William Jacobsen, Appellant,v.New York City Health and Hospitals Corporation, Respondent.

Brief

N.Y.March 19, 2013

To 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. REPLY 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@mccallionlaw.com New York County Clerk’s Index No.: 103714/08 APPELLATE INNOVATIONS (914) 948-2240 7951 Printed on Recycled Paper Table of Contents PRELIMINARY STATEMENT ..................................................................... 1 STATEMENT OF FACTS ............................................................................. 9 Timeline ....................................................................................................... 9 ARGUMENT ................................................................................................ 23 POINT I HHC MISSTATES THE FACTUAL CHRONOLOGY AND RECORD IN A FAILED ATTEMPT TO SUPPORT ITS UNTENABLE THEORY THAT, AS OF MARCH 2006, WHEN PLAINTIFF WAS REASSIGNED BACK TO THE QHC SITE, THAT PLAINTIFF WAS UNABLE TO PERFORM THE ESSENTIAL FUNCTIONS OF HIS JOB AS CUSTOMARILY PERFORMED, EVEN WITH A REASONABLE ACCOMMODATION ........................................................................ 23 1. HHC Attempts to Perpetuate Here the Same Misrepresentations of Fact as It Did In the Lower Courts ....... 25 2. Misrepresentation # 1: HHC Engaged in the Required "Interactive Process With Plaintiff ........................................... 25 3. Misrepresentation #2: Jacobsen's Own Doctors Admitted that He Could Not Perform the Essential Elements of the Job ....... 30 4. Misrepresentation #3: Plaintiff Himself Admitted That He Was Not Capable of Performing the Essential Elements of the Job 34 5. Misrepresentation #4: Plaintiff Failed to Request Proper Protective Equipment During His March through June 2006 Re- Assignment Back to QHC on March 27, 2006 ......................... 35 6. Misrepresentation #5: 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." ........................................................................... 37 7. Misrepresentation #6: The Only Accommodation Requested By Plaintiff Was that He Be Permitted To Perform All ofHis 1 Duties From the Central Office Without Visiting Construction Sites .......................................................................................... 39 POINT 11 .................................................................................................... 40 PLAINTIFF PROPERLY RAISED A RETALIATION CLAIM ...... 40 POINT 111 ................................................................................................... 42 PLAINTIFF'S HUMAN RIGHTS CLAIMS SHOULD BE REINSTATED SINCE THE LOWER COURT AND APPELLATE DIVISION ERRED IN HOLDING THAT SUCH CLAIMS WERE GOVERNED BY UNCONSOLIDATED LAW§ 7401(2) AND GENERAL MUNICIPAL LAW §50-E AND 50-I ............................ 42 CONCLUSION ............................................................................................. 44 11 Table of Authorities Cases Graves v. Finch Pruyn & Co., Inc., 457 F. 3d 181, 184 (2d Cir. 2006) ........................................................................... 25 King v. Town of Wallkill, 302 F. Supp. 2d 279, 289 (S.D.N.Y. 2004) ............................................................. 33 McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F. 3d 92 (2d Cir. 2009) ..................................................................................... 24 Mills v. County of Monroe, 89 A.D.2d 776, 453 N.Y.S. 2d 486, affd, 59 N.Y. 2d 307, 464 N.Y.S 2d 709, cert. denied, 464 U.S. 1018 ..................................................................................... 43 Moritz v. Frontier Airlines, Inc., 147 F. 3d 784,787 (8th Cir. 1998) ........................................................................... 24 Murphy v. American Home Products Corp., 58 N.Y. 2d, 461 N.Y.S. 2d 232 (1983) ................................................................... 43 Parker v. Columbia Pictures Indus., 204 F. 3d 326, 338 (2d Cir. 2000) ........................................................................... 25 Pembroke v. New York State Off. of Ct. Admin., 306 A.D. 2d at 185, 761 N.Y.S. 2d at 215 .............................................................. 24 Pimentel v. Citibank, 29 A.D. 3d 141 ........................................................................................................ 24 Rodal v. Anesthesia Group of Onondaga, P.C., 369 F. 3d 113, 118 (2d Cir. 2004) ........................................................................... 25 Sebastian v. New York City Health and Hospitals Corp., 221 A.D. 2d 294, 634 N.Y.S. 2d 114 (1st Dept. 1995) ............................................ 42 Sharp v. Abate, 887 F. Supp. 695,699 (S.D.N.Y. 1995) .................................................................. 33 111 Stone v. City of Mount Vernon, 118 F. 3d 92 (2d Cir. 1997) ..................................................................................... 23 Swinton v. City of New York, 61 A.D. 3d 557, 877 N.Y.S. 2d 68 (I st Dept. 2009) ............................................... 42 Tannenbaum v. City ofNew York, 30 A.D. 3d 357, 819 N.Y.S. 2d 4 (1st Dept. 2006) .................................................. 42 Statutes 42 U.S.C. § 12111(9) ............................................................................................... 23 General Municipal Law § 50-i ................................................................................ 42 General Municipal Law and Unconsolidated Laws§ 7401 (2) ............................... 43 Unconsolidated Law§ 7401 (2) .............................................................................. 42 Other Authorities 29 C.P.R.§ 1630.2(o)(ii) and (iii) ........................................................................... 24 IV PRELIMINARY STATEMENT This reply brief is respectfully submitted on behalf of Plaintiff-Appellant William Jacobsen (hereinafter "Plaintiff'' or "Jacobsen") in further support of his appeal from the Decision and Order of the Supreme Court, Appellate Division, First Department entered July 10,2012, affirming the Order ofthe Supreme Court, New York County (Geoffrey D. Wright, J.) entered July 19,2011, which granted defendant's motion for summary judgment dismissing the complaint. In its Brief, Respondent concedes that HHC had explicitly stipulated and agreed that plaintiff"spent only 20% [of his time] in the field" prior to his permanent re-assignment to the Queens Hospital Center ("QHC") work in August 2005. See HHC Brief at 23. In other words, HHC has essentially stipulated to the fact that, during his entire 26-year career at HHC, from January 1982 until August 2005, plaintiff was permanently assigned to work at the HHC corporate offices at 346 Broadway in Manhattan, where he had a permanently assigned desk and performed the overwhelming majority (i.e., 80%) ofhis work. As part ofhis duties, he went into "the field" one day per week (20% of his time) to inspect health facilities and attend meetings. 1 1This stipulation and admission by HHC in the lower court, i.e., that plaintiffs position at HHC only required him to spend 20% of his time in the field, was extremely significant since plaintiffs HHC supervisors repeatedly misrepresented plaintiffs job requirements to his doctors, apparently with the intention of getting his doctors to finally concede that he could no longer 1 Thus, there is (and never was) a dispute between the parties as to what was the percentage allocation of plaintiffs time between office and field work in order for him to perform the essential element of his job: 80% office and 20% field work. Despite this important concession in the lower court, HHC improperly misrepresents to this Court that plaintiffs job requirements required him to work in the field 80% of the time (not 20%): [P]laintiff ignores both the requirements of his position (with field work consuming the majority of the time of any Health Facilities Planer, including plaintiff), as well as the reality of construction site environmental conditions. See HHC Br. at 47. The inescapable fact is that when HHC re-assigned Jacobsen to QHC in August 2005, and again in March 2006, it was attempting to "re-define" plaintiffs job requirements which had applied to him for nearly 26 years. HHC was perform the essential elements of his job, which they finally agreed to during the June-August 2006 time period, which was after plaintiffs lung condition was exacerbated by his March-June reassignment to the QHC site. Indeed, by conceding during this litigation that plaintiffs job description only required him to spend 20% of his time in the field, HHC must also be conceding that its' job description for plaintiff at the time he was terminated was in error. Specifically, on June 7, 2006, two days after he had filed a discrimination complaint with the DHR, plaintiff was effectively terminated by being placed on a six month unpaid medical leave. In this transparently retaliatory action, HHC's termination letter erroneously described plaintiffs "essential functions" as "spending a majority of his time in field work that inevitably exposes you to conditions that your doctor advises would exacerbate your severe lung disease condition." 2 completely reversing the allocation of his time between office/field work by requiring him to now spend 80% of his time in the field at a hazardous construction site, and only 20% at the home office. In other words, HHC attempted to change the essential elements of plaintiffs job (but not that of every other HFP) by substantially raising the bar, and then, when his physical condition deteriorated to the point where he could no longer fulfill these re-defined job requirements, HHC simply fired him. In its brief, HHC attempts to explain away its prior concession that plaintiffs customary practice was to only spend 20% of his time in the field by arguing that it makes no difference: "This percentage difference [of time allocation] was irrelevant to the motion for summary judgment because, whether 75% or 20%, plaintiff could not do field work at all and could not be present at construction sites." HHC Brief at 24. This, however, blatantly misrepresents the record. What HHC continues to ignore is the simple, immutable fact that, in March 2006, plaintiffs doctor sent a medical note to HHC clearing him to return to work, noting that plaintiff had experienced "significant clinical improvement" while he was on leave and taking steroid shots, with the caveat that he not be exposed to environmental dust. A-135 at~ 32; A-186. 3 Dr. Skloot's March 2006 medical clearance did not say, as HHC suggests, that plaintiff "could not do field work at all and could not be present at construction sites." HHC Brief at 24. Rather, plaintiffs doctor was merely placing a reasonable restriction on plaintiffs medical clearance, which did not prohibit plaintiff from performing his traditional field duties, but required that he be protected in the field from exposure to environmental dust. HHC could have fairly easily complied with this reasonable medical restriction by issuing plaintiff the proper protective equipment when he was required to go to a hazardous construction site, which it was legally required to do anyway, just as a firefighter must be issued similar respiratory protection equipment when entering a burning building.2 HHC current position that plaintiff was not cleared for field work makes no sense because, in March of 2006, HHC interpreted Dr. Skloot's medical clearance note as permitting plaintiff to do field work. We know this because HHC promptly 2 HHC's position that exposure to hazardous environmental dust is an essential part of a HFP's job duties is both startling and disturbing, since it had a fundamental duty to provide its employees with effective protective equipment when they were in construction zones where hazardous environmental dust and asbestos was in the air, but totally failed to do so. The record is crystal clear that plaintiff repeatedly requested the issuance of proper and effective respiratory equipment, which HHC refused to do. Instead, plaintiff was issued a completely inadequate hospital surgical mask. If firefighters were repeatedly ordered to go into a burning, smoke-filled building without effective respiratory equipment, there would likely be a chorus of public outrage and grand jury investigations, but when a HFP such as plaintiff is given basically the same order, namely, to go into a hazardous construction zone without proper protective equipment, HHC's only response is a shrug of the shoulders and a comment that such exposure is an "essential part of the job." 4 assigned plaintiff on a permanent basis to the QHC construction site. However, in doing so, HHC disregarded the work restrictions placed upon plaintiff's medical clearance and, without providing him with any adequate respiratory protective equipment. In this appeal, HHC could not candidly acknowledge that plaintiff's doctor cleared him to return to work (including field work) in March 2006 (with the reasonable accommodation that he not be exposed to environmental dust), because to do so, respondent would be conceding that plaintiff was capable of performing the essential elements of his job with the reasonable (and legal) requirement of being issued proper protective equipment when he was required to be present at a hazardous worksite. In its brief, HHC attempts to deal with this "problem" by taking the position, for the first time in the entire history of the case, that plaintiff's doctor "had apparently mistakenly cleared him to return to work in March 2006." HHC Brief at 46. HHC reasons that plaintiff's doctor could not have possibly cleared him to do field work (although that is what HHC actually thought it said at the time) since exposure to environmental dust without proper respiratory equipment is "an essential element of the job." HHC's "evidence" for this newly minted theory is that several months after working without proper protective equipment at the same hazardous work site 5 (March through June 2006), plaintiffs doctor revised her medical evaluation of plaintiff due to the alarming and accelerated deterioration of his pulmonary condition, finding in August 2006 that plaintiff"will never be medically cleared" to "perform the essential functions ofhis duties." (A-115-116; 215). Thus, when it is represented to this Court that "HHC concluded that plaintiff was not able to perform the essential functions of [his] job, that is field work," (see HHC Br. at 4 7), HHC is not referring to its March 2006 re-assignment of plaintiff back to the QHC site, but, rather, to a June 6, 2006 letter from plaintiffs supervisor (Hall at 114), after plaintiffs condition had deteriorated from March to June 2006 to the point where he was totally disabled. The logical and straight-forward inference from Dr. Skloot's reversal of her position regarding plaintiffs medical clearance between March and August 2006 is that, in March 2006, plaintiff was, in fact, capable of performing the essential elements of his job with an accommodation, while five months later, in August 2006, he was not. It is significant that HHC never sought to depose Dr. Skloot during the discovery phase of the case, so its belated theory articulated for the first time on appeal, that the doctor's March and August medical evaluations should be conflated into one, should be rejected outright by this Court. At the very least, if there is some ambiguity as to Dr. Skloot's March 2006 medical clearance (which 6 plaintiff asserts there is not), then this is a clear and important factual dispute that should not have been resolved by way of summary judgment. The lower court's dismissal was, therefore, clear error? Despite plaintiffs 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. From employer/employee and public policy perspective, it is disturbing that HHC would take the position that exposure to hazardous construction dust, without a proper respirator, made '[i]t was impossible for plaintiff to properly perform the duties of a Health Facilities Planner while avoiding those contaminants." HHC Br. at 4 7. In other words, HHC is attempting to justify having intentionally exposed plaintiff (and presumably other HFPs) to "airborne irritant or fibrogenic dusts, fumes and gases,"( id.) without being issued the same protective respiratory 3 HHC further argues that when Dr. Skloot wrote in her August 4, 2006 letter (115-116) that the plaintiff"will never be medically cleared to 'fully perform the essential function ofhis duties,"' that by using the future tense ("will never") she really meant the past tense ("has never"). HHC Br. at 46. Such lin~uistic sophistry should be completely disregarded by the Court. Indeed, Dr. Skloot's August 4t letter actually supports plaintiffs position, which is that the plain meaning of the letter indicates that plaintiff had been medically cleared to perform the essential elements of his job, i.e. March 2006, but was so further disabled by the unprotected exposure to hazardous construction dust from March-August 2006 that he was now totally disabled and no longer capable of performing the essential elements ofhisjob. 7 equipment that was available to other city workers and fire fighters who are regularly exposed to hazardous air conditions. In short, such exposure is not "inevitable" as respondent would have this Court believe, and certainly should not be deemed an "essential element of the job." Indeed, such knowing and intentional exposure of its employees without proper equipment is a clear violation of OSHA and state law statutes, and, in all likelihood, criminally and civilly prosecutable as "reckless endangerment" and "wanton disregard for the health and safety of an employee." Thus, HHC' s flawed argument that plaintiff was "never cleared to perform field work" fails to acknowledge that, in March 2006, plaintiffs condition had so markedly improved during his September 2005 to March 2006 leave of absence, such that he was fully capable of performing the essential functions ofhisjob 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. The Appellate Division also erred in affirming the lower court's finding that plaintiffs complaint was untimely in that it failed to meet the requirements of the General Municipal Law (GML"). A-1 0. The lower court failed to appreciate that 8 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 plaintiffs human rights claims were time- barred, the lower court improperly decided sua sponte that all of plaintiffs claims were time-barred (A-1 0), 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 Time line In order to properly understand the facts of this case, the time line of when events occurred -especially the progressive deterioration of plaintiffs medical condition and his doctor's corresponding evaluation of that condition-is absolutely critical: January 2, 1979. Plaintiff begins employment at HHC, first as an Assistant Health Facilities Planner (AHFP), and then, in January 1982, as a HFP. A-128 at ,-r 3; A-225 at 31. January 1979 -August 2005. For his first 26-years as an HHC employee, plaintiff is permanently assigned to the HHC headquarters in lower Manhattan, where he has his own desk and performs the overwhelming majority of his work as 9 required by the HFP job description.4 A-128 at~ 4 and 5; A-226 at 33-34. Most of his "project monitoring time" is spent at his office desk writing project reports and "narratives." A-239-241 at 86-87; 95-96. Plaintiffs supervisor, Vincent James ("James"), confirms that Jacobsen had a desk assigned to him at 346 Broadway during the entire time that James was supervising him (from 2002), where plaintiff spent most ofhis time and where he reported to work. A-271-316 at 16-18. He is required to go into the field on the average of one day per week, with most of that "field time" spent indoors attending meetings at various health facilities, where the air quality was environmentally safe and clean. I d. 5 4 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. The description of plaintiffs 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. Plaintiffs 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 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 tasks could be performed without going to active construction sites where HHC was legally required to (but did not) issue proper respiratory protective equipment. 5These one day per week field visits, which lasted approximately 4-5 hours at a time, involved meetings with hospital directors, examining existing structures, and reviewing and supervising the work of consultants. A-128 at~ 6; A-146 at III (A) and (B), p. 2; A-260 at 169-170; A-229 at 45; A-128 at~ 5 10 January 1979-August 2006. HHC is well aware that "specialized protective equipment is required" when any HFP is conducting the occasional "walk- throughs" at a construction site that usually took place after meetings had concluded, (see testimony of James, A-271-316 at 20-23). Nevertheless, ID-IC refuses to provide such specialized protective equipment to HFPs, and does not give "any consideration" to providing plaintiff with protective breathing equipment." Id. at 120-121. As James testified, the only protective equipment that ID-IC provided to HFPs was "hard hats and safety glasses." Id. at 117. December 1990.As part of his Employee Performance Evaluation, plaintiff informs ID-IC 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-198.6 Plaintiff also provides information to the New York City DEP regarding ID-IC's violations on asbestos abatement projects. A-130 at~ 9. June of2005. Plaintiff is first evaluated by Dr. Gwen Skloot for his pulmonary and breathing problems, of which ID-IC is well aware since James had discussed these pulmonary issues with plaintiff. A-130 at~ 10; A-232-233 at 59- 6 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. ld. 11 62. HHC also knows that, as a result of exposure to asbestos over the years, plaintiffs lungs are permanently damaged, and that he is taking medication for his asthma and bronchial dysfunction. Id. In addition, James knows that plaintiff is taking frequent sick leave since he receives numerous doctors' notes explaining plaintiffs frequent absences from work. Id. August 15,2005. In a radical departure from his prior assignments, plaintiff is assigned on a permanent basis to QHC, located in Jamaica, New York. A-130- 131 at ~ 11. He is required to report at least nine out of every 1 0 work days. A -131 at~ 12; A-230 at p. 49. There is constant ongoing construction activities close to the office where plaintiff is assigned to work, and there is actually a construction site in the very room where he is working. A-131 at~ 13; Pl. Dep. at 50-55. In addition, an asbestos investigation and abatement contract is underway at QHC while plaintiff is working there. A-131-132 at~ 14; A-163-169. As a result, the office space where plaintiff is assigned is full of construction dust, adding to his breathing problems. I d. Plaintiff takes photographs graphically depicting these construction activities. A-163-169; A-131 at~ 13. He also complains to Anita O'Brien that he "cannot tolerate" the construction dust permeating his work space. A-132 at~ 15. In response, she gives him an ineffective dust mask. Id. Plaintiff also complains to James about these dusty and dirty conditions, and James acknowledges these conversations. A-300 at 118.Plaintiff continues to work in 12 these dangerous conditions since he does not have any control as to where he is assigned; he is assigned to a work space by his HHC supervisor, and that is where he is required to work. A-131-132 at~ 12 and 15; A-231-232 at pp. 56-57. As plaintiff explains it, he was told by James that "if you can't work [where you are assigned], you will have to retire or resign," which James does not deny telling him. Id. at 178._As James further testifies, no serious consideration is given by HHC to provide 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 is given to the option of reassigning plaintiff from the QHC site back to the main office or somewhere else. Id. at 144. September 2005. Shortly after being assigned to QHC, plaintiff is diagnosed with pneumoconiosis, an occupational lung disease. A-132 at~ 16; A- 234 at 65. An open biopsy on September 9, 2005 determines that he has lost 50% of his lung function. A-132 at~ 17-18. Dr. Skloot, his pulmonologist, provides him with a note for his employer, dated September 9, 2005, confirming that he is suffering from pulmonary disease and would require various tests and examinations necessitating periodic absences from work. Id.; A-154. On September 21, 2005, Dr. Skloot provides him with a second note, confirming that he would need to rest at home for several weeks. A-132 at~ 18; A-155. 13 September 2005-December 2005. Because of the need to recover from the open lung biopsy, plaintiff takes a medical leave of absence. This medical note was circulated to various relevant HR and management personnel at HHC. Id. October 7, 2005. As part of his Request for a Medical Leave of Absence, plaintiff submits 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. October 17,2005. Plaintiff receives a letter from Mondo Hall ("Hall"), Deputy Director ofHR 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. December 16,2005. Plaintiff reports to 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 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." Id In response to Dr. Skloot's letter, Hall writes a handwritten note, dated December 16, 2005, acknowledging that " [plaintiffs] job requires him to be out at the facility sites (construction) at least once a week." A-133-134 at~ 22; A-177-178 (emphasis added). See also, A-327 at 41-42. 14 December 19,2005. Plaintiff provides 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. December 16, 2005-January 3, 2006. Neither Hall, James nor anyone else in HHC management has 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 ofhis work time before being assigned to QHC. A-134 at~ 26. January 3, 2006. When plaintiff returns to work, he is told there are "problems" with the accommodation the doctor had requested for him. A-135 at~ 27; A-248 at p.121. He is told to go home and wait for a new assignment. Id. January 5, 2006. Plaintiff files 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. January 5, 2006. Plaintiff's union lawyer writes to James, requesting that HHC grant plaintiff's request for a reasonable accommodation as per Dr. Skloot's December 6th letter. A-135 at~ 29; A-182-183; A-249 at p. 124. January 5, 2006- March of 2006. After waiting patiently at home for weeks for a new assignment, plaintiff meets with an attorney from the NYC Human Rights Commission, who calls HHC. A-135 at~ 30. Shortly thereafter, HHC 15 contacts plaintiff and tells him to report to work at the end of March, 2006. A-135 at~ 31. March 21,2006. Plaintiff provides HHC with a medical note clearing him to return to work and 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. March 22, 2006. Hall sends 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 fails to include in his memo any reference to the restrictions place by Dr. Skloot's 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. 7 On the same day (March 22, 2006), James sends a memo to Anita O'Brien at the QHC site, informing her that plaintiff had been cleared to return to work on 7 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. 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. I d. 16 March 2i\ 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. March 27,2006. Plaintiff reports to work at the QHC site as per the direction of his supervisor. He is again told to work in an office located immediately next to a major construction area of the hospital. A-136 at~ 35. At the time of his re-assignment to QHC in March 2006, 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. In order to allay plaintiff's concerns, 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 James' representations, plaintiff thought that he would be issued proper respiratory equipment when he was actually present on a construction site, but not when attending project meetings in an office setting. Id. In other words, plaintiff reasonably believed that HHC was finally agreeing to meet its legal obligation, at least on asbestos abatement projects, that all those 17 entering these restricted areas were supposed to have protective equipment. A-137 at~ 37; A-252 at p. 138. March 27, 2006-June 2006.1t was not until he actually reported back to work on March 27th at the QHC site 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 without proper equipment, and much to his horror, he realized that no proper equipment was being issued to him. A-137 at~ 38; A-186 and A-212. Although these work conditions were directly contrary to his doctor's instructions, and contrary to what he had been told by James, there was nothing he could do if he wanted to keep his job. 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. 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 18 medical condition to deteriorate, plaintiff continued to complain to James about it, to no avail. A-263 at 181-182. 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. 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. I d. 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. May 9-10,2006. Dr. Stephen Levin of Mount Sinai Hospital writes a letter to HHC urging that plaintiff be placed in a work setting free of airborne contaminants so that his lung condition would not deteriorate further. A-139 at~ 19 45; A-110; A-190.8 The following day, May 10,2006, plaintiff sends 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. HHC gave no consideration to reassigning plaintiff back to 346 Broadway as per his request. James transcript, A- 307 at 144. Indeed, on May 10, 2006, plaintiff sent a memo to HHC, reaffirming that he and his doctors were of the opinion that he 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 lOth memo was a transfer back to 346 Broadway from the QHC site, which was his "customary job site" involving his "customary responsibilities" consistent with the requirements of federal and state law. I d. May 31,2006. Plaintiffs union attorney sends a letter to HHC, 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 8The May 9, 2006 doctor's letter that accompanied plaintiff's May lOth 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 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. 20 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 ,-r 52; A-112- 113; A-213-214. Mr. Sykes' letter specifically notes that the only condition that plaintiffs doctor had placed upon his medical clearance was that he not be exposed to hazardous dust at construction sites "on a constant basis." Id. June 2006. HHC's assignment of plaintiff back in this dangerous work environment severely worsens his already precarious health, which had improved during the late-September 2005 through March 2006 period, when he was not working at QHC. A-138 at ,-r 40. 9 Plaintiffs condition deteriorates to the point where he literally cannot breathe while at the QHC work site. June 5-7,2006. Plaintiffs counsel files a complaint with the DHR, asserting disability discrimination by HHC. A-371-378. Two days later, on June 7, 2006, HHC retaliates by placing plaintiff on a six month unpaid medical leave. (A-114; 141-142 at ,-r 53; A-209. In its letter, HHC concludes that, as ofthe date ofthe letter (June 7, 2006), "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 9Indeed, 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. 21 inevitably exposes [him] to conditions that [his] doctor advises would exacerbate [his] severe lung disease condition." Id. 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 clearance given by Dr. Skloot on March 21, 2006, i.e., that plaintiff's condition had improved while on leave to the point where he could be cleared to return to work, but conditioned on plaintiff's non-exposure to environmental dust. A-186. August 4, 2006. After plaintiff had already been placed on a six month medical leave, 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. Due to HHC's insistence on assigning plaintiff to a hazardous work environment, first in August 2005 and again in March 2006, plaintiff's lungs had become severely scarred such that, by August 2006, and he was (and is) acutely sensitive to cold, humidity and fumes In other words, in her August 4th letter, 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. I d. 22 March 26,2007. Plaintiff is terminated by HHC. A-142 at~ 55; A-117; A- 195. March 2007-present. Plaintiff 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 need a lung transplant in order to survive. Id. ARGUMENT POINT I HHC MISSTATES THE FACTUAL CHRONOLOGY AND RECORD IN A FAILED ATTEMPT TO SUPPORT ITS UNTENABLE THEORY THAT, AS OF MARCH 2006, WHEN PLAINTIFF WAS REASSIGNED BACK TO THE QHC SITE, THAT PLAINTIFF WAS UNABLE TO PERFORM THE ESSENTIAL FUNCTIONS OF HIS JOB AS CUSTOMARILY PERFORMED, EVEN WITH A REASONABLE ACCOMMODATION 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 23 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." (emphasis added) See 29 C.F.R. § 1630.2( o )(ii) and (iii). There is 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); 24 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). In the instant case, during his two permanent assignments to the QHC construction site, plaintiff could have been (but was not) offered the reasonable accommodation (and legal requirement) of being issued proper respiratory protection equipment. HHC also rejected his suggestion that, as a reasonable accommodation, he be assigned to (paraphrasing the ADA) his "customary position," i.e., 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. 1. HHC Attempts to Perpetuate Here the Same Misrepresentations of Fact as It Did In the Lower Courts In its brief, HHC repeats the same misrepresentations of fact and distortions of the record that it presented to the trial and appellate courts. 2. Misrepresentation #1: HHC Engaged in the Required "Interactive Process With Plaintiff. HHC represents that it engaged in an "interactive process" with the plaintiff in arriving at a reasonable accommodation for this disabled employee. See Parker v. Columbia Pictures Indus., 204 F. 3d 326, 338 (2d Cir. 2000) Conversely, an employer who fails to engage in this interactive process and is, instead, terminated based upon exhaustion of leave, "has been discriminated because of the disability within the meaning of the law." Id. 25 However, HHC's representations that it engaged in the requisite "interactive process" borders on the frivolous. To the contrary, plaintiff was given the "my way or the highway" option of returning to the QHC site without being provided with adequate respiratory equipment, or being terminated. As one HHC supervisory proudly proclaimed, the only protective equipment provided to HFPs was "hard hats and protective eyeglasses." This hardly constitutes the "interactive process" contemplated by the relevant disability discrimination statutes. The Second Department's July lOth 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 plaintiffs pulmonary problems, since the record shows that Vincent James, plaintiffs 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, in August 2005, despite its knowledge of plaintiffs 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 26 the 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 a building that was itself an active construction site. A-131 at ,-r13; Pl. Dep. at 50-55. In addition, an asbestos abatement contract was underway at QHC while plaintiff was working there. A-131-132 at ,-r 14; A-163-169. As a result, the office space where plaintiff was assigned was full of construction dust. Id. 10 Thus, starting on August 15, 2005, by reassigning plaintiff from its main office to the QHC construction site, with absolutely no "interactive process" or inquiry as to whether Jacobsen's disability could have been reasonably accommodated through the issuance of proper respiratory equipment or otherwise, HHC negligently and recklessly exposed plaintiff to hazardous construction dust without any reasonable accommodation or issuance of proper protective equipment to him. 11 1 °Copies of photographs taken by plaintiff graphically depict the construction activities in and around his open work space. A-163-169; A-131 at ,-r13. 11The 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 ,-r1s. In response, she did nothing other than to give him an ineffective dust mask, which is not considered proper respiratory protective equipment. ld. Plaintiff's home office supervisor, Vincent James, also conceded that Jacobsen discussed with him the hazardous conditions at the QHC site, but that James did nothing to provide him with even the most basic of reasonable accommodations, such as proper respiratory equipment. A-300 at 118. 27 Even after September 9, 2005, when plaintiff was diagnosed with pneumoconiosis (A-131 at~ 16; A-234 at 65), and plaintiffs doctor prepared a note for HHC advising plaintiffs 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. For example, during the December 2005 time period, after Dr. Skloot had cleared plaintiff to return to work by letter dated December 6, 2005, plaintiffs 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 plaintiffs disability could be accommodated,12 plaintiff filed a Workers' Compensation claim on January 5, 2006 alleging that he had been exposed to asbestos dust while employed by HHC 12 In fact, plaintiff testified in his affidavit that "Mondo Hall ofHR 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 ... "). 28 and that his supervisor had known of his injury since January 30, 2005. See A-136 at~ 28. 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 never even discussed the issue internally. For example, on March 22, 2006, immediately prior to plaintiffs 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. 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. 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 29 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 field meetings and occasionally visit construction sites with respiratory protection." Id. 13 There can, therefore, be no serious dispute that, following plaintiffs medical clearance to return to work on March 21,2006, HHC engaged in absolutely no "interactive process." Thus, on March 27, 2006, when 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 at 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 plaintiffs permanent assignment at the QHC site during the March through June 2006 period, "[he] developed significant worsening ofhis respiratory status, requiring a course of systemic steroids." A-115-116; A-215-216. 3. Misrepresentation #2: Jacobsen's Own Doctors Admitted that He Could Not Perform the Essential Elements of the Job. Despite HHC's protestations to the contrary, Jacobsen was a "qualified individual" with a disability who, according to his doctors, could have performed 13 When plaintifflearned 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. 30 the essential functions of his job with reasonable accommodation. Indeed, after plaintiffs medical leave of absence from December 2005 to March 2006, HHC could not have reassigned plaintiff back to active duty at the QHC site without such medical clearance. Thus, without question, plaintiff could perform the essential functions of his job on August 15, 2005, when he was first assigned to the QHC site, and again, on March 21, 2006, when Dr. Skloot provided HHC with yet another medical clearance letter, conditioned on the restriction 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. 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. Moreover, 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 31 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, with the reasonable accommodation of being provided proper protective equipment when exposed to hazardous conditions. 14 In other words, the only thing that plaintiff could no longer do was to continue to work "in these conditions" without proper protective equipment, namely the hazardous conditions at his QHC worksite. Id. 15 14 The May 9, 2006 doctor's letter that accompanied plaintiffs May lOth memo does not, as HHC asserts (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 exposure to airborne irritant or fibrogenic dusts, fumes and gases, ifhis 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 ofHHC'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 plaintiffs non- exposure to environmental dust. HHC thus violated the relevant statutes by not providing 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. 15Indeed, 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, plaintiffs 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 32 In any event, whether a plaintiffs 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 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!6 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 plaintiffs 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, plaintiffs 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. I d. 16 In its written opinion, the lower court 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-1 0. However, if and to the extent that plaintiffs 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. Plaintiffs condition improved while he was on leave for most of the period from December 2005 until March 27, 33 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: first in August 2005, and later in March 2006. The record is also clear that HHC did not provide plaintiff with a reasonable accommodation. The only real factual dispute, therefore, is whether he was so disabled that he could no longer perform the essential elements of the job even with an accommodation. This fact intensive question is for a jury to decide, not a lower court judge by way of summary judgment. 4. Misrepresentation #3: Plaintiff Himself Admitted That He Was Not Capable of Performing the Essential Elements of the Job When asked at his deposition whether he was then capable of performing the essential elements of the job, he responded in the negative. This is not surprising since he had to bring his oxygen tank with him to the deposition so that he could get enough oxygen to his lungs in order to complete the examination. 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. 34 Incredibly, HHC argues that since plaintiff was totally disabled and incapable of working as a HFP, or any other job for that matter, during a deposition that took place several years after he had last worked at HHC in August 2006, he must have been incapable of performing the essential elements of his job when Dr. Skloot cleared him to return to work in March 2006 and HHC assigned him to a permanent field position. Clearly, plaintiffs medical condition years after the event in question may be relevant to a quantification of his damages, but not relevant to his medical condition as ofthe time ofhis two assignments to QHC. 17 5. Misrepresentation #4: Plaintiff Failed to Request Proper Protective Equipment During His March through June 2006 Re-Assignment Back to QHC on March 27, 2006 The record is clear that, 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 17 Even to the extent that plaintiffs deposition testimony may be interpreted as referring to his medical condition prior to the date of his deposition, as Jacobsen explained in his affidavit in opposition to the summary judgment motion (at 177-179), he was referring to Dr. Skloot's letter of August 4, 2006, stating that, as of the date of the letter, "Mr. Jacobsen will never be medically cleared to fully perform the essential functions of his duties." A-144-145 at ~s 60-62. 35 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. When plaintiff was permanently assigned to the field in the middle of an active construction site at QHC, he 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. 18 18 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 36 6. Misrepresentation #5: 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." HHC appears to rely heavily upon the fact that the plaintiff was issued a dust mask, but did not use it at all times, noting that plaintiff testified that he "did not consistently wear that mask because it made it difficult to communicate." However, plaintiff testified that an ordinary dust mask was totally ineffective, so whether he used it all the time or just some of the time is immaterial since it did not protect him from exposure to environmental dust. HHC also argues that, if 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. This is incorrect. Plaintiff did, in fact, request 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. 19 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 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. 19 As the dissenting opinion in the Appellate Division 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. 37 equipment. A-300-301 at 117-118 and 120-121. James further testified that HHC believed it had fulfilled all of its responsibilities to plaintiff by providing him with "a phone and a desk" at QHC, and 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 141-144. James summed up HHC's utter contempt for its legal responsibility to engage in "an interactive process" 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 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. Plaintiffs medical condition in August of 2006 is completely irrelevant to the issue of whether, during the relevant time frame from August 2005 to June 2006, he was, in fact, able to perform his essential job functions with an accommodation. To put it another way, plaintiffs claim is not, and never was, that he was wrongfully placed on medical leave in August 2006; plaintiffs claim has always been that he was not provided with a reasonable accommodation during the time period when he could still perform the essential functions of his job with accommodation, i.e., August 2005 to June 2006. 38 7. Misrepresentation #6: The Only Accommodation Requested By Plaintiff Was that He Be Permitted To Perform All of His Duties From the Central Office Without Visiting Construction Sites In its brief, HHC misrepresents that plaintiffs only requested accommodation was that he perform all of the essential functions of his job from the central office. Plaintiffs 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 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 ,-r 21 (emphasis added). Plaintiffs actual 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, plaintiffs understanding and first option (oftwo) 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 -13 7 at ,-r 3 7. Plaintiffs request for an 39 accommodation (option one i 0 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. POINT II PLAINTIFF PROPERLY RAISED A RETALIATION CLAIM The record is clear that Plaintiff properly raised a retaliation claim, namely, that HHC's decision on August 7, 2006 to place plaintiff on unpaid medical leave constituted unlawful retaliation. On or about June 5, 2006, plaintiffs 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. The close temporal proximity between plaintiffs filing of his human rights claim and his termination is alone enough to raise a material issue of fact that should not have been decided on summary judgment. In addition, the factual misrepresentations in HHC's letter notifying plaintiff that he was being placed on unpaid medical leave provide further support for 20 Plaintiffs "option two" for an accommodation was that, ifHHC 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. 40 plaintiffs retaliation claim. In its letter, 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. Significantly, when plaintiff was placed on six-month' unpaid medical leave on June 7, 2006, plaintiff was still subject to the limited medical clearance given by Dr. Skloot on March 21, 2006, which conditioned the medical clearance on plaintiffs non-exposure to environmental dust. A-186. Dr. Levin had followed up with his own letter of May 9, 2006, again confirming plaintiffs 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 Thus, given the fact that the only medical opinions that HHC had as of June 7, 2006 cleared plaintiff to continue to work with an accommodation, HHC's effective termination of him on June ih on the pretext that he could no longer perform the essential elements of the job is more than sufficient to make out a 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. 41 prima facia claim for unlawful retaliation. Plaintiffs pleadings and proof provided HHC with sufficient notice throughout this lengthy litigation of this claim. POINT III PLAINTIFF'S HUMAN RIGHTS CLAIMS SHOULD BE REINSTATED SINCE THE LOWER COURT AND APPELLATE DIVISION ERRED IN HOLDING THAT SUCH CLAIMS WERE GOVERNED BY UNCONSOLIDATED LAW § 7401(2) AND GENERAL MUNICIPAL LAW §50-E AND 50-I Although HHC's brief does not deal with this issue, the record is clear that 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 plaintiffs human rights and discrimination claims. A-1 0. 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 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, 42 453 N.Y.S. 2d 486, affd, 59 N.Y. 2d 307, 464 N.Y.S 2d 709, cert. denied, 464 U.S. 1018. 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 plaintiffs human rights and discrimination claims. Even if those statutes applied to plaintiffs 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-1 0), 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 of2008 was timely even ifthe one year and ninety day 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. 43 CONCLUSION WHEREFORE, plaintiff-appellant respectfully requests that the First Department's decision and order affirming the lower court's dismissal of plaintiffs 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 September 29, 2013 McCALLION & ~TES LLP By:~o Kenn . McCallion 1 00 Park A venue - 16th floor New York, New York 10017 (646) 366-0880 Attorneys for Plaintiff-Appellant 44 IDENTICAL COMPLIANCE OF BRIEFS CERTIFICATION It is hereby certified that the Reply Brief which was filed electronically (by CD-Rom), September 30, 2013 is identical to the Reply Brief being filed physically with the New York State Court of Appeals. Dated: September 30, 2013 By~:/4·,~~~~--~~--- Ke th . McCallion 1 00 Park A venue - 16th floor New York, New York 10017 (646) 366-0880