"As a general matter, ... unsworn letters from physicians generally are inadmissible hearsay that are an insufficient basis for opposing a motion for summary judgment"
How later courts described this case
- "As a general matter, ... unsworn letters from physicians generally are inadmissible hearsay that are an insufficient basis for opposing a motion for summary judgment"
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
MARY ELLEN BUCKHOUT,
Plaintiff,
vs. 5:19-CV-01602
(MAD/TWD)
NEW YORK STATE, STATE UNIVERSITY
OF NEW YORK, UPSTATE MEDICAL
UNIVERSITY,
Defendants.
____________________________________________
APPEARANCES: OF COUNSEL:
JAMES D. HARTT, JAMES D. HARTT, ESQ.
ATTORNEY AT LAW
6 North Main Street, Suite 200f
Fairport, New York 14450
Attorney for Plaintiff
NEW YORK STATE JONATHAN REINER, AAG
ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorney for Defendants
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Mary Ellen Buckhout commenced this action on December 23, 2019, against
Defendants New York State, State University of New York, and Upstate Medical University
("Upstate"), asserting discrimination claims under (1) Section 504 of the Rehabilitation Act of
1973 ("Rehabilitation Act"); and (2) the New York State Human Rights Law ("NYSHRL"). See
Dkt. Nos. 1, 11. In May 2020, the parties entered into a stipulation dismissing Plaintiff's
NYSHRL claims pursuant to Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure. See Dkt.
No. 22. Currently before the Court is Defendants' motion for summary judgment on Plaintiff's
Rehabilitation Act claim. See Dkt. No. 45. For the reasons that follow, Defendants' motion is
granted.
II. BACKGROUND
On August 29, 2013, Plaintiff began working for Upstate in the Inpatient Psychiatric Unit
as a Teaching and Research Center Nurse 2. See Dkt. No. 45-2 at ¶¶ 1, 3. In 2016, Upstate
promulgated a written job description for Teaching and Research Center Nurse 2 which classified
the position as "heavy work," which was defined as "[e]xerting up to 100 pounds of force
occasionally, and/or up to 50 pounds of force frequently, and/or up to 20 pounds of force
constantly to move objects." Dkt. No. 45-3 at 12.1 The written job description also stated that the
position required "[l]ifting, carrying, or exerting force ... [c]ontinuously (67-100%)." Id. A
Teaching and Research Center Nurse 2 may be unexpectedly called to assist a patient off of the
floor, give direct care to a patient who has become seriously ill, apply restraints to a violent
patient or visitor until security arrives, or move furniture or equipment for safety. See Dkt. No.
45-2 at ¶¶ 14, 17; Dkt. No. 52-2 at ¶¶ 14, 17.
On April 9, 2018, Plaintiff began a medical leave of absence. See Dkt. No. 45-2 at ¶¶ 2,
27. On April 13, 2018, Upstate sent Plaintiff a letter apprising her of her rights under the Family
and Medical Leave Act ("FMLA") and the Americans with Disabilities Act ("ADA"), and
informing her that, upon a request in writing, Upstate would evaluate her case and "make
reasonable accommodations" for "an otherwise qualified employee with a disability." Dkt. No.
45-3 at 15. The letter also informed Plaintiff that she was required to submit the enclosed
1 At the time Plaintiff applied to this position, the job description stated only that
"[o]ccasional lifting" would be required. Dkt. No. 45-3 at 10.
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"Certification of Health Care Provider (CHCP) for your Serious Health Condition" (the "CHCP
form") completed by her healthcare provider before she could return to work. Id.
On May 7, 2018, Upstate received a CHCP form signed by Dr. Po Lam, M.D., indicating
that Plaintiff was being treated for "[k]idney [s]tones causing hydronephrosis requiring [s]tent
placement," and had surgery scheduled for May 12, 2018. Id. at 20. Dr. Lam indicated that
Plaintiff was unable to perform any "[s]trenuous activity" or "heavy lifting," and estimated that
the probable duration of that condition would be until May 28, 2018. Id. Upstate sent Plaintiff a
letter the following day acknowledging receipt of the CHCP form and stating that, if she was
"unable to return to work on 5/28/18 as the medical documentation signed on 5/4/18 indicate[d],"
she would be required to submit an updated CHCP form to support her continued absence. Id.
This letter also informed Plaintiff that
If you are cleared to return to work prior to 5/28/2018, you must
submit the enclosed CHCP form prior to reporting to work. Please
be advised that as noted in the attached FMLA Designation Notice,
we have the right to obtain an additional medical certification at our
expense (e.g. return to work medical examination by a physician
selected by [Upstate]) prior to your return to work.
Id. at 24. On May 10, 2018, Upstate received a letter from "Associated Medical Professionals"
with a box checked indicating that Plaintiff could "return to WORK/SCHOOL on 05/30/2018
with ... no restrictions." Id. at 27. This letter was not signed by a physician.
On May 24, 2018, Upstate sent a letter to the Employee Health Service Medical
Examination Center ("EHS")2 requesting a medical examination "to determine the ability of
[Plaintiff] to return to work as [a Teaching and Research Center Nurse] 2 at Upstate." Dkt. No.
45-3 at 29. On June 1, 2018, Upstate sent Plaintiff a letter informing her that she had been
2 EHS is a branch of the New York State Department of Civil Service.
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"scheduled for a medical examination to determine if [she was] fit to perform [her] duties" and
that she should bring "any information from [her] personal physician that [she felt] would be
helpful in reaching a decision." Id. at 39. EHS performed the medical examination as requested
and, on June 25, 2018, Upstate received a letter from the examining doctor stating that Plaintiff
was "not able to perform the full duties of a Teaching and Research Center Nurse 2." Id. at 41.
Although the actual examination results were not provided at the time, a full report from EHS was
provided on July 30, 2018, upon Defendants' request. See Dkt. No. 52-7.
Upstate sent Plaintiff a letter the next day stating that, despite her requests "to be restored
to duty," Upstate was converting her to involuntary leave based on the EHS medical examination.
Dkt. No. 45-3 at 43. The letter explained that "[t]his action is taken because there is probable
cause to believe that your continued presence on the job represents a potential danger to person or
property or would severely interfere with operations." Id. The letter covered the rights available
to Plaintiff, such as the Civil Service Law Section 72 leave and appeal process, and further noted
that, if Plaintiff believed "at any time during [her] leave" that she could perform the essential
duties of her position with a reasonable accommodation, she should contact Upstate via phone or
in writing to receive an application. Id. at 44.
On July 9, 2018, Plaintiff mailed a letter to Upstate objecting to the determination of
unfitness and requesting a hearing. See id. at 46. Ultimately, however, Plaintiff withdrew her
hearing request and retired from Upstate effective December 12, 2018. See id. at 62. Plaintiff
never requested an accommodation from Upstate at any point prior to her retirement. See Dkt.
No. 45-6 at 10-11.
Defendants now argue that their motion for summary judgment should be granted because
"the record evidence demonstrates that [P]laintiff was not otherwise qualified" to perform the
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essential functions of her job even with a reasonable accommodation. Dkt. No. 45-1 at 12.
Plaintiff opposes the motion, arguing that "all of [the] evidence points to that fact" that she "was
fit to perform the essential functions of her job." Dkt. No. 52 at 7.
III. DISCUSSION
A. Standard of Review
A court may grant a motion for summary judgment only if it determines that there is no
genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at
36-37 (quotation and other citation omitted). Substantive law determines which facts are
material; that is, which facts might affect the outcome of the suit under the governing law. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258 (1986). In assessing the record to determine
whether any such issues of material fact exist, the court is required to resolve all ambiguities and
draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36
(citing Anderson, 477 U.S. at 255) (other citations omitted). Irrelevant or unnecessary facts do
not preclude summary judgment, even when they are in dispute. See Anderson, 477 U.S. at 258.
The moving party bears the initial burden of establishing that there is no genuine issue of
material fact to be decided. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). With respect
to any issue on which the moving party does not bear the burden of proof, it may meet its burden
on summary judgment by showing that there is an absence of evidence to support the nonmoving
party's case. See id. at 325. Once the movant meets this initial burden, the nonmoving party must
demonstrate that there is a genuine unresolved issue for trial. See Fed. R. Civ. P. 56(e). A
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genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. The Rehabilitation Act of 1973
"Rehabilitation Act claims are governed under the familiar burden-shifting analysis set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Frantti v. New York, 850
Fed. Appx. 17, 19 (2d Cir. 2021). Thus, Plaintiff bears the initial "'burden of proving by the
preponderance of the evidence a prima facie case of discrimination.'" Id. (quoting Texas Dep't of
Cmty. Affs. v. Burdine, 450 U.S. 248, 252-53 (1981)). To establish a prima facie case of
discrimination based on an employer's failure to accommodate a disability, a plaintiff must
demonstrate that
"(1) [the plaintiff] is a person with a disability under the meaning of
[the statute in question]; (2) an employer covered by the statute had
notice of his disability; (3) with reasonable accommodation,
plaintiff could perform the essential functions of the job at issue;
and (4) the employer has refused to make such accommodations."
Natofsky v. City of New York, 921 F.3d 337, 352 (2d Cir. 2019) (quoting McBride v. BIC
Consumer Prods. Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009)).3
As noted above, Defendants argue that Plaintiff cannot establish that she could perform
the essential functions of her job with a reasonable accommodation. See Dkt. No. 45-1 at 12.
More specifically, Defendants assert that the ability to exert significant force was one of the
essential functions of Plaintiff's job, and that they had no obligation to offer a reasonable
accommodation that eliminates an essential function. Id. at 13. In opposition, Plaintiff challenges
3 "Because the ADA and the Rehabilitation Act are very similar, [the Court] may 'look to
caselaw interpreting one statute to assist ... in interpreting the other.'" Hodges v. Holder, 547 Fed.
Appx. 6, 7 (2d Cir. 2013) (quoting Francis v. City of Meriden, 129 F.3d 281, 284 n.4 (2d Cir.
1997)).
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Defendants' claim that the ability to exert significant force was an essential function and argues
that, in any event, the May 10 letter from Associated Medical Professionals—which stated that
Plaintiff could return to work with no restrictions—satisfied her prima facie burden to show that
she "could perform the essential functions of the job at issue." Dkt. No. 52 at 8.
A reasonable accommodation may include, inter alia, job restructuring, part-time or
modified work schedules, acquisition of devices to assist the performance of job duties, and,
under certain circumstances, reassignment to a vacant position. See 42 U.S.C. § 12111(9)(B); see
also McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F.3d 92, 97 (2d Cir. 2009).
However, a reasonable accommodation may "never involve the elimination of an essential
function of a job." Shannon v. New York City Transit Auth., 332 F.3d 95, 101 (2d Cir. 2003)
(citing Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir. 1991)). "EEOC regulations define 'essential
functions' to mean the 'fundamental' duties to be performed in the position in question, but not
functions that are merely 'marginal.'" Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d
113, 120 (2d Cir. 2004) (quotation omitted). "'In approaching this inquiry, a court must give
considerable deference to an employer's judgment regarding what functions are essential for
service in a particular position.'" Frantti, 850 Fed. Appx. at 20 (quoting Shannon, 332 F.3d at
100). "It may also consider as evidence 'written job descriptions, the amount of time spent on the
job performing the function, and the consequences of not requiring the plaintiff to perform the
function.'" Id. (quoting Rodal, 369 F.3d at 120-21).
Initially, the Court finds that the ability to exert significant force was an essential function
of Plaintiff's job. The written job description for Plaintiff's position described it as "heavy work"
requiring "[e]xerting up to 100 pounds of force occasionally" and "[l]ifting, carrying, or exerting
force ... [c]ontinuously." Dkt. No. 45-3 at 12. Furthermore, Plaintiff does not contest Rose
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Valentino's testimony that a nurse in Plaintiff's position may be unexpectedly called to apply
restraints to a violent patient or visitor until security arrives, move furniture or equipment for
safety, or give direct care to a patient who has become seriously ill. See Dkt. No. 52-2 at ¶¶ 14,
17; Dkt. No. 45-5 at ¶¶ 3, 6. As Valentino testified, having a nurse "on a psychiatric unit who
cannot meet the physical demands of the job creates a serious safety issue for the nurse, [their]
colleagues, and patients." Dkt. No. 45-5 at ¶ 9. In reply, Plaintiff asserts that there "were no
fewer than 5 slightly built nurses on the Psychiatric Unit," one of whom "was pregnant during the
time period at issue" and another whom had "herniated disks." Dkt. No. 52-1 at ¶ 1. In support of
that claim, Plaintiff cites only her own affidavit, which does not actually identify any of these
alleged individuals or provide any evidence supporting her claim that they could not exert the
amount of force required by Defendants. See Dkt. No. 52-4 at ¶ 18. Plaintiff's unsupported
speculation about unidentified employees is insufficient to create a triable issue of fact. See Fed.
R. Civ. P. 56(c)(4) ("An affidavit or declaration used to support or oppose a motion [for summary
judgment] must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters stated").
Accordingly, the Court finds that Defendants have established that the ability to exert significant
force was one of the essential functions of Plaintiff's job and, therefore, that Defendants had no
duty to offer a reasonable accommodation eliminating this requirement.
Plaintiff also fails to establish a triable issue of fact as to whether she could perform the
essential functions of her job. The only medical evidence that Plaintiff submits in support of her
claim is (1) the unsworn and unsigned May 10 letter from Associated Medical Professionals
which asserts, without elaboration, that Plaintiff could return to "WORK/SCHOOL" on May 30
4 The Deputy Director of Psychiatric Inpatient Nursing Services at Upstate.
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with "no restrictions," Dkt. No. 45-3 at 27; and (2) an unsworn letter from Dr. Lam describing the
"timeline of her office visit and subsequent hospitalization" and stating that, on May 30, Plaintiff
was "released back to work with no restrictions," Dkt. No. 52-6 at 2. Initially, these
letters—insofar as they are offered to prove the truth of the assertions made therein—are
inadmissible hearsay. See Capobianco v. City of New York, 422 F.3d 47, 55 (2d Cir. 2005) ("As a
general matter, ... unsworn letters from physicians generally are inadmissible hearsay that are an
insufficient basis for opposing a motion for summary judgment").5 Even if these letters were
admissible, they are insufficient to create a triable issue of fact. The May 10 letter is not signed
by any physician and baldly asserts, without support or explanation, that Plaintiff could return to
work without restrictions. The September 20 letter is signed by Dr. Lam, but does not provide
any explanation for how the determination that Plaintiff could return to work without restrictions
was reached, or even state who made that determination.6 Summary judgment cannot be defeated
by relying on such conclusory allegations.
Plaintiff has therefore failed to establish a triable issue of fact as to whether she could
perform the essential functions of her job with a reasonable accommodation, a necessary element
of her prima facie case. Accordingly, Defendants' motion for summary judgment is granted.
IV. CONCLUSION
5 The Court notes that, in Capobianco, the Second Circuit held that the district court
abused its discretion when it sua sponte excluded two unsworn medical expert letters offered by
the plaintiff where (1) the defendants had offered and "relied on" the letters in their moving
papers and, (2) the plaintiff was without notice of any issue as to their admissibility because
neither side had objected to the admissibility of the reports. Capobianco 422 F.3d at 55. This
case is distinguishable from Capobianco. Here, although Defendants offered the May 10 letter in
their moving papers, they do not rely on that letter in their motion and clearly object to its
admissibility.
6 Indeed, the only competent medical evidence in the record indicates that Plaintiff was
not fit to return to work without restrictions. See Dkt. No. 52-7.
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After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants’ motion for summary judgment (Dkt. No. 45) is GRANTED;
and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants’ favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT ISSO ORDERED.
Dated: February 16, 2022 J) / ie. DP 3 . ‘
Albany, New York L, Vy parks
Mae A. D‘ Agostino”
U.S. District Judge
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