William Jacobsen, Appellant,v.New York City Health and Hospitals Corporation, Respondent.BriefN.Y.March 19, 2013McCallion & Associates, LLP 100 Park Avenue, 16th Floor, New York, NY 10017 Telephone: 646-366-0880 / Facsimile: 646-366-1384 www.mccallionlaw.com January 2, 2013 Clerk of the Court New York State Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: Jacobsen v. NYC Health and Hospitals Corp. Dear Sirs: In response to the Court’s direction, as set for in the letter of the Chief Clerk and Legal Counsel to the Court Andrew W. Klein dated December 13, 2012, we submit this letter on behalf of Plaintiff-Appellant William Jacobsen (“Plaintiff” or “Jacobsen”), setting forth Plaintiff’s position regarding the merits of this appeal pursuant to section 500.11 of the Court’s Rules of Practice. Preliminary Statement Plaintiff respectfully objects to the selection of this appeal for alternative review pursuant to section 500.11, and suggests that, given the significant issues of law and public policy considerations raised by this appeal, that the Court terminate the alternative review process and treat it as a Normal Course Appeal. In addition to this letter submission, Plaintiff is submitting herewith copies of the Record below and copies of the parties’ briefs submitted to the court below. Plaintiff primary claim against Defendant-Respondent New York City Health and Hospitals Corporation (“HHC” or “Respondent”) is that HHC failed 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, as well as claims under 42 2 U.S.C. § 1983 and the Due Process Clause of the New York State Constitution. Relevant Facts 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 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. 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. Indeed, Jacobson’s supervisor (James) admitted that, while 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 although there were occasional “walk- throughs” at the construction sites after the meetings had concluded, and that he was well aware that specialized protective equipment was required on such sites. Id. at 20-23. Occasionally over the years, when Jacobsen had to physically inspect asbestos abatement projects, HHC failed to comply with his requests – and its legal obligation- to provide him with the necessary respiratory protective equipment. A- 130 at ¶ 8. For example, 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. Plaintiff was eventually branded as a “whistleblower” because he had provided information to the New York City DEP regarding violations on asbestos abatement projects conducted by HHC. A-130 at ¶ 9. Plaintiff incurred further hostility from HHC management when they learned that he had 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; 3 A-18. HHC became further alarmed when Plaintiff met with an attorney from the NYC Human Rights Commission in March 2006, and a Commission attorney then called HHC to discuss Jacobsen’s desire to return to work with a reasonable accommodation. 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. 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. In June of 2005, when plaintiff received his first medical diagnosis for his pulmonary and breathing problems, Jacobsen’s supervisor knew that he was having pulmonary issues because plaintiff discussed it with him. A-130 at ¶ 10; A-232-233 at pp. 59-62. His supervisor also knew that he was taking frequent sick leave due to these respiratory problems since the supervisor received doctors’ notes explaining plaintiff’s frequent absences from work. Id. 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 there that was adjacent to a construction project and which exposed plaintiff to hazardous construction dust. A-130-131 at ¶ 11. Indeed, there was actually a construction site in the very room where Jacobsen was working, which constantly exposed him to airborne dust. A-131 at ¶ 13. 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 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 dust from construction activities, adding to plaintiff’s breathing problems. Id. Photographs taken by plaintiff graphically depict the construction activities in and around his open work space. A-163-169; A-131 at ¶ 13. Instead of spending 80% of his time at the central office, as he had done previously, 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. Plaintiff repeatedly complained to Anita O’Brien (his supervisor at QHC) 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. Plaintiff’s other direct supervisor located at the central office (James) conceded that Jacobsen discussed with him the conditions at the QHC site, which he said were dusty and dirty. A-300 at 118. 4 James did not actually see these conditions that Jacobsen 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 Anita O’Brien had her own private enclosed office, while Jacobsen and other worked in an open area outside her office. Id. at 83. 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 Jacobsen from the QHC site back to the main office or some other location. Id. at 144. James did not specifically recall his conversation with Jacobsen 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 without proper respiratory protective equipment, 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. His pulmonologist, provided him with a note for his employer, dated September 9, 2005, confirming 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. His doctor 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 or about October 7, 2005, as part of his Request for a Medical Leave of Absence, plaintiff submitted a Certification from his doctor to HHC under the Family and Medical Leave Act, noting that he “should not be exposed to inhaled 5 dust.” A-132-133 at ¶ 19; A-170-175 at ¶ 7(b), p.2. On October 17, 2005, plaintiff received a letter from the Deputy Director of HR at HHC (Mondo Hall), 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. However, when Hall was asked at his deposition as to whether he knew the nature of plaintiff’s disability, he 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 his medical doctor, dated December 6, 2005, which unequivocally stated 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. His doctor, however, placed a medical restriction on this medical clearance letter, namely, that it was “imperative that [he] not to be exposed to any type of environmental dust,” requiring that plaintiff not be exposed to environmental dust, which could have been complied with by the issuance of proper protective equipment. Id. In other words, as plaintiff explained to HHC managers, both he and his doctor 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, and that since the office where he was located was itself a construction site and filled with environmental dust, his assignment to that particular location, without proper protective equipment, was hazardous to his health. Id. The restrictions placed on plaintiff’s medical clearance were eminently reasonable, since he was only requesting that plaintiff be provided with what every other employee –disabled or not –was entitled to under law. 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 plaintiff thought that his doctor’s request that he not be exposed to environmental dust without proper protective equipment was highly reasonable. A-137 at ¶ 37; A- 252 at p. 138. In response to his doctor’s letter, someone from HHC wrote a handwritten note, dated December 16, 2005, acknowledging that “his [plaintiff’s] job requires him to 6 be out at the facility sites (construction) at least once a week.” A-133-134 at ¶ 22; A-177-178. Hall testified that he had made this handwritten note, and that the information upon which it was based, namely, that Jacobsen only had to be in the field one day a week, must have come from someone knowledgeable within HHC. A-327 at pp. 41-42. During this period of time, plaintiff also had some discussions with his supervisor regarding reasonable “work restrictions” that would accommodate his disability. A-204; A-134 at ¶ 26. However, the record is clear that no one 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, or providing him with proper respiratory protective equipment. A- 134 at ¶ 26. Indeed, plaintiff’s supervisor (James) actually misled plaintiff into thinking 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 would not need such equipment when he attended project meetings in an office setting. Id. 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. A-255 at 149. On March 22, 2006, Hall circulated a memo to other supervisors at HHC, informing them that Jacobsen was medically cleared to return to work, and that he would be returning on Monday, March 27, 2006. A-136 at ¶ 33; A-18. However, 7 Hall failed to include in his memo any reference to the restrictions placed 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 ¶ 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 Jacobsen was assigned, and admitted that 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 QHC as of March 27, 2006 and again told to work in an office located immediately proximate to a major construction area of the hospital. A-136 at ¶ 35. 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 on a permanent basis back to the same environmentally hazardous work location at QHC (without protective equipment) where he had been previously assigned from August through September 2005. In other words, despite plaintiff’s protestations regarding his assignment to a field location that was environmentally hazardous to his health, without the protective equipment required by law as well as his doctor’s medical clearance letter, HHC refused to make any reasonable accommodation for his disability and, instead, assigned him on a permanent basis to a construction site at QHC (without proper protective equipment) that exacerbated his already existing pulmonary disease and caused further damage to his lungs.A-134 at ¶ 23. 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 8 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. 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 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. However, the correct ratio applicable to plaintiff over his entire HHC career was 9 closer to 20 (field)-80 (office), as HHC’s own internal memo of December 16, 2005 reflected. A-140 at ¶ 48; A-177-178. 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, which acknowledged only that “[Jacobsen’s] job requires him to be out at facility sites (construction) at least once a week.” A-139-140 at ¶ 47; A-177-178. Hall took the misinformation from Ms. Short’s December 21, 2005 memo and wrote to plaintiff’s doctor 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 plaintiff’s doctor, 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 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 (emphasis added). 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. 10 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 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 clearance given by his doctor 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, again confirming plaintiff’s clearance to perform his job, but urging that he be placed in a work setting free of airborne contaminants so that his lungs condition would not deteriorate further. A- 109; A-190. It was not until August 4, 2006, after plaintiff had already been placed on a six month medical leave, that plaintiff’s doctor sent a letter to Hall, noting that as a result of plaintiff’s “recent attempt to return to the field he developed significant 11 worsening of his respiratory status, requiring a course of systemic steroids.” A-142 at ¶ 54; A-115-116; A-215-216. In other words, Jacobsen’s doctor was confirming that as a result of the additional exposures to hazardous dust during the March 27, 2006 through June 2006 period, 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 Queens Hospital site, namely, the constant exposure to hazardous dust with no adequate protective equipment. 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, by August 2006, plaintiff’s lungs had become severely scarred, 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. Id. The Decision Below This appeal is from the Decision and Order of the Supreme Court, Appellate Division, First Department entered July 10, 2012 (2012 NY Slip Op 05478), 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. Judge Manzanet-Daniels dissented in part, disagreeing with the majority decision to affirm the dismissal of plaintiff’s claims for disability discrimination. 12 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, bat that the only “protection” that he was provided with was a flimsy and inadequate “dust mask.” In addition, the dissent notes that after plaintiff was diagnosed with pneumoconiosis, an occupational lung disease, in September 2005, and that after a two month medical leave of absence, plaintiff’s physician wrote that plaintiff had demonstrated “significant clinical improvement” and was “medically cleared to 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 concludes 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 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). Legal Errors In the Decision Below Error No. 1: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. 13 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, New York City’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 Administrative Code § 8-107 (15)(a). Under the Executive Law § 292 (21-e), the term “reasonable accommodation” includes, but is not limited to, “provision of an accessible worksite, acquisition or modification of equipment, support services for persons with impaired hearing or vision, job restructuring and modified work schedules.” Pimentel v. Citibank, 29 A.D. 3d 147 (emphasis added). As of August 1999, the Division of Human Rights also recognized that section 292 (21-e) should include “reassignment to an available position.” See 9 NYCRR 466.11 (a)(1) and (2) (emphasis added). 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, 97 (2d Cir. 2009) (relief denied to plaintiff only because she rejected her employer’s offer of respiratory equipment as a potential reasonable accommodation in view of her respiratory ailments, and she also rejected the option of being reassigned, and plaintiff failed to suggest that her disability could be reasonably accommodated by reassignment to another facility where she would not be exposed to chemical fumes) ; 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, by contrast, Jacobsen was never offered any proper respiratory protection equipment during either one of his two permanent assignments to the Queens Hospital construction site. HHC also rejected his 14 suggestion that, since he had been permanently assigned to 346 Broadway for the past 20 years, and had only been required to make field visits 20% of his time, that he be reassigned back to the HHC central office once again as a reasonable accommodation. Plaintiff thus 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. The First Department’s opinion further 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 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. 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 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, therefore, dependent on that employee’s condition at the time of the alleged discriminatory action, which is a 15 fact-intensive issue that should be decided by a jury, and not by way of summary judgment. See 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. Indeed, even in June 2006, after plaintiff had been exposed for another three to four months of exposure at the Queens Hospital 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 Queens Hospital 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, but that, 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 Queens Hospital. What plaintiff could no longer do was to continue to work “in these conditions,” namely the hazardous conditions at his Queens Hospital worksite where he was exposed to environmental dust without any proper protective equipment. Id. The doctor’s letter, dated May 9, 2006, that accompanied plaintiff’s May 10th memo does not, as HHC asserted (and both the lower court and the appellate court accepted), state the opinion that plaintiff can no longer perform any field work; rather, it merely recommends the obvious, which is 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. 16 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 Jacobsen 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 Queens Hospital site. A-212. Thus, the clear import of HHC’s decision to give Jacobsen 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 reasonable accommodation that plaintiff not be exposed 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 the Queens Hospital site with proper protective equipment that would have would have protected him from further lung damage, and the fact that HHC did not even inform his supervisor at Queens Hospital, Anita O’Brien, 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 court and the Appellate Division, 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, dated March 21, 2006 and May 9, 2006, as discussed above, 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 the medical clearances as permitting his assignment back to the Queens Hospital Center as of March 27, 2006, assuming that he was provided with the proper protective equipment. A-187. Even the letter to HHC from plaintiff’s union attorney, Steven Sykes, dated May 31, 2006 (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 17 other words, as Mr. Sykes letter notes, plaintiff’s request for an accommodation is consistent with his physician’s condition placed on his medical clearance, namely, that he should not be exposed on a constant basis to the hazardous dust that is present at construction sites. Id. In its written opinion, the lower court also erroneously refers to a doctor’s note of December 2005 for the proposition that plaintiff was not later cleared during the 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 was on leave for most of the period from December 2005 until March 27, 2006, during which time his condition improved, so any prior medical clearance letter issued in 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 later time period that give plaintiff medical clearance to do some field work, which is arguably part of plaintiff’s job description. 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 at 346 Broadway to the Queens Hospital construction site on two occasions: (1) first in August 2005, and later in March 2006. The record is also clear that plaintiff could have performed the essential elements of his job, with an accommodation, and that HHC failed to provide him with any reasonable accommodation. 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 through September 2005, HHC not only failed to provide him with the reasonable 18 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. 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. Error No. 2. HHC failed to engage in the “interactive process” required to determine what accommodation is the most reasonable. 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 exhaustion of leave, “has been discriminated because of the disability within the meaning of the law.” Id. 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 reasonable accommodation; it also refused to even discuss those options with him as part of a “good faith interactive process” required by law. Id. 1 1 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 19 In essence, plaintiff was given the “take it or leave it” option of returning to the Queens Hospital site without being provided with any adequate respiratory equipment, or being terminated. This hardly constitutes the “interactive process” required by the relevant disability discrimination statutes. Faced with the Hobson’s choice of either returning to the Queens Hospital site where he had already suffered further damage to his lungs, or being terminated, plaintiff chose to report to work on March 27, 2006 at the Queens Hospital site, and thereafter suffered additional lung damage from late March to June 2006. As plaintiff’s doctor noted in a letter dated August 4, 2006 to Mondo Hall, as a direct result of plaintiff’s permanent assignment at the Queens Hospital 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, plaintiff’s doctor was confirming that as a result of the additional exposures to hazardous dust during the March 27, 2006 through June 2006 period, plaintiff’s condition had deteriorated to the point where he was no longer able to spend 75 to 80% of work time at construction sites where he would necessarily be exposed to hazardous environmental dust with no proper respiratory protection equipment as required by law. Id. In terms of the disability discrimination statutes, Jacobsen was clearly a “qualified individual” with a disability who could have performed the essential functions of his job with reasonable accommodation. Without question, plaintiff could perform the essential functions of his job on August 15, 2005, when he was first assigned to the Queens Hospital construction 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. “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. 20 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 Health Facilities Planner with an accommodation, namely, the assignment back to HHC’s central office at 346 Broadway and limited field work with proper respiratory equipment. As of that date, June 7, 2006, what plaintiff could no longer tolerate was the permanent assignment to the Queens Hospital site without proper protective equipment, in light of the hazardous conditions existing there. Error No. 3. The First Department erroneously found that HHC had engaged in a “good faith interactive process” regarding the issue of whether Plaintiff’s disability could be reasonably accommodated 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,2 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 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 2 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…”). 21 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 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. 3 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 Health Facilities Planners 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 work at all, James summed up HHC’s position by telling 3 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. 22 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. Error No. 4. The First Department erred in accepting 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. The First Department should have rejected the proposition that HFPs, in carrying out their job, must necessarily be exposed to hazardous airborne dust without adequate respiratory protective equipment. Indeed, such a proposition is contrary to law as well as 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 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.” Error No. 5. The First Department erred in finding that there were no material disputed issues of fact. It is settled law that summary judgment cannot be granted where there are disputed material issues of fact. 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, 317 (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) 23 (genuine issues of material fact preclude summary judgment); Rotuba Extruders v. Ceppos, 46 N.Y. 2d 223, 413 N.Y.S. 2d 141 (1978) (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...”); Stone v. Goodson, 8 N.Y. 2d 8, 200 N.Y.S. 2d 627 (1960) (“when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied”); Sillman v. Twentieth Century Fox Film Corp., 3 N.Y. 2d 395, 165 N.Y.S. 2d 49 (1957). 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 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. Error No. 6. 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 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 his assignment and job description had been 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 24 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. 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.4 Error No. 7. 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 4 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. 25 plaintiff’s argument on this point by asserting that “[i]n fact, plaintiff’s 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.5 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). 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 5 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. 26 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. 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. 6 6 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 27 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 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. Error No. 8. 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. 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 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. 28 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.7 Error No. 9. 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. 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…. 7 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. 29 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 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. Error No. 10. 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 30 essential functions of his job from the central office.8 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 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. 9 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 accommodation (option one)10 was that he “would only need respiratory equipment 8 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. 9 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. 10 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. 31 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. Error No. 11. 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.11 11 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.’ 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. 32 Error No. 12. 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 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 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. 12 12 It was not until August 4, 2006, two months after plaintiff had been placed on unpaid medical leave (June 7, 2006), that plaintiff’s doctor 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. 33 Error No. 13. 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. Conclusion Accordingly, the Appellate Division’s decision and order, affirming the lower court’s dismissal of the complaint, should be reversed in all respects. Respectfully submitted, 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 Letter Brief which was filed electronically (by CD-Rom), January 11, 2013 is identical to the Letter Brief being filed physically with the New York State Court of Appeals. Dated: January 10, 2013 McCALLION & ASSOCIATES LLP By:__________/S/______________ Kenneth F. McCallion 100 Park Avenue – 16th floor New York, New York 10017 (646) 366-0880