William Jacobsen, Appellant,v.New York City Health and Hospitals Corporation, Respondent.BriefN.Y.March 19, 2013To be Argued by: KENNETH F. MCCALLION (Time Requested: 15 Minutes) Court of Appeals of the State of New York O WILLIAM JACOBSEN, Plaintiff-Appellant, - against - NEW YORK CITY HEALTH AND HOSPITAL CORPORATION, Defendant-Respondent. BRIEF FOR PLAINTIFF-APPELLANT MCCALLION & ASSOCIATES, LLP Attorneys for Plaintiff-Appellant 100 Park Avenue - 16th Floor New York, New York 10017 Tel: (646) 366-0880 Fax: (646) 366-1384 kfm@mcallionlaw.com New York County Clerk’s Index No.: 103714/08 APPELLATE INNOVATIONS (914) 948-2240 7330 Printed on Recycled Paper STATEMENT PURSUANT TO CPLR 5531 Court of Appeals of the State of New York O WILLIAM JACOBSEN, Plaintiff-Appellant, - against - NEW YORK CITY HEALTH AND HOSPITAL CORPORATION, Defendant-Respondent. 1 The index number of the case in the court below is 103714/08. 2. The full names of the original parties are set forth above. There have been no changes. 3. This action was commenced in the Supreme Court for the State of New York, County of New York. 4. The action was commenced on or about March 10, 2008, by filing of a Verified Complaint. The Verified Answer was served on or about May 23, 2008. 5. This is a lawsuit brought under New York State Human Rights Law (Exec. Law Art. 15); the New York City Administrative Code (8-107) and for common Law Negligence. 6. The appeal is from an Order of the Supreme Court of the State of New York Appellate Division, First Department, dated July 10, 2012. 7. The appeal is being perfected on a full reproduced record. i Table of Contents PRELIMINARY STATEMENT ..................................................................... 1 STATEMENT OF FACTS .............................................................................. 6 A.Procedural History .................................................................................... 6 B. Relevant Facts ....................................................................................... 9 ARGUMENT ................................................................................................. 30 THE APPELLATE COURT ERRED IN FINDING THERE WERE NO MATERIAL DISPUTED ISSUES OF FACT, THUS AFFIRMING THE LOWER COURT’S GRANT OF SUMMARY JUDGMENT .................................................................. 30 POINT II .................................................................................................... 32 THE FIRST DEPARTMENT ERRED IN AFFIRMING THE LOWER COURT’S DISMISSAL OF PLAINTIFF’S HUMAN RIGHTS CLAIMS SINCE PLAINTIFF WAS ABLE TO PERFORM THE ESSENTIAL FUNCTIONS OF HIS JOB WITH A REASONABLE ACCOMMODATION ............................. 32 A.The Appellate Court’s Decision Failed to Recognize HHC’s Unwillingness To Provide Plaintiff With a Reasonable Accommodation For His Disability During the August through October 2005 Time Period ........................43 B. The Appellate Court’s Decision Further Failed to Recognize That HHC Never Provided Plaintiff With a Reasonable Accommodation As Required By His Doctor’s Medical Clearance Letter During the Post March 22, 2006 Period Upon His Return to Work After A Medical Leave of Absence. ................................................... 45 ii D.The Appellate Division Erroneously Found That Plaintiff Had Not Properly Raised in the Lower Court the Argument that He Should Have Been Assigned Proper Respiratory Equipment, and That this Argument Was Belatedly Raised On Appeal ..................................................... 51 E.The First Department Failed to Consider that Plaintiff’s Requests For An Accommodation Specifically Fell Within the Scope of the Executive Law ...................................56 F.The Appellate Division Improperly Found That, Since Plaintiff Failed To Wear the Inadequate Dust Mask Given to Him By His HHC Supervisor, He Waived His Right to Complaint “That He Never Got Protection.” .............. 56 G. The Court Erroneously Found that HHC Had Engaged in a “Good Faith Interactive Process” Regarding the Issue of Whether Plaintiff’s Disability Could Be Reasonably Accommodated ...................................................... 57 H.The Appellate Division Improperly Accepted HHC’s Erroneous Argument That Plaintiff Had “Admitted” That He Could No Longer Visit Construction Sites, Which Was An Essential Element of His Job ...................................... 61 I.The Appellate Decision Mischaracterizes Plaintiff “Claim” As Being That He Could Perform All of His Duties From the Central Office Without Visiting Construction Sites ..................................................................... 63 J.The Appellate Division Erroneously Accepted HHC’s Mischaracterization of Plaintiff’s Job Description, Thus Distorting Any Evaluation of Whether Plaintiff Could Perform the Essential Functions of His Job With An Accommodation ........................................................................ 65 K.The Appellate Division Improperly Accepted HHC’s Argument That Exposure to Hazardous Construction Dust Without Adequate Respiratory Protection Was An “Essential Element” of Plaintiff’s Job ............................................................................................. 66 iii L.The Appellate Division Failed To Recognize that Plaintiff, Despite His Disabilities, Could Perform All of the Essential Elements of His Job If Provided With Reasonable Accommodations At Any Time Prior to August 15, 2006 ........................................................................ 67 M.The Appellate Division Failed to Consider Plaintiff’s Well-Founded Argument that HHC’s Decision on August 7, 2006 to Place Plaintiff On Unpaid Medical Leave Constituted Unlawful Retaliation ............................................. 69 N.The Court, in its Decision, Failed to Recognize That Plaintiff Had Raised Bona Fide Triable Issues of Fact, Precluding Summary Judgment ................................................ 70 POINT III ................................................................................................... 71 THE APPELLATE DIVISION WRONGLY AFFIRMED THE LOWER COURT’S DISMISSAL OF PLAINTIFF’S HUMAN RIGHTS CLAIMS BASED ON THE ERRONEOUS PREMISE THAT SUCH CLAIMS WERE GOVERNED BY UNCONSOLIDATED LAW § 7401(2) AND GENERAL MUNICIPAL LAW §50-E AND 50-I ................................................ 71 CONCLUSION .............................................................................................. 73 iv TABLE OF AUTHORITIES Cases Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 925 (1986) .................................................... 31 Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 760 N.Y.S.2d 397 (2003) .................................................................... 31 Graves v. Finch Pruyn & Co., Inc., 457 F. 3d 181, 184 (2d Cir. 2006) ............................................................................... 35 Grodin v. Liberty Cable, 244 A.D.2d 153, 664 N.Y.S.2d 276 (1st Dept. 1997) ................................................... 31 King v. Town of Wallkill, 302 F. Supp. 2d 279, 289 (S.D.N.Y. 2004) ............................................................. 37,38 McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F. 3d 92 (2d Cir. 2009) ........................................................................................... 34 Mills v. County of Monroe, 89 A.D.2d 776, 453 N.Y.S. 2d 486, aff’d, 59 N.Y. 2d 307, 464 N.Y.S 2d 709, cert. denied, 464 U.S. 1018. .......................................................................................... 72 Moritz v. Frontier Airlines, Inc., 147 F. 3d 784, 787 (8th Cir. 1998)................................................................................. 34 Murphy v. American Home Products Corp., 58 N.Y. 2d, 461 N.Y.S. 2d 232 (1983) ......................................................................... 73 Parker v. Columbia Pictures Indus., 204 F. 3d 326, 338 (2d Cir. 2000)................................................................................. 35 Pimentel v. Citibank, N.A., 29 A.D. 3d 141, 811 N.Y.S. 2d 381 (1st Dept. 2006). ............................................. 32,34 Rodal v. Anesthesia Group of Onondaga, P.C., 369 F. 3d 113, 118 (2d Cir. 2004)................................................................................. 35 v Rotuba Extruders v. Ceppos, 46 N.Y. 2d 223, 413 N.Y.S. 2d 141 (1978) .................................................................. 31 Schumacher v. Richards Shear Co. Inc., 59 N.Y.2d 239, 464 N.Y.S.2d 437 ................................................................................ 31 Sebastian v. New York City Health and Hospitals Corp., 221 A.D. 2d 294, 634 N.Y.S. 2d 114 (1st Dept. 1995) ................................................. 71 Sharp v. Abate, 887 F. Supp. 695, 699 (S.D.N.Y. 1995) ....................................................................... 38 Sillman v. Twentieth Century Fox Film Corp., 3 N.Y. 2d 395, 165 N.Y.S. 2d 49 (1957). ..................................................................... 31 Stone v. City of Mount Vernon, 118 F. 3d 92 (2d Cir. 1997) ........................................................................................... 33 Stone v. Goodson, 8 N.Y. 2d 8, 200 N.Y.S. 2d 627 (1960) ........................................................................ 31 Swinton v. City of New York, 61 A.D. 3d 557, 877 N.Y.S. 2d 68 (1st Dept. 2009) .................................................... 72 Tannenbaum v. City of New York, 30 A.D. 3d 357, 819 N.Y.S. 2d 4 (1st Dept. 2006) ....................................................... 72 United States Fidelity & Guaranty Co. v. Coca-Cola Company, 49 A.D.849, 374 N.Y.S.2d 106 (1st Dept. 1975) .......................................................... 31 Winegrad v. New York Univ. Med. Ctr, 64 N.Y.2d 851, 487 N.Y.S.2d 316, 317018 (1985) ...................................................... 31 vi Statutes 42 U.S.C. § 12111(9) .................................................................................................... 33 42 U.S.C. § 1983 ............................................................................................................. 1 Administrative Code § 8-107 (15)(a) ............................................................................ 33 Civil Service Law § 71 and 72 ........................................................................................ 1 Executive Law § 292 (21-e) ..................................................................................... 32,33 Executive Law § 296, et seq ........................................................................................... 1 Executive Law §296(3)(a) ............................................................................................ 32 General Municipal Law and Unconsolidated Laws§ 7401 (2) ..................................... 72 N.Y.C. Administrative Code § 8-107 ............................................................................. 1 Other Authorities 29 C.F.R. § 1630.2(o)(ii) and (iii) ................................................................................. 34 1 PRELIMINARY STATEMENT This brief is respectfully submitted on behalf of Plaintiff-Appellant William Jacobsen (hereinafter “Plaintiff” or “Jacobsen”) in support of his appeal from the Decision and Order of the Supreme Court, Appellate Division, First Department entered July 10, 2012, affirming the Order of the Supreme Court, New York County (Geoffrey D. Wright, J.) entered July 19, 2011, which granted defendant’s motion for summary judgment dismissing the complaint. Plaintiff brought this action against Defendant-Respondent New York City Health and Hospitals Corporation (“HHC” or “Respondent”) for failure to reasonably accommodate his disability, namely, an occupational lung disease known as pneumoconiosis. This action was taken pursuant to the New York State and City Human Rights Laws (”SHRL and CHRL”), which are found at Executive Law § 296, et seq., and N.Y.C. Administrative Code § 8-107, respectively. Plaintiff’s complaint also included a negligence claim, and raised a sufficient factual basis for claims under 42 U.S.C. § 1983 and the Due Process Clause of the New York State Constitution. Plaintiff was employed by HHC for 26 years, first as an Assistant Health Facilities Planner before being promoted to the position of Health Facilities Planner (“HFP”). During his entire career at HHC, from January 1982 until June 2005, plaintiff was permanently assigned to work at the HHC corporate offices at 2 346 Broadway in Manhattan, where he had a permanently assigned desk and performed the overwhelming majority of his work. As part of his duties, about one day per week he went to “the field” to inspect health facilities and attend meeting. Over the years, he inspected hundreds of asbestos abatement projects, but since HHC failed to comply with his requests – and its legal obligation- to provide him with the necessary protective equipment, plaintiff’s lungs became permanently damaged, and he had to start taking medication for asthma and breathing problems. Despite HHC’s knowledge of plaintiff’s pulmonary problems, on August 15, 2005, he was assigned to work at the Queens Hospital Center (“QHC”) on a permanent basis, and he was assigned to a desk in an office that was adjacent to a construction project, exposing plaintiff to hazardous construction dust. Instead of spending 80% of his time at the central office and 20% of his time in the field, as he had done, he was now required to spend 80% of his time at the QHC construction site and only 20% of his time back at the central office. Within a few weeks of being reassigned to QHC, and after being denied proper respiratory protective equipment, plaintiff was diagnosed in September 2005 with pneumoconiosis, and a lung biopsy showed the presence of asbestos, silicates and other construction dust in his lungs. It was also determined that he had lost more than 50% of his lung function. After a medical leave of absence, plaintiff’s doctor gave him medical clearance to return to work, since his health 3 had “demonstrated clinical improvement” due to treatment with “systemic corticosteroids.” However, plaintiff’s physician placed a restriction on plaintiff’s medical clearance, requiring that plaintiff not be exposed to environmental dust, which could have been complied with by the issuance of proper protective equipment. HHC disregarded the work restrictions placed upon plaintiff’s medical clearance and, without providing him with any adequate respiratory protective equipment, in March 2006 assigned him back to the same environmentally hazardous work location at QHC where he had been previously assigned from August through September 2005. Despite plaintiff’s protestations regarding his assignment to a field location that was environmentally hazardous to his health, without protective equipment, he was given no reasonable accommodation, other than a flimsy dust mask, which was totally inadequate and no substitute for proper respiratory equipment. HHC also denied plaintiff’s requests to be transferred back to the HHC central office, where he had worked for over 20 years, and on June 7, 2006, two days after he had filed a discrimination complaint with the DHR, he was effectively terminated by being placed on a six month unpaid medical leave. In this transparently retaliatory action, HHC’s termination letter erroneously described plaintiff’s “essential functions” as “spending a majority of his time in field work that inevitably exposes 4 you to conditions that your doctor advises would exacerbate your severe lung disease condition.” The First Department erred in affirming the lower court’s finding that plaintiff was foreclosed from establishing a failure to accommodate due to the fact that he was purported no longer able to perform the essential functions of his job. The First Department’s opinion fails to acknowledge that, as of March 27, 2006, plaintiff’s condition had improved during his September 2005 to March 2006 leave of absence from field work, and he had been medically cleared to resume his work activities and could perform the essential functions of his job, with reasonable accommodation. The modest accommodation that plaintiff and his doctor requested was nothing more than what HHC was required to provide to every one of its employees, namely, a safe work environment whereby he would not be assigned to a work location that would expose him to environmental dust without adequate protective equipment. HHC could have easily complied with this request for a reasonable accommodation by providing Jacobsen, at the time he returned to work at QHC on or about March 27, 2006, with adequate respiratory protective equipment that could have filtered out any environmental dust to which plaintiff might be exposed. Instead, HHC only provided plaintiff with a flimsy and totally inadequate dust mask that did not prevent him from being exposed to additional hazardous dust at 5 QHC, causing additional damage to his lungs and, eventually, total disability. In other words, it was only after HHC insisted, in late March 2006, that Jacobsen return to work at a hazardous construction site without proper protective equipment that his health further deteriorated to the point where, by August 4, 2006, his doctor found that he could no longer be medically cleared to work at any construction site. A-215. HHC’s position that it took both before the trial and appellate courts, i.e., that exposure to hazardous dust without adequate respiratory protection was an “essential element” of a HFPs job description, should have been rejected by the First Department as factually incorrect and contrary to public policy, especially since all employers are required to provide their employees with a safe working environment, and workers who are required to work under potentially hazardous conditions are required by law to be provided with adequate protective equipment. In addition, the First Department’s uncritical acceptance of HHC’s position that exposure to hazardous dust was an “essential element” of plaintiff’s job was factually erroneous, since plaintiff had spent his entire career (until August 15, 2005) assigned to HHC’s central office, with field visits conducted only about once per week, and to the extent that such field visits involved exposure to hazardous construction dust, HHC was required to (but did not) accommodate plaintiff and all others similarly situated with adequate respiratory protective equipment. The fact 6 that HHC failed to provide plaintiff and other HFPs with adequate respiratory equipment when they were in the field merely shows that HHC failed to adequately protect its workers, not that exposure to hazardous dust without adequate respiratory protection was an “essential element of his job.” The Appellate Division also erred in affirming the lower court’s finding that plaintiff’s complaint was untimely in that it failed to meet the requirements of the General Municipal Law (GML”). A-10. The lower court failed to appreciate that the GML only applies to tort claims brought against the City, not discrimination claims under the Human Rights Laws. Indeed, even though HHC did not argue in the court of original jurisdiction that plaintiff’s human rights claims were time- barred, the lower court improperly decided sua sponte that all of plaintiff’s claims were time-barred (A-10), and the First Department affirmed. Accordingly, the Appellate Division’s decision and order, affirming the lower court’s dismissal of the complaint, should be reversed in all respects. STATEMENT OF FACTS A. Procedural History Plaintiff filed a complaint with the New York State Division of Human Rights (“DHR”) dated June 5, 2006, claiming disability discrimination and other violations of the State discrimination laws. A-371-379. When attempts to resolve 7 the dispute at this administrative level were unsuccessful, plaintiff sought and obtained leave from DHR on January 3, 2008 to file a court action. A-28-35. The complaint was filed on March 12, 2008, alleging, among other things, that HHC unlawfully failed to afford plaintiff a reasonable accommodation for his disability and medical condition. Id. HHC filed its Answer on May 23, 2008 (A-36), and after discovery was concluded, HHC filed its Motion for Summary Judgment on October 29, 2010. A-11. The lower court granted the motion on July 13, 2011, erroneously referring to it as a “motion to dismiss.” A-7-10. Plaintiff filed its Notice of Appeal and Pre-Argument Statement on August 9, 2011, and the appeal was fully briefed and orally argued. The First Department entered its decision and order on July 10, 2012 (2012 NY Slip Op 05478), affirming the lower court’s dismissal of the complaint. Judge Manzanet-Daniels dissented in part, disagreeing with the majority decision to affirm the dismissal of plaintiff’s claims for disability discrimination. The dissenting opinion noted (at p. 5) that plaintiff testified that he had requested a respirator from Anita O’Brien, his supervisor at the time, but that the only “protection” that he was provided was a flimsy and inadequate “dust mask.” In addition, the dissent notes that after plaintiff was diagnosed with pneumoconiosis in September 2005, and after a two month medical leave of absence, plaintiff’s physician wrote that plaintiff had demonstrated “significant clinical improvement” and was “medically cleared to 8 work in the field” as long as he was “not …exposed to any type of environmental dust.” Id. Moreover, when he was re-assigned back to the QHC construction site, he was again denied access to any proper respiratory equipment, causing his medical condition to further deteriorate until he was placed on unpaid medical leave and eventually terminated. Id. The dissenting opinion concluded that “a triable issue of fact exists as to whether plaintiff was capable of performing the essential functions of his job [and] whether defendant made a reasonable accommodation for plaintiff’s disability.” Id. The dissent further notes that “defendant could have accommodated his disability by (1) reassigning him to the central office, where, for more than 20 years, her 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. Defendant did neither.” Id. The dissent further noted that “[i]n this context, a specialized mask or respirator device designed to filter and protect against airborne dust from known toxins and potential carcinogens would be the type of ‘reasonable accommodation’ envisioned by the [New York State Human Rights Law, Executive Law 296(1)(a), and the New York City Human Rights Law (Administrative Code 8-107(1)(a)] statute[s]].” Id. On or about August 6, 2012 Plaintiff filed a Motion for Re-Argument or, in the alternative, leave to appeal to the Court of Appeals pursuant to CPLR Rule 9 5516. On October 2, 2012, the First Department denied reargument, but granted leave to appeal to the Court of Appeals. See 2012 NY Slip Op 85962 (U). B. Relevant Facts Plaintiff began his employment with HHC on January 2, 1979, where he worked for 26 years. A-128 at ¶ 2; A-225 at 30. He first held the title of “Assistant Health Facilities Planner” (HFP) until January 1982, when he became an HFP.A- 128 at ¶ 3; A-225 at 31. As an HFP, plaintiff was permanently assigned to the HHC corporate offices at 346 Broadway, where he had a desk and performed the overwhelming majority of his work. A-128 at ¶ 4; A-226 at 33-34. As described in his Personnel Utilization form that he completed in December 1988, he had three overall job responsibilities: (a) the planning and development of major capital projects; (b) the development of functional program[s], space requirements and estimated cost; and (c) review and approval of projects submitted by consultants and hospitals. See A-146 at II(A), page 1. Similarly, plaintiff’s five major specific duties were as follows: (a) plan and review proposals, develop functional programs for project objectives; (b) develop schematic plans according to program objectives for approval by hospital and regulatory agencies; (c) examine and review plans submitted by consultants for compliance with program objectives, compliance with NYC Building Code and NYS Article 28 Code; (d) monitor project progress and authorize payment for 10 consultant[s] accordingly; and (e) make independent research reports outlining the functional requirements and available solutions for a given project. A-146 at II (B), pp. 1-2. Virtually all of these responsibilities and duties were performed by plaintiff and other HFPs from the central office. A-128 at ¶ 5; A-226 at 33-34. As part of his duties, plaintiff and other HFPs went out in the field approximately one day per week for 4-5 hours at a time to meet with hospital directors, examine existing structures, and to review and supervise the work of consultants. A-128 at ¶ 6; A- 146 at III (A) and (B), p. 2; A-260 at 169-170. These meetings with hospital directors and others were generally conducted in offices at the various health facilities, which were environmentally safe and clean. Id. For example, when plaintiff was assigned as an HFP (or network manager) for Metropolitan Hospital, he primarily worked out of the central offices, where he would make written and verbal reports on the progress of various projects to his superiors, and he would also occasionally attend project meetings at that Hospital. A-229 at 45; A-128 at ¶ 5. Since plaintiff spent most of his time writing project reports and “narratives,” most of his project monitoring could be conducted from the office, and did not involve extensive field work. A-239-241 at 86-87; 95-96. Similarly, when plaintiff was assigned to the Bellevue Hospital network , most of his work was performed at the central offices, and when he was out in the field at 11 Bellevue Hospital, he was generally in an office setting that was free of environmental dust and construction debris. A-201 at ¶ 51; A-192-93. The description of plaintiff’s duties and responsibilities as set forth in his Personnel Utilization form was consistent with the official HHC position description for HFPs. See A-150; A-128 at ¶ 7. All of the six “typical tasks” outlined in the “position description” were primarily performed from the central office, with periodic field visits and inspections. Id. Vincent James (“James”), plaintiff’s supervisor, confirmed that Jacobsen had a desk assigned to him at 346 Broadway from at least 2002, when James started supervising him. A-271-316 at 16. This is where plaintiff reported to work. Id. at 18. Plaintiff was not required to do any construction management or supervision of any field work during the period of time that James supervised him. Id. at 39. Even when plaintiff was assigned as the Bellevue Hospital network manager, he still had a desk and phone at 346 Broadway, where most of the work of the HFPs took place, such as reviewing papers and files to make sure that the necessary approvals were obtained. Id. at 30-32. Although James admitted that he was not familiar with the duties and responsibilities of an HFP (Id. at 34), he did recall that when he attended meetings with plaintiff at Bellevue Hospital, the meetings were held in conference rooms or administrative offices, not at the actual construction sites. Id. at 20-21. James further testified that while there were 12 occasional “walk-throughs” at the construction sites after the meetings had concluded, none of the construction areas at Bellevue that they visited were asbestos abatement projects, and he was well aware that specialized protective equipment was required on such sites. Id. at 20-23. When the construction projects were in their most intensive phases, Jacobsen and other HFPs would go out to the field approximately once a week for project meetings. Id. at 43-44. During his many years with HHC, plaintiff had been required to inspect literally hundreds of asbestos abatement projects and, unfortunately, was not provided with the necessary and legally required protective respiratory equipment. A-130 at ¶ 8. In December 1990, as part of an Employee Performance Evaluation, he informed HHC management (as he had done on numerous other occasions) that “no personal protective equipment has been issued to [him] since being assigned to do this [asbestos abatement] work.” A-130 at ¶ 8; A-198. As a result of exposure to asbestos over the years, plaintiff’s lungs became permanently damaged, and he had to start taking medication for my asthma and bronchial dysfunction. Id. At one point in his career, plaintiff provided information to the New York City DEP regarding HHC’s violations on asbestos abatement projects. A-130 at ¶ 9. In June of 2005, when plaintiff was first evaluated by Dr. Gwen Skloot for his pulmonary and breathing problems, James knew that he was having pulmonary issues because plaintiff discussed it with him. A-130 at ¶ 10; A-232-233 at pp. 59- 13 62. James also knew that plaintiff was taking frequent sick leave since he received numerous doctors’ notes explaining plaintiff’s frequent absences from work. Id. On or about August 15, 2005, plaintiff was assigned on a permanent basis to QHC, located in Jamaica, New York. A-130-131 at ¶ 11. He was required to report to the QHC site on a daily basis, and he was required to be there at least nine out of every 10 work days. A-131 at ¶ 12; A-230 at p. 49. Approximately once every two weeks he attended meetings at 346 Broadway, where he had previously worked full time. Id. This was a radical departure from his prior assignments, since he was required to report to work each day to the QHC site, where there were constant ongoing construction activities. Id. Before being assigned to QHC, he had been allowed to monitor construction projects without being physically at the construction sites, since most of the project reviews and monitoring involved a review of the paperwork relating to the projects. Id. The construction activities at QHC were close to the office where plaintiff was assigned to work, and there was actually a construction site in the very room where he was working, which constantly exposed him to airborne dust. A-131 at ¶ 13; Pl. Dep. at 50-55. A refrigeration and air conditioning system was being installed for a new building, and the installation of the system involved construction work in the immediate vicinity of plaintiff’s office work space. Id. In addition, an asbestos investigation and abatement contract was underway at QHC 14 while plaintiff was working there. A-131-132 at ¶ 14; A-163-169. As a result, the office space where plaintiff was assigned was full of construction dust, adding to plaintiff’s breathing problems. Id. Copies of photographs taken by plaintiff graphically depict these construction activities adjacent to his open work space. A- 163-169; A-131 at ¶ 13. Plaintiff did not have an option as to where he could work; he was assigned to a work space and that is where he was required to work. A-13-1321 at ¶ 12 and 15; A-231-232 at pp. 56-57. Anita O’Brien, his supervisor at QHC, had a private enclosed office in the same suite of offices where plaintiff worked, so she was not exposed to the dusty conditions to the same extent as was plaintiff. Id. Plaintiff repeatedly complained to Anita O’Brien about the dust from construction activities that permeated his work space, and told her that he could not tolerate it. A-132 at ¶ 15. In response, she did nothing other than give him an ineffective dust mask. Id. James conceded that Jacobsen discussed with him the conditions at the QHC site, which he said were dusty and dirty. A-300 at 118. James did not actually see these conditions that plaintiff described because, when he went out to QHC to attend meetings, the meetings were held in a conference room or administrative office there. Id. at 82. James, however, knew that Jacobsen and other worked in an open area outside Anita O’Brien’s office. Id. at 83. 15 Even after plaintiff’s doctor notified HHC about his respiratory problems and requested that he not be exposed to environmental dust, James and other managers at HHC did not give any consideration to providing him with protective breathing equipment. Id. at 120-121. As James testified, the only protective equipment that HHC provided to HFPs was “hard hats and safety glasses;” in HHC’s view, there was no need for protective breathing equipment. Id. at 117. James further testified that no serious consideration was given by HHC to providing plaintiff with a reasonable accommodation, other than providing him with “a phone and a desk” at the QHC site. Id. at 141-143. No consideration was given to the option of reassigning plaintiff from the QHC site back to the main office or somewhere else. Id. at 144. James did not recall his conversation with plaintiff at the time he was effectively terminated by being placed on six months of unpaid medical leave in early June 2006. Id. at 178. However, he did not deny having told Jacobsen that “if you can’t work, you will have to retire or resign.” Id. In September 2005, shortly after being assigned to QHC, plaintiff was diagnosed with pneumoconiosis, an occupational lung disease. A-132 at ¶ 16; A- 234 at 65. An open biopsy on September 9, 2005 also determined that he had lost 50% of his lung function. A-132 at ¶ 17-18. Dr. Skloot, his pulmonologist, provided him with a note for his employer, dated September 9, 2005, confirming 16 that he was suffering from pulmonary disease and would require various tests and examinations necessitating periodic absences from work. Id.; A-154. Because of the need for an open lung biopsy, plaintiff was required to take a medical leave of absence between September 2005 and December 2005. Dr. Skloot provided him with another written note, dated September 21, 2005, confirming that he had undergone an open lung biopsy on September 9, 2005 and would need to rest at home for several weeks. A-132 at ¶ 18; A-155. This medical note was circulated to various relevant HR and management personnel at HHC. Id. On October 7, 2005, as part of his Request for a Medical Leave of Absence, plaintiff submitted a Certification from Dr. Skloot to HHC under the Family and Medical Leave Act, noting that he “should not be exposed to inhaled dust.” A-132- 133 at ¶ 19; A-170-175 at ¶ 7(b), p.2. On October 17, 2005, plaintiff received a letter from Mondo Hall (“Hall”), Deputy Director of HR at HHC, informing him that his application for a Leave of Absence had been approved for the period from September 9, 2005 through December 2, 2005. A-133 at ¶ 20; A-102. When asked at his deposition as to whether he knew the nature of plaintiff’s disability, Hall responded in the negative, further stating that he did not know the meaning of the terms “pneumoconiosis” or “pulmonary dysfunction.” A-323-324 at pp. 28-29. On December 16, 2005, plaintiff reported to HHC with a letter from my medical doctor, dated December 6, 2005, which unequivocally stated that he was 17 “ready to return to work” since he had “been treated with systemic corticosteroids and …demonstrated clinical improvement.” A-133 at ¶ 21; A-176. Dr. Skloot noted, however, that it was “imperative that [he] not to be exposed to any type of environmental dust” or be assigned to any construction site. Id. In other words, as plaintiff explained to HHC managers, both he and Dr. Skoot believed that, due to the improvement in his health during his three month medical leave, he would be able to perform the essential elements of his job, just as he had been doing for the past 20 years, namely, that he would be based in the central office and only required to make occasional visits to various construction sites. A-133 at ¶ 21. Plaintiff’s specific concern was that, starting in August 2005, he had been permanently assigned to a field construction site at QHC without proper protective equipment, which was obviously hazardous to his health. Id. In response to Dr. Skloot’s letter, Hall wrote a handwritten note, dated December 16, 2005, acknowledging that “ [plaintiff’s] job requires him to be out at the facility sites (construction) at least once a week.” A-133-134 at ¶ 22; A-177- 178. Hall testified that he must have been told by someone knowledgeable from HHC that Jacobsen only had to be in the field one day a week. A-327 at 41-42. Thus, HHC well understood that plaintiff’s job description normally required him to only be in the field on a periodic basis. Nevertheless, HHC refused to make any reasonable accommodation for his disability and, instead, assigned 18 him on a permanent basis to a construction site at QHC (without proper protective equipment) that exacerbated his already existing pulmonary disease.A-134 at ¶ 23. On December 19, 2005, Plaintiff provided HHC with Dr. Skloot’s note confirming that he could safely return to work on January 3, 2006. A-134 at ¶24; A-179-180. During this period of time, plaintiff also had some discussions with Hall regarding reasonable “work restrictions” that would accommodate his disability. A-204; A-134 at ¶ 26. However, neither Hall, James nor anyone else in HHC management ever had a serious discussion with plaintiff as to what HHC would find acceptable as far as “work restrictions,” such as reassigning him back to the central office, where most of his peers spent most of their time, and where plaintiff had spent most of his work time before being assigned to QHC. A-134 at ¶ 26. On January 3, 2006, when plaintiff returned to work, he was told there were “problems” with the accommodation the doctor had requested for him. A-135 at ¶ 27; A-248 at p.121. He was told to go home and wait for a new assignment. Id. On January 5, 2006, plaintiff filed a Workers’ Compensation Board report stating that he had been exposed to asbestos dust at an HHC facility and that his supervisor knew of this injury since January 30, 2005. A-135 at ¶ 28; A-18. Since Hall was not returning his emails or telephone call, plaintiff sought the assistance of his union representative to help him return to work. A-135 at ¶ 29; A- 19 249 at p.124. On January 5, 2006, George Lawrence (“Lawrence”), a representative of the Civil Service Technical Guild, wrote to James on plaintiff’s behalf, requesting that HHC grant his request for a reasonable accommodation as per Dr. Skloot’s December 6th letter. A-135 at ¶ 29; A-182-183. Lawrence and James then spoke by telephone on January 9th, and James sent a memo to Hall. Id. Plaintiff waited to be reassigned until March of 2006; after receiving no response from HHC to his many telephone calls and emails, he met with an attorney from the NYC Human Rights Commission, who called HHC. A-135 at ¶ 30. Shortly thereafter, HHC contacted plaintiff and told him to report to work at the end of March, 2006. A-135 at ¶ 31. On March 21, 2006, plaintiff advised HHC that he had medical clearance to return to work, and a medical note was sent to HHC, advising that plaintiff had experienced “significant clinical improvement” while he was on leave and taking steroid shots, but that it was imperative that he not be exposed to any type of environmental dust. A-135 at ¶ 32; A-186. On March 22, 2006, Hall circulated a memo to Mary Ann Short and others at HHC, informing them that plaintiff was medically cleared to return to work, and that he would be returning on March 27, 2006. A-136 at ¶ 33; A-18. However, Hall failed to include in his memo any reference to the restrictions place by Dr. Skloot’s 20 on his medical clearance, namely, that he not be placed in a work environment where he would be exposed to environmental dust.A-136 at ¶ 34; A-186-187. At his deposition, Hall testified that his understanding was that when plaintiff went back to work on March 27, 2006 to the QHC site, he would not be exposed to any environmental dust and would not be present at any construction site. A-332 at p. 62. However, Hall had no idea what the work conditions actually were at the QHC location where plaintiff was assigned, and he did not share the medical restrictions placed upon Jacobsen’s return to work (i.e., that he not be exposed to environmental dust) with any field supervisors or personnel. A-334 at pp.70-71. Hall further testified that it was likely that the requested accommodation by plaintiff’s doctor was not known to HHC field personnel at QHC. Id. Shortly thereafter on the same day (March 22, 2006), James sent a memo to Anita O’Brien at the QHC site, informing her that plaintiff had been cleared to return to work on March 27th, but failing to advise her that the medical clearance (A-186) was conditioned on the reasonable accommodation and understanding that the field work would not expose him to environmental dust. A-136 at ¶ 34; A-212. Despite HHC’s knowledge of plaintiff’s serious pulmonary illness and the specific request by plaintiff’s doctor for an accommodation that would not involve exposure to environmental dust, plaintiff was directed to again report for work to 21 QHC as of March 27, 2006 and again told to work in an office located immediately next to a major construction area of the hospital. A-136 at ¶ 35. Prior to his permanent assignment to QHC (from August through September 2005, and then again starting on March 27, 2006), plaintiff had never before been assigned to work on a permanent basis in a construction area (as opposed to making periodic visits to construction sites while based at 346 Broadway), and it was clear to plaintiff and his doctors, as well as to James and others at HHC, that the exposure to significant amounts of environmental dust during plaintiff’s first assignment to QHC (August to September 2005) had seriously exacerbated plaintiff’s prior medical condition. A-136-137 at ¶ 36. Due to these concerns raised by plaintiff’s doctor regarding as to any further exposure to hazardous environmental dust, James assured plaintiff that his work assignment would no longer involve the exposure to environmental dust, which James acknowledged had caused plaintiff’s medical condition to worsen during his previous assignment there (August to September 2005). A-137 at ¶ 37. Based upon these discussions with James, plaintiff thought that he would be reassigned to the 346 Broadway office, where he had been based before, and that he was cleared to attend field meetings and occasionally visit construction sites with respiratory protection. Id.; A-251 at pp.134-135. He would only need respiratory equipment when he was actually present on a construction site, but that he did not need such 22 equipment when he attended project meetings in an office setting. Id. It was a legal requirement, at least on asbestos abatement projects, that all those entering these restricted areas were supposed to have protection equipment, so plaintiff thought that his doctor’s request that he not be exposed to environmental dust without proper equipment was highly reasonable. A-137 at ¶ 37; A-252 at p. 138. It was not until later that plaintiff learned that James had not informed Anita O’Brien or other HHC managers that he should not be assigned to a work environment where he would be exposed to environmental dust at the specific direction of plaintiff’s medical doctor. A-137 at ¶ 38; A-186 and A-212. Indeed, it was not until plaintiff reported for work again at QHC on March 27, 2006 that he first realized that HHC deliberately assigned back to a work area, without proper protective equipment, that was directly contrary to his doctor’s medical instructions, and contrary to what he had been told by James. A-137-138 at ¶ 39. Plaintiff was again assigned by Anita O’Brien to a desk in an open area of the office undergoing major construction and asbestos abatement, and this construction was scheduled to continue for several more years. Id. HHC’s assignment of plaintiff back in this dangerous work environment severely threatened his already precarious health, which had improved during the 23 late-September 2005 through March 2006 period, when he was not working at QHC. A-138 at ¶ 40. 1 Despite his concerns and misgivings, on March 27, 2006, plaintiff reluctantly followed the directions of his HHC supervisors and began working at the same office area at QHC where he had previously worked. A-138 at ¶ 41. Upon his arrival, there was an ongoing construction project in the office space, and the construction involved actual work in the cubicle where he sat. A-255 at 149. Within one week, plaintiff recognized that his health was further deteriorating, and made repeated requests to HHC to be placed in a safer environment and to be provided with proper protective equipment. A-138 at ¶ 41. Plaintiff specifically expressed his concerns to James, who reassured him that conditions would be different there and that he would not have to be exposed to environmental dust. A-138 at ¶ 42. Moreover, once plaintiff realized that he was being forced back into the same hazardous work environment that had caused his medical condition to deteriorate, plaintiff complained to James about it, to no avail. A-263 at 181-182. 1 Indeed, on March 21, 2006 Dr. Skloot noted in his letter that plaintiff had made “significant clinical improvement,” and was now eligible for medical clearance to return to work. A-186. 24 Plaintiff also complained to Anita O’Brien about the breathing difficulties he was experiencing due to the dusty work conditions, and he specifically requested that he be issued respiratory protection equipment, which was denied. A-138-139 at ¶ 43-44; A-255-256 at 152-153; A-259 at 165-166. Plaintiff specifically asked Ms. O’Brien for more effective respiratory gear (which is a form of accommodation), but she refused his request and, instead, forced him to enter construction areas in which asbestos was present wearing only a dust mask. Id. As plaintiff explained at his deposition, a respirator is specifically designed to filter out the particulates that are in the air so that they do not reach your lungs. A-253 at 143. A respirator also had to be fit tested by an industrial hygienist to demonstrate that it is effective on the person to whom the equipment is issued. Id. Plaintiff understood that if he refused to enter the construction areas with only the dust mask that was provided, he would have been fired or subject to disciplinary procedures, something he could not afford to risk. A-139 at ¶ 44. He was not eligible for a pension and had to keep working as long as he could despite his health issues. Id. Plaintiff testified that since he was assigned to work at QHC, but was not provided with the proper protective equipment, he tried to minimize his exposure to asbestos to the maximum extent possible. A-259 at p.167. On May 9, 2006, Dr. Stephen Levin of Mount Sinai Hospital wrote a letter urging that plaintiff be placed in a work setting free of airborne contaminants so 25 that his lung condition would not deteriorate further. A-139 at ¶ 45; A-110; A-190. The following day, May 10, 2006, plaintiff sent a memo to his HHC supervisors, attaching Dr. Levin’s letter and requesting immediate relocation to 346 Broadway, where he would be able to perform “any and all functions” of his job just as he had before his assignment to QHC. A-139 at ¶ 46; A-109; A-189. He never received a reply. Id. According to James, there was no consideration given to reassigning plaintiff back to 346 Broadway as per his request. A-307 at 144. On May 19, 2006, James wrote a memo to Hall, misrepresenting that plaintiff’s “job responsibilities require that he spend 80% of his working hours in the field and 20% of his working hours in central office.” A-139-140 at ¶ 47; A- 191. Although plaintiff and other HHC personnel were required to keep time sheets indicating where they were each day, James never referred to any documents or statistical information in arriving at his “conclusions” regarding the allocation of Jacobsen’s time between the main office and the field. A-310 at pp.158-159. Similarly, Mary Ann Short wrote a memo to Hall on December 21, 2005, misrepresenting that “Jacobsen’s job responsibilities require that he spend approximately 75% of his working hours in the field and 25% of working hours in the office. A-139-140 at ¶ 47; A-207. These representations were completely contrary to plaintiff’s sworn testimony, as well as contrary to HHC’s internal handwritten note of December 16, 2005, acknowledging only that “[Jacobsen’s] 26 job requires him to be out at facility sites (construction) at least once a week.” A- 139-140 at ¶ 47; A-177-178. The reasonable inference is that, in order to concoct the argument that HHC could not provide plaintiff with a reasonable accommodation, James misrepresented the ratio of plaintiff’s field work to office work to be 80-20 (and Ms. Short misrepresented it to be 75-25), which was only true for the limited period of time from August to September 2005 when plaintiff was permanently reassigned from the central office to QHC; however, the correct ratio applicable to plaintiff over his entire HHC career was closer to 20 (field)-80 (office), as HHC’s own internal memo of December 16, 2005 reflected. A-140 at ¶ 48; A-177-178. Hall took the misinformation from Ms. Short’s December 21, 2005 memo and wrote to Dr. Skloot on December 27, 2005, stating that plaintiff’s reassignment to “[m]onitoring the construction … at Queens Hospital Center” required him to be in the field 75% of the time, and only 25% in the office. A-140 at ¶ 49; A-205-206. Hall testified that when he wrote to Dr. Skloot, he had absolutely no idea whether plaintiff’s job would require him to be exposed to environmental dust or not. A- 337 at p. 83. He never made any attempt to find out what the environmental conditions really were at the QHC site where Jacobsen was assigned. Id. at 91. Hall raised the right question with Ms. Short, when he wrote to her on May 12, 2006 and asked her, with reference to my request for a reasonable 27 accommodation, as to “[w]hat were Mr. Jacobsen’s duties and responsibilities prior to being assigned to Queens Hospital Center (QHC).” A-140-141 at ¶ 50; A-208. However, HHC management’s response to this question was to ignore plaintiff’s actual work history, which was that he traditionally spent 80% of his time at 346 Broadway and only 20% of his time in the field. Id. In other words, HHC management refused to acknowledge this fact since to have done so would have inevitably led to the conclusion that HHC could have easily accepted plaintiff’s request for a reasonable accommodation, namely, his reassignment primarily back to the central office (with occasional field visits) or, in the alternative, the issuance of an adequate respirator to him, which legally should have been available to HHC personnel required to visit construction sites anyway. A-140-141 at ¶ 50. On May 31, 2006, Steven Sykes of DC 37 sent a letter to HHC on plaintiff’s behalf, requesting the same reasonable accommodation that Dr. Skloot had previously asked for in his medical clearance letter (see, e.g., A-186), namely, that plaintiff not be “regularly assigned to construction sites” on a permanent basis, but that, rather, he be allowed to do what he had been doing for more than 20 years, which was to be based at 346 Broadway with occasional field visits to construction sites. A-141 at ¶ 52; A-112-113; A-213-214. Mr. Sykes’ letter specifically noted that the only condition that plaintiff’s doctor had placed upon his medical 28 clearance was that he not be exposed to hazardous dust at construction sites “on a constant basis.” Id. On or about June 5, 2006, plaintiff’s counsel filed a complaint with the DHR, asserting disability discrimination by HHC against plaintiff, among other things. A-371-378. Two days later, on June 7, 2006, HHC retaliated by placing plaintiff on a six month unpaid medical leave. A-141-142 at ¶ 53; A-209. In its letter, HHC misrepresented that “at present [Jacobsen is] not able to perform the essential functions of [his] job,” based upon the inaccurate assumption that these “essential functions include your spending a majority of [his] time in field work that inevitably exposes [him] to conditions that [his] doctor advises would exacerbate [his] severe lung disease condition.” Id. However, by that time (June 2006) plaintiff had already suffered additional damage to his lungs and further loss of lung function as a result of HHC’s insistence, in March of 2006, that he continue to work in the environmentally hazardous conditions at QHC, as well as HHC’s refusal to comply with plaintiff’s request for a reasonable accommodation, namely, a return to his regular schedule prior to his assignment to QHC, which would have allowed him to report to work at the central office on must workdays, with occasional field visits. Id. Nevertheless, as of the date that plaintiff was placed on a six-month unpaid medical leave (June 7, 2006), plaintiff was still subject to the limited medical 29 clearance given by Dr. Skloot on March 21, 2006, which advised HHC that plaintiff’s condition had improved while he had been on leave, but conditioned the clearance on plaintiff’s non-exposure to environmental dust. A-186. Dr. Levin had followed up with his own letter on May 9, 2006, confirming plaintiff’s clearance to perform his job, but urging that he be placed in a work setting free of airborne contaminants. A-109; A-190. It was not until August 4, 2006, after plaintiff had already been placed on a six month medical leave, that Dr. Skloot sent a letter to Hall, noting that as a result of plaintiff’s “recent attempt to return to the field he developed significant worsening of his respiratory status, requiring a course of systemic steroids.” A-142 at ¶ 54; A-115-116; A-215-216. In other words, Dr. Skloot was confirming that, as a result of the additional exposure to hazardous dust from March 27, 2006 through June 2006, his condition had deteriorated to the point where he could no longer work in the hazardous work conditions that plaintiff was forced to endure at the QHC site. Id. Thereafter, HHC never assigned plaintiff to a position that was consistent with the requested accommodation and, eventually, he was terminated by HHC by letter of March 26, 2007. A-142 at ¶ 55; A-117; A-195. Due to HHC’s repeated assignment of plaintiff to the hazardous work environment at QHC, first in August 2005 and again in March 2006, plaintiff’s 30 lungs had become severely scarred by August 2006, and he was (and is) acutely sensitive to cold, humidity and fumes. As a result, he is home-bound many months of the year, since he has difficulty breathing without the assistance of an oxygen tank. A-143 at ¶ 56; A-235-236 at pp. 69-73. He has been advised that he will probably need a lung transplant in order to survive. Id. It is important to note, however, that plaintiff’s seriously deteriorated pulmonary condition was significantly better prior to the two time periods during which he was assigned to QHC. A-143 at ¶ 57; A-215-216. Indeed, his condition had improved substantially during his medical leave prior to March 27, 2006, which is when he reported for his second tour of duty at QHC. Id. As noted in Dr. Skloot’s letter of August 4, 2006, it was only after plaintiff was forced to go back to work with no proper protective equipment at the QHC work site on March 27, 2006 that his condition eventually deteriorated to the point where he could no longer do any field work that would expose him to environmental dust. ARGUMENT POINT I THE APPELLATE COURT ERRED IN FINDING THERE WERE NO MATERIAL DISPUTED ISSUES OF FACT, THUS AFFIRMING THE LOWER COURT’S GRANT OF SUMMARY JUDGMENT 31 Where there are material, disputed issues of fact or law, summary judgment must be denied. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 925 (1986); see also Winegrad v. New York Univ. Med. Ctr, 64 N.Y.2d 851, 487 N.Y.S.2d 316, 317018 (1985); Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 760 N.Y.S.2d 397 (2003) (fact issues barred summary judgment); Schumacher v. Richards Shear Co. Inc., 59 N.Y.2d 239, 464 N.Y.S.2d 437 (1983) (genuine issues of material fact preclude summary judgment); United States Fidelity & Guaranty Co. v. Coca-Cola Company, 49 A.D.849, 374 N.Y.S.2d 106 (1st Dept. 1975) (factual dispute relating to transfer of stock certificates precludes summary judgment); Grodin v. Liberty Cable, 244 A.D.2d 153, 664 N.Y.S.2d 276 (1st Dept. 1997) .Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 N.Y. 2d 223, 413 N.Y.S. 2d 141 (1978). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. Stone v. Goodson, 8 N.Y. 2d 8, 200 N.Y.S. 2d 627 (1960); Sillman v. Twentieth Century Fox Film Corp., 3 N.Y. 2d 395, 165 N.Y.S. 2d 49 (1957). Although the Supreme Court did not articulate the standard of review that it was applying in reaching its decision and order, and indeed cited no case law in its written opinion (A-9-10), it did mischaracterize the motion before it as a motion to dismiss, rather than one for summary judgment. Id. As discussed below, if the 32 lower court and the Appellate Division had properly applied the legal standards for a summary judgment motion, they would have had to conclude that there were a myriad of material issues of fact in dispute regarding HHC’s motion for summary judgment which should not have been decided by the lower court, but, rather, should have been properly left for resolution by the trier of fact. POINT II THE FIRST DEPARTMENT ERRED IN AFFIRMING THE LOWER COURT’S DISMISSAL OF PLAINTIFF’S HUMAN RIGHTS CLAIMS SINCE PLAINTIFF WAS ABLE TO PERFORM THE ESSENTIAL FUNCTIONS OF HIS JOB WITH A REASONABLE ACCOMMODATION It is well-established that, pursuant to Executive Law §296(3)(a), the statutory duty of a New York employer under New York’s Human Rights Law is to “provide reasonable accommodations to the known disabilities of an employee …in connection with a job or occupation sought to held.” Pimentel v. Citibank, N.A., 29 A.D. 3d 141, 811 N.Y.S. 2d 381 (1st Dept. 2006). Further, “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.” Id., citing Executive Law § 292 (21-e). Similarly, NYC’s Human Rights Law requires that an employer “shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job.” Id., citing Admin. Code § 8-107 (15)(a). 33 Under Executive Law § 292 (21-e), the term “reasonable accommodation” includes “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.” Pimentel v. Citibank, 29 A.D. 3d 147. The Division of Human Rights also recognizes that §292 (21-e) should include “reassignment to an available position.” See 9 NYCRR 466.11 (a)(1) and (2). Under the federal Americans with Disabilities Act (“ADA”), which parallels the New York State and City statutes, the term “reasonable accommodation” includes “job restructuring, part-time or modified work schedules, reassignment to a vacant position, … and other similar accommodations for individuals with disabilities.” See 42 U.S.C. § 12111(9); see also, Stone v. City of Mount Vernon, 118 F. 3d 92 (2d Cir. 1997) (plaintiff-firefighter who was rendered paraplegic after an off-duty accident found to be able to perform essential functions of his job since he could have been reassigned to perform “light duty”). The ADA requires that the employer provide “modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position.” See 29 C.F.R. § 1630.2(o)(ii) and (iii). 34 The Appellate Division’s decision affirming the lower court’s dismissal of plaintiff’s complaint was, therefore, in error since there was ample evidence in the record that a reasonable accommodation was requested by plaintiff and his medical doctor, and HHC either agreed to provide such accommodation but then failed to do so, or, in the alternative, “refused reasonable accommodations” to plaintiff after a reasonable request was made. Either way, plaintiff met the statutory requirements. See Pembroke v. New York State Off. of Ct. Admin., 306 A.D. 2d at 185, 761 N.Y.S. 2d at 215, citing Moritz v. Frontier Airlines, Inc., 147 F. 3d 784, 787 (8th Cir. 1998); see also Pimentel v. Citibank, 29 A.D. 3d 141. All that plaintiff needed to show –and did show—in order to make out a prima facie case of disability discrimination arising from a failure to accommodate, was that: (1) plaintiff was a person with a disability under the meaning of the ADA [or equivalent state statute]; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to [or failed to provide] such accommodations.” See McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F. 3d 92 (2d Cir. 2009); Graves v. Finch Pruyn & Co., Inc., 457 F. 3d 181, 184 (2d Cir. 2006); Rodal v. Anesthesia Group of Onondaga, P.C., 369 F. 3d 113, 118 (2d Cir. 2004). 35 The Second Circuit’s decision in McBride v. BIC is particularly instructive since, in that case, the plaintiff, who was working as a utility operator in a cartridge assembly area of BIC’s ink systems department, which involved exposure to various chemical fumes, rejected her employer’s offer of respiratory equipment as a potential reasonable accommodation in view of her respiratory ailments. 583 F. 3d at 97. Nor did the plaintiff in BIC suggest that her disability could be reasonably accommodated by reassignment to another facility. In the instant case, by contrast, plaintiff was never offered any proper respiratory protection equipment during either one of his two permanent assignments to the QHC construction site. HHC also rejected his suggestion that, as a reasonable accommodation, he be permanently assigned back to the central office, where he had been assigned for over 20 years and had been required to make field visits only 20% of the time. HHC further violated both state and federal disability discrimination statutes, which uniformly require that the employer engage in an “interactive process” in arriving at a reasonable accommodation for this disabled employee. See Parker v. Columbia Pictures Indus., 204 F. 3d 326, 338 (2d Cir. 2000) (“The employer has the responsibility to investigate an employee’s request for accommodation and determine its feasibility”). Moreover, an employer who fails to engage in this interactive process and is, instead, terminated based upon 36 exhaustion of leave, “has been discriminated because of the disability within the meaning of the law.” Id. In essence, plaintiff was given the “take it or leave it” option of returning to the QHC site without being provided with adequate respiratory equipment, or being terminated. This hardly constitutes the “interactive process” contemplated by the relevant disability discrimination statutes. Faced with the Hobson’s choice of either returning to the QHC site where he had already suffered further damage to his lungs, or being terminated, plaintiff chose to report to work on March 27, 2006 to QHC, and thereafter suffered additional lung damage from late March to June 2006. As Dr. Skloot noted in a letter dated August 4, 2006 to Mondo Hall, as a direct result of plaintiff’s permanent assignment at the QHC site during the March through June 2006 period, “[he] developed significant worsening of his respiratory status, requiring a course of systemic steroids.” A-115-116; A-215-216. In other words, Dr. Skloot was confirming that as a result of the additional exposures to hazardous dust from March 27, 2006 through June 2006, plaintiff’s condition had deteriorated to the point where he was no longer able to spend 75 to 80% of work time at a construction site where he would constantly be exposed to hazardous environmental dust with no proper respiratory protection equipment. Id. In terms of the disability discrimination statutes, Jacobsen was clearly a “qualified individual” with a disability who could have performed the essential 37 functions of his job with reasonable accommodation. Without question, he could perform the essential functions of his job on August 15, 2005, when he was first assigned to the QHC site, Again, on March 21, 2006, after a three month leave of absence from December 2005 to March 2006, during which time plaintiff’s health improved, Dr. Skloot provided HHC with yet another medical clearance letter, with the only condition that plaintiff not be exposed to any type of environmental dust, which could have been accomplished by providing plaintiff with proper respiratory equipment and/or reassignment back to HHC’s central office. A-186. Although plaintiff’s condition may have progressively deteriorated during the March 27, 2006 to June 6, 2006 period , as of June 7, 2006, he could still perform the essential functions of a HFP with an accommodation, namely, the assignment back to HHC’s central office and limited field work with proper respiratory equipment. As of that date (June 7, 2006), what plaintiff could no longer tolerate was a permanent assignment to a hazardous work site without proper protection. Whether a plaintiff’s inability to perform certain tasks renders him unable to perform the essential function of his job “generally requires a fact-specific inquiry.” King v. Town of Wallkill, 302 F. Supp. 2d 279, 289 (S.D.N.Y. 2004), citing 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 38 whether a particular function is essential is a fact specific exercise to be made on a case by case basis”). An employee’s status as a “qualified individual” eligible to work with a reasonable accommodation is thus dependent on that employee’s condition at the time of the alleged discriminatory action, which is a fact-intensive issue to be decided by a jury. King v. Town of Wallkill, 302 F. Supp. 2d at 289. In its decision, the lower court erroneously concluded (and the appellate court affirmed) that “[t]he Plaintiff’s own medical 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 (sic), can never return to his old duties.” A-10. However, the findings of the lower and appellate courts on this crucial point are completely unsupported by the record. Dr. Skloot’s medical clearance letter of March 21, 2006 states that plaintiff “is medically cleared to work in the field so that he can attend project meetings,” and further states that “it is imperative that he not be exposed to any type of environmental dust ….” A-186. If and to the extent that HHC required him to visit a construction site where there was a danger that he would be exposed to environmental dust, plaintiff could have been easily protected from any potential environmental hazards by being provided with adequate respiratory protective equipment, which he was not. 39 Indeed, even in June 2006, after plaintiff had been exposed for another three to four months of exposure at the QHC site without protective equipment, and plaintiff’s condition had further deteriorated to the point where HHC sent him a letter placing him on a six month unpaid medical leave (A-114; A-209), the last written communication that HHC had received from plaintiff was a memo dated May 10, 2006, which clearly stated that plaintiff was “able to perform any and all functions, which were assigned to [him] prior to [his] relocation to [Queens Hospital].” A-109; A-189. What plaintiff requested in this May 10th memo was a transfer back to 346 Broadway from the QHC site. Id. Neither plaintiff nor his doctors ever “conceded” that he could no longer perform field work as of May 2006 or any other date; rather, plaintiff and his doctors consistently took the position that he could, in fact, perform the same type of field work as he had previously performed prior to his assignment to QHC. What plaintiff could no longer do was to continue to work “in these conditions,” namely the hazardous conditions at his QHC worksite, where he was exposed to environmental dust without any proper protective equipment. Id. The May 9, 2006 doctor’s letter that accompanied plaintiff’s May 10th memo does not, as HHC asserted (and both the lower and appellate courts accepted), state the opinion that plaintiff can no longer perform any field work; rather, it merely recommends the obvious: that “Mr. Jacobsen be placed in a work setting free from 40 exposure to airborne irritant or fibrogenic dusts, fumes and gases, if his current lung condition is not to be made worse by such exposures.” A-110; A-190. Indeed, the doctor’s letter of May 9, 2006 (A-110) is consistent with the prior medical clearance letter of March 21, 2006, which cleared plaintiff “to work in the field” upon the condition that he “not be exposed to any type of environmental dust.” A-186. Further, it was this March 21, 2006 clearance letter that was accepted by HHC and led to the notice to plaintiff that he report to work on March 27, 2006. Indeed, Vincent James sent an email to Anita O’Brien on March 22, 2006, the day after the March 21st medical clearance letter had been received, advising her that “[plaintiff] has been medically cleared to return to work on Monday, March 27, 2006,” and that he was being assigned back to the QHC site. A-212. Thus, the clear import of HHC’s decision to give plaintiff another work assignment as of March 27th was that HHC believed that, as of that date, plaintiff could perform all of the essential functions of his job with reasonable accommodation. Otherwise, HHC would not have accepted the March 21st medical clearance letter conditioned on the plaintiff’s non- exposure to environmental dust. The fact that HHC did not provide either one of the available accommodations, i.e., either reassignment back to the central office with occasional field visits, or assignment to QHC with proper protective equipment, and the fact that HHC did not even inform his supervisor at QHC, Anita O’Brien, 41 that his medical clearance was conditioned on his non-exposure to environmental dust (A-187; A-212), is strong evidence of both HHC’s bad faith in dealing with the request for an accommodation by both plaintiff and his doctors. Indeed, the lower and appellate courts, in their written opinions, appear to have adopted HHC’s flawed argument that, during the time period from March through May 2006, plaintiff and his medical doctors had taken the position that he was seeking excusal from any assignments requiring him to visit construction sites. However, plaintiff’s medical clearance letters during that period of time (March 21 and May 9, 2006) do not bar plaintiff from engaging in field work or even visiting construction sites, as long as he was properly protected (A-186; A-190), and HHC correctly understood these medical letters as permitting his assignment to QHC as of March 27, 2006 with proper protective equipment. A-187. Even the May 31, 2006 letter to HHC from plaintiff’s union attorney, Steven Sykes (A-213-214) confirms that “Jacobsen is able to visit construction sites sporadically and/or infrequently. However, Jacobsen is currently in a position that requires him to visit construction sites constantly.” (emphasis added). Id. In other words, as the Sykes letter notes, plaintiff’s request for an accommodation was consistent with his physician’s condition placed on his medical clearance, i.e., that he should not be exposed on a constant basis to hazardous construction dust. Id. 42 In its written opinion, the lower court also erroneously refers to the December 2005 doctor’s note for the proposition that plaintiff was not cleared from March through May 2006 for work in the field or at “any construction site.” A-10. However, if and to the extent that plaintiff’s medical doctor provided HHC with a more guarded and restrictive medical clearance letter in December 2005 than was provided on March 21 and May 9, 2006, the “operative” medical opinions bearing on the issue of whether plaintiff could perform the essential elements of his job, including any field work, during the critical March through May 2006 period would be these March and May letters (A-186; A-190), not some earlier December 2005 medical opinion. Plaintiff’s condition improved while he was on leave for most of the period from December 2005 until March 27, 2006, so any prior medical clearance letter (i.e., from December 2005) would have been obsolete. Similarly, the lower court opinion (at A-10) cites to a letter of January 6, 2006 from George Lawrence of the Civil Service Technical Guild for support for the proposition that plaintiff could not work at “any construction site.” A-183. However, even assuming that a non-doctor’s letter has some relevance to plaintiff’s medical condition in December 2005, it most certainly has absolutely no relevance to plaintiff’s medical condition in the March-May 2006 period, especially since there are two doctors’ letters during that time period that give plaintiff clearance to do some field work, consistent with his job description. 43 In this case, there is no dispute that plaintiff suffered a disability within the meaning of the relevant New York State and City statutes as of the date that he was permanently reassigned from the main office to the QHC construction site on two occasions: (1) first in August 2005, and later in March 2006. The record is also clear that HHC failed to provide plaintiff with a reasonable accommodation. A. The Appellate Court’s Decision Failed to Recognize HHC’s Unwillingness To Provide Plaintiff With a Reasonable Accommodation For His Disability During the August through October 2005 Time Period The Court’s July 10th decision properly notes (at p. 28) that “[i]n August 2005, plaintiff was assigned to the Queens Hospital Network whose main hospital was undergoing major renovation.” However, the decision fails to take into consideration the fact that, at the time plaintiff was reassigned from HHC’s main offices in Manhattan to an active construction site at QHC, HHC well knew of plaintiff’s pulmonary problems, since the record shows that Vincent James, plaintiff’s supervisor, knew that plaintiff was being treated by Dr. Gwen Skloot for pulmonary and breathing problems, which plaintiff had discussed with him. A-130 at ¶ 10; a-232-233 at pp. 59-62. James also knew that he was taking frequent sick leave due to these respiratory problems. Id. Nevertheless, despite its knowledge of plaintiff’s respiratory illness, HHC failed to engage in an interactive process with plaintiff in order to design a reasonable accommodation that would permit him to continue to perform the 44 essential functions of his job while protecting him from unreasonable further exposure to construction dust. Instead, HHC reassigned plaintiff on a permanent basis, and without any proper respiratory equipment, to a desk in an building that was itself an active construction site. A-131 at ¶13; Pl. Dep. at 50-55. In addition, an asbestos abatement contract was underway at QHC while plaintiff was working there. A-131-132 at ¶ 14; A-163-169. As a result, the office space where plaintiff was assigned was full of construction dust. Id. 2 Thus, starting on August 15, 2005, by reassigning plaintiff from its main office to the QHC construction site, HHC negligently and recklessly exposed plaintiff to hazardous construction dust without any reasonable accommodation or issuance of proper protective equipment to him. The record is further clear that plaintiff repeatedly complained to his on-site supervisor, Anita O’Brien, about the dust from the construction activities that permeated his work space, and told her that his health could not tolerate such exposure. A-132 at ¶15. In response, she did nothing other than to give him an ineffective dust mask, which is not considered proper respiratory protective equipment. Id. Plaintiff’s home office supervisor, Vincent James, also conceded that Jacobsen discussed with him the hazardous conditions at the QHC site, but 2 Copies of photographs taken by plaintiff graphically depict the construction activities in and around his open work space. A-163-169; A-131 at ¶13. 45 that James did nothing to provide him with even the most basic of reasonable accommodations, such as proper respiratory equipment. A-300 at 118. 3 Even after September 9, 2005, when plaintiff was diagnosed with pneumoconiosis (A-131 at ¶ 16; A-234 at 65), and plaintiff’s doctor prepared a note for HHC advising plaintiff’s employer that he was suffering from pulmonary disease, James and others at HHC still gave no serious consideration to providing plaintiff with a reasonable accommodation, other than, as James testified, “a phone and a desk” at the QHC site. James Deposition, Id. at 141-143. No consideration was given to the option of reassigning Jacobsen from the QHC site back to the main office or some other less hazardous location, or providing him with proper respiratory protective equipment. Id. at 144. B. The Appellate Court’s Decision Further Failed to Recognize That HHC Never Provided Plaintiff With a Reasonable Accommodation As Required By His Doctor’s Medical Clearance Letter During the Post March 22, 2006 Period Upon His Return to Work After A Medical Leave of 3 James did not actually see these hazardous conditions at Jacobsen’s workplace because, when James went out to QHC to attend meetings, the meetings were held in a conference room at the administrative office there. A-300 at 82. James, however, knew that Anita O’Brien had her own private enclosed office at QHC, while Jacobsen and others worked in an open area. Id. at 83. 46 Absence. Plaintiff took a medical leave of absence from approximately late October 2005 until March 27, 2006. This was based upon a certification under the Family and Medical Leave Act from Dr. Skloot to HHC, noting that plaintiff “should not be exposed to inhaled dust.” A-132-133 at ¶ 19; A-170-175 at ¶ 7(b), p.2. 4 From late October, 2005 to March 2006, plaintiff underwent intensive therapy and his condition improved, triggering a medical re-evaluation by plaintiff’s physician and clearance to return to work. In late October 2005, at the time that plaintiff was placed on medical leave, Dr. Skloot expressed the opinion that plaintiff “currently cannot perform usual tasks” and that he was unable to perform any one or more of the essential functions of his job since he “should not be exposed to inhaled dusts” (see Decision at 28). However, in December 2005, after plaintiff’s condition had markedly improved, Dr. Skloot sent another letter to HHC clearing plaintiff to return to work on January 3, 2006. (See Decision at 28-29).5 In addition, on March 21, 2006, Dr. 4 The argument that the “inhaling of construction dust” was a necessary part of plaintiff’s essential job function should have been rejected outright by the Appellate Division since HHC, like all other employees, had a legal duty to protect its employees from any unreasonable exposure to hazardous conditions. 5 On December 16, 2005, plaintiff provided HHC with a letter from his medical doctor, dated December 6, 2005, stating that he was “ready to return to work” since he had “been treated with systematic corticosteroids and …demonstrated clinical improvement.” A-133 at ¶ 21; A-176. Dr. Skloot noted, however, that it was “imperative that [he] not be exposed to any type of environmental dust. Id. 47 Skloot sent a follow-up letter to HHC, stating that plaintiff’s condition had improved and that he was medically cleared to work in the field. Decision at 29.6 In response to Dr. Skloot’s December 2005 letter, HHC supervisor Mondo Hall wrote a handwritten note acknowledging that “his [plaintiff’s] job requires him to be out at the facility sites (construction) at least once a week.” A-133-134 at ¶ 22; A-177-178; A-327 at 41-42. Thus, HHC, in its own internal memos, candidly admitted that plaintiff’s job only required him to go into the field on an occasional basis, while, at the same time, representing to plaintiff’s physician and for purposes of litigation that the time required for him to be “in the field” was 75 or 80 percent. Following receipt of the March 21, 2006 medical clearance letter, HHC assigned Jacobsen to work back at QHC, but failed to comply with the restriction placed upon the medical clearance letter that plaintiff be provided with a reasonable accommodation so that he not be exposed to further construction dust.7 Mondo Hall of HHC testified that, when Jacobsen reported back for work on 6 This March 21, 2006 medical clearance letter (see A-108 and A-186), which cleared plaintiff for both office and field work, thereby cleared plaintiff to perform all of his essential job functions with an accommodation. 7 The record reflects that HHC completely disregarded the medical restrictions set forth in the medical clearance letter by plaintiff’s doctor. On March 22, 2006, Mondo Hall circulated a memo to other HHC personnel informing them that Jacobsen was medically cleared to return to work, while failing to include in his memo any reference to the restrictions placed by Dr. Skloot on plaintiff’s medical clearance, namely, that he not be placed in a work environment where he would be exposed to environmental dust. A-136 at ¶33-34; A-18 and 186-187. 48 March 27, 2006 to the QHC, he just “assumed” that he would not be exposed to any environmental dust and would not be actually present at any active construction site. A-332 at 62. However, Hall admitted that he had no idea as to what the work conditions actually were at the QHC location where Jacobsen was assigned, and did not share the medical restriction information with Jacobsen’s field supervisor or other HHC personnel. A-334 at 70-71. Similarly, James testified that on the same day (March 22, 2006), he sent a memo to Anita O’Brien at the QHC site, informing her that plaintiff had been cleared to return to work on March 27th, but failing to advise her of the medical restrictions placed on that clearance. A-136 at ¶34; A-212. HHC thus violated the terms of plaintiff’s medical clearance by ordering him to report to work on a daily basis to QHC without providing him, as a reasonable accommodation, proper respiratory protective equipment that he could use when visiting hazardous construction sites, such as QHC. 8 By assigning him on a permanent basis to the same hazardous construction site without protective equipment that had previously led to a serious worsening of plaintiff’s medical condition during his previous assignment there from August 8 In the alternative, as a reasonable accommodation, HHC could have done what it had previously done throughout plaintiff’s entire career, which was to assign him to work primarily at the HHC central office, with only occasional visits to the field for meetings in non-hazardous office locations, and the issuance of the same proper protective equipment that was required for all workers on hazardous construction sites on the rare occasion that plaintiff was actually required to visit such a site. 49 through September 2005, HHC not only failed to provide him with the reasonable accommodation that was a condition of his medical clearance; it also condemned him to permanent disability and, in all likelihood, an early death. A-136-137, ¶ 36. HHC’s assignment of plaintiff on March 27, 2006 back to the same dangerous work environment –without proper protective equipment—severely threatened his already perilous health, which had improved during the late- September 2005 to March 2006 period while he was on medical leave. A-138 at ¶ 40. Plaintiff’s worst fears were realized when, upon his arrival, he found that construction was ongoing in the QHC office area. A-255 at 149. C. In Its July 10th Decision, the Appellate Division erroneously found that Plaintiff “Did Not Request Any Further Accommodation from HHC” During the March through May 2006 Time Frame, When, In Fact, the Record Shows that Plaintiff Repeatedly Requested Proper Protective Equipment or Some Other Accommodation Upon His Reassignment Back to QHC on March 27, 2006 The July 10th Decision erroneously states that “[f]rom March until May of 2006, plaintiff did not request any further accommodation from HHC and continued to make field visits during this time.” Decision at 29. This factual representation is not consistent with the Record, and is at least a sharply disputed issue of fact that cannot be resolved by way of summary judgment. Plaintiff not 50 only requested a reasonable accommodation, i.e., issuance of proper respiratory protective equipment and/or reassignment back to HHC’s main office, with occasional visits to the field, which is what he had been doing for many years. Within one week of his assignment back to HHC on March 27, 2006, plaintiff, recognizing that his heath was rapidly deteriorating, repeatedly made requests to HHC supervisors that he be placed in a safer work environment and to be provided with proper protective equipment. A-138 at ¶31. Plaintiff specifically expressed his concerns to Vincent James, who reassured him that the work conditions would improve at QHC and that he would no longer be exposed to environmental dust. A-138 at ¶42. When conditions did not improve and plaintiff realized that he was continuing to be forced to work in a hazardous work environment, he further complained to James, but to no avail. A-263 at 181-182. Plaintiff also complained to his HHC supervisor at QHC (Anita O’Brien) about the breathing difficulties he was experiencing due to the dusty work conditions, and he specifically requested that he be issued respiratory protective equipment, which was denied. A-138-139 at ¶s 43-44; A-255-256 at pp. 152-153; A-259 at pp. 165-166. Plaintiff specifically asked Ms. O’Brien for more effective respiratory gear (which is a form of accommodation), but she refused his request, and, instead, forced him to enter construction areas in which asbestos was present wearing only an inadequate dust mask. Id. 51 The July 10th Decision further errs to the extent that it represents that plaintiff “continued to make field visits during this time.” Decision at 29. The correct statement of fact is that plaintiff was permanently assigned to the field in the middle of an active construction site at QHC, and plaintiff repeatedly and bitterly objected to the work conditions that he was compelled to accept, under threat of imminent termination “for cause” if he failed to comply with the terms of this assignment. As plaintiff explained, he could not refuse to follow orders since he was close to accruing his pension benefits, and his termination by HHC would have left him without any pension benefits whatsoever.9 D. The Appellate Division Erroneously Found That Plaintiff Had Not Properly Raised in the Lower Court the Argument that He Should Have Been Assigned Proper Respiratory Equipment, and That this Argument Was Belatedly Raised On Appeal The Appellate Division’s Decision suggests that one of plaintiff’s central arguments -- that he should have been issued proper respiratory equipment while working in the field --was belatedly raised on appeal, and was not raised at all in the court below. Decision at 34. Indeed, the Court seeks to discredit or disregard plaintiff’s argument on this point by asserting that “[i]n fact, plaintiff’s 9 This is exactly what happened when plaintiff was eventually terminated due to the fact that his medical condition had further deteriorated to the point where, by August 2006, he was totally disabled and could no longer perform his essential job functions. Plaintiff was ineligible for a pension and never received any such payments, despite his long career at HHC. 52 affidavit in opposition to the motion for summary judgment stated that HHC could have relocated him to the central office.” Id. This aspect of the Decision is in error in that the record reflects plaintiff consistently took the position, both in the lower court and on appeal to the First Department, that HHC could have provided him with a reasonable accommodation by (a) assigning him to work primarily at the HHC central offices with occasional (i.e., approximately once per week) visits to the field to inspect construction sites with adequate protective equipment provided to him on such field visits as required, or (b) if HHC persisted in assigning him on a permanent basis to QHC, to provide him on a full-time basis with adequate respiratory protective equipment.10 The Appellate Division’s suggestion that the issue of respiratory protective equipment was not raised below in plaintiff’s affidavit in opposition to summary judgment is plainly in error. Paragraph 23 of plaintiff’s affidavit states as follows: Periodic visits to construction sites with protective equipment would not have been a “problem” for me or a risk to my health; rather, it was the permanent assignment to a construction site at Queens Hospital (without proper respiratory equipment) that was exacerbating my pulmonary disease and causing further damage to my lungs. (emphasis added). 10 Even if the Appellate Division Decision is correct (which plaintiff does not concede) in noting that plaintiff’s “focus” in the lower court was “HHC’s denial of his request to work in an office, not on the adequacy of the equipment provided to him,” (Decision at 34), this point should have been irrelevant to the Court’s analysis of plaintiff’s arguments, as long as plaintiff fairly raised the “respiratory equipment” issue in the court below, which he did. 53 A-134 at ¶23. Further, plaintiff’s affidavit states: Based upon these discussions [at the time that plaintiff reported for work on March 27, 2006] between me and my supervisor (James), it was my understanding that I would be reassigned to the 346 Broadway office, where [I] had been based before, and that I was cleared to attend field meetings and occasionally visit construction sites with respiratory protection. I would only need respiratory equipment when I was actually present on a construction site, but did not need such equipment when I attended project meetings in an office setting. In any event, it was a legal requirement, at least on asbestos abatement projects, that all those entering these restricted areas were supposed to have respiratory protection equipment, so I thought that this request for protective equipment was a highly reasonable request. A-137 at ¶ 37 (emphasis added). Plaintiff’s affidavit further noted “that I testified at my deposition that Anita O’Brien, the Director of Facility at Queens Hospital, knew that I was having difficulty breathing and knew (because I complained to her) that I needed respiratory protection, but only got an ineffective dust mask from her.” A-139 at ¶ 43 (emphasis added). In addition, at paragraph 44 of Plaintiff’s affidavit, he further discusses his requests for an accommodation that included the issuance of proper respiratory equipment: I had specifically asked Ms. O’Brien for more effective respiratory gear, but she refused my request, thus forcing me to enter construction areas in which asbestos was present wearing only a dust mask. If I had refused to do so, I would have been fired or subject to disciplinary procedures, and I did not want to lose my job. Indeed, I was still not eligible for a person and had to keep working as long as I could despite my health issues. 54 A-139 at ¶ 44 (emphasis added). In addition to the numerous citations in plaintiff’s affidavit regarding his repeated requests for a respirator or other adequate respiratory equipment either while permanently assigned to QHC or during occasional field visits to construction sites while assigned to HHC’s central office, plaintiff’s deposition contains numerous references to his requests for a reasonable accommodation that included access to proper respiratory equipment. For example, plaintiff explained at his deposition that a respirator is specifically designed to filter out the particulates that are in the air so that they do not reach the lungs. A-253 at p. 143. A respirator also has to be “fit tested” by an industrial hygienist to demonstrate that it is effective on the person to whom the equipment is issued. Id. 11 By focusing on plaintiff’s May 10, 2006 letter to his supervisor (Vincent James), “requesting relocation to that office [HHC’s central office] as a reasonable accommodation”, see Decision at 29, the Appellate Division failed to appreciate the fact that such letter was only written after plaintiff’s condition had continued to rapidly deteriorate during his deployment to QHC without proper protective 11 Plaintiff had been a “whistle blower” over the years at HHC on the issue of proper respiratory equipment. In December 1990, for example, plaintiff informed HHC management (as he had done on numerous prior occasions) that “no personal protective equipment has been issued to me since being assigned to do [asbestos abatement] work.” Plaintiff’s Affidavit, A-130 at ¶ 8-8 and Plaintiff’s Exhibit 25 attached thereto. Later on, plaintiff provided critical information to the New York City Department of Environmental Protection (DEP) in an investigation that found HHC’s asbestos abatement program to be “non-compliant.” Id. 55 equipment, and HHC had made it abundantly clear that he would not be issued proper respiratory equipment while assigned to the QHC site. Consequently, since HHC had unilaterally taken off the table the option of providing him with respiratory equipment as a reasonable accommodation while he was permanently assigned to the field, the only possible accommodation left was a reassignment back to HHC’s central office. E. The First Department Failed to Consider that Plaintiff’s Requests For An Accommodation Specifically Fell Within the Scope of the Executive Law As the dissenting opinion points out, a “reasonable accommodation” under Executive Law § 292[21-e] includes the “acquisition or modification of equipment” and “job restructuring and modified work schedule.” Decision at 43. The record is clear that plaintiff requested both “respiratory protection” and, in the alternative, “reassignment.” Id. at 43-44. However, HHC denied both his request for proper respiratory equipment and reassignment back to the HHC central office, with periodic field visits. Id. Not only did HHC fail to provide him with a 56 reasonable accommodation; it also refused to even discuss those options with him as part of a “good faith interactive process” required by law. Id. 12 F. The Appellate Division Improperly Found That, Since Plaintiff Failed To Wear the Inadequate Dust Mask Given to Him By His HHC Supervisor, He Waived His Right to Complaint “That He Never Got Protection.” In its majority opinion, the First Department notes that plaintiff’s deposition testimony reflects that in March 2006, plaintiff complained to his supervisor at Queens Hospital about the dust and requested a respirator. Decision at 34-35. The Court, nevertheless, discounts this request for an accommodation, i.e., a proper respirator as required by law to be made available at hazardous work sites, by making reference to the fact that the plaintiff was issued a dust mask, noting that plaintiff testified that he “did not consistently wear that mask because it made it difficult to communicate.” Id. at 35. The appellate court then completely ignored the evidence that an ordinary dust mask is just about as effective as an umbrella in a hurricane, concluding that “having failed to wear the [dust] mask given to him, plaintiff can hardly complain he never got protection.” Id. 12 As the dissenting opinion suggests, the view of the majority opinion that the provision of an ordinary dust mask to plaintiff fulfilled HHC’s responsibility to all of its workers in general, and this particular worker in particular, to provide adequate protection against asbestos dust and other “airborne dust from known toxins and potential carcinogens,” borders on the frivolous. Decision at 44-45. At the very least, HHC had a duty to provide plaintiff with the same adequate respiratory equipment with filters that it was obligated to provide to any of its employees assigned to work in similar circumstances. 57 The majority opinion is also factually in error to the extent that it finds that “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.” Id. However, this “factual” representation set forth in the majority decision is totally unsupported by the record. Plaintiff was never asked at his deposition by HHC’s counsel about this subject, i.e., whether he lodged any further complaints to his supervisors after being issued a flimsy dust mask, so this portion of the majority is nothing more than sheer speculation. The record is clear, however, that plaintiff made the unremarkable request for what he was legally entitled to be issued, i.e., a respirator, and was instead issued an ordinary dust mask which no one, and certainly not his HHC supervisors, could possibly confuse with a professional- grade respirator. Therefore, the First Department erred by faulting the plaintiff for “failing” to point out the obvious, i.e., that an ordinary dust mask is inadequate and is not the equivalent of a respirator.13 G. The Court Erroneously Found that HHC Had Engaged in a “Good Faith Interactive Process” Regarding the Issue of Whether Plaintiff’s Disability Could Be Reasonably Accommodated 13 As the dissent points out, the plaintiff explained in his deposition testimony that “a dust mask is insufficient protection since, unlike a respirator, it is not specifically designed to filter particulates.” Decision at 38. 58 In its majority opinion, the Court found that “[c]ontrary to the dissent’s finding, the record shows that HHC engaged in an interactive process. However, the record itself belies such a finding. For example, during the December 2005 time period, after Dr. Skloot had cleared plaintiff to return to work by letter dated December 6, 2005, plaintiff’s affidavit testified that “neither Mr. Hall, Mr. James nor anyone else in HHC management ever had a serious discussion with me as to what HHC would find acceptable as far as “work restrictions….” A-134,¶ 26. Shortly thereafter, and in the absence of any proposal from HHC regarding how plaintiff’s disability could be accommodated,14 plaintiff filed a Workers’ Compensation claim on January 5, 2006 alleging that he had been exposed to asbestos dust while employed by HHC and that his supervisor had known of his injury since January 30, 2005. See A-136 at ¶ 28 and Plaintiff’s Exhibit 15 attached thereto. When plaintiff requested an accommodation from Anita O’Brien (HHC supervisor at QHC) “she seemed disinterested.” A-132 at ¶ 15. Not only is the record clear that HHC never had any “interactive discussion” with plaintiff regarding an appropriate and reasonable accommodation, but HHC 14 In fact, plaintiff testified in his affidavit that “Mondo Hall of HR had stopped returning my telephone calls or responding to any emails….” A-136 at ¶ 29; see also A-136 at ¶ 30 (“after receiving no response from HHC to my many telephone calls that I made and emails sent to HHC, I met with an attorney from the New York City Human Rights Commission…”). 59 never even discussed the issue internally. For example, on March 22, 2006, immediately prior to plaintiff’s assignment back to the QHC on March 27, 2006, Mondo Hall circulated a memo to Mary Short and others at HHC informing them that plaintiff had been medically cleared to return to work, but neglecting to include any reference to the restrictions placed by Dr. Skloot on that clearance, namely, that he not be placed in a work environment where he would be exposed to environmental dust. See A-136 at ¶ 33, and Plaintiff’s Exhibit 15 attached to Plaintiff’s Affidavit. Similarly, Vincent James sent a letter dated March 22, 2006 to Anita O’Brien informing her that plaintiff had been cleared to return to work, but failed to advise her that the medical clearance had been conditioned on the reasonable accommodation and understanding that the field work would not expose him to environmental dust. A-139 at ¶ 34 and Plaintiff’s Exhibit 33. Meanwhile, James reassured plaintiff that, in essence, he would need no accommodation upon his return to work since James misled him into believing “that the assignment there would no longer involve the exposure to environmental dust….A-137 at ¶ 37. James further misled plaintiff into thinking that he would be assigned to HHC’s central office, where he had been based before, “and that [he] was cleared to attend 60 field meetings and occasionally visit construction sites with respiratory protection.” Id. 15 It is impossible to reconcile the Appellate Division’s finding that HHC engaged in an interactive process with plaintiff when HHC’s primary witness – Vincent James—agreed during his deposition testimony with plaintiff’s assertion that no serious (or any) consideration was ever given by HHC to provide plaintiff with a reasonable accommodation for his disability. As James bluntly testified, the only protective equipment that HHC provided to Jacobsen and other HFPs were “hard hats and safety glasses,” and that there was no need for protective breathing equipment. A-300-301 at 117-118 and 120-121. James further confirmed HHC’s callous insensitivity to plaintiff’s legitimate need for an accommodation by testifying that HHC believed it had fulfilled all of its responsibilities to plaintiff by providing him with “a phone and a desk” at QHC. A-306 at 141-143. James further confirmed that there was no consideration given by HHC to issuing plaintiff any respiratory equipment or reassigning him back to the main office or some other location. A-306 at 144. Finally, after forcing plaintiff to continue working in a hazardous environment from March 27 until June 2006, inevitably resulting in the total deterioration of plaintiff’s respiratory condition and consequent inability to 15 When plaintiff learned that he was being assigned back to QHC rather than to the HHC central office, James continued to reassure (and mislead) him “that conditions would be different there and that [he] would not have to be exposed to environmental dust. A-138 at ¶ 42. 61 work at all, James summed up HHC’s position by telling Jacobsen in June 2006 that “if you can’t work, you will have to retire or resign.” A-315 at 178. Thus, the “call” as to whether HHC engaged in a “good faith interactive process” with plaintiff is thus not even a close one. HHC did not do so. At the very least, there is a material factual dispute on this point that should not have been decided by way of summary judgment. H. The Appellate Division Improperly Accepted HHC’s Erroneous Argument That Plaintiff Had “Admitted” That He Could No Longer Visit Construction Sites, Which Was An Essential Element of His Job In its Decision, the Court refers favorably to HHC’s argument that “plaintiff’s own deposition testimony” contained an admission “that he can no longer visit construction sites, which was the bulk of his work.” Decision at 33. In erroneously finding that plaintiff could not perform the essential elements of his job during the relevant time frame, the Court completely ignored the portions of the record demonstrating that during the critical time frame of August 2005 through June 2006, plaintiff could in fact still perform all of his essential job functions with an accommodation, and that it was not until approximately August of 2006, when his condition had further deteriorated to the point (due to HHC’s failure to provide him with an accommodation) that he was rendered totally disabled. 62 The plaintiff specifically addressed this argument in his affidavit submitted in the Supreme Court, where he stated as follows: Defendant also asserts that, in my deposition, I “admitted” that I was unable to perform the essential functions of my position. See Leighton Affirmation, at ¶ 10, citing to pages 177-178 of my deposition. This is totally untrue. What Mr. Leighton is citing to is my reading at my deposition of portions of a letter from my doctor (Dr. Skloot) dated August 4, 2006, wherein Dr. Skloot states that, as of the date of the letter, “Mr. Jacobsen will never be medically cleared to fully perform the essential functions of his duties.” See my deposition transcript ….at pages 177-179…. The important point of Dr. Skloot’s letter is that, as opposed to his December 6, 2005 and March 21, 2006 letters …, where Dr. Skloot states that my condition had improved during my medical leave of absence and that I was ready to return to work (with the only restriction that I not be exposed to environmental dust), after returning to the same environmentally hazardous conditions at Queens Hospital Center from March 27, 2006 to June 2006, my medical condition had further deteriorated to the point that I could no longer perform those essential functions of my job that I could perform only a few months earlier. … If HHC had provided me with a reasonable accommodation in March of 2006 by permitting me to primarily work from the central office rather than being permanently assigned to an environmentally hazardous field office, I am certain that my condition would not have deteriorated as it further did from March through June of 2006, and I would have been able to continue my employment with HHC and perform the essential functions of my job, with some reasonable accommodation. A-144-145 at ¶s 60-62. Thus, the appellate court erred by giving any weight whatsoever to the fact that by August 2006, plaintiff could no longer perform the essential functions of his job. Plaintiff’s medical condition in August of 2006 is completely irrelevant to the issue of whether, during the relevant time frame from August 2005 to June 63 2006, he was, in fact, able to perform his essential job functions with an accommodation. To put it another way, plaintiff’s claim is not, and never was, that he was wrongfully placed on medical leave in August 2006; plaintiff’s claim has always been that he was not provided with a reasonable accommodation during the time frame during the time period when he could still perform the essential functions of his job with accommodation, i.e., August 2005 to June 2006. I. The Appellate Decision Mischaracterizes Plaintiff “Claim” As Being That He Could Perform All of His Duties From the Central Office Without Visiting Construction Sites In its Decision, the Appellate Division improperly accepted HHC’s misrepresentations of plaintiff’s position, namely, the characterization of plaintiff’s position as one asserting that plaintiff believed that he could perform all of the essential functions of his job from the central office.16 Decision at 33. Such is not the case, and amounts to a complete mischaracterization of plaintiff’s position. Plaintiff’s position is clearly set forth in his affidavit submitted in the lower court in opposition to HHC’s summary judgment motion: “[A]s I explained to HHC managers, both Dr. Skloot and I believed that due to the improvement in my health during my three month medical leave [from October through December 16 Specifically, the Decision represents that “plaintiff claimed he could perform all his duties from the central office, [but] 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.” Decision at 33. 64 2005], I would be able to perform the essential elements of my job, which I had been successfully doing for the past 20 years, during which time I was based in our central office and only required to make occasional and periodic visits to various construction sites.” A-133 at ¶ 21 (emphasis added). Thus, the appellate court’s finding that plaintiff “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” makes no sense. In essence, therefore, the appellate court was unfairly faulting the plaintiff for failing to “explain” something that he had never stated. 17 Plaintiff’s true position as reflected in the record (and not mischaracterized by HHC) was that, at least as of March 2006, just prior to his return to work on March 27, 2006, plaintiff’s understanding and first option (of two) requests for an accommodation was that he “be reassigned to the 346 Broadway office…and that [he] was cleared to attend field meetings and occasionally visit construction sites with respiratory protection.” A-137 at ¶ 37. Plaintiff’s request for an 17 Although the majority opinion grossly mischaracterizes plaintiff’s position on this point, the dissenting opinion succinctly and correctly summarized plaintiff’s position as follows: Plaintiff testified that in March 2006 he was capable of performing his job out of the central office. When required to visit construction sites, he could do so with proper respiratory protection. Decision at 40. 65 accommodation (option one)18 was that he “would only need respiratory equipment when [he] was actually present on a construction site, but did not need such equipment when [he] attended project meetings in an office setting.” Id. J. The Appellate Division Erroneously Accepted HHC’s Mischaracterization of Plaintiff’s Job Description, Thus Distorting Any Evaluation of Whether Plaintiff Could Perform the Essential Functions of His Job With An Accommodation In its Decision, the First Department accepted HHC’s mischaracterization of plaintiff’s job as requiring him “to spend the majority of his time at construction sites. Decision at 32. The Decision also refers to the fact that “HHC provided Dr. Skloot with plaintiff’s job description” (Decision at 34), but fails to note that the job description provided to Dr. Skloot was (at least in plaintiff’s view) inaccurate and intended to falsely represent that plaintiff’s job description as a HFP required him to be out of the office on-site at construction sites most of the time.19 18 Plaintiff’s “option two” for an accommodation was that, if HHC insisted that he be permanently assigned to a desk located at QHC, that he be provided with a proper respirator all of the time that he was there, not just a flimsy and ineffective surgical mask. 19 As explained in Plaintiff’s Affidavit: On May 19, 2006, Vincent James wrote a memo to Modo Hall, misrepresenting that my ‘job responsibilities require that [I] spend 80% of [my] working hours in the field and 20% of [my] working hours in central office.’..Similarly, Mary Ann Short of HHC wrote a memo to Mr. Hall on December 21, 2005, misrepresenting that ‘Mr. William Jacobsen’s job responsibilities require that he spend approximately 75% of his working hours in the field and 25% of working hours in the office.’…This was the completely opposite picture than the accurate record presented by HHC’s internal handwritten note of December 16, 2005, which acknowledged only that ‘[h]is job requires him to be out at facility sites (construction) at least once a week.’ 66 K. The Appellate Division Improperly Accepted HHC’s Argument That Exposure to Hazardous Construction Dust Without Adequate Respiratory Protection Was An “Essential Element” of Plaintiff’s Job The First Department appears to have implicitly accepted HHC’s mischaracterization of the condition (that plaintiff not be exposed to construction dust) placed on his clearance to return to work as a blanket prohibition on plaintiff’s visiting construction sites at all. HHC’s argument is basically that since plaintiff was not cleared to be exposed to construction dust, and visits to construction necessarily involved exposure to construction dust, therefore plaintiff could no longer perform an essential function of his job. However, HHC’s argument (and the portion of the Appellate Division’s decision accepting this argument) is flawed since plaintiff was cleared to continue to visit construction sites on an occasional basis, as he had been doing for decades In other words, in order to create an argument that HHC could not provide me with a reasonable accommodation, Mr. James represented that the ratio of my field work to office work was 80-20 (and Ms. Short misrepresented it to be 75-25), which was only true for the period of time from June 2005 and thereafter when I was permanently reassigned from the central office to Queens Hospital Center, when in fact the ration applicable to me over my entire prior career at HHC was closer to 20-80, as HHC’s own internal memo of December 16, 2005 reflected…. Mr. Hall then took this misinformation from Ms. Short’s December 21, 2005 memo and wrote to Dr. Skloot on December 27, 2005, stating that [plaintiff’s job] required me to be in the field 75% of the time, and only 25% of my working hours in the office. A-139-140 at ¶ 47-49. 67 before, as long as he was provided with proper respiratory equipment when there was a danger of exposure to asbestos or other toxic airborne dust, which was a legal requirement for all HHC workers anyway, regardless of whether they were disabled or not. 20 L. The Appellate Division Failed To Recognize that Plaintiff, Despite His Disabilities, Could Perform All of the Essential Elements of His Job If Provided With Reasonable Accommodations At Any Time Prior to August 15, 2006 Despite the lower and appellate courts’ findings to the contrary, the record supports plaintiff’s claim that he was ready, willing and able to perform the essential duties of his job, including the occasional and periodic visits to the field that he had been doing for his entire career prior to August 15, 2005, and which was the standard routine for plaintiff and other equivalent employees. As detailed above, plaintiff could have performed the essential functions of his job with accommodation both in August 2005 and on March 27, 2006, when he was told to report to work at the QHC construction site, on May 10, 2006, when Jacobsen requested reassignment back to 346 Broadway, and even on June 7, 2006, when he was placed on a six month medical leave on the erroneous assumption 20 HHC’s argument that plaintiff was no longer able to perform the essential functions of his job in August 2006, after having repeatedly assigned him to the HHC hazardous work site without protective equipment, and thus causing further catastrophic damage to his lungs, is much like the argument of the proverbial child who kills both his parents and then throws himself at the mercy of the court as an orphan. 68 that he could no longer perform the essential functions of his job, with or without accommodation. It was not until August 4, 2006, after plaintiff had been assigned to work in the hazardous conditions at Queens Hospital on August 15, 2005, and again on March 27, 2006, without any provision for adequate protective equipment, after he had been placed on six months medical leave on June 7, 2006, and after plaintiff’s medical condition had further deteriorated due to HHC’s failure to provide him with proper protective equipment, that plaintiff’s doctor finally, on August 4, 2006, directed that “the only work he is cleared to do is office work.” A-210-211. Plaintiff thus made out a sufficient prima facie case of disability discrimination from August 15, 2005 through at least June 7, 2006, when adverse employment decisions were made on August 15, 2005 and March 27, 2006 (1st and 2nd assignments to Queens Hospital without protective equipment or other reasonable accommodation), and on June 7, 2006, when he was effectively terminated by being placed on six months unpaid leave rather than being offered the opportunity to continue his active employment with an appropriate accommodation. In any event, the issue of exactly whether and when plaintiff ceased (if at all) being an employee who could perform his essential job functions is a question of fact for the jury, not one susceptible to resolution by way of summary judgment. 69 M. The Appellate Division Failed to Consider Plaintiff’s Well- Founded Argument that HHC’s Decision on August 7, 2006 to Place Plaintiff On Unpaid Medical Leave Constituted Unlawful Retaliation The record is also clear that, on or about June 5, 2006, plaintiff’s counsel filed a complaint with New York State Department of Human Rights, asserting disability discrimination by HHC against plaintiff. A-371-378. Two days later, on June 7, 2006, HHC retaliated by placing plaintiff on a six month unpaid medical leave. A-141-142 at ¶ 53; A-209. In its letter notifying plaintiff that he was being placed on unpaid medical leave, HHC misrepresented that “at present [plaintiff is] not able to perform the essential functions of [his] job,” based upon the inaccurate assumption that these “essential functions include [his] spending a majority of [his] time in field work that inevitably exposes [him] to conditions that [his] doctor advises would exacerbate [his] severe lung disease condition.” Id. The First Department, in its Decision, thus failed to appreciate that plaintiff’s exposure to hazardous construction dust in the field was only “inevitable” if he was assigned to such a hazardous work site without proper protective equipment as required by law. The Court’s Decision further fails to take into consideration the fact that, when plaintiff was placed on six-months’ unpaid medical leave on June 7, 2006, plaintiff was still subject to the limited medical clearance given by Dr. Skloot on 70 March 21, 2006, which conditioned the medical clearance on plaintiff’s non- exposure to environmental dust. A-186. Dr. Levin had followed up with his own letter of May 9, 2006, again confirming plaintiff’s clearance on the condition that he not be exposed to airborne contaminants that would cause his lungs to deteriorate further. A-109; A-190. 21 N. The Court, in its Decision, Failed to Recognize That Plaintiff Had Raised Bona Fide Triable Issues of Fact, Precluding Summary Judgment As the dissenting opinion notes, the lower court’s opinion, granting defendant’s motion for summary judgment of the grounds that “[p]laintiff’s own medical evidence … leads to the inevitable conclusion that plaintiff … can never return to his old duties” is in error, since “[p]laintiff testified that he was capable of performing his job during the spring of 2006,” and that “[h]is doctor’s letter granting medical clearance stated that plaintiff was capable of performing his job so long as his exposure to construction dust was limited.” Decision at 41. Therefore, there is a clear and material factual dispute. As the dissenting opinion states: “Defendant asserts that plaintiff was unable to visit construction sites, but plaintiff testified that he could visit sites so long as he was provided with 21 It was not until August 4, 2006, two months after plaintiff had been placed on unpaid medical leave (June 7, 2006), that Dr. Skloot sent a letter to Hall, noting that as a result of the further deterioration of plaintiff’s lungs due to the “recent attempts to return [plaintiff] to the field” without proper respiratory protection, that his condition had deteriorated to the point where he could no longer work under hazardous conditions with or without adequate protective equipment. A-142 at ¶ 54; A-115-116; A-215-216. 71 proper respiratory protection.” Decision at 41-42. Thus, as the dissent further notes, “a triable issue of fact exists as to whether plaintiff was capable of performing the essential functions of his job.” Id. The lower court’s grant of HHC’s motion for summary judgment on plaintiff’s human rights and disability discrimination claim should, therefore, have been reversed by the Appellate Division. POINT III THE APPELLATE DIVISION WRONGLY AFFIRMED THE LOWER COURT’S DISMISSAL OF PLAINTIFF’S HUMAN RIGHTS CLAIMS BASED ON THE ERRONEOUS PREMISE THAT SUCH CLAIMS WERE GOVERNED BY UNCONSOLIDATED LAW § 7401(2) AND GENERAL MUNICIPAL LAW §50-E AND 50-I The lower court erroneously assumed (and the Appellate Division apparently agreed) that Unconsolidated Law § 7401 (2), which incorporates General Municipal Law § 50-i by reference, barred plaintiff’s human rights and discrimination claims. A-10. However, it is settled law that “[d]iscrimination claimants, such as plaintiff, are not required to file notices of claim pursuant to the General Municipal Law.” Sebastian v. New York City Health and Hospitals Corp., 221 A.D. 2d 294, 634 N.Y.S. 2d 114 (1st Dept. 1995). Accord: Swinton v. City of New York, 61 A.D. 3d 557, 877 N.Y.S. 2d 68 (1st Dept. 2009) (a notice of claim is not required to assert a claim for civil rights violations); Tannenbaum v. City of New York, 30 A.D. 3d 357, 819 N.Y.S. 2d 4 (1st Dept. 2006) (the notice 72 requirements of the General Municipal Law apply only to tort and negligence actions and not to civil rights actions); Mills v. County of Monroe, 89 A.D.2d 776, 453 N.Y.S. 2d 486, aff’d, 59 N.Y. 2d 307, 464 N.Y.S 2d 709, cert. denied, 464 U.S. 1018. In Sebastian, the First Department explained that the General Municipal Law and Unconsolidated Law §7401 (2), which specifically deals with actions against HHC, “define the torts for which a notice of claim is required only as personal injury, wrongful death, or damage to property claim and not torts generally.” Id. Since the General Municipal Law and Unconsolidated Laws§ 7401 (2) do not apply to discrimination claims, the Appellate Division should not have affirmed the lower court’s erroneous reliance upon those statutes in dismissing plaintiff’s human rights and discrimination claims. Even if those statutes applied to plaintiff’s discrimination claims, which they do not, the lower court incorrectly calculated the time period within which the plaintiff filed his complaint. The lower court noted that plaintiff “was discharged in March of 2006,” (A-10), which is when plaintiff was assigned to his second tour of duty at Queens Hospital. Plaintiff was not finally terminated until March of 2007, which means that the filing of his complaint in March of 2008 was timely even if the one year and ninety day 73 requirement of the General Municipal Law and Unconsolidated Laws 7401 (2) were applicable. Since plaintiff’s human rights and discrimination claims were timely filed within the three year statute of limitations for Human Rights Law claims, see Murphy v. American Home Products Corp., 58 N.Y. 2d, 461 N.Y.S. 2d 232 (1983), the Appellate Division should not have affirmed the lower court’s dismissal of these causes of action in plaintiff’s Verified Complaint. CONCLUSION WHEREFORE, plaintiff-appellant respectfully requests that the First Department’s decision and order affirming the lower court’s dismissal of plaintiff’s complaint be reversed in all respects; that the case be remanded for further proceedings; and that this Court grant such other and further relief as it deems just and proper. Dated: New York, New York July 25, 2013 McCALLION & ASSOCIATES LLP By:__________/S/_________________ Kenneth F. McCallion 100 Park Avenue – 16th floor New York, New York 10017 (646) 366-0880 Attorneys for Plaintiff-Appellant IDENTICAL COMPLIANCE OF BRIEFS CERTIFICATION It is hereby certified that the Brief for Plaintiff-Appellant which was filed electronically (by CD-Rom), on or about July 25, 2013 is identical to the Brief being filed physically with the New York State Court of Appeals. Dated: July 24, 2013 __________/S/_____________ KENNETH F. MCCALLION, ESQ. MCCALLION & ASSOCIATES, LLP Attorneys for Plaintiff-Appellant 100 Park Avenue - 16th Floor New York, New York 10017 Tel: (646) 366-0880 Fax: (646) 366-1384 kfm@mcallionlaw.com