Montague v. National Grid USA

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

BERNICE MONTAGUE,

Plaintiff,

v. DECISION AND ORDER

17-CV-3S

NATIONAL GRID USA,

Defendant.

I. Introduction

This is an Americans With Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”),

case, where Plaintiff alleges her employer failed to furnish her with reasonable

accommodation for her condition. She sought assignment with a non-smoking partner so

as to avoid eye irritation. Instead, after months of such assignments upon her request,

Defendant National Grid USA reassigned Plaintiff to a desk job and then offered her

reassignment to a remote location to avoid eye irritation from her exposure to tobacco

smoke. She also alleges violations of ADA in Defendant retaliating when she complained

(Docket No. 1, Compl.).

Before this Court are (1) Defendant National Grid’s Motion1 (Docket No. 31) and

(2) Plaintiff’s cross Motion2 (Docket No. 34) for Summary Judgment.

For the reasons stated herein, Defendant’s Motion for Summary Judgment (Docket

No. 31) is granted and Plaintiff’s Summary Judgment Motion (Docket No. 34) is denied.

II. Background

A. Facts

Although both parties present their own Statements of Material Facts in support of

their respective motions (Docket Nos. 32, Def. Statement; 35, Pl. Statement), the material

facts here generally are not in dispute (see generally Docket No. 52, Pl. Statement of

Disputed Facts/Pl.’s Response to Def.’s Statement (hereinafter “Pl. Responding

Statement”). Although Defendant argued Plaintiff’s Statement misrepresented relevant

evidence, failed to acknowledge certain material facts and evidence, and incorrectly

asserted that certain facts are "material" to the outcome of this action, Defendant

acknowledges an absence of genuine issue of material fact (Docket No. 53, Def.

Response to Pl.’s Statement at 1 (hereinafter “Def. Response Statement”)). For

convenience, this Court will cite Defendant’s Statement (Docket No. 32) and Plaintiff’s

1In support of its motion, Defendant submitted its Statement of Facts, Docket No. 32; defense

attorney’s affirmation, Docket No. 33; the declarations of Thomas Cammuso, Docket No. 39, and Andrea

Pustulka, Docket No. 40; the Affidavit of Dr. Ivan Wolf, Docket No. 41; Defendant’s Memorandum of Law,

Docket No. 42; and its Reply Memorandum, Docket No. 57 and supporting papers.

In response to Defendant’s Motion, Plaintiff also submitted her Memorandum in Opposition, Docket

No. 51, and a Reply to Defendant’s Statement of Facts, Docket No. 52, as well as her motion for summary

judgment, Docket No. 34.

2In support of her motion, Plaintiff initially submitted her Statement of Facts, Docket No. 35; her

Declaration with exhibits, Docket No. 36; the Declaration of Dr. Nicholas Stathopoulos, Docket No. 37; and

her attorney’s Declaration with exhibits, Docket No. 38; and her Reply Memorandum, Docket No. 58.

In response to Plaintiff’s Motion, Defendant also submits its response to Plaintiff’s Statement of

Facts, Docket No. 53; its opposing Memorandum, Docket No. 54; its attorney’s Affirmation, Docket No. 55;

the Declaration of Mark Davis, Docket No. 56, as well as its own motion, Docket No. 31 and supporting

papers.

Statement (Docket No. 35) where not repetitive of Defendant’s Statement and

uncontested, while noting (when relevant) the opponent’s differences.

1. Plaintiff’s Diagnosis

This ADA action arises from Defendant’s consideration of Plaintiff’s chronic corneal

condition and its purported effect on her ability to work. First diagnosed in 2002 or 2003,

Plaintiff was diagnosed with Fuchs’ corneal dystrophy and keratoconus, which she claims

precludes her from work that exposes her eyes to tobacco smoke (Docket No. 32, Def.

Statement ¶ 12).

Corneal Dystrophy results in the pointing of the cornea, while keratoconus (defined

as conical protrusion of the center of the cornea without inflammation, Taber’s Cyclopedic

Medical Dictionary 969 (16th Ill. Ed. 1989)), causes the cornea to deteriorate (id. ¶ 14).

See also Jackson v. New York State Dep’t of Labor, No. 97CV483, 1998 U.S. Dist. LEXIS

17202 (N.D.N.Y. Oct. 26, 1998), describing symptoms. Plaintiff adds that she was also

diagnosed with keratitis (Docket No. 52, Pl. Responding Statement ¶ 12), the

inflammation of the cornea, Taber’s Cyclopedic Medical Dictionary, supra, at 968.

Exposure to smoke causes irritation to her eyes (Docket No. 32, Def. Statement ¶¶ 23-

24).

Despite these impairments, Defendant contends that Plaintiff could work and drive

her personal vehicle (id. ¶ 17), but Plaintiff disputes this given her symptoms (Docket

No. 52, Pl. Responding Statement ¶ 17).

2. Plaintiff’s Job and Her Accommodation Request, 2015

Plaintiff worked for Defendant in its Buffalo, New York, office in the Customer

Metering Service (“CMS”) department as a Service Representative A (or “SR-A”) (Docket

No. 1, Compl. ¶ 12; Docket No. 32, Def. Statement ¶¶ 2-5). There, Plaintiff would read

meters, usually driving in a two-person crew to check them (Docket No. 35, Pl. Statement

¶ 3; cf. Docket No. 53, Def. Response ¶ 3). This job requires driving and riding in proximity

with a colleague inside and outside of Defendant’s company vehicles (Docket No. 35, Pl.

Statement ¶ 4). Plaintiff adds that the crew was given discretion to pick the driver, hence

safe operation of the company’s vehicles was not a job requirement (id. ¶¶ 4, 5).

Plaintiff’s ophthalmologist, Dr. Nicholas Stathopoulos, issued a prescription to

Defendant on or about May 12, 2015 (Docket No. 32, Def. Statement ¶ 18; Docket No. 35,

Pl. Statement ¶ 13; Docket No. 33, Def. Atty. Affirm. Ex. H; Docket No. 37,

Dr. Stathopoulos ¶ 10, Ex. A). There, Dr. Stathopoulos stated “Bernice has chronic

inflammation of both eyes with intermittent blurring. Please put her in a [2-person] crew

with non-smoker as fumes aggravate her symptoms” (Docket No. 33, Ex. H).

Plaintiff submitted this note and her medical record to Defendant’s medical staff to

support her request for driving restrictions of placement in a two-person car without a

smoker (Docket No. 32, Def. Statement ¶ 18). Defendant temporarily accommodated

Plaintiff’s specific request (id. ¶ 19), either assigning Plaintiff to a solo vehicle or pairing

her with non-smokers until August 24, 2015, consistent with her doctor’s prescription

(Docket No. 35, Pl. Statement ¶¶ 34-35; see Docket No. 53, Def. Response Statement

¶¶ 34-35 (admitting Plaintiff’s allegations)).

One of Plaintiff’s supervisors, Mark Davis, later questioned the duration of this

accommodation (Docket No. 32, Def. Statement ¶ 20). Plaintiff points out that Davis

thought that she was “abusing the situation by trying to pick and choose who she rides

with and not being a driver” (Docket No. 52, Pl. Responding Statement ¶ 20).

According to Plaintiff’s moving papers, from Davis’ inquiry Defendant’s staff

exchanged emails inquiring about the duration and necessity of Plaintiff’s restrictions

(Docket No. 35, Pl. Statement ¶¶ 21, 22). In response to Plaintiff’s motion, Defendant

admits these factual allegations and adds the texts of these emails (Docket No. 53, Def.

Response Statement ¶¶ 21-22; Docket No. 38, Pl. Atty. Decl., Ex. H). Kathleen Kerr,

registered physician assistant-certified with Defendant (Docket No. 35, Pl. Statement ¶ 17

& n.1), also noted in this email exchange that Defendant’s company policy did not allow

smoking in company vehicles, so Plaintiff probably was exposed to the smell of smoke

on someone’s clothes or in homes of smoking customers (Docket No. 38, Pl. Atty. Decl.,

Ex. H; Docket No. 53, Def. Statement ¶ 22).

On July 24, 2015, Ms. Kerr asked Dr. Stathopoulos whether there was a medical

reason prohibiting Plaintiff from driving company vehicles although she drove her own

vehicle. She also asked if Plaintiff was able to ride in a vehicle with a smoker “who does

not actively smoke inside the vehicle?” (Docket No. 32, Def. Statement ¶¶ 21-22; Docket

No. 33, Exs. I, J).

Dr. Stathopoulos answered (which Defendant received on August 4, 2015, Docket

No. 32, Def. Statement ¶ 23) that there was a medical reason for prohibiting Plaintiff from

driving company vehicles although she could drive her own, that “if her eyes start to tear

or dry out she can stop driving her personal vehicle or not go out at all. This would be a

problem if she were working and driving one of your vehicles” (Docket No. 33, Ex. J;

Docket No. 37, Dr. Stathopoulos ¶ 13, Ex. B).

Dr. Stathopoulos answered the second question that Plaintiff could not ride in a

vehicle with a smoker even if that person was not actively smoking because “her eyes

respond [over-aggressively] to fumes & chemicals. The fumes from smoking remain in a

person’s clothes in a small vehicle and exacerbate her problems” (Docket No. 33, Ex. J;

Docket No. 37, Dr. Stathopoulos ¶ 13, Ex. B). Dr. Stathopoulos’ response listed Plaintiff’s

three ailments (Docket No. 37, Stathopoulos Decl. Ex. B).

In response to that note, Defendant considered reassigning Plaintiff to alternative

internal position that did not require driving a company vehicle and claimed it began an

interactive process with Plaintiff to devise a permanent accommodation (Docket No. 32,

Def. Statement ¶ 26; see Docket No. 52, Pl. Response ¶ 26; Docket No. 35, Pl. Statement

¶ 36; Docket No. 53, Def. Response Statement ¶ 36 (Plaintiff removed from field on

August 24, 2015, based upon then-current understanding of her condition); but cf. Docket

No. 52, Pl. Response ¶ 26 (disputing Defendant Statement ¶ 26 and denying an

interactive process occurred)). CMS department manager Andrea Pustulka did this

because she could not guarantee that Plaintiff would not be exposed to smoke in the field

(Docket No. 32, Def. Statement ¶ 9; Docket No. 53, Def. Response Statement ¶¶ 36, 37).

Later Ms. Pustulka reported that she could not guarantee that Plaintiff could be paired

with a non-smoker or that she would not enter a customer’s property with a chain smoker

or fumes present (Docket No. 35, Pl. Statement ¶ 40; see Docket No. 53, Def. Response

Statement ¶ 40; Docket No. 36, Pl. Atty. Decl. Ex. U). Defendant’s staff then considered

other options to accommodate Plaintiff’s condition (such as issuing her goggles or

assignment to a non-driving position) (Docket No. 32, Def. Statement ¶ 28) without

consulting Plaintiff about these options.

On August 24, 2015, Defendant reassigned Plaintiff to the office (see Docket

No. 32, Def. Statement ¶ 26). Plaintiff counters that there was no interactive process prior

to this reassignment, with the interactive process later conducted on November 2, 2015

(Docket No. 52, Pl. Responding Statement ¶ 26). Defendant contends that Plaintiff

continued to receive her full salary and benefits (Docket No. 32, Def. Statement ¶ 27),

while Plaintiff argues that she lacked opportunities with this new assignment for overtime

that she had as an SR-A (Docket No. 52, Pl. Responding Statement ¶ 27). Plaintiff further

objects that her material responsibilities in her job were diminished while she performed

mere “‘busy work’ for several months” in the office (Docket No. 51, Pl. Memo. at 3). She

also contends she was not told why she was placed on office duty and removed her from

SR-A, leading to speculation by her colleagues (id.).

Defendant then retained medical consultant Dr. Ivan Wolf to assess whether

Plaintiff could drive a company vehicle safely (Docket No. 32, Def. Statement ¶ 29; Docket

No. 35, Pl. Statement ¶ 47; Docket No. 38, Pl. Atty. Decl. Ex. CC). On or about

October 20, 2015, Dr. Wolf reviewed Plaintiff’s medical record and other materials and

opined (given the condition of her eyes) that it was unsafe for Plaintiff to drive a company

vehicle (Docket No. 38, Pl. Atty. Decl. Ex. CC; Docket No. 32, Def. Statement ¶¶ 30, 31).

On November 2, 2015, Defendant engaged with Plaintiff in an interactive process

to find a permanent accommodation (Docket No. 32, Def. Statement ¶¶ 32, 33; see

Docket No. 52, Pl. Response ¶ 26). Defendant offered a series of possible

accommodations: temporary assignment in CMS Department (office work); fill a vacancy;

allow Plaintiff to bid on all available positions; place Plaintiff on short-term disability on full

pay; if no other options were available, make Plaintiff eligible for placement on long-term

disability (Docket No. 32, Def. Statement ¶ 34). Plaintiff disputes whether these

accommodations were “discussed” (Docket No. 52, Pl. Responding Statement ¶ 37) or

whether Defendant considered the option (suggested by Dr. Wolf) of Plaintiff as a rider in

company cars (id. ¶ 32).

On November 4, 2015, Plaintiff sent another note from Dr. Stathopoulos (Docket

No. 35, Pl. Statement ¶ 65). Dated November 3, 2015, Dr. Stathopoulos replied to Kerr

that “there is no medical reason that prohibits Bernice Montague from operating a

company vehicle or riding with a non-smoker” (Docket No. 33, Ex. K; Docket No. 37,

Stathopoulos Decl. ¶ 23, Ex. C; Docket No. 32, Def. Statement ¶ 35; Docket No. 35, Pl.

Statement ¶ 65).

On November 5, 2015, Plaintiff filed an ethics complaint with Defendant’s ethics

hotline alleging disability discrimination in the terms of the proposed accommodation.

Plaintiff requested that she return to her Service Representation-A position as the

appropriate accommodation. (Docket No. 32, Def. Statement ¶¶ 36, 37.) Plaintiff called

the ethics hotline because she believed Defendant was discriminating against her

because of her disability (Docket No. 35, Pl. Statement ¶ 63). Defendant’s management

who was negotiating Plaintiff’s accommodation was unaware of her pending ethics

complaint on November 12, 2015 (Docket No. 32, Def. Statement ¶ 39). Defendant

contends that her grievance was investigated and found to be unsubstantiated (Docket

No. 53, Def. Response Statement ¶ 64; Docket No. 32, Def. Statement ¶ 38).

The parties met again on November 12, 2015 and Defendant offered Plaintiff a

position as an office technician in the Fredonia/Dunkirk, New York, area (Docket No. 32,

Def. Statement ¶¶ 40-41). Plaintiff claims that Ms. Pustulka pulled Plaintiff from the field

and assigned her office duty in Fredonia to avoid Plaintiff’s exposure to smoke or fumes

in customers’ premises (Docket No. 35, Pl. Statement ¶ 68; Docket No. 51, Pl. Memo. at

7). She also complains of the hour-long commute to and from Fredonia (Docket No. 51,

Pl. Memo. at 8-9), while noting that there was an open clerk position in the Buffalo office

that she was qualified for (Docket No. 35, Pl. Statement ¶ 69; Docket No. 51, Pl. Memo.

at 8-9). Defendant contends, however, that Plaintiff was never assigned the Fredonia

position (Docket No. 32, Def. Statement ¶ 42); Plaintiff does not dispute Defendant’s

Statement on this point (Docket No. 52, Pl. Responding Statement ¶ 42).

On November 13, 2015, at the continued interactive process meeting, Plaintiff

submitted another note from Dr. Stathopoulos (Docket No. 32, Def. Statement ¶ 43;

Docket No. 35, Pl. Statement ¶ 72; Docket No. 33, Ex. L; Docket No. 37, Stathopoulos

Decl. ¶ 26, Ex. D), declaring that “after examination today Bernice is able to return to work

with no restriction for her work duties including driving” (Docket No. 33, Ex. L, Docket

No. 37, Ex. D).

Defendant contends that, although there was no change in Plaintiff’s condition, the

new note was inconsistent with the prior notes from Dr. Stathopoulos and with Dr. Wolf’s

assessment (Docket No. 32, Def. Statement ¶¶ 45, 44). Plaintiff disagrees, arguing that

Dr. Stathopoulos’ latter note did not conflict with his previous findings because

Dr. Stathopoulos never called for Plaintiff not to drive a company vehicle. The doctor

consistently stated that Plaintiff could only be in a vehicle with a non-smoker. (Docket

No. 52, Pl. Responding Statement ¶ 44; see Docket No. 35, Pl. Statement ¶ 66.)

Defendant then scheduled an independent ophthalmological examination of

Plaintiff (Docket No. 32, Def. Statement ¶¶ 46-47). Meanwhile, Plaintiff remained working

in the alternative work assignment in the office at the CMS department (id. ¶ 48). Plaintiff,

however, contends that she continued to lose overtime opportunities while in the office

(Docket No. 52, Pl. Responding Statement ¶ 48).

Defendant also argues that Plaintiff terminated the interactive process on

November 13 when she submitted Dr. Stathopoulos’s last note (Docket No. 42, Def.

Memo. at 20). Plaintiff denies that she abandoned or ended this process (Docket No. 51,

Pl. Memo. at 28-29).

On December 11, 2015, Defendant then had Plaintiff examined by an independent

medical examiner, Dr. James Twist of First Choice Evaluators (Docket No. 35, Pl.

Statement ¶¶ 75-76). On December 22, 2015, Dr. Twist stated the reason he examined

Plaintiff was to determine her ability to operate a work vehicle safely with regard to her

eye conditions and symptoms. Dr. Twist noted that Plaintiff believed she was there for a

“fit for duty evaluation.” Plaintiff had mentioned to Dr. Twist that “smoke bothered her

eyes.” Dr. Twist assessed Plaintiff and found that her “Keratoconus, stable; Fuchs’

endothelial corneal dystrophy, stable; and dry eye syndrome, stable.” Dr. Twist opined

that “although she does have some important eye conditions, at the present time her

visual acuity is stable, and she is fully capable of performing her job, requiring operating

a work vehicle without any restrictions.” (Docket No. 33, Ex. M, at 2.)

On January 4, 2016, Dr. Wolf emailed Defendant that (based upon Dr. Twist’s IME

report) he recommended allowing Plaintiff to return to driving company vehicles (Docket

No. 35, Pl. Statement ¶ 78; Docket No. 38, Pl. Atty. Decl. Ex. DD; see Docket No. 32,

Def. Statement ¶ 50).

Defendant accepted Dr. Wolf’s evaluation, and, on an unspecified date in

January 2016, Defendant returned Plaintiff to work as an SR-A (Docket No. 32, Def.

Statement ¶ 50; Docket No. 39, Thomas Cammuso Decl. ¶ 27; Docket No. 35, Pl.

Statement ¶ 81; Docket No. 36, Pl. Decl. ¶ 59). Plaintiff served as a SR-A until

October 2017 (Docket No. 32, Def. Statement ¶ 51), apparently without further incident.

In October 2017, Defendant appointed Plaintiff to become a Consumer Representative-

A (or “CR-A”), at a higher pay rate (id. ¶¶ 51-52).

Throughout this, Plaintiff argues that Defendant’s staff failed to understand the

nature of her ailments, that she was affected by exposure to smoke in a vehicle or from

a coworker’s clothing (Docket No. 35, Pl. Statement ¶¶ 111-19). Defendant’s manager

of health and well-being, Theresa Overdyke (id. ¶ 21), said that she understood that

cigarette smoke caused Plaintiff’s eyes to water (Docket No. 53, Def. Response ¶¶ 116,

117). Plaintiff denied that exposure to smoke in customers’ homes was a problem

(Docket No. 35, Pl. Statement ¶¶ 120-22, 125). Defendant nevertheless defined her

condition relative to her ability to drive (especially company vehicles).

B. Procedural History

Plaintiff filed her Complaint on January 3, 2017 (Docket No. 1). In her First Cause

of Action, Plaintiff alleges Defendant failed to accommodate her claimed disability (id.

¶¶ 44-54). In the Second Cause of Action, Plaintiff claims Defendant discriminated

against her for her perceived disability by how they treated her due to her medical

condition (id. ¶¶ 56-64). Finally, the Third Cause of Action alleges Defendant retaliated

against Plaintiff by reassigning her out of Buffalo and into a department with fewer

opportunities for overtime (id. ¶¶ 66-77).

Defendant answered (Docket No. 5). After referral to Magistrate Judge Michael

Roemer (Docket No. 8), issuance of Scheduling Orders (Docket Nos. 13, 18, 21, 25; see

Docket No. 29 (in minute entry setting dispositive motion deadline)), and discovery, the

parties filed their respective Motions for Summary Judgment (Docket Nos. 31, 34).

Responses to the motions were on October 5, 2018 (Docket No. 44). The parties

jointly moved to extend this deadline (Docket Nos. 45, 47), the latter motion was granted;

responses then were due by October 17, 2018, and replies by October 31, 2018 (Docket

No. 50). After timely submission of responding and reply papers, the motions then were

deemed submitted without oral argument.

III. Discussion

A. Applicable Standards

1. Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure provides that “[t]he court shall grant

summary judgment if the movant shows that 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). A

fact is “material” only if it “might affect the outcome of the suit under governing law,”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202

(1986). A “genuine” dispute, in turn, exists “if the evidence is such that a reasonable jury

could return a verdict for the non-moving party,” id. In determining whether a genuine

dispute regarding a material fact exists, the evidence and the inferences drawn from the

evidence “must be viewed in the light most favorable to the party opposing the motion,”

Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)

(internal quotations and citations omitted).

“Only when reasonable minds could not differ as to the import of evidence is

summary judgment proper,” Bryant v. Maffucci, 923 F.32d 979, 982 (2d Cir. 1991)

(citation omitted). Indeed “[i]f, as to the issue on which summary judgment is sought,

there is any evidence in the record from which a reasonable inference could be drawn in

favor of the opposing party, summary judgment is improper,” Sec. Ins. Co. of Hartford v.

Old Dominion Freight Line, Inc., 391 F.3d 77, 82, 83 (2d Cir. 2004) (citation omitted). The

function of the court is not “to weigh the evidence and determine the truth of the matter

but to determine whether there is a genuine issue for trial,” Anderson, supra, 477 U.S. at

249.

“When the burden of proof at trial would fall on the nonmoving party, it ordinarily is

sufficient for the movant to point to a lack of evidence to go to the trier of fact on an

essential element of the nonmovant’s claim,” Cordiano v. Metacon Gun Club, Inc.,

575 F.3d 199, 204 (2d Cir. 2009), citing, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23,

106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Where the moving party demonstrates ‘the

absence of a genuine issue of material fact,’ the opposing party must come forward with

specific evidence demonstrating the existence of a genuine dispute of material fact,”

Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (citation omitted) (quoting

Celotex, supra, 477 U.S. at 323). The party against whom summary judgment is sought,

however, “must do more than simply show that there is some metaphysical doubt as to

the material facts. . . . [T]he nonmoving party must come forward with specific facts

showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis in

original removed).

Summary judgment is appropriate only if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law. Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003); Fed. R. Civ.

P. 56(a). The party seeking summary judgment has the burden to demonstrate that no

genuine issue of material fact exists. In determining whether a genuine issue of material

fact exists, a court must examine the evidence in the light most favorable to, and draw all

inferences in favor of, the nonmovant. Ford, supra, 316 F.3d at 354.

This Court is not confined “to the particular propositions of law advanced by the

parties on summary-judgment motion,” 10A Charles A. Wright, Arthur R. Miller & Mary

Kay Kane, Federal Practice and Procedure § 2725.3, at 447 (Civil ed. 2010).

2. ADA Claims

a. Failure to Accommodate Claim

1) Elements of ADA Disability Claim

This Court in Granica v. Town of Hamburg, 237 F. Supp. 2d 60, 77-78 (W.D.N.Y.

2017) (Skretny, J.), reiterated the elements for an ADA disability claim:

The ADA prohibits discrimination “against a qualified individual on

the basis of disability in regard to . . . terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a); Capobianco v. City of N.Y., 422 F.3d

47, 56 (2d Cir. 2005). One such form of discrimination is “not making

reasonable accommodations to the known physical or mental limitations of

an otherwise qualified individual with a disability.” 42 U.S.C. § 12112

(b)(5)(A). A “qualified individual” is “an individual who, with or without

reasonable accommodation, can perform the essential functions of the

employment position that such individual holds or desires.” 42 U.S.C. §

12111(8). ADA claims are subject to the McDonnell Douglas burden-

shifting analysis and the plaintiff need not show an adverse employment

action to state a failure-to-accommodate claim. See McBride v. BIC

Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir. 2009).

To make out a prima facie case of disability discrimination arising

from a failure to accommodate, a plaintiff must establish each of the

following elements: “(1) plaintiff is a person with a disability under the

meaning of the ADA; (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.” Graves v. Finch Pruyn & Co., 457 F.3d 181,

184 (2d Cir. 2006) (quoting Rodal v. Anesthesia Grp. of Onondaga, P.C.,

369 F.3d 113, 118 (2d Cir. 2004) (internal quotation marks omitted)).

A reasonable accommodation is one that “enables[s] an individual

with a disability who is qualified to perform the essential functions of that

position . . . [or] to enjoy equal benefits and privileges of employment.” 29

C.F.R. § 1630.2(o)(1)(ii)–(iii). Reasonable accommodations may include,

inter alia, “modification of job duties and schedules, alteration of the facilities

in which a job is performed, acquisition of devices to assist the performance

of job duties, and, under certain circumstances, ‘reassignment to a vacant

position.’” McBride, 583 F.3d at 97 (quoting 42 U.S.C. § 12111 (9)(B)).

The plaintiff “bears the burdens of both production and persuasion

as to the existence of some accommodation that would allow him to perform

the essential functions of his employment.” McMillan v. City of New York,

711 F.3d 120, 126 (2d Cir. 2013) (internal quotation marks, citations, and

alterations omitted). The defendant then bears the burden of persuasion

that the accommodation “would present undue hardships and would

therefore be unreasonable.” Id. at 128. An “undue hardship” is “an action

requiring significant difficulty or expense.” 42 U.S.C. § 12111 (10)(A).

“Disability” under the ADA is defined as:

(A) a physical or mental impairment that substantially limits one or more

major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2 (Docket No. 54, Def. Reply Memo. at

3). The inability to perform a particular job “does not constitute a substantial limitation in

the major life activity of working,” 29 C.F.R. § 1630.2(j)(3); Weigand v. Niagara Frontier

Transp. Auth., No. 03CV794, 2010 WL 584021, at *8 (W.D.N.Y. Feb. 16, 2010) (Skretny,

C.J.).

An employer also need not accept an employee’s proposed accommodation, but

it must furnish a reasonable accommodation, McElwee v. County of Orange, 700 F.3d

635, 641 (2d Cir. 2012).

2) Temporary Impairment and the ADA

A temporary impairment may not be deemed a disability under the ADA, see

Fajardo-Espinosa v. Parkland Hosp., No. 3:09-CV-540-O ECF, 2010 WL 1267260, at *3

(N.D. Tex. Mar. 16, 2010) (Stickney, Mag. J.); see Hamilton v. Southwestern Bell Tel. Co.,

136 F.3d 1047, 1050-51 (5th Cir. 1998) (plaintiff admitting that impairment no longer

existed). In two summary Orders, the Second Circuit reaffirmed that certain temporary

impairments fail to be substantially limiting to be considered disabilities under the ADA,

Francis v. Hartford Bd. of Educ., 760 F. App’x 34, 36-37, 36 n.1 (2d Cir. 2019); De La

Rosa v. Potter, 427 F. App’x 28, 29 (2d Cir. 2011). District Courts in this Circuit (including

this Court) have held that an impairment that was too brief to impact a major life activity

is not disabling, Van Ever-Ford v. State of N.Y., Office of Mental Health, No. 13CV412,

2020 WL 5951334, at *10-11 (W.D.N.Y. Oct. 8, 2020) (Vilardo, J.) (various ailments of

short duration held not to be disability under the ADA); Kruger v. Hamilton Manor Nursing

Home, 10 F. Supp. 3d 385, 389 (W.D.N.Y. 2014) (Wolford, J.) (broken arm held not a

disability under the ADA); Wanamaker v. Westport Bd. of Educ., 899 F. Supp. 2d 193,

211 (D. Conn. 2012).

Under the 2008 ADA Amendment Act, Pub. L. 110–325, 122 Stat. 3553 (2008),

the intent of Congress was to make it easier for claimants to obtain protection under the

ADA, 29 C.F.R. § 1630.1(c)(4). Hence, the Equal Employment Opportunity Commission

(“EEOC”) now interprets “substantially limits” broader than it had under the pre-

amendment ADA, with “‘substantially limits’ is not meant to be a demanding standard,”

29 C.F.R. § 1630.2(j)(1)(i). For an episodic impairment, it is deemed disabling “‘if it would

substantially limit a major life activity when active,’” Robles v. Medisys Health Network,

Inc., No. 19-cv-6651, 2020 WL 3403191, at * 8 (E.D.N.Y. June 19, 2020) (quoting

29 C.F.R. § 1630.2(j)(1)(vii)). The 2008 amendment focuses on whether major life

activities are impaired regardless of the duration of the impairment.

3) Adverse Employment Action

Defendant argues that Plaintiff needs to establish that she suffered an adverse

employment action during the denial of accommodation for her disability (Docket No. 42,

Def. Memo. at 14; see also Docket No. 51, Pl. Memo. at 16). An adverse employment

action is one that requires a “materially adverse change” in the terms and conditions of

her employment, Granica, supra, 237 F. Supp. 3d at 75 (Docket No. 54, Def. Reply Memo.

at 12). A material adverse change includes such events as termination of employment,

demotion, decrease in wage or salary, “a less distinguished title, a material loss of

benefits, significantly diminished material responsibilities, or other indices unique to a

particular situation,” id. (emphasis added)

Considering the proffered accommodation, “employers are not required to provide

a perfect accommodation or the very accommodation most strongly preferred by the

employee,” Noll v. IBM, 787 F.3d 89, 95 (2d Cir. 2015) (Docket No. 54, Def. Memo. at 8).

4) Interactive Process

When, as here, Plaintiff requests an accommodation, 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,” Nassry v. St. Luke’s Roosevelt Hosp., No. 13 CV 4719, 2017 WL

1274576, at *11 (S.D.N.Y. Mar. 31, 2016) (quoting Brady v. Wal-Mart Stores, Inc.,

531 F.3d 127, 135 (2d Cir. 2008)). To determine the appropriate reasonable

accommodation “it may be necessary for the covered entity to initiate an informal,

interactive process with the individual with a disability,” 29 C.F.R. § 1630.2(o)(3).

To satisfy the interactive requirement, the “employer must first identify the full

range of alternative positions for which the individual satisfies the employee’s legitimate,

nondiscriminatory prerequisites,” and then determine the employee’s skills and abilities

to perform the essential functions of the alternatives, Dalton v. Subaru-Isuzu Automotive,

Inc., 141 F.3d 667, 678 (7th Cir. 1998) (Docket No. 38, Pl. Memo. at 29).

The interactive process begins when the employee requests an accommodation,

Pantazes v. Jackson, 366 F. Supp. 2d 57, 70 (D.D.C. 2005). EEOC regulations call for

the employer to initiate this process, Felix v. New York City Transit Auth., 154 F. Supp.

2d 640, 658 (S.D.N.Y. 2001); 29 C.F.R. § 1630.2(o)(3). Once an employer knows of a

disability, the employer has an obligation (deemed mandatory by some Circuits, e.g.,

Barnett v. USAir, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000) (en banc) (citing cases)3) to

initiate this informal process, Faison v. Vance-Cooks, 896 F. Supp. 2d 37, 62 (D.D.C.

2012). The employer needs to engage in this interactive process in good faith, Pantazes

v. Jackson, 366 F. Supp. 2d 57, 70 (D.D.C. 2005); Conneen v. MBNA America Bank,

N.A., 334 F.3d 318, 333 (7th Cir. 1996); see also Picinich v. United Parcel Serv., 321 F.

Supp. 2d 485, 511 (N.D.N.Y. 2004) (employer has obligation to communicate with

employee during interactive process in good faith), and would fail to do so, for example,

3The plaintiff in Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 219 (2d Cir. 2001),

presented the Second Circuit the opportunity to rule on whether an employer has an independent duty to

engage in an interactive process. That plaintiff argued that the Second Circuit should join the Ninth and

other Circuits and hold the obligation was mandatory. Since that plaintiff did not argue this point before

Judge John Curtin of this Court, the Second Circuit declined to consider the argument, id.

by causing unreasonable delays, Faison, supra, 896 F. Supp. 2d at 62; Pantazes, supra,

366 F. Supp. 2d at 70 (citing Picinich, supra, 321 F. Supp. 2d at 514).

The Second Circuit has held that failure to engage in an interactive process does

not form an ADA claim absent evidence that an accommodation was possible, McBride,

supra, 583 F. 3d at 100. In a two-step process found by the Second Circuit, Plaintiff has

a burden of proving that an accommodation exists that permits her to perform the job’s

essential functions, Borkowski v. Valley Central School Dist., 63 F.3d 131, 138 (2d Cir.

1995), and if Plaintiff met that burden, the question is whether the proposed

accommodation is reasonable, with the burden of persuasion on this point is on

Defendant, id.

The mere failure to engage in an interactive process is not an independent violation

of the ADA, Williams v. New York City Dep’t of Health and Mental Hygiene, 299 F. Supp.

3d 418, 425 (S.D.N.Y. 2018).

b. Perceived as Disabled

Plaintiff alleges that Defendant regarded her as disabled (Docket No. 1, Compl.

¶¶ 56-64). To establish this claim, Plaintiff has to show that she was “subject to an action

prohibited under [the ADA] because of an actual or perceived physical or mental

impairment whether or not the impairment limits or is perceived to limit a major life

activity,” 42 U.S.C. § 12102(3)(A) (Docket No. 42, Def. Memo. at 16 n.5).

As found for the Rehabilitation Act but applicable to the ADA, an as perceived

disability “the perception and others that one is substantially limited in a major life activity

can be just as disabling as actually being disabled,” McCollough v. Atlanta Bev. Co.,

929 F. Supp. 1489, 1498 (N.D. Ga. 1996) (citing School Board of Nassau Cnty. v. Arline,

480 U.S. 273, 283, 107 S.Ct. 1128, 94 L.Ed.2d 307 (1987) (Rehabilitation Act)). “Where

a ‘defendant’s recognition of plaintiff’s limitations was not erroneous perception, but

instead was a recognition of a fact,’ McCollough, [supra], 929 F. Supp. 1489, 1498 (N.D.

Ga. 1996), ‘a finding that plaintiff was regarded as disabled and, therefore [is] entitled to

the protections of the ADA[,] is inappropriate,’ Bute v. Schuller Int’l Inc., 998 F. Supp.

1473, 1477 (N.D. Ga. 1998),” Hilburn v. Murata Elec. N. Am., Inc., 181 F.3d 1220, 1230

(11th Cir. 1999).

c. Retaliation Claims under the ADA

A retaliation claim under the ADA is analyzed under the same McDonnell Douglas

burden shifting framework, Granica, supra, 237 F. Supp. 3d at 80; see Terry v. Ashcroft,

336 F.3d 128, 141 (2d Cir. 2003).

As this Court noted in another case,

A valid claim of ADA retaliation requires a showing that: (1) the plaintiff

engaged in an activity protected by the ADA; (2) the employer was aware

of this activity; (3) the employer took adverse employment action against

the plaintiff; and (4) a causal connection exists between the alleged adverse

action and the protected activity. Treglia v. Town of Manlius, 313 F.3d 713,

719 (2d Cir. 2002).

Boyce v. Erie County, No. 13CV619, 2014 WL 4923588 (W.D.N.Y. Sept. 30, 2014)

(Skretny, C.J.).

B. Motions for Summary Judgment

Plaintiff’s claims arise from Plaintiff’s temporary assignment from the meter reading

position to an office job from August 2015 to January 2016. Both parties filed opposing

motions for summary judgment, making identical arguments in asserting or opposing

these motions. Defendant contends that Plaintiff was not disabled or deemed so by

Defendant. Defendant claims it afforded accommodations to Plaintiff’s condition (first by

having her ride with a non-smoker—as she requested—then by locating her in an office

rather than on the road, finally returning her to her Service Representative-A position

when she was medically cleared to do so).

Plaintiff responds (and states in her own motion) that she was disabled, that

Defendant treated her as such, but failed to engage in an interactive process to resolve

her disability needs or furnish her with reasonable accommodation for her condition.

C. Prima Facie Disability Case under ADA

Defendant argues that Plaintiff did not establish a prima facie case (Docket No. 42,

Def. Memo. at 10-16; see Docket No. 57, Def. Reply Memo. at 1-3; Docket No. 54, Def.

Response Memo. at 2-9), contending that Plaintiff was not disabled under the terms of

the ADA (Docket No. 42, Def. Memo. at 11-14). Plaintiff has not established that she had

an impairment that substantially limited a major life activity despite her disability affecting

her sight (id. at 11-13). She has not been impaired in performing her work, with Plaintiff

testifying that she was able to read, care for herself, and perform other routine daily

functions (id. at 12-13, 12; Docket No. 33, Def. Atty. Affirm., Ex. A, Pl. Tr. at 9). Defendant

contends that Plaintiff’s ability to work was not substantially limited, see Anderson v.

National Grid, PLC, 93 F. Supp. 3d 120, 137 (E.D.N.Y. 2015), despite her work restrictions

from May to November 2015 (Docket No. 42, Def. Memo. at 12-13), although Plaintiff did

not return as a SR-A until January 2016.

Defendant also asserts that Plaintiff never suffered a materially adverse

employment action during this period (id. at 14-16; Docket No. 54, Def. Response Memo.

at 12).

Plaintiff responds that she established a prima facie case under the ADA (Docket

No. 51, Pl. Memo. at 10-16; see Docket No. 38, Pl. Memo. at 16-35). She claims disability

in not being able to drive while exposed to tobacco smoke, claiming working as the major

life activity affected by her driving limitations (Docket No. 58, Pl. Reply Memo. at 3-4).

Even if episodic, Plaintiff claims that this disability substantially limits a major life activity

(id. at 4).

Next, she claims she suffered adverse employment actions through the loss of

overtime income and diminished material responsibilities from her reassignment to desk

duty (Docket No. 51, Pl. Memo. at 16-20).

1. Elements

Given the focus on whether Plaintiff established a prima facie case, this Court has

not considered the later burden shifting stages for an ADA claim. Reviewing the elements

for Plaintiff establishing a prima facie ADA disability claim, no one questions Defendant

being covered under the ADA or that a reasonable accommodation would allow Plaintiff

to perform the essential functions of the job at issue. As a Service Representative,

Plaintiff reads meters, collects past due accounts, and turn on and off service (Docket

No. 32, Def. Statement ¶ 3). The question is how an SR-A gets to the consumer’s meters.

Defendant argues that the ability to drive is needed to perform this job (id. ¶ 4) while

Plaintiff disputes this, contending that employees in a crew had discretion to decide who

drives (Docket No. 52, Pl. Responding Statement ¶¶ 3, 4). Plaintiff concedes that her job

had her either drive or ride to meters (Docket No. 35, Pl. Statement ¶ 3). The essential

function for the SR-A position is meter reading and servicing; transport to the meters is

the manner in which the employee gets to the site to perform the job.

Another clear element is Defendant declining to adopt Plaintiff’s proposed

accommodation. After August 24, 2015, Defendant sought other methods aside from

crew assignments.

The remaining issue here is whether Plaintiff was a person with a disability. Since

2003, Plaintiff was diagnosed with corneal dystrophy, keratoconus, and keratitis.

Plaintiff’s condition generally was under control save when she was exposed to tobacco

smoke. In May 2015, Plaintiff submitted Dr. Stathopoulos’ prescription for a two-person

crew without a smoker (Docket No. 35, Pl. Statement ¶ 13; Docket No. 32, Def. Statement

¶ 18). Defendant’s staff construed this prescription as a request to not drive for her job.

At first, Defendant accommodated her by assigning her with non-smokers or having her

drive alone. After August 2015, Defendant assigned her to a temporary office job while

negotiating a permanent accommodation and confirming her continued disability (from

Defendant’s perspective, her inability to drive Defendant’s vehicles). Plaintiff was

reevaluated by Defendant’s medical consultant and by December 2015 determined that

she could return to her former work, returning to that position in January 2016.

Plaintiff’s three ailments constitute a physical impairment under the ADA. The

question is the severity of her impairment and whether her impairment substantially limits

a major life activity. Plaintiff’s impairment generally is not a substantial limit on Plaintiff’s

other aspects of her life (such as caring for herself, performing manual tasks, hearing,

eating, sleeping, walking, standing, sitting, lifting, bending, speaking, breathing, learning,

reading, concentrating, thinking, and communicating, 42 U.S.C. § 12102(2)), including

performing work that does not require being in Defendant’s company vehicles. Another

listed major life activity is seeing, id. Plaintiff only asserts her sight is impaired when she

is exposed to tobacco smoke. Since Plaintiff has not alleged the frequency in which she

was so exposed to tobacco at work (with evidence in the record that Defendant had a

policy against smoking in its vehicles, Docket No. 38, Pl. Atty. Decl. Ex. H; Docket No. 53,

Def. Statement ¶ 22), Plaintiff fails to prove a substantial limitation to her sight.

The only other listed major life activity is working, id. The parties dispute whether

driving itself is a major life activity, especially after the 2008 amendments to the ADA and

its broadened definition of disability, see Anderson v. National Grid, supra, 93 F. Supp.

3d at 134 (compare Docket No. 42, Def. Memo. at 12 with Docket No. 51, Pl. Memo. at

15 (driving is not a major life activity, but it could create a disability if it caused an

impairment of work or other major life activity, citing id. at 135, 134).

For resolution of these motions, this Court need not decide whether driving

associated with work is in of itself a major life activity, see id. at 134-35. The Eastern

District of New York in Anderson v. National Grid also avoided resolving this issue after

the 2008 amendments to the ADA because Anderson alleged major life activities of sitting

and working, id. The court quoted Anderson’s argument that “the inability to drive

nevertheless could create a disability if it impaired the major life activity of working,” id. at

135.

Plaintiff’s ability to work here is a major life activity, see Cullen v. Verizon Commns.,

No. 14CV464, 2014 WL 6627494, at *3 (W.D.N.Y. Nov. 21, 2014) (Skretny, C.J.)

(dismissal of original complaint), further order, 2015 WL 4508711 (W.D.N.Y. July 24,

2015) (dismissal of amended complaint); 42 U.S.C. § 12102(2). The SR-A position

Plaintiff sought reasonable accommodation for involved driving (or at least riding in a

company vehicle to meters).

Both sides cite to the definitional standard for a substantial limitation to a major life

activity (compare Docket No. 42, Def. Memo. at 12-13 with Docket No. 51, Pl. Memo. at

12). Under EEOC regulations, 29 C.F.R. § 1630.2(j)(1), and as developed in case law,

e.g., Anderson v. National Grid, supra, 93 F. Supp. 3d at 137, substantial limitation means

a significant restriction “as to the condition, manner or duration under which an individual

can perform a particular major life activity as compared to the condition, manner, or

duration under which the average person in the general population can perform that same

major life activity,” 29 C.F.R. § 1630.2(j)(1). As held by the Second Circuit, “the inability

to perform a single, particular job does not constitute a substantial limitation in the major

life activity of working,” Cameron v. Community Aid for Retarded Children, Inc., 335 F.3d

60, 65 (2d Cir. 2003) (internal citations and quotation marks omitted); Anderson, supra,

93 F. Supp. 3d at 137-38.

Here, Plaintiff claims substantial limitation in the context of exposure to tobacco

smoke in Defendant’s cars while doing her duty as an SR-A. Plaintiff has an eye irritation

that medically otherwise is stable (Docket No. 32, Def. Statement ¶ 16), although Plaintiff

contests Defendant’s definition of her “condition” (Docket No. 52, Pl. Response ¶ 16). As

Defendant points out, Plaintiff can work and function despite her condition, including the

ability to drive (Docket No. 32, Def. Statement ¶ 17). While Plaintiff disputes this,

contending that she is unable to work in the presence of cigarette smoke (Docket No. 52,

Pl. Responding Statement ¶ 17), her condition only was episodic when exposed to

tobacco smoke (see Docket No. 58, Pl. Reply Memo. at 4). She does not claim that she

cannot work generally. Defendant focused on Plaintiff’s ability to drive while Plaintiff

stresses her exposure to smoke in Defendant’s vehicle. Both focuses are significantly

limited and does not hinder work, either in Plaintiff’s desired, past position or working

generally.

Plaintiff merely concludes that this circumstance is a substantial limitation and

does not cite cases of other employees who have Fuchs’ corneal dystrophy, keratoconus,

or keratitis that were affected by exposure to tobacco smoke while on the job. Plaintiff

has not shown that she is substantially limited by her condition.

The parties do cite the limited number of cases involving keratoconus, one of

Plaintiff’s ailments. In Pezzullo v. Webster Bank, No. 06-cv-1220, 2008 WL 4307111 (D.

Conn. Sept. 19, 2008), Alice Pezzullo argued that the defendant bank violated the ADA

in terminating her due to her keratoconus, id. at *1. The issue there was “whether

keratoconus ‘substantially limits’ Pezzullo,” id. at *2. Ms. Pezzullo worked as a

bookkeeper and drove to work every day but avoided night driving. She needed to sit

close to a computer and needed to wear goggles and a bonnet when gardening due to

being bothered by wind, dust, grass, and bright sunlight. Id. at *1. When infected, which

occurred about once a month for a week, Ms. Pezzullo would only wear one contact lens

in her eyes and could still drive with only a single contact lens, id. But when deposed,

Ms. Pezzullo answered that she did not believe her keratoconus had anything to do with

defendant bank’s employment decisions, id. She alleged that her keratoconus “did not in

any way impede her ability to perform her [job] duties . . .,” id. She also did not assert her

condition worsened from exposure to tobacco or other fumes.

The District of Connecticut then discussed other cases cited by those parties on

whether keratoconus satisfies the definition for disability under the ADA, id. at *2. Among

the cited cases are Phillips v. DaimlerChrysler Corp., No. Civ.A.01-247-JJF, 2003 WL

22989481 (D. Del. Mar. 27, 2003); Jamison v. Dow Chem. Co., 354 F. Supp. 2d 715 (E.D.

Mich. 2004), cited by Defendant in the case at bar (Docket No. 42, Def. Memo. at 13);

and McCutchen v. Sunoco, Inc., No. CIV.A.01-2788, 2002 WL 1896586 (E.D. Pa.

Aug. 16, 2002), cited by Plaintiff here (Docket No. 51, Pl. Memo. at 14-15).

In Phillips, the court held that Paul Phillips’ keratoconus was not a substantial

limitation, noting that Phillips drove, attended college, and worked at a variety of jobs,

2003 WL 22939481, at *4. In Jamison, Justin Jamison contracted keratoconus which

made him sensitive to dust and chemical vapors. Defendant Dow Chemical

unsuccessfully reassigned Jamison to five different positions to accommodate his

condition but then terminated him because they could not offer a position that he could

perform. 354 F. Supp. 2d at 728-29. The Jamison court held that his keratoconus was

not a substantial limitation because he was able to drive, read, balance his checkbook,

watch television, and other activities, id. In another case cited by the Pezzullo court

finding that plaintiff’s keratoconus was not a substantial limitation, the court in Matthews

v. Village Center Community Development District, No. 5:05-cv-344-Oc-10GRJ, 2006 WL

3422416 (M.D. Fla. Aug. 16, 2002), found that Mathews “could perform all of her job

duties and that the negative effects of her keratoconus were controlled by eyeglasses,

contact lenses, and surgery that had been performed on her left eye,” Pezzullo, supra,

2008 WL 4307111, at *3 (citing Matthews, supra, 2006 WL 3422416, at *10-11).

Comparing these cases, the Pezzullo court found that her facts are similar to the

cases concluding that the keratoconus was not a substantial limitation, 2008 WL

4307111, at *4. Ms. Pezzullo was able to drive despite her eye infection, she continued

to work as a bookkeeper and read newspapers and magazines, id. Plaintiff alleged that

her keratoconus did not impede her ability to perform her job, repeating this in her

deposition testimony, id. The court concluded that Ms. Pezzullo’s keratoconus was not

as restricted as the plaintiffs in Phillips, Jamison, and Matthews and far less severe as

the condition of the plaintiff in McCutchen, thus her keratoconus did not qualify as an ADA

disability, id. The common finding in the cited cases is also the ability of the claimants

there to drive despite the keratoconus, id. at *3-4 (citing cases).

Notwithstanding Plaintiff’s reliance, McCutchen is distinguishable. John

McCutchen lost sight in his left eye and had severe keratoconus in the right, leaving his

vision very blurry, 2002 WL 1896586, at *8. Defendants in that case argued that

McCutchen testified that his condition did not interfere with his daily activities, therefore

he was not disabled, id. The court, however, recognized when “a person who has

suffered from a visual impairment for his entire life would adjust his daily activities so as

to accommodate the impairment,” id. at *9 (discussing adjustments in that plaintiff’s daily

life). The court characterized defense precedents as holding “that plaintiffs with vision

problems do not suffer from substantially limiting impairments if they are still able to

perform normal daily activities without difficulty,” id. (citing defense cited cases). The

court then held that McCutchen demonstrated his ability to prove that his eye condition

“significantly restricts the acuity and manner in which he can see compared to the

condition and manner in which the average person in the general population can see,” id.

In the case at bar, Plaintiff’s case keratoconus is not as severe as McCutchen’s

who had continuously blurred vision in his remaining eye. Plaintiff’s condition becomes

an issue only when exposed to confined tobacco smoke. Again, there is no record as to

the frequency of Plaintiff being so exposed while at work. She denied problems with

exposure to smoke in other locations. She was diagnosed with keratoconus from 2003

and only made this ADA accommodation request in 2015. Mr. McCutchen has more

limitations on his daily life, with accommodations and adjustments made for his vision,

that is presented in this record for Plaintiff. Plaintiff’s limitations from keratoconus are

akin to those found in Pezzullo and cases cited therein finding that impairment was not a

significant limitation for those plaintiffs, hence not a disability under the ADA.

Keratoconus is defined as the cornea having a protrusion without inflammation,

Taber’s Cyclopedic Medical Dictionary, supra, at 969. Keratitis, however, is the

inflammation of the cornea, id. at 968, and Plaintiff claims this as one of her diagnoses.

Defendant discusses her inflammation without using that diagnosis. This Court has not

found any cases discussing keratitis or eye inflammation as the disability in an ADA case.

To be deemed a disability, there has to be a substantial limitation in a major life

activity, here working. That work is not just the job Plaintiff seeks accommodation,

Cameron, supra, 335 F.3d at 65, but working in general. A substantial limitation is as

compared with an average person in the general population working, see 29 C.F.R.

§ 1630.2(j)(1)(ii). Even under the EEOC’s post-ADAAA regulations that define

“substantially limits” broadly and for the statutory maximum coverage, 29 C.F.R.

§ 1630.2(j)(1)(i), the limitation is still to a major life activity, not the particulars of how that

life activity might be performed (again, working as opposed to a particular occupation).

The claimed impairment here, however, is not substantial limitation to the major

life activity of working. Plaintiff’s objection is her transport to the field for her work and

driving with persons who smoke. She is not hindered from performing the work of reading

meters or settling accounts and electrical service outside of the company vehicle. Nor is

she significantly restricted as compared with an average employee with comparable

training, skills, and abilities. Therefore, Plaintiff has not established a prima facie case

for disability; Defendant’s motion for summary judgment (Docket No. 31) is granted and

Plaintiff’s motion for summary judgment (Docket No. 34) is denied.

2. Duration of Plaintiff’s Disability

Plaintiff sought accommodations for essentially six months. She noted her

disability and requested accommodation in May 2015 but by December 2015 a further

evaluation found that Plaintiff was able to return to her former work despite her chronic

condition. Plaintiff returned to that position in January 2016 without any incident noted in

this record and with no notation that she was being afforded an accommodation for her

condition (cf. Docket No. 32, Defendant’s Statement ¶¶ 49-51; Docket No. 52, Pl.

Responding Statement ¶¶ 49-51 (not disputing Defendant’s Statement ¶¶ 49-51)). That

period, without any major life activity affected, is too brief to constitute a disabling

impairment, see Van Ever-Ford, supra, 2020 WL 5951334, at *10-11. Plaintiff suffered

from this impairment, but it did not permanently impair a major life activity, id. at *10; see

id. at *11 (“an absence of several days” due to an ailment “is not sufficient to demonstrate

a permanent disability”). “A ‘temporary impairment’ lasting only a few months,” however,

“is by itself, too short in duration . . . to be substantially limiting,’” id. at *10, quoting De La

Rosa, supra, 427 F. App’x at 29 (quoting in turn Adams v. Citizens Advice Bureau,

187 F.3d 315, 316-17 (2d Cir. 1999)). That Plaintiff here may have been temporarily

disabled during those six months does not establish a prima facie case for discrimination

based upon her disability. Even as episodic impairment during this period, cf. Robles,

supra, 2020 WL 3403191, at *8, Plaintiff fails to establish a substantial limitation on a

major life activity. Although not argued by Defendant, this Court is not confined to the

arguments it raises in support of its motion, 10A Federal Practice and Procedure, supra,

§ 2725.3, at 447. Thus, Defendant’s motion for summary judgment is granted and

Plaintiff’s motion is denied on this ground.

3. Reasonable Accommodations

Alternatively, another issue is whether Plaintiff could perform the essential

functions of her job with reasonable accommodation. Plaintiff’s SR-A position reads

meters and adjusts accounts and electrical service in the field. Defendant defined the

essential function of her job as SR-A as driving. After Plaintiff requested accommodation

here, Defendant assigned Plaintiff with non-smokers and then reassigned her to office

duty. Plaintiff states that she had the discretion as an SR-A with her partner to decide

who actually drove.

Plaintiff’s proffered accommodation, assignment of non-smokers to her vehicle,

while apparently reasonable, is not the sole reasonable accommodation. Defendant did

not need to provide Plaintiff’s sought accommodation, Null v. International Business

Machines Corp., 787 F.3d 89, 95 (2d Cir. 2015) (citing 29 C.F.R. § 1630 app, employer

has ultimate discretion in choosing between effective accommodations); McElwee, supra,

700 F.3d at 641. Defendant, however, initially did provide this rescheduling

accommodation. Defendant later claims it had scheduling issues locating non-smokers

to drive with Plaintiff (Docket No. 53, Def. Response ¶ 40; Docket No. 38, Pl. Atty. Decl.

Ex. U (email chain)), but Defendant has not provided proof of corporate hardship in this

scheduling and reassignment. This led Defendant to the alternative accommodation of

assigning Plaintiff to office work from August 24, 2015, to January 2016. This

reassignment is also reasonable because it avoids Plaintiff’s exposure to tobacco smoke

while she still worked in the CMS department. Plaintiff’s objections to this interim

arrangement is addressed below in discussing Plaintiff’s accusation that Defendant failed

to accommodate her disability.

D. As Perceived and Failure to Accommodate

With the threshold nature of whether Plaintiff was disabled, her other claims for as

perceived disability, failure to accommodate, and failure to engage in an interactive

process are implicated.

1. Was Plaintiff Deemed Disabled by Defendant?

Defendant contends that Plaintiff failed to establish that Defendant regarded her

as disabled (Docket No. 42, Def. Memo. at 16; see Docket No. 57, Pl. Reply Memo. at 7-

9). Defendant argues that Plaintiff also cannot meet “regarded as” disabled standard,

that is, that she was “subject to an action prohibited under the [Act] because of an actual

or perceived physical or mental impairment whether or not the impairment limits or is

perceived to limit a major life activity,” 42 U.S.C. § 12102(3)(A) (emphasis added) (id. at

16 & n.5). Plaintiff argues that from Defendant’s own actions in reassigning her,

Defendant regarded Plaintiff as disabled (Docket No. 51, Pl. Memo. at 20-22; see Docket

No. 38, Pl. Memo. at 35-37).

Upon Plaintiff submitting her doctor’s prescription for accommodation against

riding with a smoking coworker, Defendant did treat Plaintiff as disabled. Defendant may

have erred in considering her ability to drive rather than focusing on the exposure to

smoke as the disability, but both arise from the effect of Plaintiff’s exposure to confined

tobacco smoke. Defendant’s “‘recognition of plaintiff’s limitations was not erroneous

perception, but instead was a recognition of a fact,’” Hilburn, supra, 181 F.3d at 1230

(quoting McCollough, supra, 929 F. Supp. at 1498).

Plaintiff here fails to show that she was subject to a prohibited action under the

ADA due to her perceived disability. Her claim essentially is that she was perceived as

being unable to perform as an SR-A so long as she had to be paired with a smoker. Being

regarded as unable to perform a particular job, however, does not state a claim, see

Murphy v. United Parcel Service, Inc., 527 U.S. 516, 524, 119 S.Ct. 2133, 144 L.Ed.2d

484 (1999) (petitioner fails to produce evidence creating a genuine issue of fact that he

was regarded as unable to perform the job of mechanic that does not require driving a

commercial vehicle).

Plaintiff also alleges the prohibited action was the denial of Plaintiff’s proffered

accommodation because Defendant regarded him as disabled. As stated above, absent

a prima facie case of a substantial limitation to a major life function, Plaintiff fails to state

a need for any accommodation. Additionally, Plaintiff did receive the accommodations

she sought for the first months following her request.

Therefore, Plaintiff’s motion for summary judgment (Docket No. 34) on this ground

is denied and Defendant’s motion for summary judgment (Docket No. 31) is granted.

2. Failure to Accommodate

Defendant then argues that Plaintiff cannot establish a failure to accommodate her

disability as a matter of law because Defendant did accommodated Plaintiff (Docket

No. 42, Def. Memo. at 17-20). Plaintiff responds that Defendant failed to accommodate

Plaintiff (Docket No. 51, Pl. Memo. at 22-30), arguing that Defendant’s offer during the

interactive process in November 2015 was illusory (id. at 25-27).

There are two parts to this allegation; first, whether the parties engaged in good

faith in an informal interactive process to resolve Plaintiff’s needs and, second, whether

Defendant afforded Plaintiff reasonable accommodation for her disability.

a. Interactive Process

Plaintiff argues that Defendant failed to engage in interactive process (Docket

No. 38, Pl. Memo. at 29-35). At bottom, she complains that Defendant imposed

accommodations upon her (removing her from her job in the field) and failed to explore

her preferred option of assigning a non-smoker with her and allowing her to return as a

SR-A (Docket No. 58, Pl. Reply Memo. at 9-10).

The informal interactive process should begin once Plaintiff submitted her first

prescription in May 2015, see Pantazes, supra, 366 F. Supp. 2d at 70. From May 12 to

August 24, 2015, Defendant did assign non-smokers to Plaintiff’s vehicle or had her drive

alone. Defendant thus provided the accommodation sought but without involving Plaintiff

in that process. The EEOC regulation does state that the informal interactive process

“may” be necessary, 29 C.F.R. § 1630.2(o)(3). Where Plaintiff receives the

accommodation requested, an interactive process to adapt that request is unnecessary.

From August 24, 2015, Defendant reassigned her to office work to avoid Plaintiff’s

exposure to smoke. Plaintiff was not involved in the process of selecting this method, or

in Defendant’s staff prior discussions of other alternatives. Defendant argued that it

engaged in the interactive process during the first few months of Plaintiff’s disability by

conferring about possible options. “Interactive” means that Plaintiff must be involved to

express her position on the options considered as possible reasonable accommodations.

Plaintiff was brought into the interactive process in November 2015, almost six months

after she requested accommodation and about three months after Defendant reassigned

her to office work.

Plaintiff should not object, however. First, Defendant provisionally granted her the

accommodation prescribed by Dr. Stathopoulos that she either drive with a non-smoker

or drive alone. Defendant made the preliminary decision to take Plaintiff off the road in

an abundance of caution to avoid further exposure (and the risk of her driving with

impaired vision) not only from the atmosphere of the company vehicles but also the

potential environment of the customers’ facilities, however correct that assessment might

have been. This extended to Defendant’s subsequent decision to move Plaintiff off the

road and into the office.

Months later in the interactive process, Defendant then proposed alternatives to

Plaintiff but not including the one she wanted. None of these alternatives ultimately were

implemented before Plaintiff had a further evaluation finding no disability to prevent her

from resuming her former position. Defendant proposed accommodations until they

became unnecessary.

The ADA “imposes liability for, inter alia, discriminatory refusal to undertake a

feasible accommodation, not merely refusal to explore possible accommodations where,

in the end, no accommodation was possible,” McBride, supra, 583 F.3d at 100. Liability

also occurs if both the employer fails to engage in interactive process and the absence of

evidence that an accommodation was possible, id. Plaintiff here merely alleges that

Defendant did not conduct the interactive process.

Although the delay in commencing the interactive process with Plaintiff here is

troubling, Faison, supra, 896 F. Supp. 2d at 62; Pantazes, supra, 366 F. Supp. 2d at 70,

Defendant did eventually engage in that process. Accommodations were possible

including the reassignment Defendant imposed and Plaintiff’s proffered solution. Plaintiff

then merely argues that her preferred accommodation (return to her job but without a

smoking coworker) presumably was not considered. She has not alleged the absence of

any accommodation.

This Court holds that there is no material issue of fact as to the interactive process.

Even if this process was deficiently performed during the six months from Plaintiff’s first

notification of disability until her return to her prior position (especially at the last half of

this period after Defendant’s voluntary adoption of Plaintiff’s accommodation ended), the

interactive process was engaged in. In that process, the parties considered

accommodations and then accommodations were rendered moot when evaluators found

Plaintiff able to resume her work.

b. Accommodation

Defendant engaged in accommodating Plaintiff for her inability to drive by

assigning non-smokers to her vehicle (or driving alone) and later relocating her to an

office. Before a permanent accommodation was adopted, Defendant confirmed Plaintiff’s

ability and returned her to SR-A. Plaintiff does not dispute the finding from December

2015 that she could return to her prior position, returning to that job in January 2016.

Notably, she does not complain about her job conditions in the vehicle after her

restoration. The record does not indicate if she was assigned with non-smokers after

returning as SR-A or was assigned to solo missions.

This case is about the six months Plaintiff received temporary accommodations.

This Court held above that Plaintiff fails to establish a prima facie case of her disability

during this relatively brief period. Hence, Plaintiff did not require accommodation.

Plaintiff claims that the failure to accommodate her claimed disability led to the

denial of opportunity for more than four months of potential overtime as an SR-A. Loss

of the opportunity to earn overtime generally has been held to be an adverse employment

action, Faggiano v. Eastman Kodak Co., 378 F. Supp. 2d 292, 306 (W.D.N.Y. 2005)

(Siragusa, J.); Little v. National Broadcasting Co., Inc., 210 F. Supp. 2d 330, 379

(S.D.N.Y. 2002). The temporary loss of overtime such as here, however, is not a material

change in terms and conditions to be an adverse employment action, Como v. O’Neil,

No. 02 Civ. 0985, 2002 U.S. Dist. LEXIS 23314, at *6-7 (S.D.N.Y. Dec. 4, 2002). Plaintiff

lost SR-A overtime for only four months.

Plaintiff also needed to quantify her overtime prior to seeking accommodation for

her disability (cf. Docket No. 54, Def. Memo. at 12-13). Defendant points out Plaintiff had

the opportunity to work overtime at the office (Docket No. 57, Def. Reply Memo. at 6); but

(like Plaintiff) Defendant fails to state the amount of overtime available in the office,

whether she performed overtime work, or whether that overtime at least equaled what

she may have earned in the field. Plaintiff thus fails to assert her claim of adverse

employment action in depriving her of overtime.

Plaintiff next claims that the months on office duty were mere make work, hence

she lost responsibilities she possessed in the SR-A position. An actionable adverse

employment action must be a materially adverse change in Plaintiff’s terms and

conditions which includes significantly diminished material responsibilities of her position,

Granica, supra, 237 F. Supp. 3d at 75. Neither party, however, states the duties of the

office job, while generally stating what an SR-A does (see Docket No. 32, Def. Statement

¶ 3; Docket No. 35, Pl. Statement ¶ 3). While Plaintiff claims her office job was make

work, she does not assert what her duties were as an SR-A for comparison. This Court

concludes there is a material issue of fact as to her office duties; certainly Plaintiff has not

established the absence of an issue of fact here to grant her summary judgment.

Ultimately, this inquiry comes into play only if Plaintiff established that she was

disabled. As noted above, Plaintiff has not. Therefore, Defendant’s motion for summary

judgment (Docket No. 31) dismissing this failure to accommodate claim is granted, while

Plaintiff’s summary judgment motion (Docket No. 34) upholding that claim is denied.

E. Retaliation

Looking at the elements for an ADA retaliation claim, Plaintiff argues the protected

activity was her request for reasonable accommodation and Defendant was aware of that

activity (Docket No. 51, Pl. Memo. at 30). Defendant characterizes Plaintiff’s retaliation

claim as merely a restatement of her failure to accommodate claim (Docket No. 42, Def.

Memo. at 21), that Plaintiff claims Defendant retaliated because it failed to accommodate

her disability (Docket No. 57, Def. Reply Memo. at 9; cf. Docket No. 38, Pl. Memo. at 37-

38). The failure to accommodate cannot be bootstrapped into a retaliation claim, Morris

v. Town of Islip, No. 12-CV-2984, 2014 WL 4700227, at *18 (E.D.N.Y. Sept. 22, 2014)

(Docket No. 42, Def. Memo. at 22; Docket No. 54, Def. Memo. at 14); Missick v. City of

N.Y., 707 F. Supp. 2d 336, 356-57 (E.D.N.Y. 2010); Gomez v. Laidlaw Transit, Inc., 455 F.

Supp. 2d 81, 90 (D. Conn. 2006) (failure to accommodate constituting retaliation is

insufficient as a matter of law).

1. Protected Activity and Defendant’s Awareness of Activity

Protected activities usually include seeking an accommodation, Weixel v. Board of

Educ. of City of N.Y., 287 F.3d 138, 149 (2d Cir. 2002); see Munck v. New Haven Sav.

Bank, 251 F. Supp. 2d 1078, 1087 (D. Conn. 2003), making complaints or filing charges

with the EEOC or the New York State Division of Human Rights, see Treglia, supra,

313 F.3d at 719-20. The protected activity here was Plaintiff seeking an accommodation

for her eye condition.

Defendant was aware of the activity from Dr. Stathopoulos’ May 2015 prescription

and Plaintiff’s request for accommodation.

2. Adverse Employment Actions

At issue is the alleged adverse action taken by Defendant. Plaintiff argues three

adverse actions occurred: first, when Defendant gave her the permanent choice of

reassignment in Fredonia or disability retirement; second, Defendant continuing her

provisional assignment to the office after receiving medical reports that Plaintiff could

resume her former position; and third, Defendant conducting a second independent

medical examination.

a. Offer of Forced Disability Retirement as Adverse Action

She claims one adverse employment action of Defendant telling her that she would

be placed in disability retirement if she did not accept a job that did not require her driving

(Docket No. 51, Pl. Memo. at 17-18, 31). Plaintiff, however, was not reassigned to

Fredonia or forced into disability retirement because Plaintiff was reevaluated and found

able to return to her prior duties. She never reported to that office; reassignment there or

disability retirement were merely proposed accommodations. Plaintiff remained in the

CMS office until reassigned to her SR-A position once she was medically cleared. A

proposed assignment that is not implemented is not an adverse employment action that

is actionable under the ADA, see Sosa v. New York City Dep’t of Educ.,

No. 18CV411(PKC) (SJB), 2020 WL 1536348, at *5 (E.D.N.Y. Mar. 31, 2020). The threat

of reassignment or forced retirement also is not an adverse employment action absent

other negative results (such as decrease in her pay or placement on probation, which did

not occur), see Campanella v. O’Flynn, No. 10CV6236, 2017 WL 475676, at *6 (W.D.N.Y.

Feb. 6, 2017) (Geraci, C.J.), motion to set aside judgment granted, 2017 WL 1541227

(W.D.N.Y. Apr. 28, 2017) (reopening motion for plaintiff to file response); Bowen-Hooks

v. City of N.Y., 11 F. Supp. 3d 179, 212 (E.D.N.Y. 2014); Uddin v. City of N.Y., 427 F.

Supp. 2d 414, 429 (S.D.N.Y. 2006). Plaintiff thus fails to allege harm from this proposal.

b. Assigned Office Work as Adverse Action

Second, another adverse action Plaintiff cites is her assignment to office work or

keeping her there for a month after the second, involuntary independent medical

examination in November 2015 (id. at 32). That evaluation cleared her to drive but she

stayed in the office. Assigning her to office work or keeping here there is not adverse.

As mentioned in discussing reasonable accommodations, Plaintiff has not established the

duties in that office work or the amount or availability of overtime (two complaints she

raised against that work compared with her former position) to show the assignment was

adverse. Plaintiff also has not shown a causal connection between her protected activity

and her continued office assignment.

c. Second Independent Medical Examination as Adverse Action

Third, Plaintiff complains that Defendant retaliated by having her re-evaluated after

she provided medical records from her doctor (id. at 31-32; see Docket No. 38, Pl. Memo.

at 38 & n.7). Defendant replies that it believed that it received inconsistent medical

opinions from Dr. Stathopoulos on Plaintiff’s condition (Docket No. 57, Def. Reply Memo.

at 10; see Docket No. 54, Def. Memo. at 15), see Covelli v. National Fuel Gas Distribution

Corp., No. 99CV500, 2001 WL 1823584, at *6 (W.D.N.Y. Dec. 6, 2001) (Elfvin, J.), aff’d,

49 F. App’x 356 (2d Cir. 2002).

Defendant (focusing on Plaintiff’s ability to drive) appeared confused by

Dr. Stathopoulos’ evaluations although they consistently found that Plaintiff needed to

avoid being in a vehicle with a smoker. Dr. Stathopoulos’ November 3 note Plaintiff could

drive, provided it was with a non-smoker while his November 13 note cleared Plaintiff to

return to work without any restrictions. Stressing Plaintiff’s ability to drive, Defendant

sought the second independent medical evaluation when Dr. Stathopoulos stated Plaintiff

had no driving restriction after appearing to say that she had such a restriction.

Plaintiff argues that an independent medical evaluation is allowed under the ADA

only if it is shown to be job related consistent with business necessity (Docket No. 38, Pl.

Memo. at 38 & n.7, citing 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c)). But when

Defendant received what it perceived was an inconsistent medical report that Plaintiff

submitted, Defendant had a business necessity to confirm Plaintiff’s condition to

determine whether an accommodation was required. The ADA precludes employer

examination of an employee or inquiries whether the employee is disabled on the

employer’s suspicion of disability absent being job related and consistent with business

necessity, 42 U.S.C. § 12112(d)(4)(A). In E.E.O.C. v. Prevo’s Family Market, Inc., the

defendant grocery store discharged an alleged HIV-positive employee for refusing a

medical examination. The Sixth Circuit held that this discharge did not violate the ADA

because the examination was intended to protect the health of its other employees and

the general public from HIV infection. That court found that an “employer need not take

the employee’s word for it that the employee has an illness that may require special

accommodation,” and the employer “has the ability to confirm or disprove the employee’s

statement” under § 12112(d)(4)(4). E.E.O.C. v. Prevo’s Family Mkt., Inc., 135 F.3d 1089,

1094 (6th Cir. 1998); see Sloan v. Repacorp, Inc., 310 F. Supp. 3d 891, 900-01 (N.D. Ohio

2018). The Sixth Circuit recognized that “the purpose of the ADA was not to create

impediments for such employer-employee co-operation, but to promote an interactive

dialogue between an employer and employee to discover to what extent the employee is

disabled and how the employee may be accommodated, if at all, in the workplace,”

Prevo’s Family Mkt., supra, 135 F.3d at 1095.

The employee’s seeking accommodation, as Plaintiff is here, creates the business

necessity for Defendant to confirm the extent of the disability. This enables Defendant

and Plaintiff to engage in an interactive process based upon the facts of Plaintiff’s

condition and what conditions she can work under as a result rather than speculation by

the employer. Plaintiff here complains that the interactive process did not occur here, but

this second independent examination was part of that interactive process. It is unclear

how Defendant (or any other employer with a pending request for accommodation) can

make an accommodation without some confirmation of Plaintiff’s claimed disability. That

confirmation does not violate the ADA examination restriction. Plaintiff’s retaliation claim

also fails.

3. Causal Connection

Finally, she contends that her reasonable accommodation application and

Defendant’s adverse action were connected (Docket No. 38, Pl. Memo. at 32). This

causal connection, however, is bootstrapping her accommodation application.

Plaintiff’s claim for retaliation is denied. Thus, Plaintiff’s motion (Docket No. 34)

for summary judgment on this claim is denied and Defendant’s motion (Docket No. 31)

for summary judgment in its favor is granted.

IV. Conclusion

In sum, Plaintiff’s ADA claims lack merit. Defendant at first provided the

accommodation Plaintiff sought by assigning her with a non-smoker or assigning her to

travel alone as an in-field representative. Defendant then temporarily addressed

Plaintiff’s claimed inability to ride in a vehicle with tobacco smoke due to her condition (by

assigning her to office work), then met with her in an interactive process to find a

permanent accommodation. No proposed accommodation arose from that discussion,

but subsequent medical evaluations determined that Plaintiff could return to her former

position as a Service Representative-A. Plaintiff resumed that work with apparently no

incident. Plaintiff never complained from December 2015 until October 2017 that she

was compelled to ride in company vehicles with smokers and irritated her eyes as a result.

If Plaintiff was disabled, her proposed accommodation is eminently reasonable;

Defendant (as it did for the first few months) simply reassigned non-smokers to Plaintiff’s

crew or had Plaintiff drive alone. Plaintiff’s claimed disability, however, did not

significantly limit a major life activity and lasted for only six months. By the time a

proposed accommodation was posed, she was deemed able to resume her former duties.

She suffered no major life activity disruption due to her impairment for this six-month

period or (on the record before this Court) thereafter save the loss of potential, unspecified

overtime benefits. Plaintiff fails to assert a prima facie case for disability discrimination.

As a result, her ADA claim is dismissed, and this Court need not address her claims for

being regarded as disabled (which she also fails to allege) and whether the parties

engaged in an interactive process to devise reasonable accommodations. Plaintiff’s

retaliation claim also is dismissed.

Defendant’s Motion for Summary Judgment (Docket No. 31) is granted, Plaintiff’s

Motion (Docket No. 34) for Summary Judgment in her favor is denied.

V. Orders

IT IS HEREBY ORDERED, that Defendant’s Motion for Summary Judgment

(Docket No. 31) is GRANTED.

FURTHER, that Plaintiff’s Motion for Summary Judgment (Docket No. 34) is

DENIED.

FURTHER, the Clerk of Court is DIRECTED to close this case.

SO ORDERED.

Dated: November 20, 2020

Buffalo, New York

s/William M. Skretny

WILLIAM M. SKRETNY

United States District Judge