Tafolla v. S.C.D.A.O

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-----------------------------------X

KIM L. TAFOLLA,

Plaintiff,

MEMORANDUM & ORDER

-against- 17-CV-4897(JS)(AKT)

COUNTY OF SUFFOLK; EDWARD HEILIG; and

JOSEPH CARROLL,

Defendants.

-----------------------------------X

APPEARANCES

For Plaintiff: Joshua Friedman, Esq.

Joseph Myers, Esq.

Phillips & Associates PLLC

585 Stewart Avenue, Suite 410

Garden City, New York 11530

For Defendants: Hope Senzer Gabor, Esq.

Assistant County Attorney

Suffolk County Department of Law

H. Lee Dennison Building

100 Veterans Memorial Highway

Hauppauge, New York 11788

SEYBERT, District Judge:

Plaintiff Kim L. Tafolla (“Plaintiff”) initiated this

employment discrimination action against the County of Suffolk

(the “County”), Edward Heilig, and Joseph Carroll (collectively,

“Defendants”) asserting violations of the Americans with

Disabilities Act (“ADA”) and 42 U.S.C. § 1983 (“Section 1983”)

arising out of her termination as a County employee. Currently

pending before the Court is Defendants’ motion for summary

judgment. (Defs. Mot., ECF No. 70; Defs. Br., ECF No. 72; Pl.

Opp., ECF No. 74; Defs. Reply, ECF No. 77.) For the following

reasons, Defendants’ motion is GRANTED.

FACTUAL BACKGROUND1

The following facts, unless otherwise noted, are

undisputed.

I. The Parties

Plaintiff worked as a “clerk typist” at the Suffolk

County District Attorney’s Office (the “Office”) from November 17,

2008 until January 13, 2015. (Plaintiff’s Response to Defendants’

Local Rule 56.1 Statement (“Pl. 56.1 Resp.”), ECF No. 61-2, ¶¶ 1,

144.) Starting in March 2009, she worked in the Office’s Special

Investigations Bureau (the “Bureau”), initially under then-Bureau

Chief, Defendant Edward Heilig (“Heilig”). (Id. ¶¶ 2, 6.) At

some point Heilig became Division Chief, and Defendant Joseph

Carroll (“Carroll”) took over as Bureau Chief. (Id. ¶¶ 9-11.) As

Division Chief, Heilig oversaw personnel matters at the Office,

and Carroll reported to Heilig regarding personnel-related matters

within the Bureau. (Id. ¶¶ 12, 24.) There is some dispute between

the parties regarding the process for requesting an accommodation

in the Bureau -- whether through Heilig, Carroll, or Jennifer

1 Unless otherwise noted, the facts are drawn from the parties’

respective Local Rule 56.1 Statements and Responses. The Court

cites to the parties’ 56.1 responses, which are the most complete.

McNamara, the County’s Director of Labor Relations -- and who had

responsibility to grant an accommodation. (Id. ¶¶ 23-28.)

II. Plaintiff’s Archiving Responsibilities

Plaintiff and two other women, Jennifer Greenzang and

Tara Sikorski, served as clerk typists in the Bureau during the

relevant period, though Sikorski left on June 24, 2013. (Id. ¶

34.) Most of Plaintiff’s responsibilities as a clerk typist are

not in dispute. Plaintiff performed “general office duties,” such

as: answering the telephone; typing memos, correspondence, writs,

and indictments; and photocopying and scanning documents. (Id. ¶

33.) At issue are Plaintiff’s archiving responsibilities and her

request for an accommodation related thereto.

Once a defendant was sentenced and the case was closed,

it was archived. The archiving process in the Bureau was as

follows: the responsible assistant district attorney (“Assistant

DA”) would leave the case file, contained in an “indictment

folder,” in a “suite area” (id. ¶¶ 49-51); then, Plaintiff or one

of her colleagues would “close out” the case file by entering the

requisite information from the file into the Office’s system (id.

¶¶ 50, 57); after which, the case file would be brought downstairs

to the archives room, which neither Plaintiff nor her colleagues

were required to do (id. ¶ 50). According to Plaintiff, “archiving

was a small portion of [her] job,” (Defendants’ Response to

Plaintiff’s Local Rule 56.1 Statement (“Defs. 56.1 Resp.”), ECF

No. 61-3, ¶ 6), which “always came last” or “when you had free

time.” (Pl. Depo. Tr. 63:8-9, Ex. A, ECF No. 73-1, attached to

Friedman Decl.; see also Horney Depo. Tr. 38:12-15, Ex. C, ECF No.

73-3, attached to Friedman Decl.)2 Plaintiff claims Diana Laruche,

a Bureau secretary, “did the majority of archiving.” (Defs. 56.1

Resp. ¶ 5.)

III. Plaintiff’s First Request for an Accommodation

On November 25, 2013, Plaintiff suffered injuries to her

cervical and lumbar spine due to a car accident. (Defs. 56.1 Resp.

¶¶ 10-11.) The following day, Plaintiff informed Carroll that she

would be unable to come into work. (Pl. 56.1 Resp. ¶ 61.) When

she returned to work on December 2, after the Thanksgiving weekend,

Plaintiff found the case files ready for archiving were piling up.

(Id. ¶¶ 61-62.) After an Assistant DA asked Plaintiff when the

files would be archived, Plaintiff resolved to communicate to

Carroll that she was unable to perform her archiving duties. (Id.

¶¶ 64-65.)

On December 6, 2013, Plaintiff emailed Carroll regarding

her concerns about archiving files. (Id. ¶ 67.) Plaintiff

explained that her neck, back, and ribs were sore from the car

accident and asked whether “Jen [Greenzang] could take care of the

archives for now.” (First Accommodation Request, Ex. E, ECF No.

2 Hereafter, the Court will simply cite to the relevant exhibits

from the Friedman Declaration by their identified letters.

73-5, attached to Friedman Decl.) Before responding, Carroll

conferred with Heilig regarding Plaintiff’s request. (Pl. 56.1

Resp. ¶ 68.) Based on his consultation with Heilig, Carroll told

Plaintiff “I don’t want you to hurt yourself,” and recommended

they wait to learn what Plaintiff’s doctor recommended at her

visit, scheduled for three days later. (First Accommodation

Request, Ex. E.) Carroll added: “If your doctor deems that you

are unable to perform any work related functions please have

him/her provide you with a letter indicating the nature of those

restrictions.” (Id.) He also requested a copy of the “DMV 104

accident report.” (Id.)

On December 9, 2013, Plaintiff saw Eugene King, the

physician’s assistant at her spine surgeon’s office, and obtained

a note from him (the “King Note”). (Pl. 56.1 Resp. ¶ 74.) The

King Note stated Plaintiff should not lift over five pounds or

perform “bending [or] pushing activities.” (Id.; see also King

Note, Ex. F, ECF No. 73-6, attached to Friedman Decl.) Plaintiff

left a copy of the King Note in Carroll’s inbox on December 10,

2013. (Pl. 56.1 Resp. ¶ 75.) A few days later, Carroll emailed

Plaintiff to request a list of cases that had been sent to archives

from June 24, 2013 -- the day Sikorski left -- through December

13, 2013 to “gain an understanding of the nature of how much work

was involved in archiving since Tara Sikorski left.” (Id. ¶ 77.)

Carroll’s request was in response to the First Accommodation

Request, which requested Greenzang relieve Plaintiff of her

archiving duties, since Carroll “wanted to have some idea of what

[such an accommodation would] entail[].” (Id. ¶ 79.)

IV. The January 7 Encounter

From November 21, 2013 to January 7, 2014, no archiving

was done in the Bureau. (Id. ¶ 80.) As a result, Carroll,

believing Plaintiff should have been archiving case files that

weighed less than five pounds, consistent with the King Note,

approached Plaintiff to address the backlog. (Id. ¶ 81.) The

parties dispute what happened next. According to Plaintiff,

Carroll and another Assistant DA, Deirdre Horney, “approached

Plaintiff in a hostile manner” and demanded why the files were not

getting archived. (Defs. 56.1 Resp. ¶ 25.) When Plaintiff raised

the King Note, Carroll acknowledged its limitations but yelled

over her, picked up a file from Plaintiff’s desk, and stated, “I

don’t think this file weighs five pounds.” (Id. ¶ 28.) Plaintiff

claims Carroll “told her to put the box [of case files] on the

floor, bend over to pick up the files, enter the information into

the computer, from a sitting position, and put the files in the

box,” at which point he or someone else would move the boxes for

Plaintiff. (Id. ¶ 31.) Plaintiff further claims Carroll gave her

an ultimatum: archive or go on medical leave. (Id. ¶ 29.)

Conversely, Defendants claim that throughout the exchange Carroll

acted consistent with the King Note and instructed Plaintiff not

to handle any file that weighed more than five pounds. (Id. ¶¶

28-31; Pl. 56.1 Resp. ¶ 82.) According to Defendants, Carroll’s

“ultimatum” was a good faith offer to transfer an “unhappy”

employee. (Pl. 56.1 Resp. ¶ 83.) He also offered to have Greenzang

assist Plaintiff with the archives, which she did. (Id. ¶ 84.)

After the exchange, Plaintiff archived two boxes of case

files. (Id. ¶ 85.) “By the end of the day, Plaintiff was in such

excruciating pain and severe agony that she could barely walk to

her car.” (Defs. 56.1 Resp. ¶ 38.) Because of the pain, she

called out of work the following day and scheduled an appointment

with her spine surgeon, Dr. Robert Galler. (Id. ¶¶ 39-40.) At

her visit, Dr. Galler provided Plaintiff a second note regarding

her physical limitations. (Second Accommodation Request

(attaching Galler Note), Ex. G, ECF No. 73-7, attached to Friedman

Decl.) The Galler Note stated that due to Plaintiff’s previous

surgery and the injuries she sustained from the November 2013 car

accident, Plaintiff was “unable to lift, bend, twist, or push any

object over five pounds. The patient is able to perform

secretarial work but no physical duties at this time . . . .”

(Id.)3

3 Plaintiff also filed a workplace violence complaint in connection

with the January 7 interaction with Carroll, which Heilig, pursuant

to the Suffolk County Workplace Violence Prevention Program’s

procedures and in consultation with the Office’s workplace

violence coordinator, determined was not a proper workplace

violence complaint. (Defs. 56.1 Resp. ¶¶ 122-34.)

V. Plaintiff’s Second Request for Accommodation

One week after her exchange with Carroll, Plaintiff

renewed her request for an accommodation with the Office’s human

resources department (the “Second Accommodation Request”). Diane

Stankewicz, a human resources representative, called Plaintiff

shortly thereafter and informed her that the County “did not offer

light duty assignments” and that Carroll was responsible for

accommodating her disability. (Pl. 56.1 Resp. ¶ 95.) Plaintiff

also reached out to Caroline Stolz from “Risk Management,” who

reiterated Stankewicz’s response. (Id. ¶ 107.) It appears that

Stankewicz’s and Stolz’s responses were inconsistent with County

policy. (Id. ¶¶ 95, 107; see also Defs. 56.1 Resp. ¶¶ 47-54.)

Notwithstanding the miscommunication, however, on January 16,

2014, two days after the Second Accommodation Request, Heilig

responded to Plaintiff via an intraoffice communication. (Heilig

Memo, Ex. H, ECF No. 73-8, attached to Friedman Decl.) Heilig

stated it was his understanding that Plaintiff already had been

granted an accommodation based on the King Note. (Id.) He further

advised Plaintiff that she was “not to ‘lift, bend, twist or push

any object over five pounds’” in connection with her

responsibilities, and that if she believed any file weighed more

than five pounds, she was “not to touch that file,” but rather

advise Carroll, who would make alternative arrangements. (Id.)

The Heilig Memo closed with the following paragraph:

Please be further advised that the county does

not have light duty assignments. If you are

not capable of performing your job duties for

any reason, including medical limitations, you

will have to be out of work on a medical leave

until you can return to work with a Doctor’s

note indicating that you can work with no

restrictions.

(Id.)

Plaintiff claims Defendants acted inconsistently with

the Heilig Memo, and in any event “disputes that this was not a

reasonable accommodation because light duty was not possibly [sic]

per Defendant’s policy.” (Pl. 56.1 Resp. ¶ 108.) According to

Defendants, by the final paragraph, Heilig intended to communicate

that, in the event Plaintiff could not perform her job duties even

with the accommodation, she would have to go on medical leave.

(Id.) Regardless, by the time Plaintiff received the Heilig Memo

on January 16 it was a moot point, because Plaintiff had left the

Bureau on January 15 with “no intention of going back to work.”

(Id. ¶¶ 110-11.) After Plaintiff left, Carroll weighed the files

that Plaintiff had archived on January 7 and confirmed that “none

of the files that Plaintiff archived weighed over five pounds.”

(Id. ¶ 121.)

VI. Plaintiff’s Leave and Eventual Termination

On February 27, 2014, Plaintiff applied for and was

granted twelve-week leave under the Family Medical Leave Act. (Id.

¶¶ 134-36.) In addition, Plaintiff applied for and was granted

Long Term Disability benefits for 104 weeks, running through April

12, 2016. (Id. ¶ 137.) Via a January 13, 2015 letter, Heilig

informed Plaintiff that her employment would be terminated

pursuant to New York Civil Service Law § 73, due to her one-year

absence from the County. (Id. ¶ 144.) At that point, Plaintiff

declined to undergo a medical examination to determine whether she

could perform her responsibilities as a clerk typist, a decision

she blames on Defendants for instructing Plaintiff she “must be

out of [sic] disability despite Plaintiff could perform her

sedentary tasks.” (Id. ¶ 146.)

PROCEDURAL HISTORY

Plaintiff initiated this action on August 21, 2017,

within ninety days of receiving a notice of right to sue from the

Equal Employment Opportunities Commission. In the operative

Amended Complaint, filed on January 22, 2018, Plaintiff alleges

three causes of action arising under federal law: (1) violation of

42 U.S.C. § 1983; (2) discrimination under the ADA; and

(3) retaliation under the ADA; she also alleges three causes of

action for violations of the New York State Human Rights Law

(“NYSHRL”). (Am. Compl., ECF No. 15.) At the close of discovery,

Defendants moved for summary judgment.

DISCUSSION

I. Legal Standard

Summary judgment is appropriate where there is “no

genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” FED. R. CIV. P. 56(a). “Material

facts are those which might affect the outcome of the suit under

the governing law, and a dispute is genuine if the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.” Wagner v. Chiari & Ilecki, LLP, 973 F.3d 154,

164 (2d Cir. 2020) (quoting Coppola v. Bear Stearns & Co., 499

F.3d 144, 148 (2d Cir. 2007)) (internal quotation marks omitted).

The movant bears the burden of establishing that there are no

genuine issues of material fact for trial. Gallo v. Prudential

Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). There

can be no genuine issue as to any material fact where “a party

fails to make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which that party

will bear the burden of proof at trial.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). Once the movant shows there are no

genuine issues of material fact for trial, the non-movant must

proffer specific facts demonstrating “a genuine issue for trial.”

Parks Real Estate Purchasing Grp. v. St. Paul Fire & Marine Ins.

Co., 472 F.3d 33, 41 (2d Cir. 2006) (quoting FED. R. CIV. P. 56(e)).

On a motion for summary judgment the Court considers the

“pleadings, deposition testimony, answers to interrogatories and

admissions on file, together with any other firsthand information

including but not limited to affidavits.” Nnebe v. Daus, 644 F.3d

147, 156 (2d Cir. 2011). In reviewing the record, “the court is

required to resolve all ambiguities and draw all permissible

factual inferences in favor of the party against whom summary

judgment is sought.” Sheet Metal Workers’ Nat’l Pension Fund v.

Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL 6449420, at *2

(E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler Corp., 109

F.3d 130, 134 (2d Cir. 1997)). When drawing inferences from

evidence in the record in favor of the non-moving party, however,

a court should not accord the non-moving party the benefit of

“unreasonable inferences, or inferences at war with undisputed

facts.” Berk v. St. Vincent's Hosp. & Med. Ctr., 380 F. Supp. 2d

334, 342 (S.D.N.Y. 2005) (quoting County of Suffolk v. Long Island

Lighting Co., 907 F.2d 1295, 1318 (2d Cir. 1990)). Moreover,

“[t]hough [a court] must accept as true the allegations of the

party defending against the summary judgment motion, . . .

conclusory statements, conjecture, or speculation by the party

resisting the motion will not defeat summary judgment.” Kulak v.

City of New York, 88 F.3d 63, 71 (2d Cir. 1996) (internal citation

omitted) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986); Wyler v. United States, 725 F.2d 156,

160 (2d Cir. 1983)); accord Hicks v. Baines, 593 F.3d 159, 166 (2d

Cir. 2010).

II. Analysis

A. ADA Discrimination4

1. Applicable Law

Under the ADA, employers are prohibited from

“discriminat[ing] against a qualified individual on the basis of

disability in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a). The ADA requires an employer

to reasonably accommodate an employee’s known disability, unless

4 The Court addresses Plaintiff’s NYSHRL claims in conjunction with

her ADA claims, because the standards of liability under the two

statutes are coterminous. See Graves v. Finch Pruyn & Co., 457

F.3d 181, 183 n.3 (2d Cir. 2006) (“A claim of disability

discrimination under the New York State Human Rights Law . . . is

governed by the same legal standards as govern federal ADA

claims.”). The differences that distinguish the ADA from its New

York counterpart, such as the NYSHRL’s broader definition of

disability or its longer statute of limitations, are irrelevant to

the issues in this case. See Williams v. Geiger, 447 F. Supp. 3d

68. 88 (S.D.N.Y. 2020) (declining to exercise supplemental

jurisdiction over NYSHRL claims after dismissing ADA claims

because of NYSHRL’s broader definition of disability); Hernandez

v. City of New York, No. 11-CV-6644, 2015 WL 321830, at *25

(S.D.N.Y. Jan. 23, 2015) (declining to exercise supplemental

jurisdiction over NYSHRL claims after dismissing ADA claims

because of different statutes of limitations). Thus, the values

of judicial economy, convenience, fairness, and comity support the

exercise of supplemental jurisdiction over Plaintiff’s NYSHRL

claims. Henry v. N.Y.C. Health & Hosp. Corp., 18 F. Supp. 3d 396,

413 (S.D.N.Y. 2014) (exercising supplemental jurisdiction over the

plaintiff’s NYSHRL claims after dismissing Title VII claims).

the accommodation would impose an undue hardship on the employer.

Id. § 12112(b)(5)(A). To maintain a claim under the ADA, which is

subject to the burden-shifting analysis originally set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the

plaintiff-employee must show that: “(1) [she] is a person with a

disability under the meaning of the ADA; (2) an employer covered

by the statute had notice of h[er] disability; (3) with reasonable

accommodation, [the employee] could perform the essential

functions of the job at issue; and (4) the employer has refused to

make such accommodations.” Noll v. Int’l Bus. Machines Corp., 787

F.3d 89, 94 (2d Cir. 2015) (quoting McBride v. BIC Consumer Prods.

Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009)).

A reasonable accommodation may take many forms,

including modifying an employee’s job duties, McBride, 583 F.3d at

97, but to be reasonable the accommodation must be effective.

Noll, 787 F.3d at 99. While the reasonableness of an employer’s

accommodation is a “‘fact-specific’ question that often must be

resolved by a factfinder,” where “the employer has already taken

(or offered) measures to accommodate the disability, the employer

is entitled to summary judgment if, on the undisputed record, the

existing accommodation is ‘plainly reasonable.’” Id. at 94 (citing

Wernick v. Fed. Rsrv. Bank of N.Y., 91 F.3d 379, 385 (2d Cir.

1996)); see also Staron v. McDonald’s Corp., 51 F.3d 353, 356 (2d

Cir. 1995) (“[T]he determination of whether a particular

modification is ‘reasonable’ involves a fact-specific, case-by-

case inquiry that considers, among other factors, the

effectiveness of the modification in light of the nature of the

disability in question and the cost to the organization that would

implement it.”).

“To determine the appropriate reasonable accommodation

it may be necessary for the employer to initiate an informal,

interactive process” with the employee that aims to “identify the

precise limitations resulting from the disability and potential

reasonable accommodations that could overcome those limitations.”

Goonan v. Fed. Rsrv. Bank of N.Y., 916 F. Supp. 2d 470, 479–80

(S.D.N.Y. 2013) (alterations omitted) (quoting 29 C.F.R. §

1630.2(o)(3)); see also Brady v. Wal–Mart Stores, Inc., 531 F.3d

127, 135 (2d Cir. 2008) (“We have held that the ADA contemplates

that employers will engage in an ‘interactive process’ with their

employees and in that way work together to assess whether an

employee’s disability can be reasonably accommodated.”). An

employer who engages in an interactive process with its employee

will not be subject to liability under the ADA for failure to

accommodate, unless the employer is responsible for a breakdown in

the interactive process. Nugent v. St. Lukes-Roosevelt Hosp. Ctr.,

303 F. App’x 943, 946 (2d Cir. 2008); Goonan, 916 F. Supp. 2d at

480; Thompson v. City of New York, No. 03-CV-4182, 2006 WL 2457694,

at *4 (S.D.N.Y. Aug. 10, 2006) report and recommendation adopted,

2006 WL 6357978 (S.D.N.Y. Sept. 11, 2006), aff’d sub nom. Thompson

v. N.Y.C. Dep’t of Prob., 348 F. App’x 643 (2d Cir. 2009); Bohen

v. Potter, No. 04-CV-1039, 2009 WL 791356, at *13 (W.D.N.Y. Mar.

23, 2009). “An employer impedes the process when: the employer

knows of the employee’s disability; the employee requests

accommodations or assistance; the employer does not in good faith

assist the employee in seeking accommodations; and the employee

could have been reasonably accommodated but for the employer’s

lack of good faith.” Bohen, 2009 WL 791356, at *13 (citing Kratzer

v. Rockwell Collins, Inc., 398 F.3d 1040, 1045 (8th Cir. 2005)).

On the other hand, “[a]n employee who is responsible for a

breakdown of [the] interactive process may not recover for a

failure to accommodate.” Nugent, 303 F. App’x at 946. Courts

must deny motions for summary judgement when “presented with

conflicting facts about the provenance of a breakdown.” Goonan,

916 F. Supp. 2d at 480 (citing Bohen, 2009 WL 791356, at *14).

2. Application

Defendants argue they offered Plaintiff a reasonable

accommodation, but “not the accommodation Plaintiff wanted.”

(Defs. Br. at 15-16.) The Court agrees. The undisputed record

shows Defendants granted Plaintiff the precise accommodation

prescribed by her doctors; this was “plainly reasonably.” Noll,

787 F.3d at 94. While Plaintiff may have preferred a different

accommodation, “employers are not required to provide a perfect

accommodation or the very accommodation most strongly preferred by

the employee.” Id. at 95 (citing 29 C.F.R. § 1630 app’x); see

also Fink v. N.Y.C. Dep’t of Personnel, 53 F.3d 565, 567 (2d Cir.

1997). Rather, the accommodation must be effective, and this Court

will not override the opinion of Plaintiff’s physician as to the

nature of the accommodations required for his patient. See Wenc

v. New London Bd. of Educ., No. 14-CV-0840, 2016 WL 4410061, at

*14 (D. Conn. Aug. 16, 2016), aff’d, 702 F. App’x 27 (2d Cir. 2017)

(summary order). In short, Plaintiff fails to make a showing

sufficient to establish Defendants did not offer her a reasonable

accommodation, an element essential to her claim for liability

under the ADA.

A review of the timeline of events supports the Court’s

conclusion. When Plaintiff returned to work after her accident,

she informed Carroll that she was unable to archive files, which

were piling up.5 In response, Carroll conferred with Heilig and

then requested information from Plaintiff that could help

Defendants identify Plaintiff’s limitations. Plaintiff provided

5 Defendants appear to suggest that Plaintiff did not request an

accommodation until her January 14 correspondence with Stankewicz.

(Pl. 56.1 Resp. ¶ 95.) That characterization of the facts is not

supported by caselaw in this Circuit, which recognizes an employer

may be obligated to provide a reasonable accommodation when it

perceives an employee is disabled, whether or not the employee

asked for an accommodation. See, e.g., Brady, 531 F.3d at 135-

36. Thus, the Court recognizes Plaintiff first requested an

accommodation when she emailed Carroll in December 2013 regarding

her limitations.

Carroll some of the requested information, -i-.e-.-, the King Note.

Carroll followed up with an archiving-specific question to better

understand the process involved and how Defendants could

accommodate Plaintiff’s request. This exemplifies the interactive

process the ADA envisions.

The parties dispute what then transpired between

Plaintiff and Carroll on January 7, 2014, when Carroll approached

Plaintiff about her archiving responsibilities. Plaintiff argues

that the January 7 encounter demonstrates that Defendants failed

to abide by the proposed accommodation to limit Plaintiff’s

archiving responsibilities to files weighing less than five

pounds, consistent with her doctors’ notes. (Pl. 56.1 Resp. ¶¶

105-06 (disputing Defendants’ offer to limit Plaintiff’s archiving

responsibilities to files weighing less than five pounds as “not

actually the practice” because “Defendant Carroll did make her

lift heavy objects over 5 pounds”).) But the Court finds this

dispute does not preclude summary judgment for the following

reasons.

First, while Plaintiff claims that Carroll forced her to

archive files that weighed more than five pounds, in contravention

of the King Note limitations, Plaintiff has not supported this

claim with competent evidence. Of course, defendants who fail to

honor and abide by a granted accommodation effectually refuse to

accommodate the plaintiff, and on such facts summary judgment for

the employer would not be appropriate. See Lambert v. Trump Int’l

Hotel & Tower, 304 F. Supp. 3d 405, 422 (S.D.N.Y. 2018) (stating

that employer is entitled to summary judgment if it has offered to

or taken measures to accommodate plaintiff-employee’s disability

where the undisputed record shows the accommodation is “plainly

reasonable,” and plaintiff-employee’s suggestion defendant-

employer failed to honor the accommodation was “belied by his sworn

testimony”); Wells v. Achievement Network, No. 18-CV-6588, 2021 WL

810220, at *16 (S.D.N.Y. Mar. 2, 2021); Payne v. Cornell Univ.,

No. 18-CV-1442, 2021 WL 39684, at *17 (N.D.N.Y. Jan. 5, 2021).

However, Plaintiff fails to support such a claim with evidence in

the record, as the foregoing cases require. E.g., Wells, 2021 WL

810220, at *16 (finding plaintiff-employee failed to support

allegation that defendant-employer did not abide by plainly

reasonable accommodation, especially where defendants put forth

sworn testimony and documentary evidence to the contrary). At

most, Plaintiff cites to her own deposition testimony to show

Carroll forced her to archive files weighing more than five pounds.

(Pl. 56.1 Resp. ¶¶ 105-06 (citing Plaintiff’s deposition

testimony).) “At the summary judgment stage, however, many courts

have deemed it necessary to cite to more than one’s own deposition

testimony to create a genuine dispute of fact.” Caria v. Metro-

North Commuter R.R., 457 F. Supp. 3d 301, 312 (S.D.N.Y. 2020)

(citing cases).

In any event, here, Plaintiff’s testimony on this point

is inconsistent. Cf. Cleveland v. Policy Management Sys. Corp.,

526 U.S. 795, 806 (1999) (observing “virtual unanimity” among lower

courts that “a party cannot create a genuine issue of fact

sufficient to survive summary judgment simply by contradicting his

or her own previous sworn statement . . . without explaining the

contradiction or attempting to resolve the disparity”). For

example, Plaintiff testified at her deposition that Carroll

acknowledged the five-pound limitation during the January 7

encounter. (Pl. Depo. Tr. at 66:14-20; 67:25-68:7; see also Pl.

Opp. at 3.) Indeed, Plaintiff does not dispute that Carrol

“indicated to Plaintiff that he was aware of the five-pound

limitation and advised her not to lift anything more than that

weight,” and that “if she thought that anything was heavy, she was

not to touch it.” (Pl. 56.1 Resp. ¶ 82). Rather, Plaintiff

asserts Carroll “told her to put the box on the floor, bend over

to pick up the files, enter the information into the computer,

from a sitting position, and put the files in the box,” at which

point Carroll or someone else would move the boxes for Plaintiff.

(Id.) Nothing in this instruction violates the five-pound

limitation, which Plaintiff concedes Carroll acknowledged.

Indeed, Plaintiff does not dispute that Carroll weighed the files

Plaintiff had archived on January 7 to “confirm that none of the[m]

weighed over five pounds.” (Pl. 56.1 Resp. ¶ 121.)

Second, the summary judgement record does not support

the conclusion that Carroll’s conduct on January 7 caused a

breakdown in the interactive process, thus giving rise to ADA

liability, because the undisputed facts show Plaintiff tendered

several follow-up requests for an accommodation that Defendants

promptly granted, thereby undermining any claim of an “objectively

reasonable perception that the process [was] clearly at an end.”

Goonan v. Fed. Rsrv. Bank of N.Y., No. 12-CV-3859, 2014 WL 3610990,

at *7-8 (S.D.N.Y. July 22, 2014) (indicating as examples of ending

the ADA interactive process (1) repeated denials of a request at

several levels of a defendants’ corporate hierarchy and

(2) statements that defendant was “not going to change its mind”)

(quoting Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 739 (5th Cir.

1999)). Unlike the defendant’s managers in Goonan, here,

Defendants’ human resources and risk management personnel did not

deny Plaintiff’s requests; they simply referred Plaintiff to

Carroll, who granted her an accommodation consistent with her

doctors’ notes within two days’ time. And “even if [Carroll’s]

statements [in response to Plaintiff’s request for accommodation]

might be found to have evinced a degree of hostility towards

[her],” Plaintiff admits that after the exchange with Carroll she

“continued to seek an accommodation from [Stankewicz, Defendants’]

Director of Human Resources.” Gingold v. Bon Secours Charity

Health Sys., 768 F. Supp. 2d 537, 544, 546 (S.D.N.Y. 2011)

(concluding the plaintiff “unilaterally and prematurely terminated

the reasonable accommodation process” when he (1) pursued an

accommodation with human resources after being informed by his

supervisor that the defendant would not accommodate his

disability, and (2) resigned before the defendant’s human

resources personnel could investigate his request). Moreover, it

is undisputed that, after Plaintiff formally requested an

accommodation on January 14, Plaintiff left work on January 15

“with no intention of going back.” Thus, similar to the facts in

Gingold, under these circumstances, no reasonable jury could find

that Defendants, rather than Plaintiff herself, terminated the

interactive process for discussing accommodations. See id.; see

also Nugent, 303 F. App’x at 946.

To be certain, to the extent Defendants suggest that

when Carroll spoke to Plaintiff on January 7, Defendants already

had granted Plaintiff’s request for a reasonable accommodation,

consistent with the King Note limitations, the Court is

unpersuaded. The undisputed facts do not indicate Defendants

communicated this accommodation to Plaintiff, even if Carroll and

Heilig understood the accommodation to have been provided. Thus,

when Carroll encountered Plaintiff on January 7, Defendants had

not granted Plaintiff an accommodation. See E.E.O.C. v. Yellow

Freight Sys., Inc., No. 98-CV-2270, 2002 WL 31011859, at *22

(S.D.N.Y. Sept. 9, 2002) (concluding employer’s purported offer

could not be considered a reasonable accommodation where there was

no evidence at trial the employer ever made the offer to the

plaintiff).6 However, a little more than a week later and only

two days after Plaintiff submitted a renewed request, Defendants

extended Plaintiff an accommodation, as shown in the Heilig Memo.

Plaintiff admits she received the Heilig Memo but disputes whether

it granted her a reasonable accommodation. “In cases where a

plaintiff claims she was offered or given an unreasonable

alternative accommodation, the court looks to the alternative

accommodation to determine whether it was plainly reasonable.”

Durick v. N.Y.C. Dep’t of Educ., 202 F. Supp. 3d 277, 292 (E.D.N.Y.

2016). “If the accommodation proposed by defendants was

reasonable, then, defendants may not be held liable under the ADA,

since plaintiff has no right to insist on her own preferred

accommodation instead.” Bielski v. Green, 674 F. Supp. 2d 414,

424 (W.D.N.Y. 2009).

In this instance, as the Heilig Memo demonstrates,

Defendants granted Plaintiff a plainly reasonable accommodation

that was consistent with her doctors’ notes. Wenc v. New London

6 While Plaintiff does not raise the argument, the Court finds that

any delay in granting Plaintiff an accommodation does not

constitute disability-based discrimination, because any delay was

the product of “mere negligence,” not “motivated by the employer’s

discriminatory intent.” Clark v. Jewish Childcare Ass’n, Inc., 96

F. Supp. 3d 237, 260 (S.D.N.Y. 2015) (quoting Logan v. Matveevskii,

57 F. Supp. 3d 234, 258 (S.D.N.Y. 2014) (collecting cases)).

Bd. of Educ., 702 F. App’x 27, 30-31 (2d Cir. 2017) (summary order)

(affirming district court’s conclusion that the defendants’

provision of an accommodation that was consistent with the

recommendation of a neutral physician was plainly reasonable).

Plaintiff’s spine surgeon advised Plaintiff was “unable to lift,

bend, twist, or push any object over five pounds.” (Second

Accommodation Request, Ex. G; see also King Note, Ex. F (“no

lifting over 5 pounds; no bending, pushing exercises”).) Per the

Heilig Memo, Defendants granted Plaintiff that accommodation,

advising she was not to “‘lift, bend, twist or push any object

over five pounds’ and if you believe any file you had to ‘lift,

bend, twist or push’ in connection with your job function weighs

in excess of five pounds you are not to touch that file.” (Heilig

Memo, Ex. H.) Because this accommodation adhered to the five-

pound limitation prescribed in Plaintiff’s doctors’ notes, it was

plainly reasonable. See Bielski, 674 F. Supp. at 426 (finding

accommodations that were consistent with “the medical evidence and

opinions of the physicians who treated and examined plaintiff”

were plainly reasonable, notwithstanding the plaintiff’s

insistence on a preferred accommodation). While Plaintiff may

have preferred a different accommodation -- namely, relief from

all archiving responsibilities -- “employers are not required to

provide a perfect accommodation or the very accommodation most

strongly preferred by the employee.” Noll, 787 F.2d at 95. “All

that is required is effectiveness.” Id. In this case, the Court

finds Defendants’ accommodation was effective since it embodied

the limitations prescribed in Plaintiff’s doctors’ notes.

Finally, as the Second Circuit has recognized under

separate provisions of the ADA, “the ADA does not impose a civility

code.” Krist v. Kolombos Restaurant Inc., 688 F.3d 89, 97 (2d

Cir. 2012) (rejecting contention that Title III of the ADA imposes

a civility code); Camarillo v. Carrols Corp., 518 F.3d 153, 157

(2d Cir. 2008) (vacating dismissal order of plausible Title III

denial-of-service claim, while “not disagree[ing] . . . that

legislation such as the ADA cannot regulate individuals’ conduct

so as to ensure that they will never be rude or insensitive to

persons with disabilities”). Thus, even assuming Carroll yelled

at Plaintiff and mistreated her on January 7, viewing the facts in

the light most favorable to Plaintiff as the non-moving party,

summary judgment is appropriate because Defendants offered

Plaintiff the accommodation her doctors prescribed. As a result,

the parties’ remaining disputes as to what happened that day --

i.e., the manner in which Carroll addressed Plaintiff; whether

Carroll approached Plaintiff alone or with Assistant DA Hornig; or

whether Carroll’s proposal to transfer Plaintiff was an

“ultimatum” or good faith offer to a disgruntled employee -- are

immaterial.

Plaintiff advances a few additional arguments, all of

which are unavailing. Plaintiff contends that the five-pound

limitation prescribed by her doctors was distinct from the “lift,

bend, twist, or push” limitation. She also takes issue with the

final paragraph of the Heilig Memo, which advised Plaintiff that,

in the event she was unable to perform her job responsibilities,

even with the accommodation, she would have to take medical leave.

However, “the interactive process is a two-way street.” Dillard

v. City of Austin, 837 F.3d 557, 563 (5th Cir. 2016). Thus, to

the extent there was any ambiguity as to what her doctors

recommended, the proper course was for Plaintiff to raise that

issue with Defendants during the interactive process. Instead,

Plaintiff abandoned that process without clarifying Defendants’

proposed accommodation, as noted supra. The same reasoning applies

to the final paragraph in the Heilig Memo: if Plaintiff did not

understand the terms of the accommodation, then she had an

obligation to seek clarification. See Nugent, 303 F. App’x at 946

(holding plaintiff-employee responsible for breakdown of

interactive process where defendant-employer signaled

receptiveness to her proposed accommodation but plaintiff-employee

“failed to follow up”). But by the time she received the Heilig

Memo, Plaintiff had resolved to take medical leave. Further, the

parties dispute whether archiving is an essential function of

Plaintiff’s job as a Clerk Typist. However, “the plain

reasonableness of the existing accommodation ends the analysis.”

Noll, 787 F.3d at 94.

Accordingly, Defendants’ motion for summary judgment as

to Plaintiff’s ADA and NYSHRL discrimination claims is GRANTED,

and Plaintiff’s ADA and NYSHRL discrimination claims, which are

governed by the same standard, see Noll, 787 F.3d at 94, are

DISMISSED.

B. ADA Retaliation7

To make out a prima facie claim of retaliation, the

plaintiff must show that (1) she engaged in ADA-protected activity

(2) of which defendants were aware, (3) she was subjected to an

adverse employment action, and (4) a causal connection existed

between the adverse employment action and her protected activity.

See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).

Defendants then must proffer a non-discriminatory rationale for

the challenged action, whereupon the burden shifts back to the

plaintiff to show that defendants’ rationale is pretextual. See

id. at 721; see also Ragusa v. Malverne Union Free Sch. Dist., 381

F. App’x 85, 89 (2d Cir. 2010).

7 Again, the Court addresses Plaintiff’s NYSHRL retaliation claims

in conjunction with her ADA retaliation claim, because the

standards of liability under the two statutes are coterminous.

See Caputo v. Copiague Union Free Sch. Dist., 218 F. Supp. 3d 186,

194 (E.D.N.Y. 2016) (applying Title VII retaliation standard to

ADA and NYSHRL claims).

Defendants do not contest that Plaintiff’s requests for

accommodation are protected activities. See Gorbea v. Verizon

N.Y., Inc., No. 11–CV–3758, 2014 WL 917198, at *11 (E.D.N.Y. Mar.

10, 2014) (“Requests for disability accommodation and complaints,

whether formal or informal, about working conditions related to

one’s alleged disability are protected activities.”). Nor do they

dispute the second and third elements of a prima facie retaliation

case. Rather, Defendants maintain that there is no causal

connection between any protected activities and the adverse action

of Plaintiff’s termination, which occurred one year after her

absence on medical leave. (Defs. Br. at 21.)

“Contrary to Defendants’ assertion, however, Plaintiff’s

termination is not the only potential adverse employment action

for purposes of her retaliation claim.” Wagner v. County of

Nassau, No. 11-CV-1613, 2014 WL 3489747, at *8 (E.D.N.Y. July 11,

2014) (Seybert, J.). Rather, “the key inquiry is whether the

effect of defendants’ decision was ‘materially adverse,’ i.e.,

‘harmful to the point that [it] could well dissuade a reasonable

worker from making or supporting a charge of discrimination.’”

Ragusa, 381 F. App’x at 90 (quoting Hicks v. Baines, 593 F.3d 159,

165 (2d Cir. 2010) (alterations in original)). Similar to this

Court’s analysis in Wagner, the Court focuses its analysis on

Plaintiff’s claim that “Defendants retaliated against [Plaintiff]

by forcing her to take leave . . . .” (Pl. Opp. at 15); see also

Wagner, 2014 WL 3489747, at *9 (“[I]nvoluntary leave or unjustified

charging of sick days can be a sufficient adverse action.”

(citations omitted)).

However, the undisputed record does not support the

argument that Plaintiff was forced to take medical leave. In

essence, Plaintiff argues that because she preferred a different

accommodation -- relief from all archiving responsibilities -- her

decision to go on leave when Defendants declined to extend that

accommodation was forced. But as noted supra, an employer has

discretion to choose a reasonable accommodation for its disabled

employees, and the proposed accommodation based on Plaintiff’s

doctors’ notes was plainly reasonable here. Fink, 53 F.3d at 567;

Noll, 787 F.2d at 95. As a result, the accommodation does not

constitute an adverse employment action because it did not

disadvantage Plaintiff in a materially significant way. Wenc,

2016 WL 4410061, at *17 (finding plaintiff could not show he

suffered an adverse employment action to survive summary judgment

on his ADA retaliation claim based on arguments that the

defendants, who offered the plaintiff reasonable accommodations,

had forced him to take medical leave). Plaintiff “confuses the

allegedly discriminatory action of failing to accommodate [her]

disability with retaliation for seeking an accommodation.” Id.

Accordingly, Defendants’ motion for summary judgment as

to Plaintiff’s ADA and NYSHRL retaliation claims is GRANTED, and

Plaintiff’s ADA and NYSHRL retaliation claims, which are governed

by the same standard, are DISMISSED.8

C. Section 1983

Plaintiff’s Section 1983 claim for Monell liability

fares no better. In her Amended Complaint, Plaintiff block quotes

Section 1983 and states simply that “Defendants denied Plaintiff

her rights under [the ADA].” (Am. Compl. ¶¶ 88-89.) Four years

into this litigation, it remains unclear what theory of Monell

liability Plaintiff advances. However, reviewing the parties’

briefing, the Court construes Plaintiff as asserting a claim for

Monell liability based on Defendants’ alleged failure to

accommodate Plaintiff. (See Pl. Opp. at 16 (arguing “Defendants’

failure to accommodate Plaintiff was the product of an established

policy or custom”).)9 But “[t]o the extent that [Plaintiff] also

asserts claims under § 1983 to vindicate h[er] ADA rights, those

8 Moreover, summary judgment on Plaintiff’s aiding and abetting

claim under the NYSHRL is appropriate, because the predicate to

imposing individual aider and abettor liability is impermissible

discrimination. Boonmalert v. City of New York, 721 F. App’x 29,

34 (2d Cir. 2018) (summary order) (“Since there is no underlying

NYSHRL . . . violation, there was no aiding or abetting of acts

forbidden by the NYSHRL.”).

9 While Plaintiff’s Section 1983 claim is asserted against all

Defendants, in her opposition, Plaintiff confines her arguments to

the County, and therefore a Monell theory of liability. As a

result, Plaintiff has waived the argument that Carroll or Heilig

are liable under Section 1983 for failing to accommodate Plaintiff.

See Stryker Sheet Metal II Corp. v. Harleysville Ins. Co., No. 16-

CV-05916, 2018 WL 654445, at *11 (E.D.N.Y. Jan. 31, 2018).

claims should be dismissed as [s]he has not shown an underlying

violation of the ADA.” Wiltz v. New York Univ., No. 18-CV-0123,

2019 WL 721658, at *11 (S.D.N.Y. Feb. 1, 2019), report and

recommendation adopted, 2019 WL 720700 (S.D.N.Y. Feb. 19, 2019);

see also E.H. v. Bd. of Educ., No. 05-CV-0972, 2008 WL 3930028, at

*14 (N.D.N.Y. Aug. 21, 2008) (dismissing Section 1983 claim

premised on ADA violations where the plaintiff failed to state ADA

claim).

Even if the Court were to conclude that Plaintiff’s

reasonable accommodation claim under the ADA survived summary

judgment, it would still grant summary judgment as to her Monell

claim. It is well established that a municipality such as the

County cannot be held liable under Section 1983 on a respondeat

superior theory. See Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 691 (1978); Roe v. City of Waterbury, 542 F.3d 31, 36 (2d

Cir. 2008). Rather, “[w]hen a defendant sued for discrimination

under §§ 1981 or 1983 is a municipality, ‘the plaintiff is required

to show that the challenged acts were performed pursuant to a

municipal policy or custom.’” Littlejohn v. City of New York, 795

F.3d 297, 314 (2d Cir. 2015) (quoting Patterson v. County of

Oneida, 375 F.3d 206, 229 (2d Cir. 2004)). The plaintiff can

satisfy the municipal policy requirement by alleging:

(1) a formal policy officially endorsed by the

municipality; (2) actions or decisions made by

municipal officials with decision-making

authority; (3) a practice so persistent and

widespread that it constitutes a custom

through which constructive notice is imposed

upon policymakers; or (4) a failure by

policymakers to properly train or supervise

their subordinates, such that the policymakers

exercised ‘deliberate indifference’ to the

rights of the plaintiff.

Ying Li v. City of New York, 246 F. Supp. 3d 578, 636 (E.D.N.Y.

2017) (citing Second Circuit decisions).

Plaintiff attempts to satisfy the municipal policy

requirement by showing a formal policy officially endorsed by the

County or a widespread practice or custom. (See Pl. Opp. at 16.)

“To demonstrate a de facto policy or custom through a widespread

practice, a plaintiff must ‘show that the policymaker was aware of

a subordinate’s unconstitutional actions, and consciously chose to

ignore them, effectively ratifying the actions.’” Buari v. City

of New York, No. 18-CV-12299, 2021 WL 1198371, at *22 (S.D.N.Y.

Mar. 30, 2021) (quoting Amnesty America v. Town of West Hartford,

361 F.3d 113, 126 (2d Cir. 2004)). To do so, the plaintiff can

“cit[e] to complaints in other cases that contain similar

allegations,” provided those complaints “involve factually similar

misconduct, [are] contemporaneous to the misconduct at issue in

the plaintiff’s case, and result in an adjudication of liability.”

Jackson v. Nassau County, No. 18-CV-3007, 2021 WL 3207168, at *17

(E.D.N.Y. July 28, 2021) (quoting Buari, 2021 WL 1198371, at *22).

Here, Plaintiff has not adduced evidence developed through

discovery of similar lawsuits, grievances, or complaints against

the County for failing to accommodate individuals with

disabilities. Without such information, the Court is unable to

conclude that failing to accommodate disabled individuals, as

required under the ADA, is a practice “so widespread as to have

the force of law.” Board of County Comm’rs v. Brown, 520 U.S.

397, 404 (1997); see also City of St. Louis v. Praprotnik, 485

U.S. 112, 127 (1988) (“[T]he Court has long recognized that a

plaintiff may be able to prove the existence of a widespread

practice that, although not authorized by written law or express

municipal policy, is ‘so permanent and well settled as to

constitute a “custom or usage” with the force of law.’”) (quoting

Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–168 (1970)).

“Although Plaintiff alleges that policymakers ‘tolerated’ a policy

or custom of [ADA] violations, [s]he provides no examples beyond

what occurred in h[er] own case, which is insufficient.” Paulin

v. City of Beacon, No. 17-CV-5105, 2019 WL 4274211, at *7 (S.D.N.Y.

Sept. 10, 2019). Thus, Plaintiff’s widespread practice or custom

theory fails.

Nor can Plaintiff’s Monell claim proceed under a formal

policy theory. In support of this theory, Plaintiff relies on

Defendants’ statements that the County does not offer light duty,

including in the final paragraph of the Heilig Memo. (See Defs.

56.1 Resp. (arguing final paragraph “represented there was a

systematic, custom, policy and/or practice, that routinely denied

Defendant County’s disabled employees of rights afforded to them

under the federal law”).) However, the Court disagrees that this

paragraph demonstrates a formal policy of discrimination under the

ADA, because the policy was not “officially endorsed” by the

County. To the contrary, Plaintiff concedes that this was not

County policy, as the County Director of Labor Relations testified.

(Pl. 56.1 Resp. ¶ 95.)

Accordingly, Defendants’ motion for summary judgment as

to Plaintiff’s Section 1983 claim is GRANTED, and Plaintiff’s

Section 1983 claim is DISMISSED.

CONCLUSION

For the stated reasons, Defendants’ motion for summary

judgment is GRANTED. The Clerk of the Court is directed to mark

this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT_________

Joanna Seybert, U.S.D.J.

Dated: August 19 , 2021

Central Islip, New York