OPINION AND ORDER

CHRISTOPHER CONNER, District Judge

Plaintiff Kenneth King brings this action against defendants the Town of Wallkill (the "Town"), an incorporated municipality and: (1) Robert Henneman, the Town's former acting police chief; (2) Thomas Nosworthy, the Town's former supervisor; (3) John Beairsto, another former acting Town police chief; (4) Robert Hertman, the Town's present police chief; and (5) John Ward, present supervisor of the Town. (Complt. ¶¶ 1-7.) Henneman, Nosworthy, Beairsto, Hertman and Ward are named in their individual capacities (collectively the "individual defendants"). ( Id.) Plaintiff, a former Town police officer, seeks compensatory and punitive damages and attorneys' fees, claiming that defendants: (1) violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. and the New York State Human Rights Law ("NYHRL"), N.Y. EXEC. LAW §§ 293-96, by failing reasonably to accommodate his disability by providing him with light-duty assignments and terminating his N.Y. GEN. MUN. LAW § 207-c benefits; (2) violated the ADA and the NYHRL by retaliating against him because of his complaints; and (3) violated the Fifth and Fourteenth Amendments to the United States Constitution by taking his property without just compensation, a claim brought pursuant to 42 U.S.C. § 1983. ( Id. ¶¶ 55-60.) Defendants counterclaim for $100,000 because they allege that plaintiff received from the Town disability benefits to which he was not entitled. (Answer ¶¶ 67-74.)

Defendants now move for summary judgment pursuant to FED. R. CIV. P. 56 dismissing counts one and two of plaintiff's Complaint and granting recovery on their counterclaim. Defendants also move for summary judgment dismissing plaintiff's claims against the individual defendants, contending that individuals are not subject to liability under the ADA and the NYHRL. For the reasons set forth herein, we grant defendants' motion for summary judgment in part and dismiss count one of plaintiff's Complaint. We deny defendants' motion for summary judgment as to count two of the Complaint. We grant individual defendants' motion for summary judgment dismissing plaintiff's claims pursuant to the ADA, but deny it with respect to plaintiff's NYHRL retaliation claim. With respect to the Town's counterclaim, we grant defendants' motion for summary judgment as to liability, but deny that motion as to damages.

BACKGROUND

The Town hired plaintiff as a police officer in December 1989. (PL Rule 56.1 Stmt. ¶ 1.) On June 19, 1995, plaintiff was injured in a line-of-duty automobile accident when the patrol car that he was driving first struck a deer that had run into the road and then collided with a tree. ( Id.; Defs. Rule 56.1 Stmt., Ex. D.) Plaintiff initially was diagnosed with an acute cervical strain; he subsequently developed lower back pain as a result of a lumbar strain and herniated disc that were diagnosed shortly thereafter on June 29, 1995. (Defs. Rule 56.1 Stmt.¶ 11 Ex. E.)

Plaintiff's pain did not relent and he continued to seek medical treatment from a variety of chiropractors and physicians through 1997. These doctors stated that he was disabled from regular police duties, but that he could perform light desk duties that did not require bending or lifting. ( Id. ¶¶ 17-20.) In March 1997, Dr. Mary Godesky, an orthopedic surgeon, completed a questionnaire based on her December 1996 examination of plaintiff and set forth the duties that plaintiff could and could not perform. ( Id. ¶¶ 23-24, Ex. M.) Based on his review of this questionnaire and plaintiff's medical records, then-police chief Jon Hansen directed plaintiff to report on April 28, 1997 for a light-duty assignment. ( Id. ¶ 26.) Plaintiff did not, however, begin this light-duty assignment, and in June 1997 filed an application for disability retirement that was denied in February 1998. ( Id. ¶¶ 26, 28.)

Plaintiff continued to undergo diagnostic and treatment procedures including MRI scans. He ultimately was referred to Dr. John Mitamura, an orthopedic surgeon, in November 1997. ( Id. ¶ 33.) Dr. Mitamura diagnosed plaintiff with spinal instability in December 1997 and attempted to treat this condition with braces because plaintiff did not want surgery or injections. ( Id. ¶ 34.) Subsequently, Dr. Michael Miller, an orthopedic surgeon, performed an independent medical examination of plaintiff, diagnosed him with L-5/S-1 degenerative disc disease in September 1998 and stated plaintiff was a candidate for spinal fusion surgery. ( Id. ¶ 41.) Thereafter, in September 1999, Dr. Mitamura performed back surgery on plaintiff, specifically a laminectomy and fusion at L-5/S-1. (Pl. Rule 56.1 Stmt. ¶ 2; Defs. Rule 56.1 Stmt., Exs. AA, DD.) At that time, Dr. Mitamura instructed plaintiff not to return to work for eighteen to twenty-four months after the surgery. (PL Rule 56.1 Stmt. ¶ 2.)

While he was out of work, plaintiff was examined by Dr. Miller several times at the request of the Triad Group, the Town's third-party workers' compensation administrator. ( Id. ¶ 3.) On April 18, 2000, Dr. Miller concluded that plaintiff had a "temporary total disability `that was "permanent." (Id.; Defs. Rule 56.1 Stmt., Ex. DD.) Dr. Miller clarified this inconsistency in a supplemental report dated May 3, 2000, in which he noted that plaintiff was not capable of working on April 18, 2000 because of his back injury, which rendered him totally disabled at that time. (Defs. Rule 56.1 Stmt., Ex. FF.) Dr. Miller explained that plaintiff would always be disabled, but not permanently totally disabled. ( Id.) Subsequently, on August 24, 2000, Dr. Miller issued a report (the "August 2000 report") that concluded that plaintiff's disability had improved to "marked, partial disability" with a "fair" prognosis and that plaintiff could return to work. (PL Rule 56.1 Stmt. ¶; Defs. Rule 56.1 Stmt., Ex. KK.) However, the report specified that the work should be limited to "sedentary work with standing and walking as needed with lifting up to five pounds." (Defs. Rule 56.1 Stmt., Ex. KK.)

Thereafter, Henneman sent plaintiff a letter dated October 10, 2000 referencing the August 2000 report and directing plaintiff to report to work on October 30, 2000. (PL Rule 56.1 Stmt. ¶ 4; Defs. Rule 56.1 Stmt., Ex. LL.) That letter informed plaintiff that he would "be assigned light duty consistent with Dr. Miller's report" and that his refusal to appear would be grounds for the termination or discontinuance of the full salary and benefits that he had been collecting pursuant to N.Y. GEN. MUN. LAW § 207-c(1). (Defs. Rule 56.1 Stmt. ¶ 9 Ex. LL.)

Prior to returning to work, plaintiff was examined by Dr. Mitamura, his personal physician. (PL Rule 56.1 Stmt. ¶ 6.) Dr. Mitamura drafted a note to the Town describing the physical restrictions caused by plaintiff's disability, which included restrictions on foot patrol, motor vehicle operation, apprehension of suspects, participation in criminal investigations and sitting for more than fifteen minutes at a time. ( Id. ¶ 6; Defs. Rule 56.1 Stmt., Ex. NN.) Dr. Mitamura's letter also stated that plaintiff could perform only light duties for at most two to four hours per day. ( Id.) Plaintiff's counsel then drafted a letter to Nosworthy dated October 26, 2000, apprising him of Dr. Mitamura's findings and requesting an administrative appeal, pursuant to the police collective bargaining agreement (the "CBA"), of Henneman's decision ordering plaintiff back to work pursuant to N.Y. GEN. MUN. LAW § 207-c(3). (Defs. Rule 56.1 Stmt., Ex. MM.)

Plaintiff reported to work at 4:00 p.m. on October 30, 2000 and asked Henneman to inform him of his specific duties. (PL Rule 56.1 Stmt. ¶ 8.) Henneman informed plaintiff that he did not know what specific duties would be assigned. ( Id.) Plaintiff, following the advice of his attorney, then asked for a specific assignment in writing, which Henneman declined to provide. ( Id. ¶¶ 9-10.) Henneman then told plaintiff that he would be disciplined if he did not perform work assignments as given. ( Id. ¶ 9.) At this time, plaintiff informed Henneman that he required a place to lie down in order to perform light duties, an accommodation that Henneman told plaintiff was not mentioned in Dr. Miller's August 2000 report. (Defs. Rule 56.1 Stmt. ¶ 58.) Plaintiff also informed Henneman that he might need to take pain medication while on duty. (Complt. ¶ 24.) According to plaintiff, Henneman did not, however, give plaintiff any work assignment on October 30, and sent him home with instructions to call daily about the availability of light-duty work. (PL Rule 56.1 Stmt ¶ 11.) Plaintiff returned to work on October 31 and November 1, 2000, and Henneman again directed him to go home because he had no further information about plaintiff's duties. ( Id. ¶¶ 9, 11.)

Thereafter, plaintiff's counsel sent to the Town's attorneys a letter dated November 10, 2000 objecting to Henneman's failure to respond to plaintiff's inquiries about his duties, the significance of plaintiff s continued medication use and the number of hours that he was required to work. ( Id. ¶ 13 Ex. 17.) In response, Henneman sent to plaintiff a letter dated November 17, 2000 stating the Town's intention to terminate plaintiff's § 207-c benefits retroactive to October 30, 2000 for failure to perform light duty as directed and advising plaintiff of his right to appeal pursuant to the CBA. (PL Rule 56.1 Stmt. ¶ 13; Defs. Rule 56.1 Stmt., Ex. QQ.) Subsequently, hearings were held on the matter and on October 17, 2001 hearing officer Earle Warren Zaidins issued a decision concluding that plaintiff had refused to perform light duty as required by § 207-c and recommending that the Town terminate plaintiff's benefits in accordance with that statute and the CBA. (Pl. Rule 56.1 Stmt. ¶ 13; Defs. Rule 56.1 Stmt., Ex. PP.) On October 29, 2001, Nosworthy adopted hearing officer Zaidins's recommendations and concluded that plaintiff had forfeited his § 207-c benefits by failing to perform light police duty, such as desk work, that remained within his physical abilities. (Defs. Rule 56.1 Stmt., Ex. YY.) In the intervening time between the hearings and hearing officer Zaidins's decision, plaintiff had met with Beairsto in May, June and October 2001 and had asked to return to light-duty work. (Pl. Rule 56.1 Stmt. ¶ 17.) Plaintiff's October 2001 request referred specifically to a "light duty assignment afforded to Officer K. Scheming [that] is now available." (Id., Ex. 6.)

Shortly after hearing officer Zaidins issued his decision and recommendation, Dr. Miller conducted an independent medical examination at the request of the Triad Group in November 2001 and concluded that plaintiff had a "permanent partial disability" from his injuries. (Pl. Rule 56.1 Stint. ¶ 15.) Plaintiff subsequently had his state workers' compensation case reopened and obtained an order directing the Town to resume his compensation payments in February 2002. ( Id. ¶ 16.)

In February 2002, plaintiff's counsel sent a letter to Hertman, the newly installed police chief, and requested permission for plaintiff to return to light duty. ( Id. ¶ 18.) The Town rejected this request in March 2002, stating in a letter by counsel that "Hertman carefully reviewed the Department's personnel needs and determined that the Department does not have an available light-duty assignment for [plaintiff]. In fact, the Department does not currently have any police officers assigned to light-duty police work." ( Id. ¶ 19; Defs. Rule 56.1 Stmt., Ex. BBB.) Plaintiff filed a complaint with the Equal Employment Opportunity Commission (the "EEOC") shortly thereafter, and received a right to sue letter from that agency in August 2002. (Pl. Rule 56.1 Stmt. ¶ 20.)

In October 2002, Ward informed plaintiff that he had been out of work for one year and the Town intended to terminate his employment in accordance with N.Y. CIV. SERV. LAW § 71 following a hearing on the matter. ( Id. ¶ 21.) A hearing was subsequently held before Ward, who then terminated plaintiff's employment on December 9, 2002 because "there is no duty assignment for a police officer in the Police Department that satisfies the limitations on your abilities articulated by you." ( Id. ¶ 22; Defs. Rule 56.1 Start., Ex. DDD.) Plaintiff had asked for a permanent light-duty position. ( Id. ¶ 80.) He thought that they existed, and identified two other officers, Dennis Lohr and Joe Perone, who had been assigned light-duty positions. ( Id.) Perone had worked on light-duty assignment in the evidence room for approximately two years, although plaintiff has acknowledged that Perone's benefits and employment also did not continue indefinitely and he no longer works for the Town. Plaintiff also has admitted that he is not aware of any police officer who ever received a permanent light-duty assignment. (Defs. Rule 5 6.1 Stmt., Ex. EEE at 179-80.) Plaintiff continues to seek a permanent light-duty position. ( Id.) Ex. EEE at 179.)

We also note that plaintiff has filed multiple applications for disability retirement benefits. His first application, for performance of duty disability retirement benefits in June 1997, was denied because plaintiff did not prove that he was permanently incapacitated. ( Id. ¶ 33; Defs. Rule 56.1 Stmt., Ex. P.) His second application, for accidental disability benefits, was withdrawn in September 2000. (PL Rule 56.1 Stmt. ¶ 34.) Both applications were submitted prior to the filing of the EEOC complaint and the present action. ( Id. ¶ 35.) Plaintiff filed his third application in February 2003, seeking disability retirement benefits because, as stated on the application form, "I am unable to perform my full duties as a police officer and my employer has refused to allow me to return to duty on a `light-duty' basis or reasonably accommodate my disability." ( Id. ¶ 37.)

An amendment to the CBA, effective April 2002, resulted in a pay increase for the police officers that was retroactive to January 1, 1999. ( Id. ¶ 23.) Plaintiff was affiliated with the Town during the time period covered by the pay increase and he learned of the raise through his police union representative. (Id.) Plaintiff then contacted April Shuback, the Town employee responsible for payroll and employee benefits, and confirmed that a check for the retroactive amounts due had been issued to him by the Town. ( Id.) Shuback did not, however, give plaintiff his check; instead, she gave it to Ward at Ward's direction. ( Id. ¶ 24.) Ward then refused to give the check to plaintiff. ( Id.) Plaintiff subsequently received a federal tax W-2 form in the amount of $7,500.58, an amount that included the gross retroactive raise amount of $6,326.40. ( Id. ¶¶ 25-27.)

DISCUSSION

I. Standard of Review

Under FED. R. CIV. P. 56, summary judgment may be granted where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See FED. R. CIV P. 56(c). The burden rests on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant for a reasonable jury to return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477U.S. 242, 248 (1986). In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See id. at 255. To defeat summary judgment, the nonmovant must go beyond the pleadings and "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The court's role at this stage of the litigation is not to decide issues of material fact, but to discern whether any exist. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994).

II. ADA and NYHRL Discrimination Claims

Defendants first contend that the Court should grant their motion for summary judgment dismissing plaintiff's discrimination claims under the ADA and the NYHRL because plaintiff cannot establish a prima facie case. (Defs. Mem. Supp. Summ. J. at 5.) To establish a prima facie case of employment discrimination under the ADA or the NYHRL, "`a plaintiff must show: (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered [an] adverse employment action because of his disability.'" Cameron v. Cmty. Aid For Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir. 2003) (quoting Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001)). Plaintiff's claims under the NYHRL are subject to the same analysis because "there is no difference between the quantum or elements of proof required by the ADA and the NYHRL." Mohamed v. Marriott, Int'l, 905 F. Supp. 141, 156 (S.D.N.Y. 1995). There is no dispute as to the first two elements in the formulation.

A. Whether Plaintiff is a "Qualified Individual with a Disability"

Defendants first argue that plaintiff cannot establish a prima facie case because he is physically unable to perform the essential duties of a police officer and therefore is not a "qualified individual with a disability" under either statute. (Defs. Mem. Supp. Summ. J. at 5.) Plaintiff claims in response that there is a genuine issue of material fact about plaintiff's medical condition and ability to perform any police work, including light-duty assignments. (Pl. Mem. Opp. Summ. J. at 10-12.)

To be a "qualified individual," plaintiff bears the burden of proving that he is qualified to perform the essential functions of a police officer in the Town, with or without reasonable accommodation. See, e.g., 42 U.S.C. § 12111(8); Querry v. Messar, 14 F. Supp.2d 437, 443-44 (S.D.N.Y. 1998) (Conner, J.). Whether plaintiff's inability to perform certain tasks renders him unable to perform the essential functions of police work in the Town generally requires a fact-specific inquiry. Sharp v. Abate, 887 F. Supp. 695, 699 (S.D.N.Y. 1995) ("[t]he interpretive guide to Part 1630 of the [ADA] regulations makes clear that the inquiry into whether a particular function is essential is a fact specific exercise to be made on a case by case basis"). An employee incapable of regular attendance is, however, not qualified to perform the essential functions of a given position. See, e.g., Mazza v. Bratton, 108 F. Supp.2d 167, 175 (S.D.N.Y. 2000) ("An individual is not qualified for his position if he is unable to come to work."), aff'd, 9 Fed. App. 36 (2d Cir.), cert. denied, 534 U.S. 887 (2001). Whether an employee is qualified is dependent on that employee's condition at the time of the alleged adverse employment action. See id. at 175 ("That plaintiff's condition improved following his termination cannot overcome the undisputed evidence from the earlier time period that plaintiff was not qualified to perform the essential functions of his position, and was not able to report for work at all."). Moreover, "[e]vidence of whether a particular function is essential includes, but is not limited to the employer's judgment as to which functions are essential, the written job description, the amount of time spent performing the function, the consequences of not requiring the employee to perform the function, the work experience of past employees in the position, and the current work experience of employees in similar positions." Sharp, 887 F. Supp. at 698.

We conclude that a genuine issue of material fact exists as to whether plaintiff was a qualified employee at the time of his termination. The record in this case is far from clear about the essential functions of the position of a police officer in the Town. The CBA does not contain a job description (Pl. Rule 56.1 Stmt., Ex. 18) and if a formal written job description exists, neither of the parties has seen fit to cite or provide it for the Court's review. Moreover, defendants have not cited testimonial evidence to support the contention that certain enumerated physical abilities are absolutely essential for performance of the position of Town of Wallkill police officer. Finally, the record is devoid of medical evidence contemporaneous with plaintiff's post-October 2001 requests for a return to light duty that might shed light on his capabilities; indeed, the most recent medical reports therein, dated April and May 2001, emphasize in a conclusory manner plaintiff's inability to work as a police officer, but do not link specifically plaintiff's disabilities with enumerated physical requirements of law enforcement work. See supra note 9. Accordingly, resolving all inferences in favor of plaintiff, we conclude that there is a genuine issue of material fact precluding summary judgment with respect to the second element of the ADA and NYHRL analysis. B. Whether Plaintiff's Proposed Accommodation was Reasonable

Defendants next contend that plaintiff's request for a light-duty assignment is not reasonable because plaintiff seeks that assignment on a permanent basis and granting that request would require defendants to create a new position, an obligation not imposed by the ADA or the NYHRL. (Defs. Mem. Supp. Summ. J. at 8-9.) Plaintiff, relying primarily on Howell v. Michelin Tire Corp., 860 F. Supp. 1488 (M.D. Ala. 1994), argues in response that there is a genuine issue of material fact about whether the Town had available permanent light-duty police positions that it could assign him to. (Pl.Mem. Opp. Summ. J. at 7-8.)

Reassignment of a disabled employee to a vacant light-duty position is well established as a reasonable accommodation under the ADA. See, e.g., Kees v. Wallenstein, 973 F. Supp. 1191, 1196 (W.D. Wash. 1997), aff'd, 161 F.3d 1196 (9th Cir. 1998). An employer is not, however, obligated to create a new light-duty position for a disabled employee or make permanent previously temporary light-duty positions. See, e.g., Dalton v. Subaru-Isuzu Auto., Inc. 141 F.3d 667, 680 (7th Cir. 1998) (concluding that an automobile manufacturer was not required to accommodate permanently disabled employees via assignment to a program that consisted of light-duty positions set aside for temporarily disabled employees); Kees, 973 F. Supp. at 1196-97 (relying on jail's standard operating procedures manual and concluding that corrections officers' light-duty assignments were not permanent); see also Hardy v. Vill. of Piermont, 923 F. Supp. 604, 610 (S.D.N.Y. 1996) (Conner, J.) (concluding that creation of a light-duty police position was not `"reasonable assistance or job modification by the employer'" pursuant to the Rehabilitation Act). Moreover, lax enforcement of the temporary nature of temporary light-duty assignments does not transform such assignments into permanent positions. See Kees, 973 F. Supp. at 1197 (concluding that jail's placement of corrections officers on light-duty status for indefinite periods of time did not alter written policy of providing only temporary light-duty assignments); Champ v. Balt. County, 884 F. Supp. 991, 999-1000 (D. Md. 1995) (concluding that the police department's failure to enforce a 251 working-day limit for light-duty assignments did not turn them into permanent assignments, despite the fact that the disabled plaintiff remained in one such position for approximately sixteen years), aff'd, 91 F.3d 129 (4th Cir. 1996) (unpublished table opinion). A plaintiff who seeks to recover under the ADA for an employer's failure reasonably to accommodate his disability by transferring him to an appropriate vacant light-duty position bears the burdens of production and persuasion of establishing the existence of such a position at the time he sought transfer. Jackan v. N.Y. State Dep't of Labor, 205 F.3d 562, 567-68 (2d Cir.), cert. denied, 531 U.S. 931 (2000).

We conclude that Plaintiff's request for a permanent light-duty assignment fails as a matter of law because the record clearly demonstrates that these positions do not exist in the Town's police department. Ward testified at his deposition that the police department has no established permanent or temporary light-duty positions and does not intend to have them in the future even for injured officers. (Pl Rule 56.1 Stmt., Ex. 9 at 19-22.) He also testified that the police department presently is operating seven or eight officers short of its authorized strength. ( Id. at 22-23.) Hertman, the present police chief, testified at his deposition that the Town has a small police department with very little work available for a police officer who is not on full duty. (Defs. Reply Decl., Ex. C at 32.) In fact, when Hertman took office in March 2002, he relieved Perone of his two-year assignment to full-time light duty in the evidence room because "[w]e had no assignments to give him. Basically, he would sit downstairs in the property room all day." ( Id. at 34-35.) Indeed, plaintiff himself acknowledged Perone's termination and admitted that he is not aware of any Town police officer who had ever received a permanent light-duty position. See supra note 11 and accompanying text. Accordingly, based on the undisputed facts, we conclude that the Town has no permanent light-duty police assignments available, and that it is not required under the ADA or NYHRL to accommodate plaintiff by creating such a position for him.

Plaintiff's reliance on Howell is misplaced because that case is distinguishable. (Pl. Mem. Opp. Summ. J. at 8.) In that case, the disabled plaintiff claimed that his employer violated the ADA by not assigning him to a permanent light-duty position. 860 F. Supp. at 1490. The employer previously had assigned the Howell plaintiff to two separate light-duty assignments, each limited by company rules to thirteen weeks. Id. The district court concluded that there was a genuine issue of material fact precluding summary judgment because there were at least two other employees whom the company had permitted to remain on light-duty assignments for longer than thirteen weeks. Id. at 1492. The plaintiff in Howell also produced evidence of vacant permanent positions in the area of the company's plant wherein he had performed his light duty that were being filled by other candidates. Id. at 1493. The district court rejected the company's arguments with respect to the actual classification of the two other employees, and concluded that the company nevertheless had "the ability to find new, less strenuous positions for disabled workers, whether or not it formally classifies the work as `light duty.'" Id. Howell is distinguishable from the present case because, in that case there was evidence that the defendant employer had the continuing capability of accommodating other disabled employees besides the plaintiff. In contrast, in the present case, it is undisputed that the Town did not grant to other employees the permanent accommodation requested by plaintiff and did not have even long-term temporary light-duty assignments available. Thus, we grant defendants' motion for summary judgment dismissing the first count of plaintiff's Complaint. III. ADA and NYHRL Retaliation Claims

Defendants next contend that Plaintiff's retaliation claims should be dismissed because he cannot establish a prima facie case under the ADA or the NYHRL. (Defs. Mem. Supp. Summ. J. at 13-14.) Plaintiff argues in response that the record reflects the existence of a genuine issue of material fact with respect to his retaliation claim because his benefits and employment were terminated after he engaged in the protected activities of requesting light duty and filing an EEOC complaint. (Pl. Mem. Opp. Summ. J. at 17.)

Under the ADA and the NYHRL, "[i]n order to establish a prima facie case of retaliation, [the plaintiff] must show that: (1) he engaged in an activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took adverse employment action against him; and (4) a causal connection exists between the alleged adverse action and the protected activity." Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). Moreover, we note that a "plaintiff may prevail on a claim for retaliation even when the underlying conduct complained of was not in fact unlawful `so long as he can establish that he possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated [the] law.'" Id. at 719 (quoting Sarno v. Douglas Elliman-Gibbons Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999)); see also Cifra, 252 F.3d at 218 (stating that "we do not regard . . . the ruling that [the plaintiff] did not prove by a preponderance of the evidence that she was the victim of discrimination on the basis of gender, as establishing any fact that would preclude litigation of the issues central to the retaliation claim.").

We conclude that there is a genuine issue of material fact as to Plaintiff's retaliation claim, and we deny defendants' motion for summary judgment as to the second count of the Complaint. Defendants' arguments are limited to whether plaintiff has met the de minimis evidentiary showing, see, e.g., Treglia, 313 F.3d at 719, necessary to establish a prima facie case of retaliation under the ADA and the NYHRL. As to the first element, Plaintiff's inquiries about the nature of his October 2000 light duty and subsequent requests to be placed on light duty, filed prior to his EEOC complaint, constitute protected activities. See id. at 720 (stating that informal complaints to management constitute protected activities); Lyman v. City of New York, No. 01 CIV 3789, 2003 WL 22171518, at *9 (S.D.N.Y. Sept. 19, 2003) (stating that requests for accommodations are protected activities). Defendants do not dispute the satisfaction of the second and third elements, namely that they were aware of Plaintiff's conduct and that they took adverse employment actions against plaintiff. (Defs. Mem. Supp. Summ. J. at 13.) Finally, there is sufficient evidence to satisfy the de minimis causal connection requirement because: (1) termination of plaintiff's N.Y. GEN. MUN. LAW § 207-c benefits followed his initial requests for explication of his light-duty assignment; and (2) his employment was terminated pursuant to N.Y. CIV SERV. LAW § 71 in December 2002 after his subsequent requests for a light-duty assignment and August 2002 complaint to the EEOC. See, e.g., Treglia, 313 F.3d at 720 (stating that "[w]e have held that a close temporal relationship between a Plaintiff's participation in protected activity and an employer's adverse actions can be sufficient to establish causation" and noting that "a few months" between the protected conduct and the adverse employment action satisfies the fourth element); Lyman, 2003 WL 22171518, at *10 (denying defendants' summary judgment motion and concluding that four months between protected activity and adverse action satisfied the fourth element); cf. Raniola v. Bratton, 243 F.3d 610, 625-27 (2d Cir. 2001) (concluding that fourteen months between EEOC complaint and employee's termination satisfied the timing element in Title VII retaliation case). Accordingly, we conclude that plaintiff has established a prima facie case of retaliation under the ADA and the NYHRL, and we deny defendants' motion for summary judgment dismissing the second count of the Complaint. IV. Individual Defendants' Liability Under the ADA and the NYHRL

Defendants, contending that the ADA and the NYHRL do not provide for causes of action against individual, non-employer defendants, also move for summary judgment dismissing the ADA and NYHRL claims against the individual defendants. (Defs. Mem. Supp. Summ. J. at 17.) Plaintiff does not contest defendants' ADA arguments, but does argue in response that persons who actually participate in discriminatory conduct may be held individually liable under the NYHRL. (Pl Mem. Opp. Summ. J. at 21-22.) Having granted defendants' summary judgment motion on the merits of Plaintiff's reasonable accommodations claim, see supra Part II, we confine our inquiry herein to the individual defendants' roles with respect to Plaintiff's retaliation claim.

A. Individual Defendants' Liability Under the ADA

We first turn to individual defendants' liability under the ADA. It is well settled that an individual may not be held personally liable under the ADA. See, e.g., Menes v. CUNY Univ. of N.Y., 92 F. Supp.2d 294, 306 (S.D.N.Y. 2000) (dismissing ADA and Rehabilitation Act claims against individual defendants in both their individual and official capacities); see also Yaba v. Cadwalader, Wickersham Taft, 931 F. Supp. 271, 274 (S.D.N.Y. 1996) ("To the extent her sixth claim for relief seeks to allege violations of the ADA by the Management Committee and other Cadwalader employees, the claims would be futile because the ADA, like Title VII, does not provide for liability by individual employees."). Accordingly, we grant defendants' motion for summary judgment dismissing Plaintiff's retaliation claim brought pursuant to the ADA against the individual defendants.

B. Individual Defendants' Liability Under the NYHRL

We next turn to the issue of individual defendants' liability under the NYHRL. Defendants, relying on Trovato v. Air Express Int'l, 238 A.D.2d 333, 334, 655 N.Y.S.2d 656 (2d Dep't 1997), claim that there is no individual liability under the NYHRL. (Defs. Mem. Supp. Summ. J. at 17.) In the alternative, defendants ask this Court to decline to exercise its supplemental jurisdiction over the individual defendants, stating that Plaintiff's claim raises novel or complex issues of state law. (Defs. Reply Mem. Supp. Summ. J. at 19 n. 7.) Plaintiff, relying on Patrowich v. Chem. Bank, 63 N.Y.2d 541, 473 N.E.2d 11, 483 N.Y.S.2d 659 (1984) and the NYHRL provision N.Y. EXEC. LAW § 296(6), argues in response that there is individual liability for actual participation in or aiding and abetting an employer's discriminatory conduct. (Pl Mem. Opp. Summ. J. at 21-22.)

We note at the outset our agreement with defendants' assertion that Plaintiff's claims against the individual defendants present issues of New York state law that are by no means crystal clear. The confusion arises from Patrowich, wherein the New York Court of Appeals held that "[a] corporate employee, though he has a title as an officer and is the manager or supervisor of a corporate division, is not individually subject to suit with respect to discrimination based on age or sex under New York's Human Rights law." Patrowich did not, however, discuss the import of N.Y. EXEC. LAW § 296(6), which provides that "[i]t shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this

article, or to attempt to do so." Several years later, the district court in the age discrimination case Wanamaker v. Columbian Rope Co., 740 F. Supp. 127, 135-36 (N.D.N.Y. 1990), distinguished Patrowich by citing § 296(6), and concluding that the Plaintiff's allegations in that case "support [ed] the conclusion that defendants aided or abetted the acts which plaintiff claims violated the [NY]HRL." A few years thereafter, in Tomka v. Seller Corp., 66 F.3d 1295, 1317 (2d Cir. 1995), the United States Court of Appeals for the Second Circuit borrowed the logic of Wanamaker and held that under the "aiding and abetting" language of § 296(6), "a defendant who actually participates in the conduct giving rise to a discrimination claim maybe held personally liable under the [NY]HRL."

The New York state courts have not uniformly accepted the Second Circuit's interpretation of state law in Tomka, and the two New York Appellate Divisions located within the Southern District of New York have in fact reached divergent conclusions on this issue. Compare Steadman v. Sinclair, 223 A.D.2d 392, 393, 636 N.Y.S.2d 325 (1st Dep't 1996) (citing, inter alia, Tomka for the proposition that "`an individual may be held liable for aiding discriminatory conduct'" under the NYHRL (citation omitted)), with Trovato, 238 A.D.2d at 334 (acknowledging the contrary conclusions of Tomka and Steadman, but concluding that "[t]o find a coemployee liable as an aider and abettor would ignore the statutory and legal authority limiting the parties who may be sued for employment discrimination."). Moreover, this divergence has yet to be resolved by the New York Court of Appeals. The resulting confusion has caused several district courts to decline to exercise their supplemental jurisdiction over a Plaintiff's NYHRL claims. See Ponticelli v. Zurich Am. Ins. Group, 16 F. Supp.2d 414, 439-40 (S.D.N.Y. 1998) (following Houston v. Fidelity, No. 95 CIV 7764, 1997 WL 97838; at *10 (S.D.N.Y. Mar. 6, 1997)); see also Heinemann v. Howe Rusling, 260 F. Supp.2d 592, 596-97 (W.D.N.Y. 2003) (citing examples in dicta).

Nevertheless, the majority of the other federal district courts in New York considering the issue have elected to follow the lead of the Second Circuit in Tomka and apply its rule of "actual participation" to hold individual defendants personally liable under the NYHRL for discriminatory conduct via § 296(6). See, e.g., Perks v. Town of Huntington, 251 F. Supp.2d 1143, 1160-61 (E.D.N.Y. 2003); Jong-Fwu v. Overseas Shipholding Group, Inc., No. 00 CIV 9682, 2002 WL 1929490, at *7 n. 3 (S.D.N.Y. Aug. 21, 2002); Lewis v. Triborough Bridge Tunnel Auth., 77 F. Supp.2d 376, 379 n. 6 (S.D.N.Y. 1999); Petrosky v. N.Y. State Dep't of Motor Vehicles, 72 F. Supp.2d 39, 64-65 (N.D.N.Y. 1999); Pell v. Trs. of Columbia Univ., No. 97 CIV 0193, 1998 WL 19989, at *21 (S.D.N.Y. Jan. 21, 1998). We deem this approach to be the most prudent because, as noted by Judge Young in the Eastern District, although the Second Circuit's ruling in Tomka "has been criticized, it is binding upon this Court." Perks, 251 F. Supp.2d at 1160; see also Petrosky, 72 F. Supp.2d at 65 (stating that "the most important precedential authority presented is from the Second Circuit as this Court is bound by its decisions of law."). We will, therefore, decline defendants' invitation and will exercise our supplemental jurisdiction to apply the clearly articulated rule of Tomka to the facts of the present case.

The relevant statutory framework provides an appropriate starting point for our analysis of the present case. N.Y. EXEC. LAW § 296(6), relied on by plaintiff, provides that "[i]t shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so." The retaliation provision of the NYHRL is N.Y. EXEC. LAW § 296(7), which provides 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 this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article." These two subsections are read in concert and an individual defendant may be held liable under the NYHRL for actual participation in or aiding and abetting an employer's retaliatory conduct. See Naftchi v. New York Univ., 14 F. Supp.2d 473, 491-92 (S.D.N.Y. 1998) (applying § 296(6) to NYHRL retaliation claim and concluding that there was a triable issue of fact as to one defendant who had participated in decisions to deny raises to the plaintiff and to take away his office space); Steadman, 223 A.D.2d at 393 (concluding that the defendant had stated a viable NYHRL retaliation counterclaim under § 296(6) when she alleged that the plaintiff brought an action against her at the instigation of the defendant's employer in retaliation for filing an EEOC complaint).

Accordingly, we turn to the facts of the present case in order to determine which of the named defendants actually participated in the actions giving rise to Plaintiff's claims of retaliation. See supra Part III. With respect to Plaintiff's protected activities, namely his inquiries about the nature of his October 2000 light duty and subsequent requests to be placed on light duty, filed prior to his EEOC complaint, we note that Plaintiff's inquiries were directed to and handled by Henneman, Beairsto and Hertman. Henneman participated in the adverse employment action by signing and sending the letter stating the Town's intention to terminate Plaintiff's N.Y. GEN. MUN. LAW § 207-c benefits constitute protected activities. Nosworthy engaged in adverse action by adopting hearing officer Zaidins's recommendations and terminating Plaintiff's benefits. Finally, Ward actually terminated Plaintiff's employment pursuant to N.Y. CIV SERV. LAW § 71. We conclude, therefore, that the record reveals evidence of active participation by all five named individual defendants and deny defendants' motion for summary judgment dismissing plaintiff's NYHRL claims against them.

V. Defendants' Counterclaim to Recoup Wrongfully Received Benefits

Defendants also move for summary judgment on the Town's counterclaim. Relying primarily on County of West Chester v. Sheehan, 292 A.D.2d 486 , 741 N.Y.S.2d 244 (2dDep't 2002), they claim that plaintiff wrongfully received $49,171.22 in N.Y. GEN. MUN. LAW § 207-c benefits, see supra notes 5-6, that the Town is entitled to recoup with interest. (Defs. Mem. Supp. Summ. J. at 15-16; Defs. Reply Mem. Supp. Summ. J. at 14.) Plaintiff argues in response that Sheehan is distinguishable and that there is in any event a genuine issue of material fact exists about the amount owed, especially in light of his claim that the Town wrongfully withheld his check for the April 2002 retroactive salary increase. (Pl Mem. Opp. Summ. J. at 18-20.) We grant in part defendants' motion for summary judgment on the counterclaim as to liability only. We also conclude, however, that a material issue of fact exists as to the amount of the Town's damages.

We begin with a review of Sheehan, which is the controlling case on the liability issue. In that case, the plaintiff-county paid § 207-c benefits to the defendant, a corrections officer who had been punched by a former inmate in the parking lot of a diner over an hour prior to the officer's reporting to work. 292 A.D.2d at 487. The defendant received the benefits for several months before an arbitrator determined that he was not entitled to them because the injury did not occur during the course of his employment. Id. Thereafter, the county brought an action to recover those benefits that had already been paid to the defendant. Id. The Supreme Court, Westchester County, granted the Plaintiff's cross motion for summary judgment as to liability only, and the Appellate Division, Second Department affirmed, concluding that the plaintiff in that case "was unjustly enriched and must repay those benefits." Id. In so holding, the court recognized the `"strong public policy in favor of protecting the public fisc and recovering moneys improperly or illegally paid out.'" Id. (quoting County of Westchester v. Westchester County Corr. Officers Benevolent Ass'n, 278 A.D.2d 414, 416, 717 N.Y.S.2d 651 (2d Dep't 2000), leave to appeal denied, 96 N.Y.2d 708, 749 N.E.2d 207, 725 N.Y.S.2d 638 (2001)).

We conclude that under Sheehan, plaintiff is obligated to repay the Town for those § 207-c benefits that he improperly collected from the time that he refused to perform light-duty work on October 30, 2000 until supervisor Nosworthy adopted the recommendations of hearing officer Zaidins on October 29, 2001 and concluded that plaintiff had forfeited his § 207-c benefits. Plaintiff, like the corrections officer in Sheehan, received benefits to which he was not entitled because of his refusal to perform light-duty work as assigned, an obligation that is a precondition to the receipt of § 207-c benefits. Accordingly, the public policy of the state of New York, as enunciated in Sheehan requires that he repay the Town those monies that were improperly paid to him. We therefore grant defendants' summary judgment motion as to liability on their counterclaim.

With respect to the amount of damages, defendants first claim that plaintiff owes the Town $49,504.49 plus interest, a sum that they reduce in the Reply Memorandum to $49,171.22 after crediting plaintiff for the value of his accumulated unused compensatory time. (Defs. Mem. Supp. Summ. J. at 15; Defs. Reply Mem. Supp. Summ. J. at 14.) Plaintiff argues in response that the Town has not supported the damages aspect of its counterclaim with admissible evidence, which precludes a complete grant of summary judgment in its favor. (Pl Mem. Opp. Summ. J. at 18-20.) We note, however, that plaintiff has not provided in his Memorandum detailed arguments about the admissibility of the evidence proffered by defendants in support of the Town's motion.

In support of their counterclaim and the amount of claimed damages, defendants cite only a letter dated July 29, 2002 from the Town's attorney John O'Reilly to Plaintiff's attorney Dana Rudikoff. (Defs. Mem. Supp. Summ. J. at 15; Defs. Reply Mem. Supp. Summ. J. at 14, both citing Defs. Rule 56.1 Stmt., Ex. CCC.) In this letter, O'Reilly responded to a previous letter sent by Plaintiff's counsel with respect to Plaintiff's claim that the Town owed him back pay pursuant to the April 2002 retroactive pay increase. O'Reilly asserted that the Town is entitled to recoup the § 207-c benefits that it paid to plaintiff after October 30, 2000. (Defs. Rule 56.1 Stmt., Ex. CCC at 1.) In that letter, the Town's attorney provided an itemized list of benefits received by plaintiff after October 30, 2000 and asserted that plaintiff owes the Town a total of $49,504.49 before certain reductions that were proposed in contemplation of settlement. ( Id. at 1-2.) The letter does not include appended exhibits supporting the figures in the itemized list.

It is well settled that "only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment" and that "[t]he principles governing admissibility of evidence do not change on a motion for summary judgment." Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1998); see also, e.g., Wieczorek v. Red Roof Inns, Inc., 3 F. Supp.2d 210, 214 (N.D.N.Y. 1998) (refusing to consider inadmissible hearsay in support of defendant's summary judgment motion).

We conclude that the letter relied upon by the Town is inadmissible hearsay because it is an "out-of-court statement . . . offered to prove the truth of the matter asserted" and not subject to any of the exceptions set forth in the Federal Rules of Evidence. Even if considered a public record of the Town for purposes of the FED. R. EVID. 803(8) public records exception, the letter was prepared in contemplation of the present litigation and therefore remains inadmissible. See, e.g., United States v. Stone, 604 F.2d 922, 925-26 (5th Cir. 1979) (stating "[t]his exception for an agency's official records does not apply to [treasury agent's] personal statements prepared solely for purposes of this litigation" because they "are likely to reflect the same lack of trustworthiness that prevents admission of litigation-oriented statements"); cf. Hynes v. Coughlin, 79 F.3d 285, 294-95 (2d Cir. 1996) (noting that the litigation-centric purpose of a prison's "use of force" form tends to preclude its admission via the Rule 803(6) business records exception). Moreover, it is inadmissible even under the residual exception of FED. R. CIV P. 807, which provides:

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

Plainly prepared in anticipation of this litigation, the letter does not have "equivalent circumstantial guarantees of trustworthiness" comparable to the 803 and 804 hearsay exceptions. Moreover, the damage figures contained in the letter are not "more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts." Id. Provision of and citation to the actual records from which the figures in the letter are derived would be both more probative and would not require unreasonable efforts by defendants. Cf. Freedman v. Value Health, Inc., 135 F. Supp.2d 317, 332 n. 6 (D. Conn. 2001) (concluding that a letter from defendants' attorney providing defendants' loss projections with attached independent auditor's report and schedule was admissible for securities fraud summary judgment motion under Rule 807 because "there is no challenge to its authenticity, it is offered as evidence of a material fact [and] it is more probative on the point for which it is offered than any other evidence which the defendants can procure"), aff'd, 34 Fed. App. 408 (2d Cir. 2002) (unpublished opinion). Accordingly, we conclude that the attorney's letter in the present case constitutes inadmissible hearsay. Inasmuch as plaintiff actively disputes the amount that he owes to the Town because of numerous credits to which he claims entitlement, including the retroactive paycheck withheld in April 2002, (Pl Mem. Opp. Surnm. J. at 18-19) we conclude that there is a genuine issue of material fact with respect to the amount owed to the Town and therefore deny defendants' summary judgment motion as to damages on their counterclaim.

CONCLUSION

SO ORDERED