William Jacobsen, Appellant,v.New York City Health and Hospitals Corporation, Respondent.BriefN.Y.March 19, 2013February 21, 2013 The Honorable Andrew W. Klein, Chief Clerk and Legal Counsel to the Court New York State Court of Appeals 20 Eagle Street Albany, New York 12207 Re: Matter of Jacobsen v. N.Y.C. Health & Hosps., N.Y. Co., Index No. 103714/08 Dear Mr. Klein: In response to this Court’s December 12, 2012 Rule 500.11 dispositional inquiry, this letter brief is submitted on behalf of respondent- respondent, the New York City Health & Hospitals Corporation (“HHC”), in response to the letter brief submitted on behalf of plaintiff-appellant, William Jacobsen (“plaintiff”), served on January 4, 2013. The time for HHC to respond was extended until February 25, 2013. Plaintiff, a former HHC Health Facilities Planner, appeals from a decision and order of the Appellate Division, First Department, entered July 7, 2012, which affirmed an order and judgment of the Supreme Court, New York County (Wright, J.), entered on July 19, 2011, granting HHC summary judgment dismissing this action. The Appellate Division rejected plaintiff’s claims that he was discriminated against and wrongfully terminated because of a disability, in alleged violation of the New York State Human Rights Law (Executive Law § 296[1][a]) and the New York City Human Rights Law (N.Y.C. Administrative Code § 8-107[1][a]), and the Court also rejected his other claims, including for gross negligence. The order should be affirmed on summary disposition for all the reasons stated by the Appellate Division and in HHC’s Appellate Division Respondent’s brief, dated November 22, 2012, and as discussed below. MICHAEL A. CARDOZO Corporation Counsel THE CITY OF NEW YORK LAW DEPARTMENT 100 CHURCH STREET NEW YORK, NY 10007 2 Jurisdiction of the Court. This Court has only limited jurisdiction over this appeal. By order entered October 2, 2012, the Appellate Division denied plaintiff’s motion for reargument, but granted leave to appeal to this Court “to the extent that [plaintiff] seeks leave to appeal” (emphasis added) and certified the question of “Was the order of this Court, which affirmed the order of the Supreme Court, properly made?” Plaintiff’s motion for reargument and leave to appeal, dated August 6, 2012, was confined to plaintiff’s Human Rights Law claims (a copy of plaintiff’s motion will be provided upon request). Correspondingly, about two months later, on November 30, 2012, plaintiff filed a Preliminary Appeal Statement, which listed three questions for review all focused on the issues of alleged disability discrimination and alleged failure to provide a “reasonable accommodation” under the State and City Human Rights Laws. Accordingly, as detailed below, HHC submits that those are the only properly-preserved issues before this Court (see Quain v. Buzzetta Corp., 69 N.Y.2d 376, 379 (1987) (per curiam) and post, subsection, B). Statutory and Regulatory Framework. Under the New York State Human Rights Law, Executive (“Exec.”) Law § 290, et seq., it is an unlawful discriminatory practice for an employer, because of a disability of any individual, to refuse to employ or to discharge such individual or to discriminate against him in compensation or in the terms, conditions or privileges of employment (Exec. Law § 296). Under Exec. Law § 292(21), “disability” is defined as: (a) a physical, mental or medical impairment resulting from anatomical, physiological or neurological conditions which prevents the exercise of normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques … provided, however, that … the term [disability] shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or 3 occupation sought or held. (Id., § 292(21) (Emphasis added). Additionally, the term “reasonable accommodation” means “actions taken which permit an employee, prospective employee or member with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held and include, but are not limited to, provision of an accessible worksite, acquisition or modification of equipment, support services for persons with impaired hearing or vision, job restructuring and modified work schedules provided, however, that such actions do not impose an undue hardship on the business, program or enterprise of the entity from which action is requested.” Exec. Law § 292.21-e. Under the governing State regulations, in order to perform a job in a reasonable manner, the plaintiff must show that he or she has “the ability, with or without accommodation, to satisfactorily perform the essential functions of the job or occupation.” 9 N.Y.C.R.R. § 466.11(f)(1). The regulations define “essential functions” as “those fundamental to the position; a function is essential if not performing that function would fundamentally change the job or occupation for which the position exists ….” 9 N.Y.C.R.R. § 466.11(f)(3). Additionally, “[r]easonable accommodation is not required where the disability or the accommodation itself poses a direct threat.” 9 N.Y.C.R.R. § 466.11(g)(2). State regulations define “direct threat” as a “significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation.” 9 N.Y.C.R.R. § 466.11(g)(2)(i). Correspondingly, while the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq., requires an employer to make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job, it expressly provides for an affirmative defense in disability cases, as follows (id., §§ 8-107(15)(a) and (b)): (b) Affirmative defense in disability cases. In any case where the need for reasonable accommodation is placed in issue, it shall be an affirmative defense that the person aggrieved by the alleged discriminatory practice could not, with 4 reasonable accommodation, satisfy the essential requisites of the job . . . . (Emphasis added). Accordingly, under both the State and City Human Rights Laws, an employee who cannot perform the essential job functions of his or her title is not “disabled” within the meaning of those statutes. Relevant Factual and Procedural Background. In 1979, plaintiff began working as an Assistant Health Facilities Planner with HHC, responsible for monitoring the independent contractors on construction and renovation jobs at facilities operated by HHC. See Pl. Dep., R2251 at Tr. 30:14–31:22; Pl. Dep. R226-227 at Tr. 35:14 – 37:1, Pl. Dep. R227 at Tr. 38:21–39:15. In 1982, plaintiff was promoted to Health Facilities Planner, and although he was assigned to larger projects, his daily tasks remained the same. See Pl. Dep. R228 at Tr. 41:21–43:7. According to plaintiff, he would visit the job sites one or two days a week to meet with facility directors, examine existing structures, and review and supervise the contractors’ work. See Pl. Dep., R233 at Tr. 61:9-11. His specific assignment was the network leader of the “Bellevue network [formally, the South Manhattan network],” which consisted of several facilities, each with four or five projects taking place. See James Dep., R276 at Tr. 24:4-7. Plaintiff would spend the remaining work week at HHC’s central office in Manhattan, located at 346 Broadway, New York, New York (“346 Broadway”), see Compl., R29 ¶ “6,” completing written and oral reports on the progress of various projects.2 In August 2005, plaintiff was reassigned to be the Queens Healthcare network leader because a major construction project within that network needed help. The prior leader was overburdened in Kings County and the projecting was faltering at Queens so reassignments were made to readjust the workloads (James Dep., R285 at Tr. 59:10-18). As a result of this 1 Unless stated otherwise, numbers in parentheses preceded by the letter “R_” refer to pages in the Record on Appeal in the Appellate Division. 2 Plaintiff mischaracterizes that he was “permanently assigned” to the HHC corporate offices with a “permanently assigned” desk at 346 Broadway (Pl. Ltr. Br., p. 2). Such mischaracterizations can be found throughout the letter brief and we respectfully refer the Court to HHC’s Respondent’s brief, and the Appellate Division opinion for a fuller presentation of the facts and sequence of events. 5 reassignment, plaintiff’s office was relocated to the Queens Hospital Center, located in Jamaica, New York, and he only worked at the central office once a week or every other week, to attend meetings. Plaintiff was also required to visit construction areas at Queens Hospital on a daily basis (Pl. Dep., R230 at Tr. 50:7-8). At that time, plaintiff was not solely responsible for projects at Queens Hospital, but also attended construction management meetings at different hospitals regarding construction projects at those locations. Pl. Dep., R245-246 at Tr. 111:6 – 113:6. By letters dated September 21, 2005 and December 6, 2005, plaintiff’s physician, Gwen S. Skloot (“Dr. Skloot”), advised HHC that plaintiff had been diagnosed with “interstitial lung disease” or pneumoconiosis which had been diagnosed by an open lung biopsy on September 9, 2005 (R101, R103). In the September 2005 letter, she stated that he was under her care and would require rest at home for several additional weeks (see letter from Dr. Skloot to HHC, dated September 21, 2005, at R101; see also Pl. Dep., R234 at Tr. 65:14-22; Compl., R29 ¶ “8”). Upon receiving plaintiff’s request for a three month medical leave of absence under the Family and Medical Leave Act (“FMLA”) in September 2005, Mr. Mondo Hall, a Human Resources officer at HHC, informed him that his leave was granted to begin retroactively to September 9 and continuing for three months (R102). Mr. Hall advised plaintiff that plaintiff’s doctor should provide an updated note indicating his prognosis and expected date of return to duty since his doctor had stated that his “return to work date is unknown” (see letter from Mr. Hall to plaintiff, dated October 17, 2005, at R102). On plaintiff’s signed application for the FMLA leave, he requested a leave because his health condition made him “unable to perform the employee’s job functions” (R171). Dr. Skloot stated that he could not “perform usual tasks” and “should not be exposed to inhaled dusts” (R174). In a December 6, 2005 letter addressed “To Whom It May Concern,” Dr. Skloot stated that plaintiff was ready to return to work, but did not give a date and also directed that he not be present at any construction site (R103). Furthermore, Dr. Skloot stated that plaintiff’s lung condition made it: “imperative that he not be further exposed to any type of environmental dust. Specifically, this means that he cannot be present at any construction site” (R103). 6 Given the insufficiency of that letter, on December 27, 2005, Mr. Hall wrote directly to Dr. Skloot, advising her not only that she must indicate an exact date on which plaintiff could return to work, but also attaching a list of plaintiff’s job duties (R104). The letter highlighted the fact that approximately seventy-five (75%) percent of plaintiff’s working hours were in the field, “monitoring several construction projects and attend[ing] construction management meetings on site,” with only 25% of his hours in the office (see R104-105). HHC thus asked for the doctor to let HHC know whether, based on the provided information, plaintiff was medically cleared to fully perform the “essential functions of his duties” (R104). The detailed duties on the attached list described that 75% of his duties were: “Monitoring the construction of a new Ambulatory Center at Queens Hospital Center and attending all construction management meetings at the construction site. Also, attend[ing] meetings of his projects that are in design or construction at East New York D&TC, Cumberland D&TC and Sea View Hospital Rehabilitation Center & Home (75%)” (R105). On January 5, 2006, plaintiff’s union representative sent a letter to HHC requesting that plaintiff be allowed to return to work with an accommodation of being “assigned work that he is capable of doing in the office” (R106). He further noted that no grievance would be filed at that time (R106). On March 21, 2006, plaintiff provided another letter from Dr. Skloot stating that he was immediately “medically cleared to work in the field so that he can attend project meetings” (R108). In that letter, Dr. Skloot states that she had advised plaintiff that “it is imperative that he not be exposed to any type of environmental dust, and he has assured me that his field work will not include such exposure.” (See letter from Dr. Skloot to Hall, date stamped March 21, 2006, at R108). Relying on this medical clearance, on March 22, 2006, Associate Director Hall informed plaintiff’s department that plaintiff had been medically cleared and would be returning to work on March 27, 2006 (see Hall Dep., R329 at Tr. 50:22-25). On March 27, 2006, plaintiff returned to work at Queens Hospital, at the same location and in the same position, as the network manager, that he had occupied before his medical leave (see Pl. Dep., R254 at Tr. 148:22–149:20). Plaintiff did not recall whether, upon 7 returning to Queens Hospital, he complained to anyone regarding the fact that he was assigned to that location (see Pl. Dep., R255 at Tr. 150:7–151:1). Plaintiff testified that he told Anita O’Brien, the Director of Facility at Queens Hospital, that, at certain points, he was having difficultly breathing, and that she understood that plaintiff needed respiratory protection, and had provided a dust mask to help plaintiff (R253 at Tr. 142:7–144:7, R255 at 152:20–153:15). Plaintiff acknowledged that, in May 2006, eighty percent (80%) of his working hours were in the field, while twenty percent (20%) were in the central office (see Pl. Dep., R258 at Tr. 162:9–12). Plaintiff testified that, among the projects at Queens Hospital, he supervised the coordination of asbestos abatement studies and removal. His involvement for that project entailed “meeting with consultants and contractors and providing the contract documents, and visiting the asbestos abatement site where I was subject to both dust in general, and asbestos in particular” (R258 at Tr. 164:11-22). Plaintiff testified that he had been trained and licensed by the City and the State over a 15-year period in asbestos investigation, removal, and project management (see Pl. Dep., R223 at Tr. 21:22–24:8). Despite his background training and licensure, plaintiff testified that, upon his return to work at the Queens network, he had knowingly and voluntarily entered construction areas in which asbestos was present; he also said that he wore a dust mask, which he deemed insufficient protective gear (see Pl. Dep., R259 at Tr. 166:7-21). Plaintiff testified that, with his diagnosed respiratory issues, he was “certainly” aware that going into an asbestos removal site could be dangerous for his condition (R259 at Tr. 166:16-24). On May 10, 2006, plaintiff sent a letter to his supervisor in the central office, Vincent James, Senior Director of Facilities Management, requesting as a reasonable accommodation relocation to the central office at 346 Broadway (R109-110). Without stating any qualification or making other accommodation request, he stated that was “able to perform any and all functions, which were assigned to me prior to my relocation to QHC” (R109). Plaintiff attached a note from Stephen M. Levin, M.D. (“Dr. Levin”) who advised that plaintiff was under his care for severe lung disease, the 8 result of prior inhalation exposures to asbestos and other mineral dusts in his work environment (R110). Dr. Levin strongly recommended that plaintiff be “placed in a work setting free from exposure to airborne irritant or fibrogenic dusts, fumes and gases . . . .” (R110). Thereafter, by memorandum, dated May 19, 2006, Mr. James advised Human Resources Director Hall that plaintiff’s job responsibilities required that he spend approximately eighty percent (80%) of his working hours in the field and twenty percent (20%) of his working hours in the central office. James further set forth several projects plaintiff was working on at Queens Hospital Center (R111). He noted that, in addition to plaintiff, there were five other network managers that were responsible for two or more hospitals in the system, with each network manager spending an average of 80% of his working hours in the field (R111). He also noted that “[i]t was my understanding that Mr. Jacobsen was cleared by [Human Resources] to return to work at full capacity. Due to the high volume of work at Queens Hospital Center, it is imperative that we have a network manager cover the projects at that facility” (R111). Thus, James relayed that plaintiff needed to spend approximately 80% of his time in the field, which included visiting construction sites, to fully complete the “essential functions” of his position and explained that eliminating all construction sites from plaintiff’s duties would make it impossible for him to perform his job (R111). Plaintiff testified that he made an accommodation request by letter, dated May 31, 2006, from the assistant general counsel of District Council 37, Steven Sykes (“Sykes”), to Gloria Velez, Senior Director of HHC Human Resources Services (R112; see Pl. Dep., R255, at Tr. 151:14– 152:19. In that accommodation request, Union counsel Sykes advised that plaintiff “is able to visit construction sites sporadically and/or infrequently. However, Mr. Jacobsen is currently in a position that requires him to visit construction sites constantly” (R112). On behalf of plaintiff, Union counsel Sykes requested (R112): that HHC find an appropriate place in the agency for him to work where he is not regularly assigned to construction sites. Mr. Jacobsen believes assignment to 346 Broadway, where he worked for 9 20 years, and was working before he went out on medical leave, would be an appropriate accommodation. Due to the severity of his condition, and the fact that he is currently required to visit construction sites, this matter is urgent. In response, less than one week after his accommodation request, on June 6, 2006, Mr. Hall wrote to plaintiff advising him that the proposed transfer was not a reasonable accommodation because plaintiff’s position as a Health Facilities Planner required “constant visitation to the Corporation’s facilities at which ongoing construction is occurring” (R114). Field work was not only an essential job function of that title, it was the essential job function, consuming well over 50% of the time of any Health Facilities Planer, including plaintiff (R114, see R111, R105). Plaintiff himself admitted at his deposition that field work was, and had been, a significant part of his job. He further admitted that at the time he was placed on leave and continuing on, he was unable to perform field work. See Pl. Dep., R230 at Tr. 50:7-8; R245-246 at 111:6–113:6.3 These admissions by plaintiff and by plaintiff’s physician, that plaintiff could not perform his job, precipitated HHC’s placement of plaintiff on a six-month medical leave effective June 7, 2006. Thus, given that plaintiff’s doctors had emphasized that plaintiff could not be exposed to any “airborne irritant or fibrogenic dusts, fumes and gases,” HHC concluded that plaintiff was “not able to perform the essential functions of [his] job,” that is field work. In short, properly performing the 3 Plaintiff’s complaint stated that, during the course of his 26-year employment, “he inspected and managed hundreds of asbestos abatement projects for HHC, although most of his time was spent at HHC’s corporate offices at 346 Broadway, New York, New York” (R29 ¶¶ 5, 6). In contrast, in his letter brief, plaintiff states that, over the years, he had to “occasionally” physically inspect asbestos abatement projects (Pl. Ltr. Br., p. 2). Additionally, he avers that HHC failed to provide him with proper respiratory equipment, referencing his own statements in response to a negative evaluation in 1990 (Pl. Ltr. Br., p. 2 (emphasis added)). However, those claim, which related to the onset of his lung condition and his work as an asbestos inspector in various City and HHC facilities, were encompassed in a December 2005 notice of claim he filed against the City, the City’s Department of Education, the New York City Housing Authority and HHC, and were unrelated to his much later, alleged negligent return to Queens Hospital in March 2006 (R118-A124). 10 duties of a Health Facilities Planner, while avoiding those contaminants, simply was impossible (see Letter from Hall to plaintiff, dated June 6, 2006, at R114). In early August 2006, Dr. Skloot wrote to HHC in response to a request for clarification of plaintiff’s medical condition (R115-116). Dr. Skloot advised that, based on his pulmonary disease, plaintiff “will never be medically cleared to “fully perform the essential functions of his duties,” directly referencing her earlier March 2006 communication where she had advised him that it was imperative that he should not be further exposed to any type of environmental dust (R115). She noted that he did recently attempt to return to the field and developed significant worsening of his respiratory status, and therefore Dr. Skloot further stated that “the only work he is cleared to do is office work” (R115). She stated that she was “clarify[ing] that any exposure to field work is detrimental to Mr. Jacobsen” (R116 (emphasis added)). On March 26, 2007, at the conclusion of the six months of unpaid leave, which had been offered as a reasonable accommodation, plaintiff’s employment was terminated because he never provided medical evidence at the end of the leave that he could perform the essential functions of his position (R117). Plaintiff subsequently commenced this action for alleged wrongful termination because of a disability in violation of the State and City Human Rights Laws (first and second causes of action) (R32-34) and gross negligence (third cause of action) (R34-35). After service of its answer (R36-46), defendant HHC subsequently made a timely motion for summary judgment, arguing that, inter alia, plaintiff’s termination was proper insofar as he was unable to perform the essential functions of his position (R11-13, R13-28). The Supreme Court Opinion. By decision and order dated July 13, 2011 and entered July 19, 2011, the Supreme Court, New York County (Geoffrey D. Wright, J.), granted HHC’s motion for summary judgment dismissing the complaint (R7-19). The Court examined the evidence, including the fact that plaintiff was employed by HHC in the title of Health Facilities Planner, which title requires that the employee inspect and manage construction projects for HHC (10, citing Compl., at R29 ¶¶ “5” and “6”). The Court recognized that 11 plaintiff admitted that he was unable to perform the essential functions of his position, which required, inter alia, that he spend substantial time at construction sites (R10, see Pl. Dep. at R80-81; Tr. 177:25–178:7 (acknowledging that his doctor’s letter stated that “I would never be medically cleared to perform work at a construction site”)). The Court found that, inter alia, even if he were to be granted the accommodation he sought of return to a different location, “he would have to spend [at least] twenty (20%) percent of his time at construction sites” (R10). The Court recognized that 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 therefore[e], can never return to his old duties;” thus, the Court held that, by plaintiff’s “own evidence, he has not been discriminated against” (R10). The Appellate Division Opinion. On April 26, 2012, the Appellate Division, First Department, affirmed the Supreme Court’s order granting summary judgment dismissing plaintiff’s claims, as well as his claim for gross negligence and his attempted new due process and retaliation claims (Jacobsen v. N.Y.C. Health & Hosps. Corp., 97 A.D.3d 428 (1st Dept. 2012), lv. granted, __A.D.2d __ (1st Dept. 2012)).4 Following its review of the record,5 the Court held that plaintiff did not state disability discrimination claims pursuant to the governing State and City Human Rights laws, because plaintiff could not perform an essential function of his position. As a result, the Court correctly found that there was no violation of Exec. Law § 296(1)(a) inasmuch as plaintiff would not be 4 The four-justice opinion included Presiding Justice Tom and Justices Catterson, DeGrasse and Richter. 5 Among other things, as the Appellate Division recounted (97 A.D.3d at 430), plaintiff’s own doctors had emphasized that plaintiff could not be exposed to any “airborne irritant or fibrogenic dusts, fumes and gases” (R110, R114). Based on that, HHC concluded that plaintiff was “not able to perform the essential functions of [his] job,” that is field work because it was impossible for plaintiff to properly perform the duties of a Health Facilities Planner while avoiding those contaminants and ignored the reality of construction site environmental conditions (see R114). Moreover, HHC’s determination was further compelled by the August 4, 2006 letter received from plaintiff’s physician, Dr. Skloot, during plaintiff’s 6-month medical leave, which was granted as a reasonable accommodation, which letter stated, unambiguously, that plaintiff “will never be medically cleared to ‘fully perform the essential function of his duties.’” (See letter from Dr. Skloot to Hall, dated August 4, 2006 at R115-116). 12 disabled within the meaning of Executive Law § 292(21). Id., 97 A.D.3d at 431. Furthermore (id. at 431): HHC established that plaintiff could not, even with a reasonable accommodation, perform the essential functions of his job (Executive Law § 292[21]; Administrative Code § 8-107[15]). Vincent James, plaintiff’s supervisor at the central office, testified that plaintiff’s position required him to spend the majority of his time at construction sites. The only way plaintiff would be able to report on construction progress was to be present at the site; therefore, it was not possible for plaintiff to complete his duties from the central office. HHC pointed to letters from Dr. Skloot and plaintiff’s own deposition testimony in which he admits that he can no longer visit construction sites, which was the bulk of his work. Although plaintiff claimed he could perform all his duties from the central office, he failed to explain how he could monitor the progress of construction and renovation projects, an essential function of his job, from the central office without visiting the sites. With respect to the alleged reasonable accommodation issues, the Appellate Division correctly held that HHC was not required to find him another job, create a new one or create a “light duty” or other position for plaintiff. 97 A.D.3d at 431. The Appellate Division recognized that plaintiff focused in the Court below on HHC’s denial of his request to work in an office, not on the adequacy of the equipment provided to him. 97 A.D.3d at 432. In any event, with respect to the dissent’s contention that there was a triable issue of fact as to whether HHC engaged in an interactive process based upon plaintiff’s deposition testimony that, at some point in March 2006, he complained to his supervisor at Queens Hospital about the dust and requested a respirator, the Appellate Division held (97 A.D.3d at 432-433): 13 plaintiff also stated at his deposition that after complaining about the dust, he was provided with a dust mask. Plaintiff testified he did not consistently wear that mask because it made it difficult to communicate. Thus, having failed to wear the mask given to him, plaintiff can hardly complain he never got protection. Further, although plaintiff now argues that the dust mask was inadequate, he never made any additional complaints to his supervisor or anyone else about it, nor did he request different equipment than what he was given. Finally, all of the letters that plaintiff relies on, from his doctor, union representative, and plaintiff himself, make a request for relocation to the central office or an environment free of dust. None of the letters ask for a respirator so that plaintiff could remain at the Queens Hospital location. (Emphasis added). The Appellate Division thus concluded that “HHC should not be held responsible for not engaging further with plaintiff about the respirator when plaintiff's own doctor provided documentation supporting a transfer to an office job as the solution for plaintiff’s disability.” 97 A.D.3d at 433. Finally, the Appellate Division rejected plaintiff’s other contentions, thus upholding the dismissal of the gross negligence claims as untimely since they were more than three years after the alleged negligence and rejecting any other belated alleged retaliation/due process claims as unavailing. 97 A.D.3d at 433. The Partial Dissenting Opinion. Although the dissent (Manzanet-Daniels, J.) agreed with the dismissal of the gross negligence claim, it found two triable issues of fact as to the disability discrimination claims. It found questions as to: (a) “whether plaintiff was capable of performing the essential functions of his job;” and (b) whether defendant made a reasonable accommodation for plaintiff’s disability, which it speculated “could have been (1) reassigning him to the central office, where, for more than 20 years, he performed field visits on a once a week basis; or (2) assigning him to the Queens Hospital construction 14 site with the requisite respiratory equipment to prevent further exacerbation of his condition.” 97 A.D.3d at 436-437. However, the dissenting opinion contains inconsistent views of the record. First, it mistakenly states no respiratory equipment was provided, 97 A.D.3d at 434, but then goes on to recognize that a dust mask was provided, but opines that it was inadequate. 97 A.D.3d at 437. Without acknowledging that the record contains no medical request (or request by Union counsel) for specialized respiratory equipment, but rather only a request to reassign plaintiff to a position with no field work, the dissent speculated that, for a worker exposed to asbestos dust “on a daily basis,” “a specialized mask or respirator device designed to filter and protect against airborne dust from known toxins and potential carcinogens would be the type of “reasonable accommodation” envisioned by the statute. 97 A.D.3d at 437. Notably plaintiff’s doctors never stated that such would be appropriate. There Should Be An Affirmance of the Grant of Summary Judgment Dismissing the Human Rights Law Claims and A Dismissal of Plaintiff’s Purported Attempts to Appeal the Dismissal of the Untimely Gross Negligence and Unpled Retaliation Claims. The Appellate Division properly granted HHC’s motion for summary judgment dismissing the Human Rights Law violations, holding “HHC met its burden by establishing that at the time of termination, plaintiff was unable to perform the [essential] duties of his job because of his lung condition and that no reasonable accommodation was available.” 97 A.D.3d at 431. This Court should affirm for the reasons stated in the Appellate Division opinion, in HHC’s Appellate Division brief, incorporated by reference herein, and as discussed below. See Pt. A, post. HHC also urges that this Court must dismiss plaintiff’s attempt to revive claims he has previously abandoned as to alleged gross negligence and due process/retaliation, and that those portions of plaintiff’s brief must be struck pursuant to the authority of Quain v. Buzzetta Corp., 69 N.Y.2d 376 (1987). See Pt. B, post. A. Summary Judgment Dismissing The Human Rights Law Claims Was Properly Granted. Pursuant to C.P.L.R. 3212(b), summary judgment must be granted when a movant demonstrates entitlement to summary judgment as a matter 15 of law. Once the moving party meets this burden, the burden shifts to the non-moving party to produce evidentiary proof in admissible form to demonstrate a material issue of fact. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). While a court should draw all inferences in favor of the non- moving party, mere conclusions, expressions of hope, and unsubstantiated allegations or assertions “will not suffice to defeat a summary judgment motion.” Zuckerman, 49 N.Y.2d at 562. In this case, notwithstanding plaintiff’s argument (Pl. Br., Error No. 5, pp. 22-23), the Court properly held that, on this record, there were no triable issues of material fact. Moreover, plaintiff’s arguments essentially ignore the thorough well-reasoned opinion by the Appellate Division, which aptly responded to the dissent’s faulty conclusions. (1) To state a prima facie case of employment discrimination due to a disability under the State and City Human Rights Laws, a plaintiff must demonstrate that he or she suffered from a disability and that the disability caused the behavior for which he or she was terminated (97 A.D.3d at 431, citing Matter of McEniry v Landi, 84 N.Y.2d 554, 558 (1994)). Once a plaintiff establishes a prima facie case, the burden shifts to the employer to show that the disability prevented plaintiff “from performing the duties of the job in a reasonable manner or that the employee’s termination was motivated by a legitimate nondiscriminatory reason” (id.). However, a plaintiff’s disability is protected by the Human Rights laws or the analogous N.Y.C. Admin. Code § 8-107(15)(a) only if he or she can reasonably perform the essential functions of the position sought. Plaintiff’s brief consists of eleven claimed errors as to the dismissal of his disability discrimination claims under the State and City Human Rights laws. He mixes up the arguments, however, interjecting the essential function inquiry with the question of whether a reasonable accommodation was sought and refused. In relevant part, the first category of claimed errors concerns the Appellate Division’s finding that, because plaintiff could no longer perform the essential functions of his job, he was not discriminated against under the Human Rights laws (Pl. Br., Error 1, pp. 12-18). Plaintiff even goes so far to contend that the Court erred in finding that field work was an essential function of the position of a Health Facilities Planner (Error No. 4, p. 22). 16 Correspondingly, he claims that: the Court erred in finding that he admitted that he could no longer visit construction sites, an essential function of his position (Error No. 9, pp. 28-29), mischaracterized plaintiff’s claim that he could perform all his duties without visiting construction sites (Error No. 10, pp. 29-30), and, finally, erred in accepting HHC’s purported mischaracterization of plaintiff’s job description, thereby distorting any evaluation of whether he could perform the essential functions of his job (Error No. 11, p. 31). Plaintiff’s continued attempts to reweave the record do not overcome the central tenet, based upon a reading of the relevant New York State and City Human Rights Laws and regulations detailed above, ante, pp. 2-3, that plaintiff could not perform the essential functions of his job as a Health Facilities Planner who was required to be in the field for significant portions of time. In order to fall within the protection of the New York State Human Rights Law, a qualified individual with a disability must be able to perform “in a reasonable manner the activities involved in the job or occupation sought or held.” N.Y. Exec. Law § 292(21). Similarly, under the New York City Human Rights Law, a qualified individual must be able to perform the “essential requisites of a job.” N.Y.C. Admin. Code § 8-107(15)(b). Thus, the New York State Human Rights Law and regulations make clear that the term disability is limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held, and thus require that the plaintiff show that he had the ability to satisfactorily perform the essential functions of the job. Exec. Law § 292(21); see 9 N.Y.C.R.R. § 466.11(f)(1) (in order to perform a job in a reasonable manner, the plaintiff must show that he has “the ability, with or without accommodation, to satisfactorily perform the essential functions of the job or occupation.”); 9 N.Y.C.R.R. § 466.11(f)(3) (defining “essential functions” as “those fundamental to the position; a function is essential if not performing that function would fundamentally change the job or occupation for which the position exists ….”). See also City Human Rights Law, N.Y.C. Admin. Code § 8-107(15) (providing for an affirmative defense in disability cases that person aggrieved by the alleged discriminatory practice could not, with reasonable accommodation, satisfy the essential requisites of the job). 17 By plaintiff’s own evidence, he could no longer function as a Health Facilities Planner. See O’Sullivan v. City of New York, 38 A.D.3d 467, 469 (1st Dept.), app. den., 9 N.Y.3d 804 (2007) (“It is undisputed that a conclusive finding that plaintiff is incapable of performing the essential duties of a police officer would mean that there was no violation of Executive Law § 296(1)(a) inasmuch as he would not be disabled within the meaning of Executive Law § 292(21).” See also Pembroke v. New York State Office of Court Administration, 306 A.D.2d 185, 185 (1st Dept. 2003) (where plaintiff was unable to perform his duties in a reasonable manner, any inference of discrimination is refuted, entitling defendant to judgment as a matter of law; moreover even if defendant owed plaintiff a duty to accommodate his disability, plaintiff failed to satisfy his initial burden of showing that he proposed and was refused an objectively reasonable accommodation; thus. proposing a reduced workload would have required the reassignment of much of his work to coworkers which was not reasonable). Cf. Bellamy v City of New York, 14 A.D.3d 462, 463 (2005) (“Plaintiff failed to rebut sufficiently the evidence demonstrating that he was not qualified to become a New York City police officer because he was incapable of reasonably performing the essential functions of the job due to his medical condition.”); Davis v. the New York City Health and Hospitals Corp., 2013 U.S. App. LEXIS 1648, *5-*6 (2d Cir. Jan. 25, 2013) (Summary Order) (where it was undisputed by plaintiff that she could not perform the essential functions of her job as a nurse, Second Circuit held that defendants were entitled to dismissal of plaintiff’s claims under the New York State and City Human Rights Laws). Here, because plaintiff cannot perform the essential job functions, with or without reasonable accommodation, he is not disabled within the meaning of the Human Rights Laws, and he therefore cannot state a cause of action for disability discrimination. See Exec. Law § 292[21]; N.Y.C. Admin. Code § 8-107[15]. Moreover, HHC established that plaintiff could not, even with a reasonable accommodation, perform the essential functions of his job in that the only way plaintiff would be able to report on construction progress was to be present at the site; therefore, it was not possible for plaintiff to complete his duties from the central office. 97 A.D3d at 431. As the Appellate Division further recognized, “HHC pointed to letters from Dr. Skloot and plaintiff’s own deposition testimony in which he admits that he can no longer visit construction sites, which was the bulk 18 of his work. Although plaintiff claimed he could perform all his duties from the central office, he failed to explain how he could monitor the progress of construction and renovation projects, an essential function of his job, from the central office without visiting the sites.” 97 A.D.3d at 431. (2) As to plaintiff’s second category of claimed error as to reasonable accommodation, plaintiff largely relies on the dissent, arguing that HHC failed engage in the “interactive process” required to determine what accommodation is the “most reasonable” (Pl. Br., Error No. 2, pp. 18-20) and that the Appellate Division erred in finding that HHC had engaged in a good faith interactive process (Error No. 3, pp. 20-22). His other claimed errors concern his alleged further requests for accommodation beyond relocation back to the central office (Error 6, pp. 23-24), whether he belatedly raised requests for proper respiratory equipment (Error No. 7, pp. 24-27), and the provision of a dust mask (Error No. 8, pp. 27-28). Under the Executive Law, a “reasonable accommodation” is defined as “actions taken by [an] employer which permit an employee . . . with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held . . . provided, however, that such actions do not impose an undue hardship on the business.” Pimental v. Citibank, N.A., 29 A.D.3d 141 (1st Dept. 2006), quoting Exec. Law § 292 [21-e], lv. denied, 7 N.Y.3d 707 (2006). Under the City’s Human Rights Law, an employer “shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job” (Administrative Code § 8-107 [15][a]). However, an employer is not required to find another job for the employee, create a new job, or create a light-duty version of the current job. Pimentel, 29 A.D.3d at 148. See also Mair-Headley v. County of Westchester, 41 A.D.3d 600, 602- 03 (2d Dept. 2007) (citations omitted). Plaintiff, like other network managers, was required to perform field work, which necessitated regular construction site visitation; Pembroke, 306 A.D.2d at 185 (even if, arguendo, defendant owed plaintiff a duty to accommodate his disability, plaintiff failed to satisfy his initial burden of showing that he proposed and was refused an objectively reasonable accommodation; thus proposing a reduced workload would have required the reassignment of much of his work to coworkers, which was not reasonable). 19 While plaintiff, citing the dissent, argues that there is a triable issue as to whether HHC engaged in a “good faith interactive process,” Phillips v, City of New York, 66 A.D.3d 170, 175 (1st Dept. 2009), the Appellate Division correctly held (97 A.D.3d at 431-432): Contrary to the dissent’s finding, the record shows that HHC engaged in an interactive process. HHC sought clarification from Dr. Skloot regarding plaintiff’s medical condition and his ability to perform his job. Indeed, they kept plaintiff’s job open during two separate medical leaves, during which time HHC was in communication with plaintiff and his doctor. HHC provided Dr. Skloot with plaintiff’s job description and made her aware that plaintiff was required to spend a portion of his time in the field at construction sites. It was only after plaintiff’s doctor and plaintiff himself confirmed that he could no longer work at construction sites that HHC terminated him.” The Appellate Division correctly noted that plaintiff focused below on HHC’s denial of his request to work in an office, not on the adequacy of the respiratory equipment provided to him, with plaintiff’s affidavit in opposition to the motion for summary judgment expressly stating that HHC should have relocated him to the central office. Id. at 432. In any event, the Appellate Division aptly responded to the dissent’s contention that HHC did not engage in an interactive process regarding respiratory equipment. Id. at 432-433. Thus, while plaintiff testified at his deposition that at some point in March 2006, he complained to his supervisor at Queens Hospital about dust and requested a respirator, at that same deposition, he testified that, after complaining about the dust, he was provided with a dust mask. Plaintiff testified he did not consistently wear that mask because it made it difficult to communicate. Id. at 432. Thus, having failed to wear the mask given to him, plaintiff could hardly complain he never got protection. Id. Additionally, although plaintiff now argues that the dust mask was inadequate, he never made any additional complaints to his supervisor or anyone else about it, nor did he request different equipment than what he was given. Finally, all of the letters that plaintiff relies on, from his doctor, union representative, and plaintiff himself, make a request for relocation to the central office or an environment free of dust. None of the 20 letters ask for a respirator so that plaintiff could remain at the Queens Hospital location.” 97 A.D.3d at 432-433. “In this case, HHC should not be held responsible for not engaging further with plaintiff about [a] respirator when plaintiff’s own doctor provided documentation supporting a transfer to an office job as the solution for plaintiff’s disability.” 97 A.D.3d at 433. Thus, plaintiff’s assertion, raised only in litigation, that he could have performed some field work if provided with a respirator, was never mentioned, much less sought, for consideration by either his union (see R106, R112) or his physicians (R101, R103, R108, R110, R115-R116) during plaintiff’s accommodation requests. Plaintiff provided no medical opinion to support his contention that a respirator would have enabled him to perform field work at construction sites, notwithstanding his doctors’ unambiguous statement that he not be exposed to any construction dust. Notably, moreover, plaintiff’s doctor, Dr. Skloot, who had apparently mistakenly cleared him to return to work in March 2006, which HHC followed, later clarified, in early August 2006, that, based on his pulmonary disease, plaintiff “will never be medically cleared to “fully perform the essential functions of his duties,” directly referencing her earlier March 2006 communication where she advised him that it was imperative that he should not be further exposed to any type of environmental dust (R115-116). She stated that she was “clarify[ing] that any exposure to field work is detrimental to Mr. Jacobsen” (R116 (emphasis added)). Just as the Appellate Division recognized, plaintiff did not seek, nor did defendant deny, an accommodation that would have allowed him to perform his essential functions despite his limitations. Rather, he sought to be excused permanently, and such request was not a reasonable accommodation as a matter of law. See, e.g., Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 100 (2d Cir. 2003) (“A reasonable accommodation can never involve the elimination of an essential function of a job.”); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99 (2d Cir. 1999) (“[T]he employer [is not] obliged to create a new position to accommodate the employee.”); see also Davis v. the New York City Health and Hospitals Corp., 2013 U.S. App. LEXIS 1648, *5-*6 (2d Cir. Jan. 25, 2013) (Summary Order). See also Pembroke v. New York State Office of Court Administration, 306 A.D.2d at 185. 21 B. Any Issues as to the Dismissal of the Untimely Gross Negligence and Unpled Retaliation Claims Are Not Properly Before This Court, And, In Any Event, Lack Merit. Plaintiff raises two points on appeal that must be dismissed. Those points are Errors No. 12 and 13, claiming that the Appellate Division allegedly failed to consider his argument that HHC engaged in unlawful retaliation (Pl. Ltr. Br., p. 32) and that the Appellate Division erred in affirming that plaintiff’s complaint was untimely with respect to his gross negligence claim (Pl. Ltr. Br., p. 33). Plaintiff failed to raise these questions in his Preliminary Appeal Statement, dated November 28, 2012, and also failed to raise these questions in his motion for reargument and leave to appeal in the Appellate Division, First Department, dated August 6, 2012 (copy provided upon request). Notably the First Department only granted his motion for leave to appeal to this Court “to the extent that [plaintiff] seeks leave to appeal” (10/2/12 Order). Pursuant to Quain v. Buzzetta Corp., 69 N.Y.2d 376, 379 (1987) (per curiam), those issues are not properly before this Court and those portions of plaintiff’s brief must be struck. In Quain, 69 N.Y.2d at 379, this Court made clear that under the Court’s rules, “if a party in its application for leave to appeal specifically limits the issues it seeks to have reviewed, it is bound by such limitation and may not raise additional issues on the appeal”). Only if, arguendo, this Court determines that it has jurisdiction over those claims, we respectfully seek affirmance of the order below on the merits, for all the reasons stated in Points II and III of our Appellate Division brief. 6 6 Finally, we note that any innuendo that, through his termination, HHC deprived plaintiff of a pension “despite his long career” (Pl. Ltr. Br., p. 24 n.4) is baseless. Plaintiff voluntarily chose not to join the pension system until very late in his career on July 20, 2005 (as opposed to when he started employment in 1979) and therefore was ineligible for a pension because he had not yet met the service requirements (see R210, R382-383). The record indicates that plaintiff testified that he was receiving long term disability benefits from CIGNA Group Insurance in the amount of approximately $2800 a month which he testified would continue until age 65 (see R264 at pp. 186-187, see also R399, R383, ¶ 21, R399) as well as separate Union disability benefits (R264). As the Appellate Division further noted, plaintiff testified that he was receiving Workers’ Compensation benefits (see R224-25) and the Worker’s Compensation Law barred any claim based upon gross negligence (97 A.D.3d at 433, citing, inter alia, W.C.L. § 11). 22 Conclusion. For all the reasons stated by the Appellate Division, and here and in HHC’s Appellate Division brief, it is respectfully requested that the order of the Appellate Division be affirmed. Respectfully submitted, MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for Defendant-Appellant __________________________ By: ELIZABETH S. NATRELLA Tel: (212) 356-2609 Fax: (212) 791-9716 enatrell@law.nyc.gov LEONARD KOERNER, ELIZABETH S. NATRELLA, of Counsel. cc: Kenneth P. McCallion, Esq. McCallion & Associates, LLP 100 Park Avenue, 16th Floor New York, NY 10017 Tel: (646) 366-0880 Fax: (646) 366-1384 kfm@mccallionlaw.com Attorney for Plaintiff-Appellant