Opinion
18-cv-2517 (ENV) (ST)
2021-06-28
Eugene KAGANOVICH, Plaintiff, v. Denis MCDONOUGH, Secretary, Department of Veterans Affairs, Defendant.
Paula Johnson Kelly, New Rochelle, NY, for Plaintiff. Michael Joseph Castiglione, United States Attorney's Office, Brooklyn, NY, for Defendant David J. Shulkin, M.D.
Paula Johnson Kelly, New Rochelle, NY, for Plaintiff.
Michael Joseph Castiglione, United States Attorney's Office, Brooklyn, NY, for Defendant David J. Shulkin, M.D.
MEMORANDUM & ORDER
VITALIANO, D.J.
On April 27, 2018, Eugene Kaganovich filed this action against the Secretary of Veterans Affairs, alleging discrimination on the basis of disability and retaliation in violation of Section 501 of the Rehabilitation Act of 1973. Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(a). For the reasons set forth below, defendant's motion is granted in part and denied in part.
Kaganovich has voluntarily dismissed his claim for relief under Section 504 of the Rehabilitation Act. See Pl.’s Opp'n Mem., Dkt. 29, at 7 n.1; see also Rivera v. Heyman , 157 F.3d 101, 104 (2d Cir. 1998) ("[S]ection 501 is the exclusive remedy for federal employees suing under the Rehabilitation Act").
The Court resolves all ambiguities and draws all reasonable inferences in favor of plaintiff, as the non-moving party. See Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc. , 391 F.3d 77, 83 (2d Cir. 2004). The facts are derived from the complaint, to the extent it is supported by the record, and the parties’ submissions, including their Rule 56.1 statements. Any factual disputes are noted.
Kaganovich is a registered nurse who has worked at the Brooklyn campus of the Department of Veterans Affairs ("VA") New York Harbor Healthcare System since 2001. See Pl.’s 56.1 Reply, Dkt. 30, ¶ 1. Until 2013, he worked as a nurse in the Intensive Care Unit ("ICU"). Id. ¶ 3. Kaganovich was diagnosed with Type 1 diabetes at age six, nearly fifty years ago. Id. ¶ 2; Tamler Rept., Dkt. 28-23, at 9. In late 2011, he suffered from an infection and a worsening of his diabetes, leading him to take medical leave at his doctors’ request until March 5, 2012. See Pl.’s 56.1 Reply ¶ 4; Kaganovich Tr., Dkt. 28-22, at 34:13–45:19; May 16, 2016 EEOC Tr., Dkt. 28-16, at 27:6–21; Dkt. 32-12 at 7–8. His doctors recommended that he be transferred out of the ICU upon his return to work, fearing that the long hours, stress and physical demands of working with critical care patients were detrimental to his health. See Dkt. 28-1.
In advance of his return, on January 23, 2012, Kaganovich submitted a request for reasonable accommodation. See id. ; Pl.’s 56.1 Reply ¶ 5. He requested reassignment to an outpatient clinic, as well as limitations on standing, walking, lifting and climbing. See Pl.’s 56.1 Reply ¶ 6. In a clinic, Kaganovich said, he would gain "predictable times during which I can sit down for a meal, snacks and take my insulin as prescribed." Id. He submitted the documentation to his supervisor, nurse Jo Ann Roberts, who told him to submit it to her supervisor, nurse Laura Vigliarolo. See May 16, 2016 EEOC Tr. at 32:15–33:6. Vigliarolo told him to give it back to Roberts, which he did. Id. at 33:4–6. According to Kaganovich, Vigliarolo also told him to have his doctors reword their letters to omit requests for transfer to an outpatient clinic because there were no vacancies at the time, which he did not do. Id. at 33:19–25; Kaganovich Tr. at 89:11–90:18. He also sent Vigliarolo a letter detailing the help he could offer working with diabetes patients in a clinic. See Pl.’s 56.1 Reply ¶ 7; Dkt. 28-2. On January 27, 2012, he emailed Vigliarolo that he had "decided to work in outpatient settings," to which she replied that employees could not pick reassignments, and that she had "offered [him] a job within the scope of [his] limitations." Dkt. 32-23. At that point, however, Kaganovich says he had not been told whether his request had been granted, so he asked his supervisors about it throughout February. See Dkts. 32-24, 32-25.
When Kaganovich returned to work on March 5, 2012, Vigliarolo reassigned him from working directly with ICU patients to staffing the unit's telemetry station. See Pl.’s 56.1 Reply ¶ 8. There, he worked eight-hour shifts sitting and watching monitors that displayed patients’ data, alerting medical staff of any issues. Id. ¶¶ 8–9. Because he still believed the telemetry position was temporary and that his accommodation request was pending, he continued to ask for updates. See Kaganovich Tr. at 101:12–17; Dkt. 32-25. On March 23, Vigliarolo informed him that the telemetry position was his official accommodation, calling it "much more conservative than the limitations described by [his] physician." Dkt. 28-3. Although the hospital had a Reasonable Accommodation Committee ("RAC"), she informed him that it only intervened when an employee could not be accommodated within his current service. Id. Vigliarolo testified that she believed the telemetry position would accommodate Kaganovich's needs, whereas the outpatient clinics had no vacancies and, even if they did, would be too physically demanding and allow too few breaks. See May 17, 2016 EEOC Tr., Dkt. 28-17, at 209:10–210:8.
Kaganovich asked Vigliarolo to describe his new duties in writing, which she did in a memorandum dated March 23, 2012. Dkt. 28-4. In addition to memorializing Kaganovich's reassignment to the telemetry station, the memorandum also memorialized VA's commitment that he would work eight hour shifts five days a week with weekend and holiday coverage. Id. It was further understood that his shifts were to include two 15-minute breaks and a 30-minute lunch hour spaced according to his physical needs. Id. He remained concerned with the unit's ability to find a nurse to replace him at the telemetry station, which was supposed to be staffed at all times.
This was not an idle concern. Kaganovich avers that he needed to take breaks not on a set schedule but when needed in order to regulate his blood sugar. Dkt. 28-3. In fact, he wore a pump that dispensed insulin at regular intervals, but insulin lowers blood sugar, so Kaganovich still had to eat or take glucose tablets to raise his blood sugar when conditions might unpredictably demand. See Kaganovich Tr. at 118:4–25. He also wore a glucose monitoring device, which tracked his blood sugar levels but required finger stick tests to verify its readings. See id. at 119:5–18; Kaganovich Aff., Dkt. 32-13, at 3–4; Tamler Rept. at 5. Moreover, the insulin pump and glucose monitoring device did not communicate with each other, although he could manually reprogram the insulin pump if needed. See Kaganovich Aff. at 3. He also noted that he was unable to feel whether symptoms were tied to his blood sugar being too high or too low, adding to the unpredictability and providing further reason for finger stick tests. See Kaganovich Tr. at 120:7–15. He claimed he had to leave the telemetry station to test his blood sugar and to eat, since he needed to wash his hands before doing either given the ICU's high infection risks. See id. at 119:25–120:6; Kaganovich Aff. at 5. He added that eating at the station was prohibited by VA infection control policy, although he was later told he could eat glucose tablets there. See Kaganovich Tr. at 120:7–18.
In response to a March 19, 2012 email from Kaganovich asking what to do if he needed to leave the station to manage his blood sugar, Vigliarolo told him to contact the charge nurse, whose job was to oversee the shift, and said his coworkers would accommodate his break times. See Dkt. 32-25 at 4–5. Roberts echoed these instructions. Id. at 3. Kaganovich contends that, from the start, he had trouble finding nurses to replace him at the telemetry station for breaks, leading to fluctuating blood sugar levels. See id. at 97:25–98:16, 113:4–114:20; Pl.’s 56.1 Reply ¶ 10. He testified that he was often left off the daily assignment sheet used to record nurses’ breaks—although Roberts averred that this increased the flexibility of his schedule, and that it was common practice for the nurses to work out break times among themselves. See Pl.’s EEO Interview, Dkt. 28-11, at 9; May 16, 2016 EEOC Tr. at 75:19–76:4; EEO Rept., Dkt. 32-5, at 6. Roberts also recalled telling the ICU nurses in around March 2012 to make sure Kaganovich received breaks. See Aug. 17, 2016 EEOC Tr., Dkt. 28-19, at 14:2–15:9.
Regardless, Kaganovich alleges he often had to delay or skip breaks due to lack of coverage at the telemetry station. See May 16, 2016 EEOC Tr. at 76:5–15; Kaganovich Tr. at 97:25–98:16, 113:4–114:5. Kaganovich testified that he would ask the charge nurse for breaks as needed, in addition to asking nurses who passed by and using the overhead paging system, but that everyone was too busy with patients to relieve him on time. See Kaganovich Tr. at 113:21–115:20. He cited low staffing levels, the high level of care needed by ICU patients and the fact that nurses were typically in patients’ rooms as reasons he had trouble finding coverage. See id. at 113:15–114:20. He was occasionally assigned to work at telemetry monitors on another floor, where he likewise had trouble getting breaks because he had to wait for an ICU nurse to come upstairs to relieve him. See, e.g. , May 16, 2016 EEOC Tr. at 88:6–90:15, 99:6–22, 104:19–105:20.
Significantly, ICU nurse Gladys Muniz corroborated these difficulties, stating that while she and others would try to relieve him for breaks, he would often have to wait over an hour because they had to prioritize patients. See Aug. 16, 2016 EEOC Tr., Dkt. 28-18, at 97:16–98:9. She estimated there was a fifty percent chance that Kaganovich could be relieved on request. See EEO Rept. at 6. She testified that once, she found Kaganovich nearly unresponsive at the telemetry station due to severely low blood sugar and had the charge nurse take him to another room, where he needed an injection to raise his blood sugar. See Aug. 16, 2016 EEOC Tr. at 95:20–96:5, 99:22–100:23; Kaganovich Tr. at 179:18–180:7. On May 2, 2012, his endocrinologist wrote a note asking that he be granted breaks to check his blood sugar and eat. See Dkt. 32-8 at 7.
Starting in late July 2012, Kaganovich engaged union representatives in seeking written permission from Vigliarolo to briefly leave the telemetry station to manage his diabetes if he could not find someone to relieve him. See Pl.’s 56.1 Reply ¶ 10; Dkts. 28-6, 32-27. Vigliarolo—who claims this was the first time she heard he was having trouble getting breaks—declined to sign anything. See Dkt. 28-6; EEO Rept. at 5. She cited a concern that he would leave for reasons unrelated to his diabetes, noting that she had seen him leave once to socialize with another nurse and once to help with a patient. See EEO Rept. at 5; Dkt. 28-8 at 1; Aug. 16, 2016 EEOC Tr. at 48:3–50:2; see also Pl.’s EEO Interview at 10–11 (Kaganovich claiming he talked with a nurse only after leaving to check his blood sugar). Instead, she told Kaganovich via email that "[a]s a professional you should be able to make decisions to maintain the safety of patients, visitors, colleagues and yourself." Dkt. 28-5 at 1. He took this to mean he could not leave the station, even in an emergency. Kaganovich Tr. at 127:6–128:20. Vigliarolo testified that she expected a sick employee could leave to take care of himself, but says she did not take any specific steps at that time to ensure he had coverage for breaks. See Aug. 16, 2016 EEOC Tr. at 50:15–51:2.
In response to an email from Vigliarolo asking for advice on Kaganovich's requests, human resources director Deborah Innella said the matter should go through RAC and copied one of its members, Devendra Sankar. Dkt. 28-8 at 2. Kaganovich submitted a reasonable accommodation request to RAC on September 26, 2012, including the same medical letters as his January request and again asking for reassignment to an outpatient setting. See Pl.’s 56.1 Reply ¶ 11; Dkt. 32-8 at 8. He also provided a more detailed list of requests for accommodations at the telemetry station, including requests that he be able to take glucose tablets at the station, that his breaks be listed on the assignment sheet, that he not be penalized for leaving if he was not relieved for a short break within five minutes of asking, that he be permitted time off to attend medical appointments and that he not be assigned the position of charge nurse. See Dkt. 28-7.
RAC met to review Kaganovich's requests on September 28, 2012. See Pl.’s 56.1 Reply ¶ 11. Its members were acting chair Linda Dawson; Sankar, a labor specialist; and medical consultant Dr. Dorothy Norwood. See Dkt. 28-7. The committee decided that "his requests were reasonable and should be granted," noting that "the suggestion was made that the service (if they deem necessary) look into moving the employee to an area where there would be more coverage." Id. Sankar reported this decision to Vigliarolo on October 5, to which she replied that Kaganovich already had a reasonable accommodation but that she would not sign his proposed agreement allowing him to leave the station unattended. Dkt. 28-8. Innella conveyed RAC's decision to Kaganovich in a memorandum dated October 18, 2012, which he allegedly did not receive until November 16. See Dkt. 28-9; Dkt. 32-9 at 3. The document said his requests had been granted "as follows," citing his requests to eat glucose tablets at the telemetry station, call the charge nurse when he needed breaks, have breaks recorded on the assignment sheets, not be made charge nurse and take leave according to existing procedures. Dkt. 28-9. No mention was made of reassignment or of leaving the station unattended. Id. Dr. Norwood would later testify that she did not draft the memorandum or agree with its omission of reassignment. See Norwood Aff., Dkt. 32-14, at 6. Kaganovich, through his attorney, submitted a letter to RAC requesting reconsideration of its decision on November 23, asking again for reassignment and to be able to leave the station unattended if needed, and describing a severe low blood sugar incident that had occurred three days earlier when he was unable to take a break. See Dkt. 32-9.
Around October 2012, the Manhattan VA hospital closed due to flooding from Hurricane Sandy, and most of its nurses transferred to the Brooklyn VA hospital for the next six months. See Aug. 17, 2016 EEOC Tr. at 74:4–75:25. Although Kaganovich's supervisors said he should not have had trouble taking breaks given higher ICU staffing levels, he countered that there were also more patients and that the Manhattan ICU nurses were primarily caring for patients undergoing open heart surgery so could not—and in some instances, would not—leave their patients to relieve him. See id. at 115:2–117:17, 138:9–25; Kaganovich Tr. at 169:22–171:21, 173:21–177:25; Dkt. 32-31 at 3.
Citing continued difficulties receiving breaks, and after engaging an Equal Employment Opportunity ("EEO") counselor, Kaganovich filed an EEO complaint on January 13, 2013. See EEO Rept. at 1–2, 7, 13–16. He reiterated his requests to be transferred and to receive breaks and noted that he believed he was experiencing disability-based discrimination and retaliation. Id. at 13–16. That complaint was dismissed as untimely in March. See Pl.’s EEO Interview at 4. Meanwhile, on March 13, 2013, VA counsel offered Kaganovich, through his attorney, a reassignment to Employee Health or an inpatient unit handling admissions and discharges. See Dkt. 32-42. There is no record of Kaganovich's response, although he did not transfer out of the ICU at the time. Separately, in April 2013, he applied for two openings in Nursing Informatics, one at his level and one which would have been a promotion. Pl.’s 56.1 Reply ¶ 14. He interviewed for but was not reassigned to either of them. Id. In the meantime, Kaganovich says, he continued to experience delays in getting relieved for breaks, which on two occasions led to fluctuations in blood sugar levels so severe that he took sick leave to recover. See Dkt. 32-12 at 4–5; Kaganovich Aff. at 12–13. Undaunted by prior rebuffs, he filed a second EEO complaint on May 8, 2013, making the same requests for reassignment and breaks, and including a list of sixteen dates on which he reported having difficulty taking breaks to attend to his medical needs. See Dkt. 28-10; Pl.’s EEO Interview at 4. On June 21, 2013, in another abortive effort, Kaganovich filed an action in this district, which was subsequently withdrawn for failure to exhaust administrative remedies. See Pl.’s 56.1 Reply ¶ 13.
On September 13, 2013, Vigliarolo informed Kaganovich that he would be reassigned to Employee Health on September 30 "in anticipation of flu shot season," expressing a hope that "[t]his area might be less stressful and more accommodating to your needs." Dkt. 28-12. He replied asking whether he would receive breaks and other requested accommodations, repeated his interest in transferring to the Endocrinology Clinic and asked why he had not received the nursing informatics jobs. Id. Vigliarolo replied that he should have his attorney communicate any concerns to VA counsel, and that the Employee Health position would consist of triaging sick and injured employees, giving staff vaccines and processing new employees. See id. ; Dkt. 32-30. After a week-long delay due to ICU staffing needs, Kaganovich started in Employee Health on October 6. See Dkt. 32-30; Kaganovich Tr. at 194:3–6. He testified that he found this position to be a reasonable accommodation and said he had not experienced difficulties taking breaks. See Pl.’s 56.1 Reply ¶ 16; Kaganovich Tr. at 142:7–18. Although the reassignment was considered temporary at first, such that Roberts remained his supervisor, Kaganovich was permanently reassigned to Employee Health on January 25, 2015. See Pl.’s 56.1 Reply ¶ 15; Dkt. 32-30 at 5.
During this 18-month period between Kaganovich's return from medical leave and reassignment to Employee Health, he claims to have experienced a worsening of his blood sugar control and various diabetes-related complications. Among them are leg pain from compartment syndrome, limited mobility in his hand joints due to diabetic cheiroarthropathy, neurogenic bladder requiring him to self-catheterize to urinate, heart palpitations and mental health conditions including stress, anxiety and depression. See Pl.’s Interrogatory Response, Dkt. 28-21, at 6–7; May 17, 2016 EEOC Tr. at 30:25–31:14, 37:10-45:12. But see Tamler Rept. at 9–12 (opining that the evidence does not support a finding that Kaganovich's medical conditions are tied to his time at the telemetry station); Vapnek Rept., Dkt. 28-24, at 3 (same, regarding his bladder condition).
After filing EEO complaints and a federal lawsuit, Kaganovich felt that he experienced retaliation in the form of a lower performance review and delayed approval of his leave requests. Roberts rated him as "satisfactory" on the annual performance review he received on March 27, 2014. See Pl.’s 56.1 Reply ¶ 18; Dkt. 32-36 at 10–11. This was the same proficiency rating she had given him in 2012 and 2013. Id. at 6–9. Previously, he had different supervisors, who typically rated him as "outstanding." See id. at 1–5; May 16, 2016 EEOC Tr. at 187:11–188:15. Responding to the lower rating he had received, Kaganovich objected that Roberts had not observed his work in Employee Health, where he had been stationed for most of the rating period, but she testified that she rated him based on performance measures like employee vaccination rates, as well as conversations with his Employee Health colleague. See May 16, 2016 EEOC Tr. at 201:7–24; Aug. 16, 2016 EEOC Tr. at 174:22–175:10, 178:6–183:18. Kaganovich sought a higher rating based on his extra work such as clearing a backlog of Employee Health paperwork, participating in diabetes research and professional activities, making educational PowerPoint presentations for the staff and studying for masters degrees, but Roberts and Vigliarolo stated that they did not consider these activities to be of a type that would warrant a change in his rating. See May 16, 2016 EEOC Tr. at 207:25–212:8, 215:16–219:10; May 17, 2016 EEOC Tr. at 165:15–178:22; Aug. 17, 2016 EEOC Tr. at 122:10–125:2. After Roberts handed Kaganovich his review, he refused to sign it and, per VA policy, submitted a note for his file describing his objections. See May 16, 2016 EEOC Tr. at 219:11–220:16; Aug. 17, 2016 EEOC Tr. at 6:4–7:25; Dkt. 28-14 at 8.
Kaganovich also claims Roberts retaliated against him by delaying her approval of his leave requests. He took leave most Wednesdays, but sometimes on other dates, to attend doctors’ appointments. See May 16, 2016 EEOC Tr. at 68:4–12; May 17, 2016 EEOC Tr. at 79:23–80:7. Per VA's contract with the nursing union, supervisors were supposed to approve or disapprove employees’ leave requests within five days of submission. See Aug. 17, 2016 EEOC Tr. at 126:4–25; Dkt. 32-32 at 7. Kaganovich claims his requests were often pending for longer periods of time. See Kaganovich Tr. at 146:25–148:3. This had been a longstanding point of contention, with the union intervening to help Kaganovich get leave requests approved in October 2012, June and December 2013 and February 2014. See Dkts. 32-28, 32-32. Vigliarolo testified that this was an ongoing, across-the-board issue with Roberts, who in turn testified that she oversaw 70 employees but would approve leave requests biweekly and tried to keep up with them. Aug. 16, 2016 EEOC Tr. at 72:8–17, 221:16–223:11; Aug. 17, 2016 EEOC Tr. at 127:22–128:9. Roberts also asked Kaganovich to coordinate leave with an ICU nurse who was on light duty, Marina Kaplan, to which Kaganovich objected. See May 16, 2016 EEOC Tr. at 77:11–78:15; Aug. 16, 2016 EEOC Tr. at 189:11–190:4; Aug. 17, 2016 EEOC Tr. at 21:24–25:23. Perceiving retaliation, Kaganovich filed another EEO complaint on May 15, 2014, raising issues with his 2014 performance review and a delay in approving seven April 2014 leave requests, submitted March 27 and approved April 3. See Pl.’s 56.1 Reply ¶¶ 20–21; May 17, 2016 EEOC Tr. at 118:14–119:7; Dkt. 28-15. The overdue leave approval, he claimed, caused him to miss his April 3 doctor's appointment. See Kaganovich Tr. at 146:25–149:11; Dkt. 32-32 at 30–33.
Over four days in May and August 2016, an EEOC administrative law judge held a hearing on Kaganovich's May 2013 and May 2014 EEO complaints alleging discrimination and retaliation. See Pl.’s 56.1 Reply ¶ 22. In an October 18, 2017 decision, the EEOC held that Kaganovich had not established discrimination or retaliation by a preponderance of the evidence. See id. ¶ 23; EEOC Decision, Dkt. 28-20. Kaganovich filed the instant action on April 27, 2018. Compl., Dkt. 1.
Standard of Review
Summary judgment is warranted if the "movant shows there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law," and an issue of fact is genuine if it can be reasonably resolved in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 253, 106 S. Ct. 2505, 2511, 2512, 91 L. Ed. 2d. 202 (1986). The motion court's responsibility "is not to weigh the evidence." Gen. Star Indem. Co. v. Driven Sports, Inc. , 80 F. Supp. 3d 442, 449 (E.D.N.Y. 2015) (quoting Amnesty Am. v. Town of W. Hartford , 361 F.3d 113, 122 (2d Cir. 2004) ). Rather, "in determining if a genuine dispute of material fact exists, ‘the court must resolve all ambiguities and draw all justifiable factual inferences in favor of the party against whom summary judgment is sought.’ " Fletcher v. Standard Fire Ins. Co. , 80 F. Supp. 3d 386, 390 (E.D.N.Y. 2015) (quoting Buckley v. Deloitte & Touche USA LLP , 888 F. Supp. 2d 404, 415 (S.D.N.Y. 2012), aff'd , 541 F. App'x 62 (2d Cir. 2013) ).
"Once the moving party has met its burden ... ‘[t]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. ’ " Gen. Star Indem. Co. , 80 F. Supp. 3d at 449 (quoting Caldarola v. Calabrese , 298 F.3d 156, 160 (2d Cir. 2002) ). If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper. Hetchkop v. Woodlawn at Grassmere, Inc. , 116 F.3d 28, 33 (2d Cir. 1997).
Where a plaintiff brings discrimination claims, however, the Second Circuit has "repeatedly expressed the need for caution about granting summary judgment" for defendants in discrimination cases where "the merits turn on a dispute as to the [defendant's] intent." Holcomb v. Iona Coll. , 521 F.3d 130, 137 (2d Cir. 2008). Notwithstanding, "[t]hough caution must be exercised in granting summary judgment where motive is genuinely in issue, summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." McLee v. Chrysler Corp. , 109 F.3d 130, 135 (2d Cir. 1997) (internal citations omitted); see also Abdu-Brisson v. Delta Air Lines , 239 F.3d 456, 466 (2d Cir. 2001) (but, it remains "beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases").
Discussion
I. Discrimination
An employer violates "the Rehabilitation Act when it fails to ‘mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee,’ unless the employer can establish that the accommodations would ‘impose an undue hardship.’ " Jackan v. New York State Dept. of Lab. , 205 F.3d 562, 566 (2d Cir. 2000) ; see also 29 U.S.C. § 794(a). Kaganovich's discrimination claim under the Rehabilitation Act is analyzed according to the familiar McDonnell Douglas burden-shifting framework. "Under this framework, a plaintiff must first establish a prima facie case of discrimination." Ruiz v. Cty. of Rockland , 609 F.3d 486, 491 (2d Cir. 2010). To establish a prima facie case of discrimination based on a failure to reasonably accommodate a disability, plaintiff must establish "(1) that he is an individual who has a disability within the meaning of the statute, (2) that an employer covered by the statute had notice of his disability, (3) that with reasonable accommodation, he could perform the essential functions of the position sought, and (4) that the employer has refused to make such accommodations." Stone v. City of Mount Vernon , 118 F.3d 92, 96–97 (2d Cir. 1997).
The statute of limitations on Rehabilitation Act claims is three years. See Harris v. City of New York , 186 F.3d 243, 248 (2d Cir. 1999). Although the events at issue here fall outside that window, this is due to the time EEOC needed to investigate and decide on Kaganovich's claims. "Claims are tolled during mandatory administrative exhaustion." K.C. v. Chappaqua Cent. Sch. Dist., No. 16-CV-3138 (KMK), 2018 WL 4757965, at *18 (S.D.N.Y. Sept. 30, 2018) (citing Gonzalez v. Hasty , 651 F.3d 318, 324 (2d Cir. 2011) ). That rule applies here, since "[f]ederal employees who seek to bring actions in federal court under ... the Rehabilitation Act must first exhaust their administrative remedies." Heins v. Potter , 271 F. Supp. 2d 545, 551 (S.D.N.Y. 2003). The parties do not dispute that Kaganovich exhausted his administrative remedies and timely filed the instant action within ninety days of receiving EEOC's Notice of Right to Sue. See Tsekhanskaya v. City of New York , No. 18-CV-7273 (KAM) (LB), 2020 WL 5802329, at *7 (E.D.N.Y. Sept. 29, 2020) ; EEOC Decision at 2, 10; Dkts. 28-10, 28-15; Compl. ¶¶ 15–24. Accordingly, this action is not barred on either limitations or exhaustion grounds.
Although many such claims are brought under the Americans with Disabilities Act ("ADA"), which does not apply to federal employees like Kaganovich, "[b]ecause the ADA and the Rehabilitation Act are very similar, [the Court] may ‘look to caselaw interpreting one statute to assist ... in interpreting the other.’ " Hodges v. Holder , 547 F. App'x 6, 6 n.1, 7–8 (2d Cir. 2013) (quoting Francis v. City of Meriden , 129 F.3d 281, 284 n.4 (2d Cir. 1997) ); see also 29 C.F.R. § 1614.203(b) ; Atencio v. United States Postal Serv. , 198 F. Supp. 3d 340, 355 (S.D.N.Y. 2016) ("The Rehabilitation Act provides the sole means by which a federal employee may raise an employment discrimination claim on the basis of disability.").
The parties dispute only the fourth element, arguing over whether VA reasonably accommodated Kaganovich. See Def.’s Mem., Dkt. 26, at 12–20; Pl.’s Opp'n Mem., Dkt. 29, at 7–18. On this point, "[t]he plaintiff bears the burdens of both production and persuasion as to the existence of some accommodation that would allow [him] to perform the essential functions of [his] employment." McBride v. BIC Consumer Products Mfg. Co., Inc. , 583 F.3d 92, 97 (2d Cir. 2009). An employer may accommodate a disabled employee in various ways, including, as relevant here, "modification of job duties and schedules ... and, under certain circumstances, ‘reassignment to a vacant position.’ " Id. (quoting 42 U.S.C. § 12111(9)(B) ); see also 29 C.F.R. § 1630.2(o )(2). The employee bears a light burden to show the proposed accommodation was reasonable, after which "the burden shifts to the employer to demonstrate that the employee's proposed accommodation would have resulted in undue hardship." Parker v. Columbia Pictures Industries , 204 F.3d 326, 332 (2d Cir. 2000) ; see also McBride , 583 F.3d at 97 n.3.
A. Failure to Transfer
Kaganovich argues that VA failed to accommodate him by not transferring him out of the ICU before October 2013 and by failing to accommodate him within his telemetry post. See Pl.’s Opp'n Mem. at 7–18. The dates at issue, as raised and exhausted before EEOC, are from January 25, 2013 to May 6, 2013. See May 16, 2016 EEOC Tr. at 8:9–11:5; EEOC Decision at 2. As to Kaganovich's failure-to-transfer claim, he bears the burden to establish the "existence of a vacant position for which [he] is qualified." McBride , 583 F.3d at 97. To be a reasonable accommodation, the vacancy must have existed "at or around the time when accommodation was sought," and cannot constitute a promotion. Id. at 97–98. VA counters that Kaganovich has shown no suitable vacancies around the time of his accommodation requests, and that he already had reasonable accommodations in the telemetry and Employee Health positions. See Def.’s Mem. at 12–20.
In his first attempt to meet his burden, Kaganovich contends that VA had a practice of transferring employees to "unposted" positions that it had not yet announced publicly—a claim for which he offers little evidence—and should have done the same for him. See Pl.’s Opp'n Mem. at 7–8; Pl.’s EEO Interview at 10. In the absence of any showing by Kaganovich that a specific suitable vacancy was open at the time of the requested transfer, the argument fails. As a matter of law, "an employer need not reassign an employee if no position is vacant. Nor is the employer obliged to create a new position to accommodate the employee." Norville v. Staten Island U. Hosp. , 196 F.3d 89, 99 (2d Cir. 1999) ; Garvey v. Town of Clarkstown , 13-CV-8305 (KBF), 2018 WL 1026379, at *12 (S.D.N.Y. Feb. 22, 2018), aff'd sub nom. Garvey v. Sullivan , 773 F. App'x 634 (2d Cir. 2019) (holding that employer's history of creating light-duty positions for others did not obligate it to create one for plaintiff). Therefore, while an employer's "established policy of such transfers" can support a failure-to-transfer claim, this is only so where the employee has specifically identified "another available position" for which he is qualified and to which he sought transfer. Needle v. Alling & Cory, Inc. , 88 F. Supp. 2d 100, 107 (W.D.N.Y. 2000) (citing Bates v. Long Island R. Co. , 997 F.2d 1028, 1035 (2d Cir. 1993) ).
Nor does VA policy take it beyond applicable statutes. See Dkt. 32-1 at 7 (VA policy stating that "[r]eassignments are made only to vacant positions and to employees who are qualified for the new position"). At any rate, though not particularly significant, it seems apparent that a position could be "unposted" but vacant. That VA had suitable, if unposted, vacancies at the time others requested transfer does not mean it had one for Kaganovich. Regardless, the burden remains with Kaganovich go beyond this "mere speculation" and identify a specific vacancy for which he was qualified at the relevant time. Jackan , 205 F.3d at 566. Indeed, he admits he was unaware of any vacancies when he made his January and September 2012 accommodation requests. See Kaganovich Tr. at 73:13–18, 88:2–10. Now, after extensive discovery, he still has not pointed to any vacancies around that time. Cf. Jackan , 205 F.3d at 568 n.4 (2d Cir. 2000) (plaintiff may identify pertinent vacancies via discovery). Nor, of course, was VA obligated to act on his announcement to Vigliarolo that he had "decided to work in outpatient settings." Dkt. 32-23.
Kaganovich does point to four vacancies in spring 2013. On March 13, 2013, VA counsel told his counsel there were "two positions available, one in employee health and one in an inpatient unit doing admissions and discharges." Dkt. 32-42. Kaganovich does not claim he actually desired or accepted either position, and the last communication in the record is an email from his counsel to VA counsel stating he would have questions about them. Id. ; see also Dkt. 28-12 (Kaganovich expressing doubts about whether Employee Health position would accommodate his medical needs). He cannot argue, therefore, that VA wrongly denied him these positions. Cf. Fox v. Costco Wholesale Corp. , 918 F.3d 65, 73 (2d Cir. 2019) (holding employer did not fail to accommodate employee where employee had rejected reassignment offer); Lovejoy-Wilson v. NOCO Motor Fuel, Inc. , 263 F.3d 208, 218 (2d Cir. 2001) (noting that anti-discrimination law covers employees " ‘who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires ’ " (quoting 42 U.S.C. § 12111(8) ) (emphasis in original)).
Plaintiff next cites two April 2013 vacancies in Nursing Informatics for which he applied, interviewed and was rejected. See Pl.’s Opp'n Mem. at 9–11. He concedes that one of these positions, Nursing Informatics Coordinator, would have constituted a promotion. See Kaganovich Tr. at 165:18–23; Dkt. 32-41. Yet, as noted earlier, where an employee seeks transfer as an accommodation, "the identified position cannot be such that reassignment to it would have involved a promotion." McBride , 583 F.3d at 98. That Kaganovich claims he was qualified for the promotion is of no consequence under the law. See Pl.’s 56.1 Reply ¶ 14; Pl.’s 56.1, Dkt. 31, ¶ 106. He was, therefore, not entitled to receive this position as an accommodation.
It is, however, undisputed that the second position, Nursing Informatics Specialist, was at Kaganovich's level. See Kaganovich Tr. at 165:18–23. VA sharply retorts, though, that it was not obligated to transfer him because the position was not vacant "at or around the time" he requested accommodation. McBride , 583 F.3d at 97 ; see also Shannon v. New York City Transit Auth. , 332 F.3d 95, 104 (2d Cir. 2003) ("[T]he position sought must be vacant within a reasonable amount of time."). The vacancy appeared over a year after his first reasonable accommodation request and over six months after his second. It is true that "a six-month period between a vacant position and a request to transfer seems lengthy, particularly in light of McBride ’s directive that a vacant position must be available ‘at or around’ the time of the requested transfer." Purse v. Mt. Vernon City Sch. Dist. , 17-CV-8565 (KMK), 2020 WL 1140876, at *13 (S.D.N.Y. Mar. 9, 2020) (quoting McBride , 583 F.3d at 97 ). That said, Kaganovich had continued to request a transfer throughout the time in question, including in his November 2012 request for reconsideration of the RAC decision, January 2013 EEO complaint, March 2013 discussions with VA counsel and April 2013 job applications. See Dkts. 32-9, 32-42; EEO Rept. at 7, 13–16; see also Gonsalves v. J.F. Fredericks Tool Co., Inc. , 964 F. Supp. 616, 622–23 (D. Conn. 1997) (request for accommodation may be informal and "does not require an employee to speak any magic words"). Because the Nursing Informatics Specialist position became available during the period in which Kaganovich was requesting transfer, the Court finds the vacancy's timing is not, standing alone, fatal to his claim.
More important, however, is the question of whether, aside from his say so, Kaganovich has met his burden to show he was qualified to become a Nursing Informatics Specialist. See Norville , 196 F.3d at 99 ; Shannon , 332 F.3d at 99–100. VA contends he has not. See Def.’s Reply, Dkt. 33, at 10. In determining whether Kaganovich was qualified, such that he could perform the job's essential functions, the Court, in accord with precedented guidance, "will give considerable deference to an employer's judgment regarding what functions are essential," looking in part to "written job descriptions." McMillan v. City of New York , 711 F.3d 120, 126 (2d Cir. 2013) (citing Stone , 118 F.3d at 97 ). The record offers a trove of material sources. For instance, there is the posting that VA itself created to give notice of a vacancy for the position of Nursing Informatics Specialist. In its posting, VA described the position as one with core responsibilities of "provid[ing] clinical information systems support to nurses and allied health professionals throughout" VA's New York Harbor Healthcare System and assessing workflow processes and system enhancements. Dkt. 32-41; see also Nursing Informatics: Scope and Standards of Practice , Am. Nurses Ass'n, https://www.nursingworld.org/nurses-books/nursing-informatics-scope-and-standards-of-practice-2nd-ed (defining nursing informatics as "the specialty that integrates nursing science with multiple information and analytical sciences to identify, define, manage and communicate data, information, knowledge and wisdom in nursing practice").
It is beyond contest that Kaganovich met a number of the qualifications required by VA's job description, such as "three years of successful nursing practice," a Bachelor of Science in Nursing degree, work toward a Master of Science in Nursing degree in informatics and active registration as a nurse. See Kaganovich Tr. at 62:16–21, 165:2–17; Kaganovich Aff. at 21; May 16, 2016 EEOC Tr. at 20:25–21:4; Dkt. 32-41. He adds that he obtained two copyrights for medical applications and developed a professional website. See Kaganovich Tr. at 165:2–17; Kaganovich Aff. at 21. Importantly, however, the job description also required candidates to have "[d]emonstrated experience in nursing/health informatics." Dkt. 32-41.
It is at this junction that Kaganovich's train appears to go off the rails. He has not demonstrated that, aside from his pursuit of the master's degree (a qualification listed separately), he had nursing informatics experience. He offers no explanation of how his website or copyrights are related to nursing informatics. As a consequence, neither those life accomplishments nor anything else in the rest of the record, for that matter, shows he had experience in the field of nursing informatics, as he had exclusively been an ICU nurse since starting at VA in 2000. See Pl.’s 56.1 Reply ¶ 3; Kaganovich Tr. at 25:14–18. In all, then, and viewing the facts in the light most favorable to him, Kaganovich has not met his burden to show that he possessed the requisite job qualifications. Succinctly, because "defendant has no obligation to retrain plaintiff for a position for which he is not qualified," his failure-to-transfer claim as to this position is foreclosed. Needle , 88 F. Supp. 2d at 107 (citing Mitchell v. Washingtonville Cent. Sch. Dist. , 190 F.3d 1, 9 (2d Cir. 1999) ). Kaganovich, however, has identified no other vacant position for which he was qualified at or around the time he requested reassignment. Finally, turning out the lights, he also concedes that the Employee Health position to which he was transferred in October 2013 was a suitable accommodation. See Pl.’s 56.1 Reply ¶ 16. Therefore, he cannot make out a prima facie case of discrimination on his failure-to-transfer theory.
B. Failure to Accommodate by Job Modification
Shifting gears, Kaganovich also argues that VA failed to accommodate him within his job at the telemetry station, primarily by failing to provide him with scheduled and unscheduled breaks during which he could test and manage his blood sugar levels. See Pl.’s Opp'n Mem. at 11–18. Indeed, a common accommodation is the "modification of job duties and schedules," McBride , 583 F.3d at 97 —an accommodation which, under VA policy, is preferable to the "last resort" option of reassignment, see Dkt. 32-1 at 7. VA counters that Kaganovich was reasonably accommodated in the telemetry post, where he had a reduced work schedule, was seated, could take time off for doctors’ appointments and could adequately manage his diabetes. See Def.’s Mem. at 17–20; Def.’s Reply at 11–13.
Although VA was likely not required to assign Kaganovich the telemetry position in the first place, it was the accommodation VA chose and it became Kaganovich's permanent job for over 18 months. It was the job he had throughout the period at issue on this claim—January 25, 2013 to May 6, 2013, as raised and exhausted before EEOC. See May 16, 2016 EEOC Tr. at 8:9–11:5; EEOC Decision at 2. In it, he was entitled to request further accommodations if needed. "An employer's duty to make reasonable accommodations is a continuing one, and will not be satisfied by a single effort." Picinich v. United Parcel Serv. , 321 F. Supp. 2d 485, 516 (N.D.N.Y. 2004) ; see also Krikelis v. Vassar Coll. , 581 F. Supp. 2d 476, 487 (S.D.N.Y. 2008) (employer may need "to revise the offered accommodation" given employee's explanation of its inadequacy). It "continues when ... further accommodation is needed," thereby "encouraging employers to seek to find accommodations that really work, and [ ] avoiding the creation of a perverse incentive for employees to request the most drastic and burdensome accommodation possible out of fear that a lesser accommodation might be ineffective." Humphrey v. Mem'l Hosps. Ass'n , 239 F.3d 1128, 1138 (9th Cir. 2001). At the same time, "reasonable accommodation may take many forms," and employers are not required to provide "a perfect accommodation or the very accommodation most strongly preferred by the employee." Noll v. International Business Machines Corp. , 787 F.3d 89, 95 (2nd Cir. 2015).
The telemetry position did not appear to be vacant—the monitors had been staffed by rotating ICU nurses—and, as discussed, an employer need not create a job as an accommodation. See May 16, 2016 EEOC Tr. at 118:12–19; King v. Town of Wallkill , 302 F. Supp. 2d 279, 291 (S.D.N.Y. 2004). For reasons cut from the same cloth, it is also unlikely that VA was obligated to modify Kaganovich's ICU nursing job in this way. The modification of job duties as an accommodation need "never involve the elimination of an essential function of a job." Shannon , 332 F.3d at 100. Kaganovich and his doctors stated that it would be dangerous and difficult for him to continue performing the patient care duties of an ICU nurse given his diabetes and its complications. See May 16, 2016 at 28:5–29:7; Kaganovich Tr. at 39:3–40:21, 42:8–46:2; Dkt. 28-1 at 7. While the parties have not argued the point, direct patient care would appear to be an essential function of an ICU nurse. See Davis v. New York City Health and Hosps. Corp. , 508 F. App'x 26, 29 (2d Cir. 2013). But see Stone , 118 F.3d at 97, 99 (essential-function analysis is "fact-intensive"); Borkowski v. Valley Cent. Sch. Dist. , 63 F.3d 131, 140 (2d Cir. 1995) (cautioning against "reliance on intuition"). If so, VA was not required to modify Kaganovich's job by eliminating those duties.
Kaganovich did request further accommodation in the telemetry position, primarily in the form of scheduled and unscheduled breaks. See, e.g. , Dkts. 28-3, 28-5, 28-7, 28-10, 28-12, 32-9. Factual disputes persist as to whether, and to what extent, Kaganovich actually received these breaks. When RAC informed him that his September 2012 reasonable accommodation request had been granted "as follows," it made no mention of his leaving the station to take unscheduled breaks. Dkt. 28-9. There is undisputed evidence from Kaganovich and fellow nurses that he experienced difficulty getting both scheduled and unscheduled breaks on a number of dates, although Roberts and Vigliarolo claim they were not aware of these instances at the time. See, e.g. , May 16, 2016 EEOC Tr. at 79:12–82:3, 88:16–92:20, 101:20–102:18, 104:20–105:20, 121:9–124:8; Aug. 16, 2016 EEOC Tr. at 93:10–100:23, 204:15–206:19; Aug. 17, 2016 EEOC Tr. at 70:23–71:15; 114:4–25; Dkt. 32-31.
In response to Kaganovich's contention that he had trouble getting scheduled breaks because he was often left off the daily assignment sheets used to record nurses’ breaks and hours, Vigliarolo and Roberts countered that it was common practice not to record breaks, that nurses’ schedules were flexible and that coverage was available throughout the day. See May 16, 2016 EEOC Tr. at 75:14–76:15, 79:10–83:11; Aug. 17, 2016 EEOC Tr. at 14:2–25, 71:23–72:22; Roberts EEO Interview, Dkt. 32-21, at 4–5. Although Vigliarolo and Roberts further testified that it should have been easy to find coverage during the Manhattan VA hospital nurses’ six-month relocation to Brooklyn after Hurricane Sandy, Kaganovich testified that those nurses did not cover him for breaks and that staffing levels dropped precipitously after their departure. See Kaganovich Tr. at 169:22–171:21, 173:21–177:25; Dkt. 32-31 at 3; Aug. 17, 2016 EEOC Tr. at 73:20–76:6, 115:2–117:17, 138:5–15; Dkt. 32-37.
Perhaps recognizing the factual disputes surrounding Kaganovich's breaks, VA rushes to underscore its core argument that even if Kaganovich could not take breaks as needed, he was already reasonably accommodated and able to manage his diabetes in the telemetry post. See Def.’s Mem. at 18–19. Therefore, VA contends, it fulfilled its duty to provide a reasonable accommodation, even if not "a perfect accommodation or the very accommodation most strongly preferred by the employee." Noll , 787 F.3d at 95. To that point, an accommodation is reasonable if it "enable[s] an individual with a disability who is qualified to perform the essential functions of that position ... [or] to enjoy equal benefits and privileges of employment." 29 C.F.R. § 1630.2(o )(1)(ii), (iii).
"The hallmark of a reasonable accommodation is effectiveness." Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis. , 804 F.3d 178, 189 (2d Cir. 2015). "It is the word ‘accommodation,’ not the word ‘reasonable,’ that conveys the need for effectiveness. An ineffective ‘modification’ or ‘adjustment’ will not accommodate a disabled individual's limitations." US Airways, Inc. v. Barnett , 535 U.S. 391, 400, 122 S. Ct. 1516, 1522, 152 L. Ed. 2d 589 (2002) (emphasis in original). Moreover, "[t]he reasonableness of an employer's accommodation is a ‘fact-specific’ question that often must be resolved by a factfinder," Noll , 787 F.3d at 94, and is normally "unsuited for a determination on summary judgment," Scalera v. Electrograph Sys., Inc. , 848 F. Supp. 2d 352, 367–68 (E.D.N.Y. 2012) (denying summary judgment to employer based on fact issues as to whether its five offered accommodations were "not provided or ... inadequate"). Summary judgment for the employer is warranted only if the accommodation was "plainly reasonable." Noll , 787 F.3d at 94 (citing Wernick v. Fed. Reserve Bank of N.Y. , 91 F.3d 379, 385 (2d Cir. 1996) ).
In support of its contention that the telemetry job was a reasonable accommodation, VA offers the expert testimony of endocrinologist Dr. Ronald Tamler, who concludes that "the availability at the telemetry station of both glucose tablets to treat low blood sugar, and an insulin pump as well as a continuous glucose monitoring device (CGM) on his person should, in my opinion, have been sufficient for plaintiff to address his diabetic needs while working." Tamler Rept. at 8–9. Dr. Tamler also observes that Kaganovich had experienced episodes of low blood sugar both during and outside of work hours and had varying levels of control over his blood sugar from 2012 to 2013. Id. at 6–7. He states that eating a full meal is not a recommended treatment for low blood sugar, but that regular mealtimes are generally helpful to individuals with insulin-dependent diabetes. Id. at 8. He echoes Kaganovich's testimony that finger-stick tests were recommended to confirm blood sugar levels during the time in question, but expresses confusion as to why Kaganovich felt he could not perform those tests at the telemetry station. Id. at 9.
In rebuttal, Kaganovich has submitted multiple doctors’ notes from his treating physicians to support his claim that the telemetry position was not, without more, a reasonable accommodation. See Pl.’s Opp'n Mem. at 11–18; Dkt. 32-12. Courts routinely consider doctors’ notes and other evidence from a plaintiff's treating physicians when assessing proposed accommodations, though these are reviewed alongside medical evidence from the opposing party. See, e.g. , Jarrell v. Hosp. for Special Care , 626 F. App'x 308, 311 (2d Cir. 2015) ; Purse , 2020 WL 1140876, at *13 ; Quadir v. New York State Dep't of Lab. , 39 F. Supp. 3d 528, 540 (S.D.N.Y. 2014).
The first of the medical providers tendered by Kaganovich was Dr. Debra Margulies, who treated Kaganovich for his diabetes and wrote in a January 10, 2012 letter submitted with his first reasonable accommodation request that he could better control his blood sugar levels, and thereby help "avoid end-organ complications," by having "more predictable times during which he can sit down for a meal plus snacks and take his mealtime insulin as prescribed." Dkt. 28-1 at 8. On May 2, 2012, following his assignment to telemetry, she wrote a letter to VA describing his need for breaks in greater detail. She wrote, "It is essential that he have protected time at work for proper care of his diabetes. He requires 10 minute blocks to check his sugar when he deems necessary, which may be 4-6 times in a work day. He also requires time to eat a full lunch as well as 2 snacks during the day," plus "time to check and treat" occurrences of high or low blood sugar. Dkt. 32-8 at 7. Kaganovich also submitted this letter with his September 2012 reasonable accommodation request. Id. Cf. Krikelis , 581 F. Supp. 2d at 487 (observing that "a further doctor's note" or "written explanation of the insufficiency of the offered accommodation" could trigger employer's duty "to revise the offered accommodation"). His doctors twice asked that he take a week off from work to recover from incidents of abnormal blood sugar levels, which Kaganovich testified occurred after he was not relieved at the telemetry station for breaks: Dr. Margulies on March 15, 2013 and Dr. Julie Nissim on May 20, 2013. See Dkt. 32-12 at 4–5; Kaganovich Aff. at 12–13.
Similarly, in an August 15, 2013 letter from endocrinologist Dr. Nidhi Narayan, she gave her "medical opinion that he required more frequent breaks at work to be able to check his finger sticks due to his condition of being a type 1 diabetic. He also needs to be able to eat when he needs to help manage hypoglycemia." Dkt. 32-12 at 2. Dr. Norwood, RAC's sole physician, likewise testified that Kaganovich needed to take breaks " ‘as scheduled’ but also ‘as needed’ " to "be able to eat," and opined that the "the options stated in that memorandum conveying the committee's findings are inadequate to meet the medical needs of an employee with his condition." Norwood Aff. at 5–6. Last, Kaganovich—himself a nurse and Certified Diabetes Educator—echoed these doctors’ requests. See May 16, 2016 EEOC Tr. at 21:2–17; Dkt. 28-7. His testimony also addressed a point raised by Dr. Tamler, stating that he had to leave the telemetry station to wash his hands before eating or conducting blood tests given VA infection control policy and ICU's high infection risks. See Kaganovich Tr. at 119:25–120:6; Kaganovich Aff. at 5.
In all, the evidence, viewed in the light most favorable to Kaganovich, does not permit the Court to conclude as a matter of law that VA reasonably accommodated him while working in the telemetry position. Although VA was not obligated to provide Kaganovich with every requested accommodation, "[i]f an accommodation other than the one requested is provided, that accommodation must sufficiently address the limitations of the disabled employee." Scalera , 848 F. Supp. 2d at 368. Factual issues surrounding the sufficiency and effectiveness of VA's accommodations persist, and bar it from obtaining summary judgment as to this claim. Accordingly, the task of determining whether VA reasonably accommodated Kaganovich during his time in the telemetry position from January to May 2013 will fall to a jury. If the jury finds that the telemetry position was not, on its own, a reasonable accommodation, Kaganovich will bear a light burden to show his proposed accommodation—scheduled and unscheduled breaks—was reasonable, after which the burden will shift to VA to establish this accommodation would have resulted in undue hardship. Parker , 204 F.3d at 332. "Ultimately, the jury will decide whether to credit [p]laintiff's version or [d]efendant's version of the facts." Ugactz v. United Parcel Serv., Inc. , No. 10-CV-1247 (MKB), 2013 WL 1232355, at *13 n.23 (E.D.N.Y. Mar. 26, 2013).
Although failure-to-accommodate claims must be decided on a case-by-case basis, breaks are a generally recognized form of reasonable accommodation for employees with diabetes. See, e.g. , Nieblas-Love v. New York City Hous. Auth. , 165 F. Supp. 3d 51, 73 (S.D.N.Y. 2016) (holding that plaintiff with diabetes had been accommodated because he was "allowed to take as many breaks as he needed in order to take his medication or to use the restroom"); Nawrot v. CPC Int'l , 259 F. Supp. 2d 716, 726 (N.D. Ill. 2003) ("[T]o hold that a person with potentially life threatening diabetes is not entitled to accommodations so that he may monitor his blood sugar levels would force diabetics like [plaintiff] to choose between working while risking physical harm and death, or unemployment"); Diabetes in the Workplace and the ADA , EEOC (May 15, 2013), https://www.eeoc.gov/laws/guidance/diabetes-workplace-and-ada (listing, as a reasonable accommodation for employees with diabetes, "breaks to eat or drink, take medication, or test blood sugar levels"). But see Graves v. Finch Pruyn & Co. , No. 03-CV-266 (GLS) (RFT), 2009 WL 819380, at *5 (N.D.N.Y. Mar. 27, 2009), aff'd , 353 F. App'x 558 (2d Cir. 2009) ("[T]he fact that such a request may constitute a reasonable accommodation does not, ipso facto , mean that it is reasonable in every case.").
Because the Court denies summary judgment on this claim, it does not address the parties’ dispute over whether VA engaged in the "interactive process" envisioned by the statute. See Jackan , 205 F.3d at 566. Importantly, however, an employer's failure to engage in an interactive process is not an independent source of liability, but rather "can be introduced as evidence tending to show disability discrimination." Sheng v. M&T Bank Corp. , 848 F.3d 78, 87 (2d Cir. 2017) (citing McBride , 583 F.3d at 101 ).
II. Retaliation
Like Kaganovich's discrimination claim, his retaliation claim against VA is also subject to the McDonnell Douglas burden-shifting framework, requiring a plaintiff to make out a prima facie case of "1) participation in a protected activity; 2) the defendant's knowledge of the protected activity; 3) an adverse employment action; and 4) a causal connection between the protected activity and the adverse employment action." Zann Kwan v. Andalex Grp. LLC , 737 F.3d 834, 844 (2d Cir. 2013) (internal citation and quotation marks omitted). "If plaintiff sustains this initial, de minimis burden, a presumption of retaliation arises, and the defendant must articulate a legitimate, non-retaliatory reason for the adverse employment action." Broich v. Inc. Vill. of Southampton , 462 F. App'x 39, 45 (2d Cir. 2012) (internal citation and quotation marks omitted). If defendant does so, plaintiff must then prove that the defendant's proffered reason is a mere pretext for discrimination. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Prog., Inc. , 198 F.3d 68, 72 (2d Cir. 1999).
The parties dispute the third and fourth elements of Kaganovich's prima facie case, squaring off over whether his "satisfactory" 2014 performance review and the delayed approval of his leave requests were adverse employment actions connected to his complaints of discrimination. To constitute an adverse employment action, "an ‘employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.’ " Kelly v. New York State Off. of Mental Health , 200 F. Supp. 3d 378, 403 (E.D.N.Y. 2016) (quoting Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 57, 126 S. Ct. 2405, 2409, 165 L. Ed. 2d 345 (2006) ). The analysis is context-dependent, and "alleged acts of retaliation need to be considered both separately and in the aggregate, as even minor acts of retaliation can be sufficiently ‘substantial in gross’ as to be actionable." Hicks v. Baines , 593 F.3d 159, 165 (2d Cir. 2010) (quoting Zelnik v. Fashion Inst. of Tech. , 464 F.3d 217, 227 (2d Cir. 2006) ). The anti-discrimination statutes do not, however, immunize employees from "trivial harms" such as "those petty slights or minor annoyances that often take place at work and that all employees experience." Burlington N. & Santa Fe Ry. Co. , 548 U.S. at 68, 126 S.Ct. 2405. Instead, a plaintiff must offer evidence of "material adversity." Id. (emphasis in original); see also Miller v. McHugh , 814 F. Supp. 2d 299, 313 (S.D.N.Y. 2011) ("[P]laintiff must proffer objective indicia of material disadvantage; subjective, personal disappointment[ ] is not enough." (internal citation and quotation marks omitted)).
Kaganovich boldly contends that his 2014 "satisfactory" rating was an adverse employment action. See Pl.’s Opp'n Mem. at 19–21; Dkt. 28-13. As a matter of law, however, "[a] performance evaluation that is ‘Satisfactory,’ without more, is insufficient to constitute a material adverse action." Alywahby v. Shinseki , No. 01-CV-6512 (NGG) (LB), 2009 WL 5166271, at *6 (E.D.N.Y. Dec. 29, 2009) (collecting cases); see also, e.g. , Moy v. Perez , 712 F. App'x 38, 41 (2d Cir. 2017) (finding no adverse employment action where plaintiff's "performance evaluation was still positive (albeit less positive than in previous years)"); Byrne v. Telesector Res. Grp., Inc. , 339 F. App'x 13, 17 (2d Cir. 2009) (rating of "meets expectations" was not adverse action, even though it was "lower than [plaintiff's] previous evaluations"); Staff v. Pall Corp. , 233 F. Supp. 2d 516, 540 (S.D.N.Y. 2002), aff'd , 76 F. App'x 366 (2d Cir. 2003) (holding that no reasonable factfinder could conclude plaintiff's "proficient" review was negative). Even "negative evaluations, by themselves, do not constitute adverse employment actions" without related harms. Dixon v. City of New York , No. 03-CV-343 (DLI) (VVP), 2008 WL 4453201, at *16 n.13 (E.D.N.Y. Sept. 30, 2008).
Kaganovich, tellingly, has not cited a single case to the contrary or claimed his "satisfactory" rating was negative. Under VA's proficiency rating system, "satisfactory" meant the employee "has met all criteria, at times exceeds expectations." Dkt. 28-13 at 2. He has listed reasons he felt he deserved a rating of "outstanding"—a rating he had previously received under a different supervisor—such as his work making two staff presentations and participating in outside research. See May 16, 2016 EEOC Tr. at 187:11–188:14, 201:7–24, 207:25–212:8, 215:15–219:10; Aug. 16, 2016 EEOC Tr. at 174:22–175:10. Roberts and Vigliarolo disagreed, testifying that they considered his efforts as either falling within the expectations of his job or as irrelevant. See May 17, 2016 EEOC Tr. at 168:3–178:22; Aug. 17, 2016 EEOC Tr. at 121:6–125:2. These differences of opinion do not transform a "satisfactory" rating into an adverse employment action. Although Kaganovich adds that Roberts had not spent enough time supervising him in Employee Health to properly rate him, and that she failed to meet with him about the evaluation as required by VA policy, this, too, fails to establish retaliation. See, e.g. , Moy , 712 F. App'x at 41 (rejecting plaintiff's claim that "the circumstances surrounding [the] issuance" of lower-than-previous evaluation constituted adverse employment action); Collazo v. Cty. of Suffolk , 163 F. Supp. 3d 27, 54 (E.D.N.Y. 2016) (finding plaintiff's contention that "her evaluation was completed after working under [supervisor's] supervision for only a short time does not suffice" to establish retaliation).
Nor, importantly, has Kaganovich shown the rating materially harmed his employment. Although he contends it hurt his chances at promotion, he offers only speculation to support this claim. See Kaganovich Tr. at 166:19–167:22 (testifying that he was unaware why he did not get the Nursing Informatics Coordinator position and replying, when asked if there was a VA policy on proficiency ratings and promotions, "I never heard [of] this policy, but chances to get this position is zero."). He received the 2014 rating around one year after applying for, and being denied, the higher-level Nursing Informatics Coordinator position. See Pl.’s 56.1 Reply ¶¶ 14, 18; Dkt. 32-36 at 10–11. Given the lack of any evidence of material harm, and in line with the numerous courts to have considered similar claims, the Court grants VA's motion for summary judgment as to this part of Kaganovich's retaliation claim.
Furthermore, to the extent Kaganovich now seeks to claim retaliation based on his 2012 and 2013 "satisfactory" reviews, he is barred from doing so because he did not raise or exhaust this claim in the administrative proceedings before EEOC. See May 16, 2016 EEOC Tr. at 10:13–11:5; EEOC Decision at 9; Dkt. 28-15; Holtz v. Rockefeller & Co. , 258 F.3d 62, 83 (2d Cir. 2001). That claim would fail in any event because, as explained above, Kaganovich has not shown a "satisfactory" rating is negative or that these prior ratings materially harmed his employment.
On a different track, Kaganovich claims VA retaliated against him by taking longer than five days—the deadline set by union policy—to approve his requests for seven days of leave to attend medical appointments in April 2014. See Pl.’s Opp'n Mem. at 21–22; Pl.’s 56.1 ¶¶ 134–36. VA admits that Kaganovich, along with other employees, experienced minor delays, but says this was a small inconvenience and that all his requests were ultimately approved. See Pl.’s 56.1 Reply ¶ 20; Def.’s Mem. at 23–24; Def.’s Reply at 15–17; Aug. 16, 2016 EEOC Tr. at 72:8–17, 221:16–223:11; Aug. 17, 2016 EEOC Tr. at 126:4–128:9; Dkt. 32-32 at 7. Kaganovich submitted these leave requests on March 27, 2014. See Pl.’s 56.1 ¶ 134; Dkt. 32-32 at 21–39. When he followed up with Roberts about approving them, he received automatically generated replies from her email account stating that his messages had been deleted without being read, though Roberts states that she read the messages in preview mode. See Dkt. 32-32 at 21; Aug. 17, 2016 EEOC Tr. at 129:24–130:14. The leave requests were all approved on April 3, 2014, following prodding from a union representative. See Pl.’s 56.1 ¶ 134; Dkt. 32-32 at 24–27. By that point, Kaganovich had canceled an April 3 medical appointment because of the delay. See Pl.’s 56.1 ¶ 136; Dkt. 32-32 at 30–33. This is another dead end. Kaganovich fails to establish that this two-day delay in approval of his leave requests caused "material adversity" sufficient to dissuade a reasonable employee from complaining of discrimination. Burlington N. & Santa Fe Ry. Co. , 548 U.S. at 68, 126 S.Ct. 2405. He does not, for example, claim he was unable to reschedule the canceled doctor's appointment, or offer any evidence that his health was affected by that cancelation. He also seems to have avoided a cancelation fee. See Kaganovich Tr. at 147:15–148:3. Addressing similar claims, courts have held that "a short delay in approval of a leave request does not constitute an adverse employment action." Pauling v. Gates , No. 10-CV-1196 (LMB) (JFA), 2011 WL 1790137, at *6 (E.D. Va. May 6, 2011) (citing Abad-Santos v. Clark County , 233 F. App'x 625, 627 (9th Cir. 2007) ); see also Baloch v. Kempthorne , 550 F.3d 1191, 1199 (D.C. Cir. 2008) (requiring plaintiff to submit doctor's notes with sick leave requests was not materially adverse action where requests "were granted every time"); Gonzalez v. Sears Holding Co. , 980 F. Supp. 2d 170, 210 (D.P.R. 2013) (no adverse action where plaintiff "had to submit a sick leave request form ‘two or three times’ " but received paid leave).
The only negative consequences Kaganovich claims to have experienced from the delay are stress and anxiety. See Kaganovich Tr. at 152:5–11. Yet these subjective feelings do not, without more, turn the briefly overdue leave approval into an adverse employment action. See, e.g. , Walia v. Napolitano , No. 11-CV-2512 (SJF) (SIL), 2017 WL 10378189, at *10 (E.D.N.Y. Dec. 4, 2017) (rejecting "[p]laintiff's attempt to transform this delay" of 150 days in approving his removal from federal service "into an adverse employment action by alleging that it caused him to ‘endure extreme stress and hardship’ "); Rakowsky v. Johnson , No. 15-CV-169 (DNH) (CFH), 2017 WL 8777369, at *5 (N.D.N.Y. Oct. 25, 2017), aff'd sub nom. Rakowsky v. Nielsen , 744 F. App'x 743 (2d Cir. 2018) ("[S]ubjective feelings of anxiety or embarrassment are insufficient to constitute an adverse employment action."); Miksic v. TD Ameritrade Holding Corp. , No. 12-CV-4446 (AJN), 2013 WL 1803956, at *3 (S.D.N.Y. Mar. 7, 2013) (acts causing only "intangible consequences" such as anxiety are not adverse employment actions). Although Kaganovich avers that stress can, as a general matter, exacerbate diabetes and heighten the risk of complications, he does not describe any stress-related harms experienced within the weeklong period at issue here. See Pl.’s Opp'n Mem. at 21–22. For these reasons, the Court finds that the momentarily delayed approval of Kaganovich's leave requests does not, as a matter of law, constitute an adverse employment action. As a result, VA's motion for summary judgment is granted as to Kaganovich's retaliation claim.
III. Remedies
Though hoping not to reach the issue, VA has moved, in the alternative, for summary judgment on Kaganovich's requests for damages and injunctive relief. See Pl.’s Mem. at 28–36. The complaint seeks a wide array of relief.
A. Damages
Kaganovich seeks over $6 million in damages, including compensatory damages for pain and suffering, past and future medical expenses and lost income and benefits. See Pl.’s Interrogatory Response at 8. This requested relief is primarily tied to his claim that VA's failure to accommodate him exacerbated his diabetes and related medical conditions. As to damages, VA argues summary judgment is warranted because Kaganovich failed to provide expert disclosures, such that he will not be able to offer the requisite expert medical testimony linking VA's failure to accommodate to a worsening of his diabetes and its complications. See Pl.’s Mem. at 30–33. This would be critical because, at trial, if he prevails on liability, Kaganovich "must show a causal link between the specific violations proven and the injuries sustained for which [he] seeks damages." Worthington v. City of New Haven , No. 94-CV-609 (EBB), 1999 WL 958627, at *14 (D. Conn. Oct. 5, 1999).
Kaganovich hopes to call his treating physicians to the stand at trial to establish this causal link, offering expert testimony on his health and VA's effect on it. Yet although the rules permit an aggrieved plaintiff to call his treating physician as an expert witness, they do not provide a testimonial blank check. The law is quite to the contrary. In order for a plaintiff to call his treating physician as an expert witness at trial, he must follow the expert disclosure rules set forth in Federal Rule of Civil Procedure 26(a)(2). Although a plaintiff need not submit a full expert report from a treating physician under Rule 26(a)(2)(B), which applies to experts retained specifically for trial, he must comply with the lesser requirements of Rule 26(a)(2)(C), which require disclosure of "(1) the subject matter on which the physician is expected to testify, and (2) a summary of the facts and opinions to which the physician is expected to testify." Olutosin v. Gunsett , No. 14-CV-685 (NSR), 2019 WL 5616889, at *5 (S.D.N.Y. Oct. 31, 2019) (quoting Fed. R. Civ. P. 26(a)(2)(C) ). Kaganovich identified seven of his treating physicians as individuals likely to have discoverable information in his initial disclosures pursuant to Rule 26(a)(1)(A)(i). See Pl.’s Initial Disclosures, Dkt 32-40, at 2. He did not disclose them as experts, but argues his initial disclosures nonetheless satisfy the requirements of Rule 26(a)(2)(C). See Pl.’s Opp'n Mem. at 17–20 n.4. These disclosures range in detail. For example, Kaganovich wrote that "Dr. Nissim will testify that she treated EK; that she provided medical documentation requesting the reasonable accommodations, which included a transfer out of ICU, and to the medical [e]ffects EK experienced as a result of the VA's failure to accommodate." See Pl.’s Initial Disclosures at 2. As to Dr. Ricardo Cruciano, he wrote only "EK's pain management from 2006-2013." Id.
In determining whether these disclosures satisfy Rule 26(a)(2)(C), "[u]ltimately, the question is whether the disclosure provides ‘sufficient detail to permit defendants to prepare their defense.’ " McAfee v. Naqvi , No. 14-CV-410 (VAB), 2017 WL 3184171, at *5 (quoting Anderson v. E. CT Health Network, Inc. , No. 12-CV-785 (RNC), 2013 WL 5308269, at *1 (D. Conn. Sept. 20, 2013) ). Courts have found, therefore, that a "mere list of names, accompanied by three-word descriptions of the subject matter of their testimony" is not sufficient. Barack v. Am. Honda Motor Co., Inc. , 293 F.R.D. 106, 108 (D. Conn. 2013). Courts have also rejected disclosures that did not specifically identify the treating physicians as expert witnesses. See Webb v. Zimmer, Inc. , No. 14-CV-1106 (ADS) (GRB), 2018 WL 836366, at *6 (E.D.N.Y. Feb. 12, 2018) ; Ziegenfus v. John Veriha Trucking , 10-CV-5946 (RJS), 2012 WL 1075841, at *6–7 (S.D.N.Y. Mar. 28, 2013). Nor is Rule 26(a)(2)(C) satisfied where "the description does provide the general subject matter of [the doctor's] proposed testimony" but "provides no indication—beyond ‘mere generalities’—of the specific facts to which [the doctor] intends to testify and provides bare-minimum details of opinions formed therefrom." Olutosin , 2019 WL 5616889, at *6 (quoting McAfee , 2017 WL 3184171, at *6 ). Kaganovich's scant disclosures do not identify the physicians as experts, and offer only "mere generalities" on the subject of their expected testimony. Id. They do not, therefore, constitute expert disclosures consistent with the requirements of Rule 26(a)(2)(C).
Accordingly, Kaganovich's treating physicians may testify only as fact witnesses—a strictly limited designation. In this circuit and others, caselaw on treating physicians’ testimony "is not a model of consistency." Israeli v. Ruiz , No. 14-CV-9244 (MHD), 2015 WL 4618055, at *2 (S.D.N.Y. July 27, 2015) ; see also Dorothea Beane & Theodore E. Karatinos, Catching the Chameleon: When is the Treating Physician an Expert? , 51 Fed. Law. 26, 26 (2004) (describing the treating physician as a "chameleon," at one moment an expert and the next a lay witness). Many courts hold that as long as a treating physician's testimony is derived entirely from his treatment of the patient, as opposed to outside sources, he is not speaking as an expert witness, even where those opinions embrace complex medical issues such as causation and future impairments. See, e.g. , Israeli , 2015 WL 4618055, at *2 (collecting cases); Ali v. Connick , No. 11-CV-5297 (NGG), 2016 WL 3002403, at *8 (E.D.N.Y. May 23, 2016). The theory underlying this approach is that the treating physician is speaking "as a percipient witness to whatever he observed, including diagnoses and treatment, and opinions formed during treatment." Israeli , 2015 WL 4618055, at *2 ; see also Turner v. Delta Air Lines , No. 06-CV-1010 (NG), 2008 WL 222559, at *1 (E.D.N.Y. Jan. 25, 2008) ("[S]uch opinions are considered an explanation of treatment notes and the physician may properly be characterized as a fact witness.").
Yet this framework, although applied in a "surprising number of cases," is rooted in an outmoded reading of the Federal Rules of Evidence—one with an overly permissive view of lay testimony. See William P. Lynch, Doctoring the Testimony: Treating Physicians, Rule 26, and the Challenges of Causation Testimony , 33 Rev. Litig. 249, 260 (2014). Before 2000, Rule 701 required only that lay testimony be "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue." Fed. R. Evid. 701 (1997). Treating physicians’ testimony on facts perceived and opinions formed during treatment were, therefore, often held to fall within the scope of Rule 701. See, e.g. , Davoll v. Webb , 194 F.3d 1116, 1138 (10th Cir. 1999) ; Palmieri v. Celebrity Cruise Lines, Inc. , No. 98-CV-2037 (LAP) (HBP), 2000 WL 310341, at *5 (S.D.N.Y. Mar. 27, 2000) (collecting cases). But see Barnes v. Anderson , 202 F.3d 150, 159 (2d Cir. 1999) ("[T]he medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the lay person." (internal citation and quotation marks omitted)).
In December 2000, however, a significant amendment to Rule 701 took effect, cabining the scope of lay testimony. Now, lay testimony could not be "based on scientific, technical, or other specialized knowledge within the scope of Rule 702," the rule governing expert testimony. Fed. R. Evid. 701, 702. This amendment clarified that "lay opinion must be the product of reasoning processes familiar to the average person in everyday life," United States v. Garcia , 413 F.3d 201, 215 (2d Cir. 2005), whereas "expert testimony results from a process of reasoning which can be mastered only by specialists in the field," Fed. R. Evid. 701 Advisory Committee's note, 2000 amend. (internal citation and quotation marks omitted). Congress's goal was to "eliminate the risk" of parties "simply calling an expert witness in the guise of a layperson" and evading the procedural requirements for expert disclosure or the substantive requirements for experts’ reliability. Id. (citing Fed. R. Civ. P. 26 ; Fed. R. Evid. 702 ).
This amendment had critical, if often overlooked, implications for treating physician testimony in particular. "Although many courts have continued to analyze treating physician testimony under the rubric that predates the 2000 amendments ... treating physicians testifying as lay witnesses are, under the amended rule 701, more limited in what they can testify about diagnoses and causation." Walker v. Spina , No. 17-CV-991 (JB) (SCY), 2019 WL 145626, at *18 (D.N.M. Jan. 9, 2019) (offering thorough commentary on the amendment's effects and application); see also In re World Trade Ctr. Lower Manhattan Disaster Site Litig. , No. 06-CV-1520 (AKH), 2014 WL 5757713, at *4 (S.D.N.Y. Nov. 5, 2014) ("[W]here a physician's testimony relies upon ‘scientific, technical, or other specialized knowledge,’ or facts and evidence outside the scope of treatment, the testimony is" expert); 29 Fed. Prac. & Proc. Evid. § 6253 (2d ed.; Apr. 2021 update) ("The courts have begun to recognize this issue."). The amendment codified the commonsense intuition that, given their many years of specialized training, much testimony offered by treating physicians—such as descriptions of a patient's diagnosis, treatment, prognosis, causation and damages—is properly considered expert testimony and must be disclosed and evaluated as such. See Lynch, Doctoring the Testimony , 33 Rev. Litig. at 254–55, 325 ; 4 Weinstein's Federal Evidence § 701.03 (2021). In categorizing treating physicians’ testimony as expert or lay, the key factor is not whether it is derived from the physician's treatment of the patient, but whether it is derived from the physician's specialized expertise. See N.K. by Bruestle-Kumra v. Abbott Lab'ys , 731 F. App'x 24, 26 (2d Cir. 2018) (rejecting "[p]laintiffs’ attempt to circumvent Rule 702 by proffering [treating physician] as a non-expert factual witness" offering testimony on cause of plaintiff's conditions, regardless of whether physician "developed her opinions in the course of treating" plaintiff). Although this determination is not always easy, it is a key part of district courts’ "integral gatekeeping function." In re World Trade Ctr. Lower Manhattan Disaster Site Litig. , 2014 WL 5757713, at *4.
Ensuring plaintiffs follow the rules on expert testimony is particularly important when issues of causation are involved, given the centrality of that issue to plaintiffs’ claims and damages awards. Not all testimony on causation is expert. If a treating physician speaks on a topic "where a jury may infer causation simply due to the obvious connection between the trauma alleged and the injury itself," he offers lay testimony. Gyllenhammer v. Am. Nat'l Red Cross , No. 15-CV-1143 (BKS) (DEP), 2017 WL 11295795, at *2 (N.D.N.Y. Nov. 16, 2017). The treating physician veers into expert territory where the causal link would not be obvious to jurors, including in cases "where an injury has multiple potential etiologies." Wills v. Amerada Hess Corp. , 379 F.3d 32, 46 (2d Cir. 2004). Courts also consider "the complexity of the injury and the likelihood that an ordinary person would come in contact with such an injury." Jaquez v. Flores , No. 10-CV-2881 (KBF), 2016 WL 1267780, at *3 (S.D.N.Y. Mar. 30, 2016).
Cases and commentary provide some guiding examples. For one, "a lay witness with experience could testify that a substance appeared to be blood, but [ ] a witness would have to qualify as an expert before he could testify that bruising around the eyes is indicative of skull trauma." Fed. R. Evid. 701 Advisory Committee's note, 2000 amend. Similarly, when a doctor says "the plaintiff was coughing and running a fever," he offers lay testimony, but when he says "he diagnosed the patient as having Reactive Airways Dysfunction Syndrome caused by exposure to a toxic chemical," he speaks as an expert. Walker , 2019 WL 145626, at *21 (quoting Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 701.02[7] (10th ed. 2011)). Similarly, a doctor offers lay testimony by saying a patient broke a leg from being hit by a car, experienced hearing loss from repeated exposure to loud noises or felt dizzy and nauseous from inhaling paint fumes. Tufariello v. Long Island R. Co. , 458 F.3d 80, 89 (2d Cir. 2006) (internal citations and quotation marks omitted). Only expert testimony, however, could describe the "link between benzene exposure and squamous cell carcinoma," id. , or opine on whether a plaintiff's injuries were caused by a plane's hard landing or her "long history of similar medical ailments," Young v. Sw. Airlines Co. , 409 F. Supp. 3d 110, 115 (E.D.N.Y. 2017) ; see also Pierce v. City of New York , 16-CV-5703 (BMC), 2017 WL 2623857, at *2 (E.D.N.Y. June 16, 2017) (because treating physicians were not disclosed as experts, they could not "offer an opinion as to causation and distinguish between the effects of [plaintiff's] unrelated injuries versus the effects of the ... incident" at issue).
Kaganovich has revealed his plan to call his treating physicians to testify that VA's alleged failure to accommodate him exacerbated his physical and mental ailments—testimony central to his claim for compensatory damages. See Pl.’s Initial Disclosures at 2. Yet only an expert could opine on whether Kaganovich's diabetes and related complications worsened because of VA's alleged failure to accommodate him in 2013, or whether, for example, the conditions which give rise to the damages he seeks to recover in this action were the inevitable results of living for decades with insulin-dependent diabetes. VA's experts claim the latter; Kaganovich no doubt believes his doctors would claim the former. See Tamler Rept. at 9–12; Vapnek Rept. at 1–3; see also Wills , 379 F.3d at 46 ; Pierce v. Taqi , No. 16-CV-5703 (BMC), 2017 WL 10188232, at *2 (E.D.N.Y. June 11, 2017).
The distinction is crucial. Although a layperson could understand the link between a lack of food and low blood sugar, the causation-related testimony Kaganovich seeks to have his treating physicians offer requires medical expertise going far beyond that sort of lay reasoning. In sum, Kaganovich's treating physicians may offer "lay testimony" within strictly limited bounds, including relevant examinations they performed, diagnostic testing they may have ordered, their observations of him during examinations, any related history they may have recorded and simple conclusions that would be obvious to jurors, but excluding the causation of his ailments and any claimed relationship to his underlying conditions.
These strict limits necessarily preclude certain elements of Kaganovich's request for damages. To recover from VA, he "must show a causal link between the specific violations proven and the injuries sustained." Worthington , 1999 WL 958627, at *14. Each category of requested damages requires a showing that VA's actions and inactions caused his harms. For example, Kaganovich claims lost wages and benefits related to the unpaid leave he took to attend doctors’ appointments. Pl.’s Interrogatory Response at 8. Yet without expert testimony linking those doctors’ appointments to VA's alleged failure to accommodate, as opposed to Kaganovich's existing medical needs, he cannot recover these damages. The same is true of his past and future medical expenses—without the use of expert testimony, he cannot tie those costs to VA's acts. Id. Last, he may, of course, seek damages for pain and suffering, and the "lay testimony" of his doctors may aid him in that quest. Id. To the extent VA's motion seeks to preclude that, it is denied.
VA correctly notes that it is subject to a $300,000 statutory damages cap, as an employer with over 500 employees. 42 U.S.C. §§ 1981a(a)(2), (b)(3)(D). VA is not entitled to summary judgment on that matter, however, as a damages award under § 1981(a) shall " ‘initially be set by the jury’ and then reduced if necessary by the court to ensure that it conforms to the ‘relevant cap for an employer of the defendant's size.’ " Reiter v. Maxi-Aids, Inc. , No. 14-CV-3712 (LDW), 2018 WL 557864, at *6 (E.D.N.Y. Jan. 19, 2018) (quoting Luciano v. Olsten Corp. , 110 F.3d 210, 221 (2d Cir. 1997) ).
B. Injunction
VA, lastly, seeks summary judgment as to Kaganovich's request for injunctive relief. See Def.’s Mem. at 29–30. Kaganovich, in his complaint, seeks a permanent injunction (1) enjoining VA "from engaging in any employment practices which discriminate against employees with disabilities"; (2) instructing VA to "follow and carry out its policies, programs and practices which provide equal employment opportunities for all employees of DVA and which eradicate the effects of DVA's unlawful employment practices toward persons with disabilities"; and (3) enjoining VA from "denying Plaintiff any of his rights, privileges or benefits of employment or otherwise harassing him on account of his disability or for complaining about or cooperating in investigations of discrimination." Compl. at 22. VA argues that this amounts to nothing more than an impermissibly vague order to "obey the law." See Def.’s Mem. at 29–30. Kaganovich disagrees, but adds that if he were to prevail at trial, he would draft a more tailored order at that time. See Pl.’s Opp'n Mem. at 29–30.
The broad parameters for controversies of this type are well established. The Second Circuit has held that "an ‘obey the law’ order entered in a case arising under statutes so general as the ADA and the Rehabilitation Act would not pass muster under Rule 65(d) of the Federal Rules of Civil Procedure, which requires that injunctions be ‘specific in terms’ and ‘describe in reasonable detail ... the act or acts sought to be restrained.’ " Henrietta D. v. Giuliani , 246 F.3d 176, 182 (2d Cir. 2001) (quoting Fed. R. Civ. P. 65(d) and citing S.C. Johnson & Son, Inc. v. Clorox Co. , 241 F.3d 232, 240 (2d Cir. 2001) ("Under Rule 65(d), an injunction must be more specific than a simple command that the defendant obey the law.") (internal citations and quotation marks omitted)). For this reason, an injunction ordering defendants to "meet their obligations" under those statutes would be invalid, id. , as would one directing an agency " ‘to fully comply with the protocol/procedures the State has developed to accommodate children with Type 1 Diabetes pursuant to federal laws,’ " A.M. ex rel. J.M. v. NYC Dep't of Educ. , 840 F. Supp. 2d 660, 677 (E.D.N.Y. 2012), aff'd , 513 F. App'x 95 (2d Cir. 2013) ; see also Craig v. Connecticut Dep't of Mental Health & Addiction Servs. , No. 16-CV-2100 (JCH), 2017 WL 5892193, at *5 (D. Conn. Nov. 28, 2017) (rejecting plaintiff's request for an injunction providing " ‘that each defendant shall fully comply with the provisions of ... 42 U.S.C. § 1981 ’ "). Invalid, too, is a plaintiff's request for "injunctive relief prohibiting Defendants from further retaliating against him" for complaining of disability-based discrimination. Monsour v. New York State Off. for People with Developmental Disabilities , No. 13-CV-336 (BKS) (CFH), 2018 WL 3349233, at *20 (N.D.N.Y. July 9, 2018) ; see also Baltas v. Maiga , No. 20-CV-1177 (MPS), 2020 WL 6275224, at *22 (D. Conn. Oct. 26, 2020). By seeking to enjoin VA from engaging in discriminatory and retaliatory employment practices, the injunction proposed in Kaganovich's complaint requests just this sort of impermissibly vague, generalized "obey-the-law" relief. It is not, as written, valid.
But, that is not the end of it. If Kaganovich prevails at trial and the Court, in its discretion, finds he is entitled to injunctive relief, he will have the opportunity to submit a proposed order of injunction for the Court's review, and VA will have the opportunity to respond. See, e.g. , Equal Emp. Opportunity Comm'n v. AZ Metro Distributors, LLC , No. 15-CV-5370 (ENV) (PK), 2020 WL 7404432, at *14 (E.D.N.Y. Dec. 16, 2020) (entering detailed, nine-part injunction in response to plaintiff's motion for injunctive relief in age discrimination case where complaint requested only generalized relief). VA's summary judgment motion is therefore denied to the extent it seeks to bar Kaganovich from requesting any form of equitable relief, but is otherwise granted.
Conclusion
In line with the foregoing, on plaintiff's discrimination claim, defendant's motion for summary judgment is granted as to plaintiff's failure-to-transfer theory and denied as to his failure-to-accommodate theory. Defendant's motion for summary judgment is granted as to plaintiff's retaliation claim. Defendant's motion for summary judgment is denied in part as to plaintiff's requests for relief.
The parties are referred to Magistrate Judge Steven L. Tiscione for continued pretrial management.
So Ordered.