William Jacobsen, Appellant,v.New York City Health and Hospitals Corporation, Respondent.BriefN.Y.March 19, 2013 REPRODUCED ON RECYCLED PAPER Sup. Ct., N.Y. Co. To be argued by Index No. 103714/08 ELIZABETH S. NATRELLA (5 minutes) STATE OF NEW YORK COURT OF APPEALS WILLIAM JACOBSEN, Plaintiff-Appellant, -against- NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendant-Respondent. BRIEF FOR RESPONDENT NEW YORK CITY HEALTH AND HOSPITALS CORPORATION MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for Respondent New York City Health & Hospitals Corporation, 100 Church Street, New York, New York 10007 Tel. (212) 356-2609 Fax (212) 356-2509 enatrell@law.nyc.gov LEONARD KOERNER, ELIZABETH S. NATRELLA, MAXWELL LEIGHTON, of Counsel. September 12, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ..............................................................................1 QUESTIONS PRESENTED .....................................................................................2 JURISDICTION OF THE COURT...........................................................................3 STATUTORY AND REGULATORY OVERVIEW ...............................................3 STATEMENT OF FACTS .......................................................................................6 A. Overview.........................................................................................................6 B. Relevant Factual Background.........................................................................8 C. The Instant Action ........................................................................................21 D. HHC’s Motion for Summary Judgment and Plaintiff’s Opposition.............22 SUPREME COURT, NEW YORK COUNTY, OPINION.....................................24 APPELLATE DIVISION, FIRST DEPARTMENT, OPINION.............................25 POINT I....................................................................................................................29 THE HUMAN RIGHTS LAW DISABILITY DISCRIMINATION CLAIMS WERE PROPERLY DISMISSED BECAUSE PLAINTIFF, BY HIS OWN EVIDENCE, WAS NOT ABLE TO PERFORM THE ESSENTIAL JOB FUNCTIONS OF HIS JOB. A. The Standard of Review on Summary Judgment. 29 - ii - B. As The Appellate Division Properly Determined, Because HHC Demonstrated that Plaintiff Was Not Capable Of Performing The Essential Functions Of A Health Facilities Planner Without Danger To Himself, HHC was Entitled to Summary Judgment Dismissing Plaintiff’s Disability Discrimination Claims Under The State and City Human Rights Laws. 30 C. Plaintiff’s Reasonable Accommodation Arguments are Without Merit. 40 POINT II ..................................................................................................................50 PLAINTIFF’S ARGUMENT ON A PURPORTED RETALIATION CLAIM FAILS ON NUMEROUS GROUNDS, INCLUDING LACK OF PRESERVATION AND LACK OF MERIT. A. Any Purported Retaliation Claim is Not Properly Before This Court. 50 B. Plaintiff Never Pled and Never Demonstrated a Viable Retaliation Claim. 50 CONCLUSION .......................................................................................................52 - iii - TABLE OF AUTHORITIES Page CASES Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986) .........................................................................................29 Bellamy v. City of New York, 14 A.D.3d 462 (1st Dept. 2005) .........................................................................35 City of New York v. New York State Div. of Human Rights, 225 A.D.2d 421 (1st Dept. 1996) .......................................................................24 City of New York v. State Division of Human Rights [Granelle], 70 N.Y.2d 100 (1987) .........................................................................................35 Davis v. New York City Health and Hospitals Corp., 508 Fed. Appx. 26, 2013 U.S. App. LEXIS 1648 (2d Cir. Jan. 25, 2013) .................................................................................34, 40 Jacobsen v. N.Y.C. Health & Hosps. Corp., 97 A.D.3d 428 (1st Dept. 2012) ................................................................. passim Jacobsen v. NYCHHC, 2013 U.S. Dist. LEXIS 122448 (S.D.N.Y. Aug. 28, 2013) (Oetken, D.J.) .......28 Mair-Headley v. County of Westchester, 41 A.D.3d 600 (2d Dept. 2007) ....................................................................43, 48 McCarthy v. Nassau County, 208 A.D.2d 810 (2d Dept. 1994) ........................................................................35 McEniry v. Landi, 84 N.Y.2d 554 (1994) .........................................................................................32 Miller v. Ravitch, 60 N.Y.2d 527 (1983) .........................................................................................35 - iv - Norville v. Staten Island Univ. Hosp., 196 F.3d 89 (2d Cir. 1999) .................................................................................40 O’Sullivan v. City of New York, 38 A.D.3d 467 (1st Dept.), app. den., 9 N.Y.3d 804 (2007) ..............................34 Pembroke v. New York State Office of Court Administration, 306 A.D.2d 185 (1st Dept. 2003) .....................................................34, 40, 41, 48 Phillips v. City of New York, 66 A.D.3d 170 (1st Dept. 2009) .........................................................................44 Pimental v. Citibank, N.A., 29 A.D.3d 141 (1st Dept. 2006), lv. denied, 7 N.Y.3d 907 (2006) .........................................................................42 Quain v. Buzzetta Constr. Corp., 69 N.Y.2d 376 (1987) (per curiam)................................................................3, 50 Scantlebury v. New York City Health and Hospitals Corp., 4 N.Y.3d 606 (2005) .....................................................................................49, 50 Shannon v. N.Y.C. Transit Auth., 332 F.3d 95 (2d Cir. 2003) .................................................................................39 Yasinosky v. New York City Transit Authority, 193 A.D.2d 731 (2d Dept. 1993) ........................................................................35 Zuckerman v. City of New York, 49 N.Y.2d 557 (1980) .........................................................................................30 STATUTES, RULES AND REGULATIONS: 42 U.S.C. § 1983......................................................................................................28 Fed.R.Civ.P. 12(c)....................................................................................................28 - v - CPLR §§ 3211(a)(7), 3212 ..................................................................................1, 22 Gen. Mun. Law § 50-e ..................................................................................... passim Gen. Mun. Law § 50-i...................................................................................... passim New York State Human Rights Law (HRL), N.Y. Exec. Law §§ 290 et seq. passim Executive Law § 292(21).........................................................................4, 25, 33, 34 Executive Law § 296........................................................................................ passim Executive Law § 296(1).....................................................................................25, 34 Uncons. Law § 7401 ....................................................................................... passim WCL § 11 ..........................................................................................................52 N.Y.C. City Human Rights Law, N.Y.C. Admin. Code, § 8-107 ................... passim N.Y.C. Admin. Code § 8-107(15)(a) ...................................................................5, 32 N.Y.C. Admin. Code § 8-107(15)(b).......................................................................33 9 N.Y.C.R.R. § 466.11(f)(1) ................................................................................4, 33 9 N.Y.C.R.R. § 466.11(f)(3) ................................................................................4, 33 9 N.Y.C.R.R. § 466.11(g)(2) ...............................................................................5, 33 9 N.Y.C.R.R. § 466.11(g)(2)(i)......................................................................5, 33, 34 STATE OF NEW YORK COURT OF APPEALS WILLIAM JACOBSEN, Plaintiff-Appellant, -against- NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendant-Respondent. BRIEF FOR RESPONDENT NEW YORK CITY HEALTH AND HOSPITALS CORPORATION PRELIMINARY STATEMENT Plaintiff-appellant William Jacobsen (“plaintiff”), a former HHC Health Facilities Planner, appeals from a decision and order of the Appellate Division, First Department, entered July 7, 2012 (see Record at xi-xxix).1 The Appellate Division affirmed an order and judgment of the Supreme Court, New York County (Wright, J.), entered July 19, 2011, which granted the motion for summary judgment by defendant-respondent, the New York City Health and Hospitals Corporation (“HHC”), to dismiss this action pursuant to CPLR §§ 3211(a)(7), 3212, and Unconsolidated Laws of New York § 7401 (8-10). The Appellate Division rejected plaintiff’s claims that he was discriminated against and 1 Numbers in parentheses preceded to the page numbers in the Record on Appeal. - 2 - wrongfully terminated because of a disability, in alleged violation of the New York State Human Rights Law (Executive Law § 296[1][a]) and the New York City Human Rights Law (N.Y.C. Administrative Code § 8-107[1][a]). The Court also rejected his other claims, including for gross negligence. QUESTIONS PRESENTED 1. Was summary judgment properly granted dismissing the State and City Human Rights Law disability discrimination claims, where, by plaintiff’s own evidence, he could not, for medical reasons, perform an essential function of his position (and for which medical condition no reasonable accommodation existed which would permit him to do so)? 2. Are plaintiff’s other alleged claims barred from review by this Court based upon failure to raise and preserve such claims in the motion for leave to appeal and in the complaint? 3. Solely in the alternative, did the Court correctly dismiss the purported retaliation claim as legally insufficient and the purported claim for gross negligence as barred based upon failure to comply with the governing statute of limitations and notice of claim provisions set forth in Unconsol. Laws, § 7401(2), and Gen. Mun. Law, § 50-e? - 3 - JURISDICTION OF THE COURT This Court has only limited jurisdiction over this appeal. By order entered October 2, 2012, the Appellate Division denied plaintiff’s motion for reargument, but granted leave to appeal to this Court only “to the extent that [plaintiff] seeks leave to appeal” (emphasis added) and then certified the question of “Was the order of this Court, which affirmed the order of the Supreme Court, properly made?” (see 10/2/12 Order at x). Plaintiff’s motion for reargument and leave to appeal, dated August 6, 2012, was confined to plaintiff’s Human Rights Law claims (a copy of plaintiff’s motion will be provided upon request). Correspondingly, about two months later, on November 30, 2012, plaintiff filed a Preliminary Appeal Statement, which listed three questions for review all focused on the issues of alleged disability discrimination and alleged failure to provide a “reasonable accommodation” under the State and City Human Rights Laws. Accordingly, those are the only properly-preserved issues before this Court (see Quain v. Buzzetta Constr. Corp., 69 N.Y.2d 376, 379 (1987) (per curiam) and see post, Pt. II, Sub. A)). STATUTORY AND REGULATORY OVERVIEW Under the New York State Human Rights Law, Executive (“Exec.”) Law § 290, et seq., it is an unlawful discriminatory practice for an employer, - 4 - because of a disability of any individual, to refuse to employ or to discharge such individual or to discriminate against him in compensation or in the terms, conditions or privileges of employment (Exec. Law § 296). Under Exec. Law § 292(21), “disability” is defined as: (a) a physical, mental or medical impairment resulting from anatomical, physiological or neurological conditions which prevents the exercise of normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques , … . provided, however, that … the term [disability] shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held. (Id., § 292(21) (Emphasis added). Under governing State regulations, in order to perform a job in a reasonable manner, the plaintiff must show that he or she has “the ability, with or without accommodation, to satisfactorily perform the essential functions of the job or occupation.” 9 N.Y.C.R.R. § 466.11(f)(1). The regulations define “essential functions” as “those fundamental to the position; a function is essential if not performing that function would fundamentally change the job or occupation for which the position exists ….” 9 N.Y.C.R.R. § 466.11(f)(3). Additionally, “[r]easonable accommodation is not required where the disability or the accommodation itself poses a direct threat.” 9 N.Y.C.R.R. § - 5 - 466.11(g)(2). State regulations define “direct threat” as a “significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation.” 9 N.Y.C.R.R. § 466.11(g)(2)(i). The term “reasonable accommodation” is defined as “actions taken which permit an employee, prospective employee or member with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held and include, but are not limited to, provision of an accessible worksite, acquisition or modification of equipment, support services for persons with impaired hearing or vision, job restructuring and modified work schedules provided, however, that such actions do not impose an undue hardship on the business, program or enterprise of the entity from which action is requested.” Exec. Law § 292.21-e. Additionally, the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq., requires an employer to make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job, but it expressly provides for an affirmative defense in disability cases. It provides as follows (id., §§ 8-107(15)(a) and (b)): - 6 - (b) Affirmative defense in disability cases. In any case where the need for reasonable accommodation is placed in issue, it shall be an affirmative defense that the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodation, satisfy the essential requisites of the job . . . . (Emphasis added). Accordingly, under both the State and City Human Rights Laws, an employee who cannot perform the essential job functions of his or her title is not “disabled” within the meaning of those statutes. STATEMENT OF FACTS A. Overview. In his complaint, plaintiff, who was terminated from his position as a Health Facilities Planner based upon his inability to perform the essential functions of his job, pled two causes of action for violations of the New York State and City Human Rights Laws. He alleged that HHC discriminated against him on the basis of his lung disability and also that HHC failed to reasonably accommodate his disability (32-34). A third cause of action asserted that HHC was grossly negligent with respect to his work assignment (34-35). Plaintiff had been employed by HHC as an Assistant Health Facilities Planner and then as a Health Facilities Planner, which work required that he spend time in the field and at construction sites of various facilities. After working many - 7 - years in the 346 Broadway, Manhattan office, in August 2005, due to operational needs, he was assigned to the Queens Hospital Center (“QHC”) as a network leader with responsibilities for overseeing construction there and at other hospital sites. In September 2005, he was diagnosed with a pulmonary disease, pneumoconiosis. After voluntarily taking a leave of absence due to his own professed inability to perform the essential functions of his position, plaintiff was medically cleared by his physician to return to work and thereafter returned to work as a QHC network leader. As a Health Facilities Planner, plaintiff was required to perform work in the field, including frequent visitation of construction sites for various HHC building projects. All network leaders did field work and field work was a major component of the work of that title, consuming significant amounts of the time spent on the job by the network leaders. Plaintiff requested reassignment from QHC to another location in which he would not be exposed to dust, thus precluding him from field work or construction site visits. As this was an essential job function of Health Facilities Planner, that was not possible. HHC placed plaintiff on a six-month medical leave during which time he could be reinstated, if his condition sufficiently improved, and if he provided medical documentation showing that he could perform his essential job functions. Plaintiff did not provide - 8 - such documentation and, accordingly, was terminated from his position in March 2007. B. Relevant Factual Background. In 1979, plaintiff began working as an Assistant Health Facilities Planner with HHC, responsible for monitoring the independent contractors on construction and renovation jobs at facilities operated by HHC. See Pl. Dep., 225 at Tr. 30:14–31:22; Pl. Dep., 226-227 at Tr. 35:14 – 37:1, Pl. Dep., 227 at Tr. 38:21–39:15. In 1982, plaintiff was promoted to Health Facilities Planner, and although he was assigned to larger projects, his daily tasks remained the same. See Pl. Dep., 228 at Tr. 41:21–43:7. Until August 2005, plaintiff was based at HHC’s corporate offices at 346 Broadway, New York, New York (“346 Broadway’). See Complaint, 29 ¶ “6.” During the time that plaintiff was based at 346 Broadway, he visited the field, see Pl. Dep., 233 at Tr. 61:9-11, with his specific assignment being the network leader of the “Bellevue network.” See James Dep., 276 at Tr. 24:4-7.2 According to plaintiff, he would visit the job sites one or two days a week to meet with facility directors, examine existing structures, and review and 2 Although referred to as the “Bellevue network” in the papers below in this case, Bellevue is simply one of the acute care facilities in the South Manhattan Healthcare network. - 9 - supervise the contractors’ work. See Pl. Dep., 233 at Tr. 61:9-11. His specific assignment was the network leader of the “Bellevue network [formally, the South Manhattan network],” which consisted of several facilities, each with four or five projects taking place. See James Dep., 276 at Tr. 24:4-7. Throughout the network, “[i]f there was any construction going on there, [plaintiff] was asked to observe it.” James Dep., 277 at Tr. 28:13-14. Furthermore, plaintiff’s responsibility, as a network leader, was … to take his experience that he gathered, to make sure the people [are] doing the work that we hired, are doing what they [are] supposed to do. And the only way you can do that is to go out in the field and watch them do it. (Emphasis supplied). James Dep., 280 at Tr. 38:17-22. Plaintiff would spend the remaining work week at 346 Broadway, see Compl., 29 ¶ “6,” completing written and oral reports on the progress of various projects. In August 2005, plaintiff was reassigned to be the QHC network leader because a major construction project within that network needed help. The prior leader was overburdened in Kings County and the projecting was faltering at Queens so reassignments were made to readjust the workloads (James Dep., 285 at Tr. 59:10-18). As a result of this reassignment, plaintiff’s office was relocated to - 10 - QHC, located in Jamaica, New York, and he only worked at the central office once a week or every other week, to attend meetings. Plaintiff was also required to visit construction areas at QHC on a daily basis (Pl. Dep., 230 at Tr. 50:7-8). At that time, plaintiff was not solely responsible for projects at QHC, but also attended construction management meetings at different hospitals regarding construction projects at those locations. Pl. Dep., 245-246 at Tr. 111:6 – 113:6. By letter dated September 21, 2005, plaintiff’s physician, Gwen S. Skloot (“Dr. Skloot”), advised HHC that plaintiff had been diagnosed with “interstitial lung disease” or pneumoconiosis which had been diagnosed by an open lung biopsy on September 9, 2005 (101, 103). In the September 2005 letter, she stated that he was under her care and would require rest at home for several additional weeks (see letter from Dr. Skloot to HHC, dated September 21, 2005, at 101; see also Pl. Dep., 234 at Tr. 65:14-22; Compl., 29 ¶ “8”). On his signed September 2005 application for a three-month leave of absence under the Family and Medical Leave Act (“FMLA”), plaintiff expressly requested a leave because his health condition made him “unable to perform the employee’s job functions” (171). Dr. Skloot stated separately that he could not “perform usual tasks” and “should not be exposed to inhaled dusts” (174). - 11 - In response, Mr. Mondo Hall, an HHC Human Resources officer, informed plaintiff that his leave was granted to begin retroactively to September 9 and continuing for three months (102). Mr. Hall advised plaintiff that plaintiff’s doctor should provide an updated note indicating his prognosis and his expected date of return to duty since his doctor had stated that his “return to work date is unknown” (see letter from Mr. Hall to plaintiff, dated October 17, 2005, at 102). In a December 6, 2005 letter addressed “To Whom It May Concern,” Dr. Skloot stated that plaintiff was ready to return to work, but did not give a date and also directed that he “should not be present at any construction site” (103). Furthermore, Dr. Skloot stated that plaintiff’s lung condition made it: “imperative that he not be further exposed to any type of environmental dust. Specifically, this means that he cannot be present at any construction site” (103). Given the insufficiency of that letter, on December 27, 2005, Mr. Hall wrote directly to Dr. Skloot, advising her not only that she must indicate an exact date on which plaintiff could return to work, but also attaching a list of plaintiff’s job duties (104). The letter highlighted the fact that approximately seventy-five (75%) percent of plaintiff’s working hours were in the field “monitoring several construction projects and attend[ing] construction management meetings on site,” with only 25% of his hours in the office (see 104-105). - 12 - Thereafter, by letter dated December 27, 2005, Associate Director Hall responded to Dr. Skloot’s December 6th letter, noting that Dr. Skloot had not specified an exact date that plaintiff could return to work. Further, Hall wrote More important, we are attaching a listing of Mr. Jacobson’s job duties. Please note, Mr. Jacobsen spends approximately 75% of his working hours in the field monitoring several construction projects and attends construction management meetings on site. He spends approximately 25% of his working hours in the office. Please let us know if Mr. Jacobsen is medically cleared to fully perform the essential functions of his duties. (Emphasis supplied). (see 104-105). HHC thus asked for the doctor to let HHC know whether, based on the provided information, plaintiff was medically cleared to fully perform the “essential functions of his duties” (104). The detailed duties on the attached list of plaintiff’s duties described that 75% of his duties were: “Monitoring the construction of a new Ambulatory Center at Queens Hospital Center and attending all construction management meetings at the construction site. Also, attend[ing] meetings of his projects that are in design or construction at East New York - 13 - D&TC, Cumberland D&TC and Sea View Hospital Rehabilitation Center & Home (75%)” (105). HHC thus asked for Dr. Skloot to inform HHC whether, based on the provided information, plaintiff was medically cleared to fully perform the “essential functions of his duties” (104). By letter dated January 5, 2006, plaintiff’s union representative, George Lawrence, wrote to plaintiff’s supervisor Vincent James (see 106). The letter noted that plaintiff could not be present at any construction site at any time due to his lung condition, and requested, as an accommodation, that plaintiff be allowed to return to work with the accommodation of being “assigned work that he is capable of doing in the office” (106). On March 21, 2006, plaintiff provided another letter from Dr. Skloot stating that he was immediately “medically cleared to work in the field so that he can attend project meetings” (108). In that letter, Dr. Skloot states that she had advised plaintiff that “it is imperative that he not be exposed to any type of environmental dust, and he has assured me that his field work will not include such exposure.” (see letter from Dr. Skloot to Hall, date stamped March 21, 2006, at 108). - 14 - Relying on this medical clearance, on March 22, 2006, Associate Director Mondo Hall informed plaintiff’s department that plaintiff had been medically cleared and would be returning to work on March 27, 2006 (see Hall Dep., R329 at Tr. 50:22-25). On March 27, 2006, plaintiff returned to work at QHC, at the same location and in the same position as the network manager, that he had occupied before his medical leave (see Pl. Dep., R254 at Tr. 148:22– 149:20). Plaintiff did not recall whether, upon returning to QHC, he complained to anyone regarding the fact that he was assigned to that location (see Pl. Dep., R255 at Tr. 150:7–151:1). Plaintiff stated that he told Anita O’Brien, the Director of Facility at QHC, that, at certain points, he was having difficultly breathing, and that she understood that plaintiff needed respiratory protection. He said that she had provided a dust mask to help to him (253 at Tr. 142:7–144:7, 255 at 152:20–153:15). Plaintiff acknowledged at his EBT that, in May 2006, eighty percent (80%) of his working hours were in the field, while twenty percent (20%) were in the central office (see Pl. Dep., R258 at Tr. 162:9–12). Plaintiff testified that, among the projects at QHC, he supervised the coordination of asbestos abatement studies and removal. His involvement for that project entailed “meeting with - 15 - consultants and contractors and providing the contract documents, and visiting the asbestos abatement site where I was subject to both dust in general, and asbestos in particular” (258 at Tr. 164:11-22). Plaintiff testified that he had been trained and licensed by the City and the State over a 15-year period in asbestos investigation, removal, and project management (see Pl. Dep., R223 at Tr. 21:22–24:8). Despite his background training and licensure, plaintiff testified that, upon his return to work at the Queens network, he had knowingly and voluntarily entered construction areas in which asbestos was present; he also said that he wore the dust mask, which he deemed insufficient protective gear (see Pl. Dep., R259 at Tr. 166:7-21). Plaintiff testified that, with his diagnosed respiratory issues, he was “certainly” aware that going into an asbestos removal site could be dangerous for his condition (259 at Tr. 166:16- 24). On May 10, 2006, plaintiff sent a letter to his supervisor in the central office, Vincent James, Senior Director of Facilities Management, solely requesting as a reasonable accommodation that he be “immediately relocated” to the office at 346 Broadway (109-110). Without stating any qualification or making other accommodation request, he stated that was “able to perform any and all functions, which were assigned to me prior to my relocation to QHC” (109). - 16 - Plaintiff attached a note from Stephen M. Levin, M.D., who advised that plaintiff was under his care for severe lung disease resulting from prior inhalation exposures to asbestos and other mineral dusts in his work environment (110). Dr. Levin strongly recommended that plaintiff be “placed in a work setting free from exposure to airborne irritant or fibrogenic dusts, fumes and gases . . . .” (110). Thereafter, by memorandum dated May 19, 2006, plaintiff’s central office supervisor, Mr. James advised Human Resources Director Hall that plaintiff’s job responsibilities required that he spend approximately eighty percent (80%) of his working hours in the field and twenty percent (20%) of his working hours in the central office. James further set forth several projects plaintiff was working on at QHC (111). He noted that, in addition to plaintiff, there were five other network managers that were responsible for two or more hospitals in the system, with each network manager spending an average of 80% of his working hours in the field (111). He also noted that “[i]t was my understanding that Mr. Jacobsen was cleared by [Human Resources] to return to work at full capacity. Due to the high volume of work at [QHC], it is imperative that we have a network manager cover the projects at that facility” (111). - 17 - Thus, Facilities Management Senior Director James relayed that plaintiff had to spend approximately 80% of his time in the field, which included visiting construction sites, to fully complete the “essential functions” of his position and explained further that eliminating all construction sites from plaintiff’s duties would make it impossible for him to perform his job (111). Moreover, as Mr. James further emphasized, “every construction site has dust. It’s the nature of the business. You walk by the World Trade Center, there’s going to be dust.” James Dep., 299 at Tr. 114:24–115:5. Furthermore, all network managers had to visit construction sites to perform their job. 302, at Tr. 124:21-25; 305 at Tr. 140:2-19. In regard to a question as to any issue as to plaintiff going to a construction site, James stated: … we still have an objection . . . because he’s a network manager. How you not going to do your job? How you going to tell me the construction’s progressing, if you’re sitting in the office? How can you tell me whether the sheetrock walls went up? Whether the lights are in? How can he do his job? (James Dep., 301-302 at Tr. 124:21–125:6). Citing a letter dated May 31, 2006, plaintiff testified that he made an accommodation request for reassignment to his former 346 Broadway location by - 18 - letter from the assistant general counsel of District Council 37, Steven Sykes (“Sykes”), to Gloria Velez, Senior Director of HHC Human Resources Services (112; see Pl. Dep., R255, at Tr. 151:14–152:19. In that accommodation request, Union counsel Sykes advised that plaintiff “is able to visit construction sites sporadically and/or infrequently. However, Mr. Jacobsen is currently in a position that requires him to visit construction sites constantly” (112). On behalf of plaintiff, Union counsel Sykes requested that (112): HHC find an appropriate place in the agency for him to work where he is not regularly assigned to construction sites. Mr. Jacobsen believes assignment to 346 Broadway, where he worked for 20 years, and was working before he went out on medical leave, would be an appropriate accommodation. Due to the severity of his condition, and the fact that he is currently required to visit construction sites, this matter is urgent. In response, on June 6, 2006, Mr. Hall wrote to plaintiff advising him that the proposed transfer back to 346 Broadway was not a reasonable accommodation because plaintiff’s position as a Health Facilities Planner required “constant visitation to the Corporation’s facilities at which ongoing construction is occurring” (114). Field work was not only an essential job function of that title, it was the essential job function, consuming well over 50% of the time of any Health Facilities Planer, including plaintiff (114, see 111, 105). - 19 - Plaintiff himself admitted at his deposition that field work was, and had been, a significant part of his job. He further admitted that at the time he was placed on leave and continuing on, he was unable to perform field work (see Pl. Dep., 230 at Tr. 50:7-8; 245-246 at 111:6–113:6). These admissions by plaintiff and by plaintiff’s physician, Dr. Skloot, that plaintiff could not perform the essential functions of his job, precipitated HHC’s placement of plaintiff on a six- month medical leave effective June 7, 2006. By letter from Associate Director Hall to plaintiff, dated June 6, 2006, he advised plaintiff as follows: We are in receipt of your updated doctor’s note dated May 9, 2006 and the May 31, 2006 correspondence from your attorney, Mr. Steven Sykes, in which he formally communicates your request for a reasonable accommodation. The proposed accommodation requested, however (assignment solely to 346 Broadway), is infeasible as your position entails constant visitation to the Corporation’s facilities at which ongoing construction is occurring. Please note that your doctor has indicated that, due to your severe lung disease condition, you must be placed in a work setting free from exposure to airborne irritant or fibrogenic dusts, fumes and gases. In light of that fact, and given the nature of your duties as a Health Facilities Planner, - 20 - there is no position in your title available in the Corporation that would not, of necessity, involve your working in conditions hazardous to your health. Therefore, we must conclude that at present you are not able to perform the essential functions of your job. These essential functions include your spending a majority of your time in field work that inevitably exposes you to conditions that your doctor advises would exacerbate your severe lung disease condition. (see 114). Associate Director Hall further advised that, effective June 7, 2006, plaintiff would be placed on an unpaid medical leave for six months and that, if within this leave period, plaintiff’s condition improved sufficiently to allow performance of his essential job functions, he must provide substantiating medical documentation for medical clearance (114). By letter dated August 4, 2006, Dr. Skloot wrote to HHC in response to a request for clarification of plaintiff’s medical condition (115-116). Dr. Skloot advised that, based on his pulmonary disease, plaintiff ‘will never be medically cleared to “fully perform the essential functions of his duties,”’ referencing her earlier March 2006 communication where she had advised him that it was imperative that he should not be further exposed to any type of environmental dust - 21 - (115 (emphasis added)). She noted that he did recently attempt to return to the field and developed significant worsening of his respiratory status, and therefore Dr. Skloot further stated that “the only work he is cleared to do is office work” (115). Significantly, Dr. Skloot stated that she was “clarify[ing] that any exposure to field work is detrimental to Mr. Jacobsen” (116 (emphasis added)). On March 26, 2007, at the conclusion of the six-month leave of absence, which had been offered as a reasonable accommodation, Senior Director of HHC Human Resources Services Gloria Velez advised plaintiff that HHC had not received medical documentation indicating that plaintiff’s condition had improved such that he could perform the essential functions of his position (letter from Velez to plaintiff, dated March 26, 2007, at 117). Accordingly, effective March 26, 2007, plaintiff’s employment was terminated (117). C. The Instant Action. On December 8, 2005, plaintiff filed a notice of claim against the City of New York, HHC, the City’s Department of Education (“DOE”), and the New York City Housing Authority (see notice of claim, filed December 8, 2005, at 118- 123). Therein, plaintiff only alleged tort claims of negligence, carelessness, and - 22 - recklessness, arising on September 9, 2005, concerning his alleged exposure to asbestos by those parties (118-123). Plaintiff apparently did not pursue that action. Plaintiff filed the instant complaint on March 12, 2008, alleging that HHC unlawfully discriminated against him and failed to afford him a reasonable accommodation for his disability or medical condition (28-35). The complaint pled causes of action for violation of the New York State Human Rights law, see Executive Law § 296, and the New York City Human Rights law, see N.Y.C. Admin. Code, § 8-107 (32-35). Plaintiff also pled a third cause of action for alleged gross negligence in assigning him to QHC “knowing that he already suffered from a serious respiratory ailment” (34). On May 27, 2008, HHC filed an answer (36-46), which raised a number of affirmative defenses (40-42). Plaintiff served a Note of issue, with a Certificate of Readiness, dated August 30, 2010 (99-100). D. HHC’s Motion for Summary Judgment and Plaintiff’s Opposition. On October 29, 2010, pursuant to CPLR §§ 3211(a)(7), 3212, and Unconsolidated Laws of New York § 7401, HHC moved to dismiss and for summary judgment dismissing the complaint because there were no issues of material fact requiring a trial; for failure to state a cause of action; and because some of the claims were barred based upon either plaintiff’s failure to file a notice - 23 - of claim and/or barred by the governing statute of limitations (11-12). The supporting affirmation from Assistant Corporation Counsel (“ACC”) Maxwell Leighton (12-27) annexed numerous exhibits, including the pleadings, the relevant examinations before trial, and other documentary evidence (see Exhibits A-T, at 28-118; see also124-125). HHC demonstrated, inter alia, that summary judgment was warranted because plaintiff’s medical condition precluded him from performing field work, an essential function of his job as a Health Facilities Planner. Plaintiff opposed the motion by his own affidavit sworn to May 23, 2011 (128-45), with annexed exhibits numbered 1-35 (146-216) and by affirmation of counsel Kenneth F. McCallion (217), with annexed exhibits numbered 36-39 (218-446). Plaintiff contended that: (a) field work was not an essential function of his position and that it was limited to 20%; and (b) notwithstanding his doctors’ assertions that he not be exposed to construction dust, plaintiff could have performed limited field work. In order to avoid any material issue of fact as to the amount of hours in the field, HHC’s reply in further support of its motion for summary judgment accepted for purposes of the motion only plaintiff’s figure that he spent only 20% in the field at his prior location. The percentage difference was immaterial, - 24 - because plaintiff’s physician stated that he could not do any field work at all (see , e.g., 115-116). Thus, this percentage difference was irrelevant to the motion for summary judgment because, whether 75% or 20%, plaintiff could not do field work at all and could not be present at construction sites. Obviously, moreover, HHC established the requirements of the job and plaintiff could not amend those qualifications. See, e.g., City of New York v. New York State Div. of Human Rights, 225 A.D.2d 421, 423 (1st Dept. 1996) (in annulling the decision of the SDHR Commissioner, the Court held that “[t]he Commissioner [of SDHR] may not substitute her judgment as to qualifications for hiring and promotion for that of the employer.”) (citations omitted)). SUPREME COURT, NEW YORK COUNTY, OPINION In a decision dated July 13, 2011 and entered July 19, 2011, the Supreme Court, New York County (Wright, J.), granted HHC summary judgment dismissing the action (8-10). After reviewing the relevant facts (9-10), the Court held, in relevant part (10): The thrust of the complaint, and the Plaintiff[’]s papers in opposition to the defense motion to dismiss the complaint is that at Queens Hospital, he must spend the majority of his time at construction sites. If the Plaintiff were to be granted the accommodation he seeks, he would have to spend about twenty (20%) percent of his time at construction sites. The Plaintiff[’]s own medical - 25 - evidence, from his doctor’s letter, leads to the inevitable conclusion that the Plaintiff cannot, for medical reasons, spend any time at a construction site, and therefor, can never return to his old duties. By the Plaintiff’s own evidence, he has not been discriminated against. He has suffered an act of nature due to occupational hazards. He is not entitled to the relief he seeks in the complaint. APPELLATE DIVISION, FIRST DEPARTMENT, OPINION On April 26, 2012, the Appellate Division, First Department, affirmed the Supreme Court’s order granting summary judgment dismissing plaintiff’s claims, as well as his claim for gross negligence and rejecting his attempted new due process and retaliation claims (Jacobsen v. N.Y.C. Health & Hosps. Corp., 97 A.D.3d 428 (1st Dept. 2012), lv. granted, __A.D.2d __ (1st Dept. 2012) (see Record at xi-xxix). Following its review of the record, the Appellate Division held that plaintiff did not state disability discrimination claims pursuant to the governing State and City Human Rights laws, because plaintiff could not perform an essential function of his position. As a result, the Court correctly found that there was no violation of Exec. Law § 296(1)(a) inasmuch as plaintiff was therefore not disabled within the meaning of Executive Law § 292(21). Id., 97 A.D.3d at 431. Furthermore, the Court held (id. at 431): - 26 - HHC established that plaintiff could not, even with a reasonable accommodation, perform the essential functions of his job (Executive Law § 292[21]; Administrative Code § 8-107[15]). Vincent James, plaintiff’s supervisor at the central office, testified that plaintiff’s position required him to spend the majority of his time at construction sites. The only way plaintiff would be able to report on construction progress was to be present at the site; therefore, it was not possible for plaintiff to complete his duties from the central office. HHC pointed to letters from Dr. Skloot and plaintiff’s own deposition testimony in which he admits that he can no longer visit construction sites, which was the bulk of his work. Although plaintiff claimed he could perform all his duties from the central office, he failed to explain how he could monitor the progress of construction and renovation projects, an essential function of his job, from the central office without visiting the sites. With respect to the alleged reasonable accommodation issues, the Appellate Division correctly held that HHC was not required to find him another job, create a new one or create a “light duty” or other position for plaintiff. Id., 97 A.D.3d at 431. The Appellate Division also recognized that plaintiff focused in the Court below on HHC’s denial of his accommodation request to work in his old office, not on the adequacy of the equipment provided to him. Id., 97 A.D.3d at 432. In any event, with respect to the dissent’s contention that there was a triable issue of fact as to whether HHC engaged in an interactive process based upon - 27 - plaintiff’s deposition testimony that, at some point in March 2006, he complained to his supervisor at about the dust and requested a respirator, the Appellate Division held (97 A.D.3d at 432-433): Plaintiff also stated at his deposition that after complaining about the dust, he was provided with a dust mask. Plaintiff testified he did not consistently wear that mask because it made it difficult to communicate. Thus, having failed to wear the mask given to him, plaintiff can hardly complain he never got protection. Further, although plaintiff now argues that the dust mask was inadequate, he never made any additional complaints to his supervisor or anyone else about it, nor did he request different equipment than what he was given. Finally, all of the letters that plaintiff relies on, from his doctor, union representative, and plaintiff himself, make a request for relocation to the central office or an environment free of dust. None of the letters ask for a respirator so that plaintiff could remain at the Queens Hospital location. (Emphasis added). The Appellate Division therefore concluded that “HHC should not be held responsible for not engaging further with plaintiff about the respirator when plaintiff’s own doctor provided documentation supporting a transfer to an office job as the solution for plaintiff’s disability.” Id., 97 A.D.3d at 433. Finally, the Appellate Division rejected plaintiff’s other contentions, thus upholding the dismissal of the gross negligence claims as untimely since they - 28 - were more than three years after the alleged negligence and rejecting any other belated alleged retaliation/due process claims as unavailing. 97 A.D.3d at 433. In a partial dissenting opinion (Manzanet-Daniels, J.), the dissent agreed with the dismissal of the gross negligence claim, but opined that there were two triable issues of fact as to the disability discrimination claims as to: (a) “whether plaintiff was capable of performing the essential functions of his job,” (without addressing the plaintiff’s own medical evidence that he could not); and (b) whether defendant made a reasonable accommodation for plaintiff’s disability, which the dissent speculated “could have been (1) reassigning him to the central office, where, for more than 20 years, he performed field visits on a once a week basis; or (2) assigning him to the Queens Hospital construction site with the requisite respiratory equipment to prevent further exacerbation of his condition.” 97 A.D.3d at 436-437.3 3 As a matter of public record subject to judicial notice, the U.S. District Court for the Southern District of New York recently dismissed Jacobsen’s pro se complaint on the pleadings pursuant to Fed.R.Civ.P. 12(c). Using the standard of accepting plaintiff’s allegations as true for purposes of the motion, the Court found that his claims under the Americans with Disabilities Act and his age and disability claims under 42 U.S.C. § 1983 were time-barred and that his purported claim under the Occupational Safety & Health Act (“OSHA”) was without merit because there is no private right of action under OSHA. See Jacobsen v. NYCHHC, 2013 U.S. Dist. LEXIS 122448 (S.D.N.Y. Aug. 28, 2013) (Oetken, D.J.). - 29 - POINT I THE HUMAN RIGHTS LAW DISABILITY DISCRIMINATION CLAIMS WERE PROPERLY DISMISSED BECAUSE PLAINTIFF, BY HIS OWN EVIDENCE, WAS NOT ABLE TO PERFORM THE ESSENTIAL JOB FUNCTIONS OF HIS JOB. On appeal, plaintiff incongruously primarily attacks the lower Court’s opinion rather than fully address the Appellate Division’s comprehensive opinion, which held, in relevant part, that “HHC met its burden by establishing that at the time of termination, plaintiff was unable to perform the [essential] duties of his job because of his lung condition and that no reasonable accommodation was available.” 97 A.D.3d at 431. This Court should affirm the order granting summary judgment dismissing the Human Rights Law disability discrimination claims against HHC for the reasons stated by the Appellate Division in its comprehensive opinion, and as discussed below. A. The Standard of Review on Summary Judgment. Pursuant to C.P.L.R. 3212(b), summary judgment must be granted when a movant demonstrates entitlement to summary judgment as a matter of law. Once the moving party meets this burden, the burden shifts to the non-moving party to produce evidentiary proof in admissible form to demonstrate a material issue of fact. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986); - 30 - Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). While a court should draw all inferences in favor of the non-moving party, mere conclusions, expressions of hope, and unsubstantiated allegations or assertions “will not suffice to defeat a summary judgment motion.” Zuckerman, 49 N.Y.2d at 562. Notwithstanding plaintiff’s arguments (Pl. Br., Pt. I, Pt. II(N)), on this record, there were no triable issues of material fact precluding summary judgment with respect to the disability discrimination claims. Plaintiff’s arguments essentially ignore the Appellate Division’s thorough well-reasoned opinion, which aptly responded to the dissent’s faulty conclusions based upon plaintiff’s unsupported arguments on the disability discrimination claims. Furthermore, as demonstrated below, plaintiff’s brief ignores the controlling legal requirements for his Human Rights Law claims, which he did not meet. B. As The Appellate Division Properly Determined, Because HHC Demonstrated that Plaintiff Was Not Capable Of Performing The Essential Functions of A Health Facilities Planner Without Danger To Himself, HHC was Entitled to Summary Judgment Dismissing Plaintiff’s Disability Discrimination Claims Under The State and City Human Rights Laws. Plaintiff’s brief consists of essentially twelve claimed errors as to the dismissal of his disability discrimination claims under the State and City Human Rights laws (Pt. II (A-L, N). He mixes up the arguments, however, interjecting the - 31 - essential function inquiry with the question of whether a reasonable accommodation was sought and refused. Indeed, plaintiff leads his arguments with respect to the purported reasonable accommodation issues (Pl. Br., Pt. II (A-G), even though any such inquiry has to follow the threshold legal inquiry as to whether plaintiff was disabled within the meaning of the Human Rights Laws (Pl. Br., Pt. II (Sub. H-L). In relevant part, in a scant few pages, plaintiff challenges the Appellate Division’s finding that, because plaintiff could no longer perform the essential functions of his job, he was not discriminated against under the Human Rights laws (Pl. Br., Pt. II(L), pp. 67-68)). Plaintiff even contends that the Court erred in finding that field work was an essential function of the position of a Health Facilities Planner (Pl. Br., Pt. II(K), p. 66)). Correspondingly, he claims that: the Court erred in finding that he admitted that he could no longer visit construction sites, an essential function of his position (Pl. Br., Pt. II(H), pp. 61-62); mischaracterized plaintiff’s claim that he could perform all his duties without visiting construction sites (Pl. Br., Pt. II(I), pp. 63-64); and, finally, erred in accepting HHC’s purported mischaracterization of plaintiff’s job description, thereby allegedly distorting any evaluation of whether he could perform the essential functions of his job (Pl. Br., Pt. II(J), p. 65). - 32 - Plaintiff’s continued attempts to reweave the record and the essential functions of his position are baseless. He cannot overcome the central tenet set forth in the express language of the relevant New York State and City Human Rights Laws and regulations, ante, pp. 2-3, that, because plaintiff could not perform the essential functions of his job as a Health Facilities Planner, he did not state a disability discrimination claim. HHC demonstrated that in its motion for summary judgment and plaintiff failed to raise a triable issue of fact with respect thereto. (1) To state a prima facie case of employment discrimination due to a disability under the State and City Human Rights Laws, a plaintiff must demonstrate that he or she suffered from a disability and that the disability caused the behavior for which he or she was terminated (97 A.D.3d at 431, citing Matter of McEniry v. Landi, 84 N.Y.2d 554, 558 (1994)). Once a plaintiff establishes a prima facie case, the burden shifts to the employer to show that the disability prevented plaintiff “from performing the duties of the job in a reasonable manner or that the employee’s termination was motivated by a legitimate nondiscriminatory reason.” (id.). However, a plaintiff’s disability is protected by the State Human Rights law or the analogous N.Y.C. Admin. Code § 8-107(15)(a) - 33 - only if he or she can reasonably perform the essential functions of the position sought. In particular, in order to fall within the protection of the New York State Human Rights Law, a qualified individual with a disability must be able to perform “in a reasonable manner the activities involved in the job or occupation sought or held.” N.Y. Exec. Law § 292(21). Similarly, under the City Human Rights Law, a qualified individual must be able to perform the “essential requisites of a job.” N.Y.C. Admin. Code § 8-107(15)(b). Under governing State regulation, in order to meet the requirement that he or she can perform a job in a reasonable manner, the plaintiff must show that he has “the ability, with or without accommodation to satisfactorily perform the essential functions of the job or occupation.” 9 N.Y.C.R.R. § 466.11(f)(1). The regulations define “essential functions” as “those fundamental to the position; a function is essential if not performing that function would fundamentally change the job or occupation for which the position exists ….” 9 N.Y.C.R.R. § 466.11(f)(3). See also N.Y.C. Admin. Code § 8-107(15)(b). An employer may further require that an employee not pose a “direct threat” to other individuals in the workplace. 9 N.Y.CR.R. § 466.11(g)(2). State DHR regulations define “direct threat” as a “significant risk of substantial harm to - 34 - the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation.” 9 N.Y.C.R.R. § 466.11(g)(2)(i). (2) By plaintiff’s own evidence, he could not perform the essential functions of a Health Facilities Planner and therefore he is not disabled with the meaning of the Human Rights laws. See Exec. Law § 292[21]; N.Y.C. Admin. Code § 8-107[15]. See Davis v. New York City Health and Hospitals Corp., 508 Fed. Appx. 26, 2013 U.S. App. LEXIS 1648, *5-*6 (2d Cir. Jan. 25, 2013) (Summary Order) (where it was undisputed by plaintiff that she could not perform the essential functions of her job as a nurse, Second Circuit Court of Appeals held that defendants were entitled to dismissal of plaintiff’s claims under the New York State and City Human Rights Laws); O’Sullivan v. City of New York, 38 A.D.3d 467, 469 (1st Dept.), app. den., 9 N.Y.3d 804 (2007) (“It is undisputed that a conclusive finding that plaintiff is incapable of performing the essential duties of a police officer would mean that there was no violation of Executive Law § 296(1)(a) inasmuch as he would not be disabled within the meaning of Executive Law § 292(21).”). See also Pembroke v. New York State Office of Court Administration, 306 A.D.2d 185, 185 (1st Dept. 2003) (where plaintiff was unable to perform his - 35 - duties in a reasonable manner, any inference of discrimination is refuted, entitling defendant to judgment as a matter of law; moreover, even if defendant owed plaintiff a duty to accommodate his disability, plaintiff failed to satisfy his initial burden of showing that he proposed and was refused an objectively reasonable accommodation; thus, plaintiff’s proposal of a reduced workload would have required the reassignment of much of his work to coworkers which was not reasonable). Cf. Bellamy v City of New York, 14 A.D.3d 462, 463 (1st Dept. 2005) (“Plaintiff failed to rebut sufficiently the evidence demonstrating that he was not qualified to become a New York City police officer because he was incapable of reasonably performing the essential functions of the job due to his medical condition.”).4 In this case, plaintiff repeatedly admitted that he could not perform any field work whatsoever, the essential function of his position. The record shows that, upon receiving plaintiff’s request for a medical leave in September 2005 because, as indicated in his signed application, he could 4 With respect to job applicants, in order to determine whether or not an individual can reasonably perform the essential functions of any given job, the employer is required to perform an individualized assessment of the plaintiff. City of New York v. State Division of Human Rights [Granelle], 70 N.Y.2d 100, 106 (1987). If this assessment reveals that the particular individual is unable to perform the essential functions of the job sought, then the employer’s failure to hire the candidate does not violate the HRL. Miller v. Ravitch, 60 N.Y.2d 527, 532 (1983); Yasinosky v. New York City Transit Authority, 193 A.D.2d 731 (2d Dept. 1993); McCarthy v. Nassau County, 208 A.D.2d 810 (2d Dept. 1994). - 36 - not perform the essential functions of his job (171), Mr. Mondo Hall, personnel officer at HHC, advised him that plaintiff’s doctor should provide a note indicating his prognosis and expected date of return to duty (see letter from Hall to plaintiff, dated October 17, 2005, at 102). Plaintiff’s doctor provided an insufficient note and, in December 2005, Hall wrote directly to plaintiff’s physician, Dr. Skloot, advising her not only that she must indicate a date on which plaintiff could return to work, but also highlighting the fact that seventy-five (75%) percent of plaintiff’s job duties involved working in the field, “monitoring several construction projects and attend[ing] construction management meetings on site.” (see letter from Hall to Dr. Skloot, dated December 27, 2005, at 104-105). When, in March 2006, Dr. Skloot provided medical clearance for plaintiff’s immediate return, HHC immediately returned plaintiff to his position. In her medical clearance, Dr. Skloot states that she had advised plaintiff that “it is imperative that he not be exposed to any type of environmental dust, and he has assured me that his field work will not include such exposure.” See letter from Dr. Skloot to Hall, date stamped March 21, 2006, at 108. However, plaintiff testified at his deposition, that upon his return to work, he knowingly and voluntarily - 37 - exposed himself to environmental dust, allegedly asbestos, at construction sites. See Pl. Dep., 259 at 166:7-21. At the end of May 2006, plaintiff informed HHC that his medical condition precluded him from exposure to any environmental dust, like that found at all construction sites, and therefore precluded him from doing any field work whatsoever. Plaintiff requested not only a transfer to HHC central office, located at 346 Broadway in lower Manhattan just blocks from the World Trade Center Construction sites, but also excusal from any assignments requiring him to visit construction sites. See letter from Union Counsel Steven Sykes, plaintiff’s attorney, to Gloria Velez, dated May 31, 2006, at 112-113. In response, Hall wrote to plaintiff advising him that the proposed transfer was not a reasonable accommodation because plaintiff’s position as a Health Facilities Planner required “constant visitation to the Corporation’s facilities at which ongoing construction is occurring” (114). Field work was not only an essential job function of that title, it was the essential job function, consuming well over 50% of the time of any Health Facilities Planer, including plaintiff (114, see 111, 105). Neither plaintiff or his Union counsel ever responded to this letter. - 38 - Given that plaintiff’s doctors had emphasized that plaintiff could not be exposed to any “airborne irritant or fibrogenic dusts, fumes and gases,” HHC concluded that plaintiff was “not able to perform the essential functions of [his] job,” that is field work. In short, properly performing the duties of a Health Facilities Planner while avoiding those contaminants simply was impossible. See Letter from Hall to plaintiff, dated June 6, 2006, at 114. In fact, plaintiff’s complaint acknowledged that he was employed in the title of Health Facilities Planner, which title required him to inspect and manage construction projects for HHC (Complaint, at 29 ¶¶ “5” and “6”). Further, in his Examination Before Trial (“EBT”), plaintiff admitted that he was unable to perform the essential functions of his position, which required, inter alia, that he inspect construction sites Plaintiff admitted at his deposition that field work was, and had been, a significant part of his job. He further admitted that at the time he was placed on leave and continuing through that time, he was unable to perform field work. See Pl. Dep., 230 at Tr. 50:7-8; 245-246 at 111:6–113:6. These admissions by plaintiff and by plaintiff’s physicians, that plaintiff could not perform his job, precipitated HHC’s placement of plaintiff on a six-month medical leave in 2006. - 39 - HHC’s determination was further compelled by the August 2006 letter received from Dr. Skloot during plaintiff’s leave that stated, unambiguously, that plaintiff: “will never be medically cleared to ‘fully perform the essential function of his duties.’” See letter from Dr. Skloot to Hall, dated August 4, 2006 at 115-116 (boldface emphasis supplied); see also Pl. Dep. at 80-81; Tr. 177:25–178:7 (plaintiff acknowledging that his doctor’s letter stated that “I would never be medically cleared to perform work at a construction site”)). When plaintiff never provided medical evidence at the end of the leave that he could perform the essential functions of his job, he was terminated. Given all the evidence, the Appellate Division correctly held that plaintiff did not state disability discrimination claims pursuant to the Human Rights Laws because HHC demonstrated that plaintiff could not perform an essential function of his position, and therefore was not disabled within the meaning of those laws, and plaintiff did not refute that showing with a material triable issue of fact. Therefore, the grant of summary judgment dismissing those claims was proper. - 40 - C. Plaintiff’s Reasonable Accommodation Arguments Lack Merit. Just as the Appellate Division recognized, plaintiff did not seek, nor did defendant deny, an accommodation that would have allowed him to perform his essential functions despite his limitations. Rather, he sought to be excused permanently, and such request was not a reasonable accommodation as a matter of law. See, e.g., Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 100 (2d Cir. 2003) (“A reasonable accommodation can never involve the elimination of an essential function of a job.”); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99 (2d Cir. 1999) (“[T]he employer [is not] obliged to create a new position to accommodate the employee.”); see also Davis v. New York City Health and Hospitals Corp., 2013 U.S. App. LEXIS 1648, *5-*6; Pembroke v. New York State Office of Court Administration, 306 A.D.2d at 185.5 5 Plaintiff also argues that the Appellate Division “wrongly affirmed” the lower’s Court’s dismissal of his human rights and civil rights claims “apparently agree[ing]” with the Lower Court’s erroneous additional finding that they were barred by the notice of claim and time limitations requirements set forth in Uncons. Law § 7401(2) and Gen. Mun. Law §§50-e and 50-i (Pl. Br., Pt. III). However, the Appellate Division did not endorse that ruling but simply ruled on the merits of the sufficiency of the HRL claims. Also, in HHC’s Appellate Division brief, HHC expressly noted that it had never argued below that the human rights claims were subject to those statute of limitations requirements and had agreed that, to the extent that the lower Court asserted those as an alternative additional ground for dismissal (see 10), that Court’s decision was in error. However, HHC fully argued, that the Court had properly dismissed the gross negligence claims for untimeliness and failure to file a notice of claim (see App. Div. Br. Pt. II). - 41 - In particular, as the Appellate Division aptly recognized, HHC established that plaintiff could not, even with a reasonable accommodation, perform the essential functions of his job in that the only way plaintiff would be able to report on construction progress was to be present at the site; therefore, it was not possible for plaintiff to complete his duties from the central office. 97 A.D.3d at 431. As the Appellate Division further recognized, “HHC pointed to letters from Dr. Skloot and plaintiff’s own deposition testimony in which he admits that he can no longer visit construction sites, which was the bulk of his work. Although plaintiff claimed he could perform all his duties from the central office, he failed to explain how he could monitor the progress of construction and renovation projects, an essential function of his job, from the central office without visiting the sites.” 97 A.D.3d at 431. See generally Pembroke, 306 A.D.2d at 185 (even if, arguendo, defendant owed plaintiff a duty to accommodate his disability, plaintiff failed to satisfy his initial burden of showing that he proposed and was refused an objectively reasonable accommodation; thus proposing a reduced workload would have required the reassignment of much of his work to coworkers, which was not reasonable). - 42 - Notwithstanding the above, plaintiff largely relies on the dissent. He argues that HHC failed in various ways to engage in an “interactive process” to determine what accommodation is the “most reasonable” (Pl. Br., Pt. II (A), (B), (C) & (D), pp. 32-42, 43-45, 45-59, 49-51) and that the Appellate Division, erroneously found, inter alia, that HHC had engaged in a good faith interactive process (Pl. Br., Pt. II (E) and (G), pp. 57-60). Other claimed errors concern his alleged further requests for accommodation beyond relocation back to the central office (Pt. II(B), pp. 51-55); whether he belatedly raised requests for proper respiratory equipment (Pt. II(D), pp. 51-55); and the alleged inadequate provision of a dust mask (Pt. II(H), pp. 61-62). Under the Executive Law, a “reasonable accommodation” is defined as “actions taken by [an] employer which permit an employee . . . with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held . . . provided, however, that such actions do not impose an undue hardship on the business.” Pimental v. Citibank, N.A., 29 A.D.3d 141 (1st Dept. 2006) (quoting Exec. Law § 292 [21-e]), lv. denied, 7 N.Y.3d 707 (2006). Under the City’s Human Rights Law, an employer “shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job.” Admin. Code § 8-107 [15][a]). However, an employer is not - 43 - required to find another job for the employee, create a new job, or create a light- duty version of the current job. Pimentel, 29 A.D.3d at 148. See also Mair- Headley v. County of Westchester, 41 A.D.3d 600, 602-03 (2d Dept. 2007) (citations omitted). Plaintiff, like other network managers, was required to perform field work, which necessitated regular construction site visitation. In this case, the accommodation plaintiff consistently sought was reassignment to his prior location at 346 Broadway, which still required that he monitor ongoing construction and be in the field. The dissenting opinion relies on speculation and inconsistent views of the record, including by mistakenly stating no respiratory equipment was provided, 97 A.D.3d at 434, but then recognizing that a dust mask was provided, but opines that it was inadequate. 97 A.D.3d at 437. More importantly, without acknowledging that the record contains no medical request (or request by Union counsel) for specialized respiratory equipment, but rather only a request to reassign plaintiff to a position with no field work, the dissent speculated that, for a worker exposed to asbestos dust “on a daily basis,” “a specialized mask or respirator device designed to filter and protect - 44 - against airborne dust from known toxins and potential carcinogens” would be the type of “reasonable accommodation” envisioned by the statute. 97 A.D.3d at 437. Notably, however, plaintiff’s doctors never stated that such would enable plaintiff to perform the essential functions of his job, rather they stated the opposite, that he could not perform the essential functions of his job. Plaintiff’s speculative assertion, raised in litigation, that he allegedly could have performed some field work if provided with some undefined unknown sort a respirator, was never mentioned, much less sought, for consideration by either his union (see 106, 112) or his physicians (101, 103, 108, 110, 115-116) in making plaintiff’s accommodation requests. Plaintiff also provided no medical opinion to support his current contention that a respirator would have enabled him to perform field work at construction sites, notwithstanding his doctors’ unambiguous statement that he not be exposed to any construction dust. Furthermore, while plaintiff, citing the dissent, argues that there is a triable issue as to whether HHC engaged in a “good faith interactive process,” Phillips v, City of New York, 66 A.D.3d 170, 175 (1st Dept. 2009), the Appellate Division correctly held (97 A.D.3d at 431-432): Contrary to the dissent’s finding, the record shows that HHC engaged in an interactive process. HHC sought clarification from Dr. Skloot regarding plaintiff’s medical - 45 - condition and his ability to perform his job. Indeed, they kept plaintiff’s job open during two separate medical leaves, during which time HHC was in communication with plaintiff and his doctor. HHC provided Dr. Skloot with plaintiff’s job description and made her aware that plaintiff was required to spend a portion of his time in the field at construction sites. It was only after plaintiff’s doctor and plaintiff himself confirmed that he could no longer work at construction sites that HHC terminated him. In any event, the Appellate Division aptly responded to the dissent’s overreaching contention that HHC did not engage in an interactive process regarding respiratory equipment, stating (id. at 432-433): In particular, while plaintiff testified at his deposition that at some point in March 2006, he complained to his supervisor at Queens Hospital about dust and requested a respirator, at that same deposition, he testified that, after complaining about the dust, he was provided with a dust mask. Plaintiff testified he did not consistently wear that mask because it made it difficult to communicate. Id. at 432. Thus, having failed to wear the mask given to him, plaintiff could hardly complain he never got protection. Id. Additionally, although plaintiff now argues that the dust mask was inadequate, he never made any additional complaints to his supervisor or anyone else about it, nor did he request different equipment than what he was given. Finally, all of the letters that plaintiff relies on, from his doctor, union representative, and plaintiff himself, make a request for relocation to the central office or an environment free of dust. None of the letters ask for a respirator so that plaintiff could remain at the Queens Hospital location. - 46 - In sum, the Appellate Division aptly recognized (97 A.D.3d at 433): In this case, HHC should not be held responsible for not engaging further with plaintiff about [a] respirator when plaintiff’s own doctor provided documentation supporting a transfer to an office job as the solution for plaintiff’s disability. Notably, plaintiff’s doctor, Dr. Skloot, who had apparently mistakenly cleared him to return to work in March 2006, which HHC followed, later “clarif[ied],” in early August 2006, that, based on his pulmonary disease, plaintiff “will never be medically cleared” to “fully perform the essential functions of his duties,” directly referencing her earlier March 2006 communication where she advised him that it was imperative that he should not be further exposed to any type of environmental dust (115-116). §She stated that she was “clarify[ing] that any exposure to field work is detrimental to Mr. Jacobsen” (116 (emphasis added)). Moreover, HHC’s determination was further compelled by the August 4, 2006 letter received from plaintiff’s physician, Dr. Skloot, during plaintiff’s leave that stated, unambiguously, that plaintiff “will never be medically cleared to ‘fully perform the essential function of his duties.’” See letter from Dr. Skloot to Hall, dated August 4, 2006 at 115-116 (emphasis supplied). - 47 - In May 2006, plaintiff informed HHC that his medical condition precluded him from exposure to any environmental dust, like that found at all construction sites, and therefore precluded him from doing any field work whatsoever. Plaintiff now reverses that position and contends that he could have performed limited field work, with limited exposure to construction dust. This, however, ignores both the requirements of his position (with field work consuming the majority of the time of any Health Facilities Planer, including plaintiff), as well as the reality of construction site environmental conditions. Plaintiff’s own doctors had emphasized that plaintiff could not be exposed to any “airborne irritant or fibrogenic dusts, fumes and gases” (110, 114). Based on that, HHC concluded that plaintiff was “not able to perform the essential functions of [his] job,” that is field work. It was impossible for plaintiff to properly perform the duties of a Health Facilities Planner while avoiding those contaminants. See Letter from Hall to plaintiff, dated June 6, 2006, at 114. Finally, HHC did not have a duty to create a “light duty” or other position for plaintiff. Plaintiff’s contention that HHC could have returned him to 346 Broadway, where he had previously been assigned, ignores both the - 48 - operational needs of HHC, as well as the lack of any obligation to create a “light duty” or other position for plaintiff. In this regard, it is well settled: Construing that law [the HRL] in congruity with the Americans with Disabilities Act, the requirement that the employer make reasonable accommodations to the petitioner’s disability does not entail any obligation to create a new light-duty position or a permanent light-duty position. Mair-Headley v. County of Westchester, 41 A.D.3d at 602-03 (citations omitted). Plaintiff, like other network managers, was required to perform field work, which necessitated regular construction site visitation. See Pembroke v. New York State Office of Court Administration, 306 A.D.2d at 185.6 According to plaintiff and to plaintiff’s doctor, plaintiff was unable to do field work or be exposed to dust. Plaintiff had the burden of establishing that he proposed a reasonable accommodation; defendant HHC properly determined that 6 The assignment of all network managers was determined by the operational needs of HHC in monitoring its construction projects, with Mr. James testifying: We decided, through a team effort, to keep Kamu at Kings County and assign [plaintiff] to Queens because they needed more help. He was stretched thin. He was overburdened over at Kings. The project was faltering at Queens. We assigned Bill and we reassigned some other network managers to Bellevue. It’s all based on work load. James Dep., 285 at Tr. 59:10-17. - 49 - what was proposed as a reasonable accommodation by plaintiff was, in fact, no such thing in that it was infeasible for plaintiff to perform the essential functions of his job. Accordingly, for all the above reasons, the properly dismissed the Appellate Division properly upheld the grant of summary judgment dismissing the human rights disability discrimination claims.7 7 Although plaintiff had challenged in the Appellate Division the dismissal of his gross negligence claim (plaintiff’s third cause of action) which was barred by his failure to comply with the time limitation and notice of claim requirements set forth in Uncons. Law § 7401(2) and Gen. Mun. Law §§ 50-e and 50-i, he no longer does so (see Pl. Br., passim). Rather, plaintiff’s final argument on appeal attacks the lower Court’s dicta opining that such requirements also applied to the human rights law claims (Pl. Br., Pt. III). That argument is irrelevant at this juncture. Respondent HHC never argued below that the human rights claims were subject to those requirements, and in its Appellate Division brief agreed that, to the extent that the Court asserted those as an alternative additional ground for dismissal (see 10), the lower Court’s dicta was in error. However, plaintiff’s brief wrongly ascribes the Appellate Division as endorsing the lower Court dicta (see Pl. Br., p. 71, “Appellate Division apparently agreed”) when there is no basis to do so. Rather, all of the Appellate Division justices simply agreed that the gross negligence claim was time-barred (see xix-xx, xxi). See Scantlebury v. New York City Health and Hospitals Corp., 4 N.Y.3d 606, 609, 613 n.3 (2005). See also HHC App. Div., Br., Pt. II. - 50 - POINT II PLAINTIFF’S ARGUMENT ON A PURPORTED RETALIATION CLAIM FAILS ON NUMEROUS GROUNDS, INCLUDING LACK OF PRESERVATION AND LACK OF MERIT. Plaintiff makes an additional conclusory argument that the Appellate Division failed to consider his argument that HHC engaged in unlawful retaliation (Pl. Br., Pt. II(M), p. 69). That argument fails on numerous grounds. A. Any Purported Retaliation Claim is Not Properly Before This Court. First, plaintiff failed to raise the issues/question in his Preliminary Appeal Statement, dated November 28, 2012, and also failed to raise them in his motion for reargument and leave to appeal in the Appellate Division, First Department, dated August 6, 2012 (copy provided upon request). Notably, the First Department only granted his motion for leave to appeal to this Court “to the extent that [plaintiff] seeks leave to appeal” (10/2/12 Order). Pursuant to Quain v. Buzzetta Constr. Corp., 69 N.Y.2d 376, 379 (1987) (per curiam), the issues are thus not properly before this Court and those portions of plaintiff’s brief must be struck. See Quain, 69 N.Y.2d at 379 (“if a party in its application for leave to appeal specifically limits the issues it seeks to - 51 - have reviewed, it is bound by such limitation and may not raise additional issues on the appeal.”). B. Plaintiff Never Pled and Never Demonstrated a Retaliation Claim. Only if, arguendo, this Court determines that it has jurisdiction over this claim, it should be dismissed on the merits because plaintiff never pled a retaliation claim based on being placed on a six-month medical leave as a reasonable accommodation. His complaint states three causes of action only, the first two for disability discrimination under the Human Rights Laws and the third for alleged gross negligence (see 32-34). Plaintiff may not string together facts now to try to set forth a claim which he never made in the Supreme Court and, in any event, his argument simply ignores the entirety of the record.8 For all the reasons stated above and by the Appellate Division, the order below should be affirmed.9 8 In contrast, plaintiff has not pursued in this Court his unpled and unpreserved due process claims, which were rejected by the Appellate Division, and those issues are not before this Court. If the merits were at issue, we rely on the discussion in our Appellate Division brief. 9 Finally, we note that any innuendo that, through his termination, HHC somehow deprived plaintiff of a pension “despite his long career” (Pl. Br., p. 51 n.9) is baseless. Plaintiff voluntarily chose not to join the pension system until very late in his career on July 20, 2005 (as opposed to when he started employment in 1979) and therefore was ineligible for a pension because he had not yet met the service requirements (see 210, 382-383). The record indicates that plaintiff testified that he was receiving long term disability benefits from CIGNA Group Insurance in the amount of approximately $2800 a month which he testified would continue until age 65 (see 264 at pp. 186-187, see also 399, 383, ¶ 21, 399) as well as separate Union disability benefits (264). As the Appellate Division further noted, plaintiff testified that he was receiving - 52 - CONCLUSION THE DECISION AND ORDER (ONE PAPER) APPEALED FROM SHOULD BE AFFIRMED, WITH COSTS. Respectfully submitted, MICHAEL A. CARDOZO, Corporation Counsel, Attorney for Defendant-Respondent By: ELIZABETH S. NATRELLA LEONARD KOERNER, ELIZABETH S. NATRELLA, MAXWELL LEIGHTON, of Counsel. Workers’ Compensation benefits (see 224-25) and the Worker’s Compensation Law barred any claim based upon gross negligence (97 A.D.3d at 433, citing, inter alia, WCL § 11).