Rivera v. The County of Suffolk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CARLOS J. RIVERA,

Plaintiff,

MEMORANDUM OF

DECISION AND ORDER

-against-

Civil Action

No. 21-5439 (GRB)(ST)

COUNTY OF SUFFOLK,

Defendant.

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GARY R. BROWN, United States District Judge:

Presently before this Court are cross-motions for summary judgment pursuant to Rule 56

of the Federal Rules of Civil Procedure. See Docket Entries (“DE”) 80, 81-3. Plaintiff Carlos

Rivera alleges that defendant Suffolk County violated the Americans with Disabilities Act

(“ADA”), Rehabilitation Act, and the New York State Human Rights Law (“NYSHRL”) by

engaging in discrimination and retaliation. For the reasons set forth herein, defendant’s motion is

GRANTED and plaintiff’s motion is DENIED.

Factual Background

Plaintiff was a caseworker in the Child Protection and Preventative Bureau of Suffolk

County’s Department of Social Services (“DSS”). DE 70-1 ¶ 1. Plaintiff’s job required that he

timely investigate cases of alleged child abuse and determine whether the allegations were valid.

Id. ¶ 18.

In February of 2020, Jodi Tomlinson, the Assistant Director of Child Protective Services,

and one of plaintiff’s superiors, became concerned about whether plaintiff was sufficiently

investigating two overdue cases of child abuse. Id. ¶ 25. A case is considered “overdue” if the

caseworker has not completed the investigation and determined if the report of child abuse is

credible within 60 days of starting the investigation. Id. ¶ 18. Concerned about the quality and

quantity of contact between plaintiff and the children in those two cases, Tomlinson reached out

to Annette Mahoney-Cross, DSS’s Director of Child Protective Services, and suggested opening

a new report so that DSS could monitor the children. Id. 70-1 ¶ 26. Tomlinson helped to

generate a new report on February 21, 2020, which enabled DSS to assess the safety of the

children. Id. ¶ 27-28. Caseworkers were generally not consulted when new reports were

generated. Id. ¶ 29.

On February 24, plaintiff emailed Tomlinson and Mahoney-Cross, requesting to review

his caseload in light of the two new reports. Id. ¶ 30. Mahoney-Cross explained that she decided

to generate the new reports and that Tomlinson and John Lomascolo, plaintiff’s direct supervisor,

would meet with plaintiff. Id. ¶ 33. In response, plaintiff conveyed his displeasure at not being

consulted, accused Mahoney-Cross of “discrimination,” and insisted that he would not meet with

Tomlinson and Lomascolo absent legal representation. DE 74-17.

On February 25, plaintiff refused to meet with Lomascolo or Mahoney-Cross even

though a union representative was available to assist him. DE 70-1 ¶¶ 36, 39-40. Instead,

plaintiff yelled at Mahoney-Cross that he would not meet without legal representation, he was

facing discrimination, and he was going to call 911. Id. ¶ 43. After the exchange, Mahoney-

Cross emailed Mark Clavin, her superior and DSS’s Administrator of the Family & Children’s

Services Division, noting that plaintiff “became both verbally and physically aggressive” and

that his behavior made her and her team “upset.” DE 74-20. Mahoney-Cross expressed concern

that plaintiff’s “insubordination in the presence of co-workers [would] empower co-workers to

follow suit” and contemplated filing her own complaint with the County’s Office of Labor

Relations if DSS did nothing to remedy her safety concerns regarding plaintiff’s conduct. DE

74-36.

The next day, on February 26, Mark Clavin, the Administrator for DSS’s Family &

Children’s Services Division, received an anonymous email “on behalf of [the author] and a few

co-workers regaring [sic] caseworker, Carlos Rivera.” DE 74-6. The author stated that “[a] lot

of us do not feel safe around [plaintiff]” and cited a “recent incident with him in the office” that

“put a lot of us on edge.” Id. The author described feeling unsafe around plaintiff and

“expressed serious concerns about his mental state,” writing that “it is only a matter of time

before he does something stupid.” Id. “We beg you to please look into this because we don’t

think he is ok,” the email concluded. Id.

As a result of the concerns expressed by Mahoney-Cross and the anonymous employee,

DSS and the Office of Labor Relations referred plaintiff for a psychological medical evaluation,

known as a fitness for duty evaluation, to be conducted by the Suffolk County Civil Service. DE

74-4. At the recommendation of the Office of Labor Relations, DSS suspended plaintiff with pay

pending the outcome of an investigation into the February 25 events. Id.

On March 3, the County’s Department of Health Services sent plaintiff notice of his

fitness for duty evaluation on March 12 with Dr. Daryl Feldman, an independent contractor. DE

70-1 ¶ 61. The letter directed plaintiff to bring medical and psychological documentation as well

as any diagnostic tests. Id. ¶ 62. Even though plaintiff appeared for his appointment with Dr.

Feldman, the latter could not complete his evaluation, because plaintiff did not provide the

medical information the County requested in its March 3 letter. Id. ¶ 63.

On July 14, 2020, DSS charged plaintiff with (1) misconduct for refusing to meet with

Lomascolo or Mahoney-Cross and failing to provide medical documentation to Dr. Feldman and

(2) incompetence for inability to perform job duties as a result of failing to provide the required

medical documentation. DE 74-29 at 1. As a result of these charges, an independent arbitrator

held a hearing in October of 2020, in which plaintiff and defendant provided evidence. See DE

74-8.

On November 12, 2020, DSS sent plaintiff a letter requesting that he provide his treating

professionals with a release for disclosure of medical records to Dr. Feldman for the purpose of

the fitness for duty evaluation. DE 70-1 ¶ 67. In response, plaintiff sent Dr. Feldman an email

saying that he was unable to get a doctor’s letter given that he did not have a history of violence.

Id. ¶ 68. DSS sent a follow-up letter to plaintiff requesting that he provide Dr. Feldman with a

record of medical history that might aid in determining his psychological fitness for duty,

specifying that Dr. Feldman needed records of any prior psychological treatment. Id. ¶ 69. If no

such records existed, plaintiff needed to provide a letter stating that fact. Id. Plaintiff had until

December 10. Id.

Plaintiff did not provide the required documentation, nor did he provide a letter stating

that no record of psychological treatment exists. Id. ¶ 70. As a result, Dr. Feldman could not

complete the fitness for duty evaluation. Id. On December 15, DSS added an additional

misconduct charge against plaintiff for insubordination due to failure to provide medical

documentation to Dr. Feldman. DE 74-29 at 14.

On March 25, 2021, in a written opinion, the independent arbitrator found plaintiff guilty

of incompetence and insubordination and concluded that defendant had just cause to terminate

plaintiff. DE 74-24 at 26.

On September 30, 2021 plaintiff sued defendant, DSS, and several individual defendants

alleging violations of the ADA, Rehabilitation Act, NYSHRL, 42 U.S.C. § 1981 (“§ 1981”), the

Uniformed Services Employment and Reemployment Rights Act (“USERRA”), and Title VII of

the Civil Rights Act of 1964 (“Title VII”). See DE 1. The Court dismissed plaintiff’s § 1981

claim, as well as all claims against DSS and the individual defendants. DE 18. Plaintiff filed an

amended complaint. See DE 19. The Court dismissed plaintiff’s discrimination claims

pertaining to military status under USERRA and race or national origin under Title VII and

NYSHRL. See DE 29. The ADA, Rehabilitation Act, and NYSHRL disability claims remain.

Specifically, the two issues at this stage are narrow and concern: (1) whether defendant

intentionally discriminated against plaintiff by requesting a fitness for duty examination; and (2)

whether defendant retaliated against plaintiff by terminating him after plaintiff refused to provide

medical records. Id. at 6.

Discussion

Legal Standard

A motion for summary judgment is decided under the oft-repeated and well understood

standard for review of such matters, as discussed in Bartels v. Inc. Vill. of Lloyd Harbor, 97 F.

Supp. 3d 198, 211 (E.D.N.Y. 2015), aff’d sub nom. Bartels v. Schwarz, 643 Fed. App’x. 54 (2d

Cir. 2016), which discussion is incorporated by reference herein.

Disability Discrimination

To establish discrimination under the ADA, a plaintiff must show that: “(1) his employer

is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise

qualified to perform the essential functions of his job, with or without reasonable

accommodation; and (4) he suffered adverse employment action because of his disability.”

Jarell v. Hosp. for Special Care, 626 Fed.Appx. 308, 311 (2d Cir. 2015). Intentional

discrimination claims brought under the Rehabilitation Act and the NYSHRL are analyzed under

the same standard as ADA claims. See Rodriguez v. City of New York, 197 F.3d 611, 617 (2d Cir.

1999) (“Because Section 504 of the Rehabilitation Act and the ADA impose identical

requirements, we consider these claims in tandem.”); McDonnell v. Schindler Elevator Corp.,

618 Fed.Appx. 697, 698 (2d Cir. 2015) (“A similar standard applies” to discrimination claims

brought under the NYSHRL and the ADA). Disability discrimination claims are subject to a

burden-shifting analysis, see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in which

the plaintiff must establish a prima facie case of discrimination; the burden then shifts to the

employer to offer a legitimate non-discriminatory reason for the adverse action; and, if the

employer meets its burden, the plaintiff then bears the burden of producing evidence that the

proffered reason for the adverse action is a pretext, Farina v. Branford Bd. of Educ., 458 Fed.

Appx. 13, 15 (2d Cir. 2011).

The ADA provides that an employer may “not require a medical examination and shall

not make inquiries of an employee as to whether such employee is an individual with a disability

or as to the nature or severity of the disability, unless such examination or inquiry is shown to be

job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A)). “[E]nsuring

that the workplace is safe and secure” is a business necessity. Conroy v. New York State Dep’t of

Corr. Servs., 333 F.3d 88, 97 (2d Cir. 2003). Importantly, a fitness for duty referral is not an

ADA violation when triggered by an employer’s safety concerns. See Krasner v. City of New

York, 580 Fed. App’x. 1, 3 (2d Cir. 2014) (“The ADA does not require an employer to retain a

potentially violent employee because such a requirement would place the employer on a razor’s

edge – in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being

deemed negligent if it retained him and he hurt someone.”); Rivera v. Smith, No. 07-CV-3246

(BSJ)(AJP), 2009 WL 124968, at *4 (S.D.N.Y. Jan. 20, 2009), aff’d, 375 F. App’x 117 (2d Cir.

2010) (holding that an employer’s request for a plaintiff to undertake a psychiatric examination

following reports from another employee that the plaintiff was harassing and stalking did not

violate the ADA, because the employer was trying to promote workplace safety). The salient

inquiry is not whether an employee actually posed a threat, but whether the employer reasonably

believed the employee posed a threat. See Cerwinski v. Ins. Servs. Off., No. 95-CV-1766 (JSM),

1996 WL 56988 (S.D.N.Y. Oct. 3, 1996), aff’d sub nom. Cerwinski v. Ins. Servs. Off., Inc., 112

F.3d 503 (2d Cir. 1997) (“As long as this [safety concern] is in fact the reason that [plaintiff] was

terminated, then no matter … how high handed [defendant’s] decisional process, no matter how

mistaken the firm’s managers, [plaintiff] cannot proceed with her claims.”).

Here, the facts undisputably show that defendant had a valid business reason to inquire

into plaintiff’s psychological condition. Rather than meeting with his supervisors as they

requested on February 25, plaintiff screamed at Mahoney-Cross accusing her of discriminating

against him and yelling that he would call 911. DE 70-1 ¶ 43. Because plaintiff was acting

“verbally and physically aggressive,” his behavior made Mahoney-Cross and her team “upset.”

DE 74-20. The evidence indicates that Mahoney-Cross was considering filing a complaint with

the Office of Labor Relations if DSS did not ameliorate her safety concerns arising out of

plaintiff’s conduct. DE 74-36. There was also an anonymous email, ostensibly from one of

plaintiff’s colleagues, expressing concern about the safety threat plaintiff posed. DE 74-6.

Regardless of the author’s identity, the email, combined with plaintiff’s actions toward Mahoney-

Cross, could reasonably have convinced defendant that plaintiff’s mental state needed evaluation

in order to ensure that plaintiff’s colleagues could work in a safe environment.

Accordingly, defendant’s motion for summary judgment on plaintiff’s disability

discrimination claim is granted and plaintiff’s motion for summary judgment on this claim is

denied.

Retaliation

To support a retaliation claim, a plaintiff must show “(1) he engaged in an activity

protected by the ADA; (2) the employer was aware of this activity; (3) the employer took adverse

employment action against him; 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).

Proving retaliation under the Rehabilitation Act, see Weixel v. Bd. of Educ. of the City of New

York, 287 F.3d 138, 148-49 (2d Cir. 2002), and the NYSHRL, see Weissman v. Dawn Joy

Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000), requires this same analysis.

Here, plaintiff was terminated after he refused to provide medical documentation to

defendant as part of the fitness for duty examination. Plaintiff’s refusal was not protected by the

ADA given that defendant’s motive for the referral was to see whether plaintiff posed a danger to

his colleagues. See Conroy, 333 F.3d at 97. By refusing to acquiesce to defendant’s request to

undertake the fitness for duty examination, plaintiff was unable to show that he was fit to

perform his job duties as a caseworker, DE 74-29 at 24, and “engaged in a particularly egregious

example of insubordination,” id. at 25. Because plaintiff’s refusal to provide his medical records

is not protected by the ADA, defendant did not engage in retaliation by terminating him.

Accordingly, defendant’s summary judgment motion on plaintiff’s retaliation claim is

granted and plaintiff’s summary judgment motion is denied.

Conclusion

For the reasons set forth herein, the Court grants defendant’s motion for summary

judgment in its entirety. The Court denies plaintiff’s motion for summary judgment.

SO ORDERED.

Dated: Central Islip, New York

September 4, 2025

/s/ Gary R. Brown

GARY R. BROWN

United States District Judge