cf. Weaker v City of New York, 134 AD3d 474 , 475 [2015]), CDPC discovered plaintiff’s undisclosed prior 14-year state employment at a similar facility and terminated his probationary employment on the basis that he “provid [ed] false information on [his] employment application.” Under these circumstances, plaintiff cannot prevail on his refusal of a reasonable accommodation claim (see Pimentel v Citibank, N.A., 29 AD3d at 149-150 ). Accordingly, Supreme Court properly granted so much of defendants’ motion as sought dismissal of plaintiff’s reasonable accommodation claim.

As for plaintiff’s claim that defendants terminated his employment as retaliation for him requesting reasonable accommodations for his disabilities, Executive Law § 296 (7) states, in relevant part, that “[i]t shall be an unlawful discriminatory practice for any person engaged in any activity to which this section applies to retaliate or discriminate against any person because he or she has opposed any practices forbidden under [article 15 of the Executive Law].” To state a prima facie case of retaliation under Executive Law § 296 (7), a

Assuming, without deciding, that plaintiff engaged in a protected activity by requesting reasonable accommodations (see Serdans v New York & Presbyt. Hosp., 112 AD3d 449 , 450 [2013]; Witchard v Montefiore Med. Ctr., 103 AD3d 596 , 596 [2013], lv denied 22 NY3d 854 [2013]; McKenzie v Meridian Capital Group, LLC, 35 AD3d 676 , 677 [2006]; but see e.g. Weixel v Board of Educ. of City of New York, 287 F3d 138 , 149 [2d Cir 2002]) and that he also established, prima facie, the remaining elements of a retaliation claim, we would nonetheless find that defendants satisfied their burden of demonstrating legitimate, independent and nondiscriminatory reasons for terminating plaintiffs employment. Indeed, in support of their motion for summary judgment dismissing the complaint, defendants proffered, among other things, the affidavits of Hernandez, Gorman and Anne Soldner — then Associate Personnel Administrator in the human resources department. Hernandez stated that he terminated plaintiff’s probationary employment because it was discovered that plaintiff withheld his prior 14-year state employment at a similar facility from his employment application. Hernandez explained that, upon receiving counsel’s February 2009 letter, he asked the Director of Human Resources to ascertain whether CDPC had received a Civil Service Law §§ 55-b and/or 55-c notice from plaintiff or whether such notice was contained in plaintiff’s personnel file or employment history. Hernandez asserted that he was thereafter informed that Soldner had discovered that plaintiff had

Supreme Court also properly dismissed plaintiff’s claim that Hernandez and Gorman violated Executive Law § 296 (6), which, as relevant here, makes it “an unlawful discriminatory practice for any person to aid [or] abet . . . the doing of any of the acts forbidden under [article 15 of the Executive Law], or to attempt to do so.” Given that plaintiffs independent Human Rights Law claims were properly dismissed, his Executive Law § 296 (6) claim against Hernandez and Gorman for aiding and abetting fails (see Kelly G. v Board of Educ. of City of Yonkers, 99 AD3d 756 , 758-759 [2012]; Matter of Medical Express Ambulance Corp. v Kirkland, 79 AD3d 886 , 888 [2010], lv denied 17 NY3d 716 [2011]; Barboto v Bowden, 63 AD3d 1580 , 1582 [2009]; Strauss v New York State Dept. of Educ., 26 AD3d 67 , 73 [2005]). We further find that Supreme Court properly dismissed plaintiff’s equal protection claim (see generally Transportation Unlimited Car Serv., Inc. v New York City Taxi & Limousine Commn., 11 AD3d 384 , 385 [2004]; Garcia v S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F3d 98 , 109 [2d Cir 2001]).

McCarthy, J.P., Lynch, Aarons and Pritzker, JJ., concur.

Ordered that the order is affirmed, without costs.