Petition for Writ of Certiorari — Mazza v. Bratton

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i. Supreme Court, U.S.

\ FILED

"01-45

No. 1 JUL 0 9 2001

In the

Supreme Court of the United States

GARY MAZZA,

Petitioner,

WILLIAM BRATTON, as Commissioner

of the New York City Police Department, et al.,

Respondents.

On PetiTION For Writ OF CERTIORARI

To Tue Unitep States Court Or APPEALS

For THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ALAN E. WOLIN

Counsel of Record

WoOLIN & WOLIN

420 JERICHO TURNPIKE

Suite 215

JericHo, NY 11753

(516) 938-1199

Counsel for Petitioner

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

QUESTIONS PRESENTED

Can paid or unpaid leave constitute a

reasonable accommodation under the

Americans with Disabilities Act?

Is regular and predictable attendance a

job requirement under an Americans

with Disabilities Act analysis?

Must an employee request that he/she

be reasonably accommodated in order

to invoke the’ reasonable

accommodation provisions of the

Americans with Disabilities Act?

LIST OF PARTIES

Petitioner

The petitioner, Gary Mazza, has no corporate affiliations.

Respondents

The respondents are: William Bratton, as Commissioner of

the New York City Police Department; Raymond P. Kelly,

as Commissioner of the New Your City Police Department;

Lee P. Brown, as Commissioner of the New York City Police

Department; The New York City Police Department and The

Police Pension Fund Article II of The New York City Police

Department.

;

TABLE OF CONTENTS

Page

Questions Presented .......... 0. ccc cc ccccce i

IN awe Wines 4 u's o's 66 hae wa ww ve ax il

PE NE os 5 nc oe eau cc cb awuecokaees ili

Table of Cited Authorities .................... Vv

EY 6 os 4k 9-90 oo-0'o oo oe eee e. l

Sas goes. oaks stat Ce eke, |

Statutory Provision Involved .................. l

Statement of the Case ....................,.4. 3

A oo ee 3

B. Proceedings Below ............... 16

Reasons for Granting the Writ ................. 19

1. There Is A Conflict Among The

Circuits As To Whether Paid or

Unpaid Leave Constitutes A

Reasonable Accommodation Under

The Americans With Disabilities Act

And Whether Regular And Predictable

Attendance Is A Job Requirement

UNE 6 da Gow WS a 5d oe Sw we ates 19

ill

2. There Is A Conflict Among The

Circuits As To Whether An Employee

Must Request That He/She Be

Reasonably Accommodated In Order

To Invoke The Reasonable

Accommodation Provisions Of The

Americans With Disabilities Act ......

ER a a re ae ase oan eis et ae

Appendix

Appendix A

Summary Order of the United States Court of

Appeals for the Second Circuit, dated April

Se os ea a

Appendix B

Opinion and Order of the United States

District Court for the Eastern District of New

York, dated August 4, 2000 ..............

Pe Ce Ne ee ee rn oT

TABLE OF CITED AUTHORITIES

Page

Babrowsky v. New York City Bd. of Educ.

1999 WL 737919, a *4 (E.D.N.Y. 1999),

aff'd. mem. 213 F.3d 625 (2d Cir. 2000) .......... 17

Bultemeyer v. Fort Wayne Community School

100 F. 3d 1281, 1285 (7th Cir. 1996) ............ 25

Carr v. Reno

ao F. 26 Se oe GK. GR. PD nc co pa i es 19

Cehrs v. Northeast Ohio Alzheimer's Research Center

153 F.36 Tio CG. SOP oc hk ha kee a bi 20, 25

Cirado v. IBM Corp.

145 F.3d 437 (Ist Cir. 1998) ............... 20, 24

Daddazio v. Katherine Gibbs Sch., Inc.

1999 WL 228344, a *5 (S.D.N.Y. 1999),

aff'd mem. 205 F.3d 1322 (2d Cir. 2000) ........ 17

Haschmann v. Time Warner Entertainment Co.

151 F. 3d 391, G02 (7th Cir. 1998) 2... ww ce 22

Hendricks-Robinson v. Excel Corp.

154 F. 3d 685, 694 (7th Cir. 1998) ............. 25

Jackson v. Dept. of Veterans Administration -

22 F. 34 277, 278-79 (llth Cir. 1994) ........... 19

Jankowski Lee & Assoc. v. Cisneros

91 F.3d 891, 896 (7th Cir. 1996) ............. 43 23

Kimbro v. Atlantic Ridgefield Co.

889 F.2d 869, 878-79 (9th Cir. 1989) ......... 21,25

Norris v. Allied-Sysco Food Services Inc.

948 F. Supp. 1418 (N.D. Cal. 1996) ............ 22

Parker v. Columbia Pictures Indus.

204 F.3d 326, 338 (2d Cir. 2000) ............... 17

Querry v. Messar

14 F. Supp. 2d 437, 444-45 (S.D.N.Y. 1998) ....... 17

Rodgers v. Lehman

869 F.2d 253, 259 (4th Cir. 1989) .............. 21

Schmidt v. Safeway, Inc.

864 F. Supp. 991 (D. Oregon 1994) .......... 22, 24

School Board of Nassau County v. Arline

480 U.S. 273, 287, 107 S.Ct. 1123,

36 LSS See CHUOFD 60's oe ea ese eee 20

Tyndall v. National Education Centers Inc.

ee FF tf me errr rey ee 19

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals

for the Second Circuit in this case.

OPINIONS BELOW

The Opinion and Order of the United States District

Court for the Eastern District of New York is published at

108 F. Supp. 2d 167 (E.D.N.Y. 2000). It is reproduced in

the Appendix. The Summary Order of the United States

Court of Appeals for the Second Circuit is unreported and is

reproduced in the Appendix.

JURISDICTION

The Summary Order of the United States Court of

Appeals for the Second Circuit was rendered on April 11,

2001. No sehearing was requested.

This Court has jurisdiction under 28 U.S.C. §1254(1).

STATUTORY PROVISION INVOLVED

The statutory provision involved is the American with

Disabilities Act (ADA), 42 U.S.C. §12101, et seq.. For

purposes of this petition, the relevant portions of the ADA

provide:

No covered entity shall discriminate against a

qualified individual with a disability because of

the disability of such individual in regard to

job application procedures, the hiring,

advancement, or discharge of employees,

employee compensation, job training, and

other terms, conditions and privileges of

employment. 42 U.S.C. §12112(a).

A "disability" includes, in relevant part, a

physical or mental impairment that

substantially limits one of more of the major

life activities of such individual .... 42 U.S.C.

§12102(2)

"Discrimination" includes, not making

reasonable accommodations to the known

physical or mental limitations of any otherwise

qualified individual with a disability who is an

applicant or employee, unless such covered

entity can demonstrate that the accommodation

would impose an undue hardship on the

operation of the business of such covered

entity. 42 U.S.C. §12112(b)(5)(A)

The ADA defines "Qualified Individual" and

"Reasonable Accommodation" as follows:

(8) Qualified individual wit? a disability

The term "qualified individual with a

disability" means an individual with a

disability who, with or without reasonable

accommodation, can perform the essential

functions of the employment position that such

individual holds or desires. For the purposes

of this subchapter, consideration shall be given

te the employer's judgment as to what

functions of a job are essential, and if an

employer has prepared a written description

ieee ili

before advertising or interviewing applicants

for the job, this description shall be considered

evidence of the essential functions of the job.

(9) Reasonable accommodation

The term "reasonable accommodation" may

include -

(A) making existing facilities used by

employees readily accessible to and usable by

individual with disabilities; and

(B) job restructuring, part-time or modified

work schedules, reassignment to a vacant

position, acquisition or modification of

equipment of devices, appropriate adjustment

or modifications of examinations, training

materials or policies, the provision of qualified

readers or interpreters, and other similar

accommodations for individuals with

disabilities. 42 U.S.C. §12111

STATEMENT OF THE CASE

A. Relevant Facts

Petitioner, Gary Mazza, was terminated as a

probationary Police Officer with the New York City Police

Department (NYCPD) on February 25, 1993 because he was

disabled. Petitioner had been appointed as a Police Officer

in the NYCPD on or about October 15, 1990.

As part of his application process, petitioner

underwent extensive medical examinations. At no time prior

to his appointment was petitioner found to have any medical

condition affecting his colon or gastrointestinal system.

On or about April 24, 1992, petitioner returned to duty

after a two week regularly scheduled annual leave and

immediately upon returning to duty began suffering diarrhea

and blood in his stool.

On May 2, 1992, petitioner collapsed on his way to

work and was rushed to St. Vincent's Medical Center in

Staten Island, New York. Petitioner was diagnosed with

universal ulcerative colitis, an inflammatory condition

affecting his gastrointestinal tract. Universal ulcerative colitis

is a physical disorder of the digestive tract, which is

symptomatic in varying degrees twenty-four hours a day,

seven days a week. As a result of this condition, petitioner

was hospitalized four times at St. Vincent's Medical Center

between May 2, 1992 and June 14, 1992. Petitioner's

physicians did not consider this to be a minor ailment.

The Discharge Summary dated May 6, 1992, after

petitioner's first hospitalization, noted that petitioner had a

history of "approximately four weeks of diarrhea, bloody in

the previous three weeks." It also noted that petitioner had

been “dehydrated, weak and dizzy." The Discharge

Diagnosis was "Hemorrhagic colitis."

The Discharge Summary dated May 24, 1992 noted

that petitioner

"continued to experience numerous bloody

bowel movements averaging about 8 per day

and having approximately 8 on the day of

admission. He was dehydrated and quite

symptomatic despite use of Dipentum and

a A eee a NER E re Te meer Tm S|

Prednisone at home."

The Discharge Diagnosis was "1. Ulcerative colitis. 2.

Pseudomembranous colitis." The Discharge Summary of June

11, 1992 reaffirmed petitioner's diagnosis.

Ulcerative colitis is a form of inflammation affecting

the gastrointestinal tract. The degree of inflammation can

vary from mild to severe. The degrees of inflammation can

be classified in four degrees -- (1) mild inflammation, (2)

moderate inflammation, (3) moderate-severe inflammation and

(4) severe inflammation. Petitioner was diagnosed as

suffering from the most severe form of ulcerative colitis. In

fact, he was classified as suffering from extensive or

"universal" ulcerative colitis.

Universal ulcerative colitis is most commonly

accompanied by symptoms of inflammation causing a large

volume of mucus, pus and blood in the stool. It is also

accompanied by symptoms of diarrhea, bowel urgency, rectal

discomfort, abdominal cramps, anemia, malnutrition, severe

weakness, fever and pain.

In or about May, 1992, petitioner began suffering

many of these symptoms and more, including severe diarrhea,

bloody and loose stool, inflammation, severe cramps, nausea,

loss of appetite, loss of weight, gas, severe pain in different

degrees, dehydration, fever, sleep deprivation, fatigue, mood

changes, sexual disfunction, severe joint pain and anemia, due

to loss of blood. Petitioner also had to undergo repeated

exams, including CAT scans, X-rays, colonoscopies,

endoscopies and barium enemas. Petitioner began

experiencing fissures, hemorrhoids and cracks to his rectal

area. These were very painful.

As a result of the universal ulcerative colitis and its

resultant symptoms, petitioner had difficulty cooking,

cleaning, shopping, sliowering, engaging in personal hygiene,

sitting up in bed, washing clothes and changing clothes.

Petitioner was compelled to consume a special diet, use a

portable commode and could not engage in social activities.

At times, petitioner was bedridden. With varying degrees,

petitioner would also have to utilize a bathroom up to ten

times per day.

All symptoms can usually be treated with medication

and dietary control. Surgery, in a small proportion of

patients, may be necessary. As a result of the universal

ulcerative colitis, petitioner has taken and continues to take

numerous medications. He will be on medication for the rest

of his life. He will also be compelled to consume a special

diet for the rest of his life.

Because of the medication and special diet, as time

advanced in 1992 and into 1993, the symptoms of petitioner's

condition began to stabilize and improve. The bowel

movements and cramping decreased. The frequency of severe

episodes decreased. Petitioner continually got better.

However, petitioner continued to be affected in his normal

functions and activities. On some days, petitioner was more

lackadaisical and his ability to engage in certain activities,

such as driving and shopping, were impaired. At times,

petitioner continued to soil himself while engaging in daily

activities such a driving and walking. Petitioner even

continued to wear diapers at times. His condition, although

symptomatic twenty-four hours per day, was being eased with

medication, diet and medical observation. By February,

1993, although not in remission, petitioner's condition had

improved to the point where he was able to work.

| _ a ta

Prior to February, 1993, petitioner requested that

respondents return him to duty, with reasonable

accommodation. Petitioner wanted to be assured that he

would be in close proximity to a bathroom.

: In his affidavit to the Equal Employment Opportunity

| Commission (EEOC), petitioner stated

"In October, 1992, I requested Dr. Edelman

for an accommodation because I felt I was

qualified to work. I was not allowed to report

to active duty because I was on medication.

My father also asked Dr. Leah Dann in 12/92

to recommend my being put back to active

duty with accommodation. She also stated that

I could not be put back to work because I was

on medication."

In support of his anticipated return to duty, on or

about January 6, 1993, petitioner submitted a note from his

treating physician, Dr. Prasanna Wickremesinghe. In this

note, Dr. Wickremesinghe stated

"This patient is still under intensive medical

therapy for chronic universal ulcerative colitis.

Should he respond favorable, he will be able to

resume his previous duties with some

accommodations."

This note by Dr. Wickremesinghe was intended to mean that

petitioner was responding favorably and that he could then

return to duty with some accommodation.

Petitioner has been examined by several noted

gastroenterologists, all of whom state that having ulcerative

~ colitis does not automatically exclude an individual from the

police force. All of them stated that they have patients who

are active New York City Police Officers who suffer from

bowel diseases, some of whom have had ileostomy apparatus

attached to their bodies after having their colon removed.

Most patients with ulcerative colitis are capable of full time

employment; and that the most common accommodations

usually required are reasonable access to lavatory facilities

and occasional time off for flare ups. The accommodation

needed will differ, depending upon the diagnosis.

Meanwhile, petitioner was required to make weekly

trips into respondents' Special Medical District in Lefrak

City, Queens, New York, where he was examined by a

Department Surgeon.

During his visits to the Department Surgeon's Office,

petitioner routinely tape recorded the conversations. Copies

of these tape recordings were provided to respondents’

counsel during discovery. These tape recordings confirm that

the Department Surgeons lulled petitioner into believing that

he would not be terminated and would be giving a full and

fair opportunity to recover and return to work.

At all times during his visits to the Department

Surgeon and up to and including February, 1993, the

Department Surgeon perceived petitioner as disabled from his

ordinary and most other occupations. As a result,

respondents and their agents refused to permit petitioner to

return to duty.

In fact, the Department Surgeons' statements to

petitioner confirmed that they were in no rush to have

petitioner return. On October 28, 1992, Stanley Edelman,

M.D., a Department Surgeon, told petitioner, according to

one of the tapes that he made and which were turned over to

respondents’ counsel,

"I would tell them to get off this job. Gary,

tell them you can't get along mentally, too

stressful. You've got to look out for yourself.

You're going to kill yourself in this job.

You're getting close to doing it, this is a

serious matter. This is not a joke. ... Maybe

if you get out you'll survive. Take my advice.

... You've got to get out of this environment.

This is not your cup of tea."

Respondents confirmed their refusal to permit

petitioner to return to work, with or without reasonable

accommodation, and their perception that petitioner was

disabled from his ordinary and most other occupations in their

Position Paper submitted to the EEOC. Therein, respondents’

representative wrote:

"Prior to his termination, claimant had been

out sick since May 2, 1992, diagnosed with

active inflammatory bowel disease. During

that period claimant was periodically examined

by physicians from the Police Department's

Health Services Division, pursuant to Civil

Service Law §72.1, who determined that

claimant was not medically fit to return to duty

-- not even limited duty.

From the period May 1992 to February 25,

1993, when claimant was terminated, there

was no question of providing "reasonable

accommodation" for a disability. Police

Department physicians had determined that

Mr. Mazza was medically not fit to return to

duty, by reason of a biopsy-proven IBD with

cramps and bloody diarrhea 6-8 times a day,

and that there was no possibility of his being

able to return in the near future."

Clearly, respondents refused to permit petitioner to be

reasonably accommodated and rather perceived petitioner as

being disabled.

After the diagnosis of universal ulcerative colitis,

petitioner first visited with the Department Surgeon on June

29, 1992. The determination was then made to keep

petitioner on sick leave. At that time, the Department

Surgeon noted that petitioner had been treated in St. Vincent's

Medical Center for a severe episode of "bleeding ulcerative

colitis."

Petitioner again visited with the Department Surgeon

on July 10, 1992. The Department Surgeon, again, perceived

petitioner as disabled and continued him on sick leave.

Petitioner, again, visited with the Department Surgeon

on July 24, 1992, August 18, 1992 and August 28, 1992. On

August 28, 1992, Dr. Edelman noted that petitioner suffered

from

"a very serious debilitating case of ulcerative

colitis complicated by bleeding, multiple bowel

movements, weight loss, that he would

eventually require major colon surgery. And

at that time, I felt that his future in the police

department as a full-duty Police Officer, with )

all the ramifications in performing full police |

work, was in serious doubt."

At that time, Dr. Edelman determined that he was

going to seek petitioner's removal from the Police

Department. On August 28, 1992, Dr. Edelman, therefore,

recommended that petitioner be terminated from respondent

Police Department. In doing so, Dr. Edelman clearly

perceived petitioner as being unable to work. -Dr. Edelman

did so despite respondents’ policy which permits a wait of up

to eighteen months in order to determine a Police Officer's

medical fitness for duty.

On August 28, 1992, Dr. Edelman believed that "In

[his] professional opinion, [petitioner] was not able to work."

Dr. Edelman "felt that [petitioner] was very sick. He had

gone for surgical opinions. He faced the possibility of major

surgery. Clinically, he was not improving. He was on

multiple medications, including steroids and anti-cancer

drugs.

Dr. Edelman, at his deposition, refused to state

whether petitioner could have returned to work with

reasonable accommodation and refused to state whether he

believed that petitioner was permanently disabled. In fact, as

the transcript reveals, he dodged both questions.

During his deposition, Dr. Edelman did concede that

ulcerative colitis can be controlled by proper medication.

During his deposition, Dr. Edelman, finally conceded

that if petitioner's condition "had-been under control on the

medications, he would have been capable of doing clerical

work, yes."

Respondents have many full time tasks available to

Police Officers which do not involve continuous patrol work

and which, instead, are clearly clerical in nature. These

include, Gperations Coordinator, Desk Officer, Integrity

Control Officer, Planning Officer, Youth Officer, Crime

Prevention Officer, Community Affairs Officer, Safety

Officer, Domestic Violence Prevention Officer,

Evidence/Property Control Specialist, Station House Clerk,

Attendant, Switchboard Operator and _ performing

administrative duties at Police Headquarters.

However, neither Dr. Edelman nor any other

Department Surgeon ever addressed the possibility of

petitioner returning to work under any circumstance. In fact,

Dr. Edelman, during his deposition, stated that he had no

record of and could not recall discussing with petitioner the

possibility of his returning to work, with or without

accommodation. In fact, Dr. Edelman stated "I don't think

so" in response to a question asking him if he ever discussed

"with Gary Mazza the possibility of modification of his job

duties; in other words, to enable him to continue working as

a Police Officer."

Dr. Edelman, in his deposition, further stated that he

could not answer whether respondents could have done

anything to change petitioner's job duties so as to enable

petitioner to return to work.

Despite recommending that petitioner be dismissed

from respondent Police Department as early as August 28,

1992, without providing petitioner with a full opportunity to

medically improve, respondents never advised petitioner of

such. Instead, petitioner continued reporting to the

Department Surgeon as before and as his condition began

improving.

In fact, during his many visits to the Office of the

Department Surgeon, the last of which occurred on February

ummm 8 8

25, 1993, the Department Surgeons continuously discouraged

petitioner from making any effort to return to work. They

advised him that his health was more important and that he

should not worry about getting back to work. On one

occasion, petitioner spoke with Department Surgeon Dann.

Petitioner noted

"We spoke about my illness, and she told me

to hang in there, that I seemed to be doing the

right things for the problem that I have. And

I had asked her about possibly being

terminated from my illness, and she told me

not to worry about that, that's something [

wouldn't have to worry about."

The tape recordings confirm that the Department

Surgeons lulled petitioner into believing that he would not be

terminated and that he would be given a full and fair

opportunity to recover and return to work. For example, on

October 6, 1992, petitioner had a conversation with both Dr.

Edelman and Dr. Dann. Drs. Edelman and Dann stated on

the tape, with reference to termination,

"No one is interested in doing that now. We

are all interested in you getting better. Get it

out of your mind. It's too soon. We will

follow you along, if you're in the same place

six months from now, we would have to look

hard. Right now, it is too early to be thinking

about it. Don't worry about it."

However, during this time, respondents, while

assuring petitioner of his job security and although

petitioner's condition was improving, continued the procedure

towards his ultimate dismissal. On November 20, 1992, Dr.

Edelman, conversed with petitioner's father, Arthur Mazza.

This conversation was also taped and provided to respondents.

During the conversation, petitioner and his father mentioned

the possibility of petitioner's returning to work. Dr. Edelman

then stated "In fact, next week he is going back to work."

- Petitioner's father then asked "Where, doc?" Dr. Edelman

then replied "We're going to try to get him into the local

precinct [123rd Precinct." Unfortunately, despite petitioner

having raised the possibility of his returning to work and

voicing no objection to a return to his local precinct, Dr.

Edelman stated that it was not up to him and that it was an

administrative decision. Respondents never followed up on

it.

In a memo to Dr. Dann dated December 9, 1992, Dr.

Edelman instructed Dr. Dann to "write a 49 on Gary Mazza

to terminate his P.D. app't."

On December 9, 1992, petitioner and his father spoke

to Dr. Edelman about the possibility of petitioner returning to

work. They reminded Dr. Edelman of the previous

discussion about petitioner returning to his local precinct. Dr.

Edelman seemed to forget the previous discussion when

petitioner stated "When you discuss this with me you try to

put me back to work." This tape was made available to

respondents’ counsel.

In a memo dated December 10, 1992 addressed to

Robert E. Thomas, M.D., the Supervising Chief Surgeon,

Dr. Dann recommended that petitioner "be separated from the

police department." In doing so, Dr. Dann stated:

"1. Probationary Police Officer Gary Mazza

has been out sick since May 2, 1992 with

active inflammatory bowel disease. He has a

biopsy proven IBD and has had cramps and

bloody diarrhea (6-8 times/day) since then.

He is currently on corticosteroids and 6-

mercaptopurine.

y & In view of his continued disease

activity, with no possibility to be restored to

full duty in the near future and more than

seven (7) months of being on sick report, I

recommend ihat this Probationary Police

Officer be separated from the Police

Department."

By Dr. Dann's own words, she relied exclusively on the

respondents’ perception that petitioner was disabled and

substantially limited in his ability to work as the basis of

recommending petitioner's dismissal.

Dr. Dann recommended petitioner's dismissal, despite

the fact that petitioner's symptoms, by December 10, 1992,

were subsiding. In a letter dated February 25, 1993,

petitioner was notified that his service as a Probationary

Police Officer in the NYCPD was terminated. Petitioner was

terminated directly because of his disability. His sick leave

record was not cited as a factor. This was the first time that

petitioner learned that he was to be dismissed from respondent

Police Department, despite the fact that respondents first

made the recommendation in August, 1992 and by their

actions lulled him to believe otherwise.

Developments subsequent to his dismissal indicated

that petitioner's condition did permit him to return to work,

with some accommodation. These developments included a

colonoscopy on March 12, 1993 and a barium enema on

March 23, 1993.

B. Proceedi low

Petitioner, inter alia, brought this action against the

NYCPD and various related individuals and entities, alleging

that respondents violated the Americans with Disabilities Act,

42 U.S.C. §12101 et seq. (ADA) by terminating him from his

position as a probationary Police Officer because he suffers

from universal ulcerative colitis.

After discovery was completed, respondents moved for

summary judgment on petitioner's ADA claim. Respondents,

generally, asserted that petitioner could not establish a prima

facie case with reference to his ADA claim.

Petitioner duly opposed respondents' motion.

Petitioner argued that he had sufficiently met all elements to

the establishment of a prima facie case under the ADA, so as

to establish that genuine issues of material fact existed herein.

However, in its Opinion and Order dated August 3,

2000, the District Court granted respondents’ motion for

summary judgment with respect to petitioner's ADA claim.

In doing so, the District Court rejected respondents’ assertion

that petitioner's medical condition did not rise to the level of

a disability under the ADA and that petitioner was not

terminated based on his medical condition. However, the

District Court continued that petitioner had "failed to present

sufficient evidence to create a triable factual issue that he was

able to perform the essential functions of his position, with or

without accommodation." The District Court further held,

along these lines that petitioner had "failed to raise a genuine

issue of fact concerning his ability to come to work at all."

The District Court further found that "petitioner has failed to

present any genuine issue of disputed fact concerning his

alleged request for an accommodation." Key to the District

een

Court's Opinion and Order was the following discussion:

"D. Qualified Individual

Plaintiff has failed to present sufficient

evidence to create a triable factual issue that he

was able to perform the essential functions of

his position, with or without accommodation.

Therefore, [respondent] is entitled to summary

judgment on this issue.

An individual is not qualified for his

position if he is unable to come to work.

Babrowsky v. New York City Bd. of Educ.,

1999 WL 737919, a *4 (E.D.N.Y. 1999),

aff'd. mem. 213 F.3d 625 (2d Cir.

2000)("[t]here could be no reasonable

accummodation because attendance is an

essential function of her employment");

Daddazio v. Katherine Gibbs Sch., Inc., 1999

WL 228344, a *5 (S.D.N.Y. 1999), aff'd

mem. 205 F.3d 1322 (2d = Cir.

2000)("'[rJegularly attending work' is an

essential function of virtually every

job")(Querry v. Messar, 14 F. Supp. 2d 437,

444-45 (S.D.N.Y. 1998 (ADA does not

require an employer to accommodate an

employee who cannot get to work).

Moreover, the ADA does not require that a

position be kept "open indefinitely" while an

employee convalesces. Parker v. Columbia

Pictures Indus., 204 F.3d 326, 338 (2d Cir.

2000)." Pet. App. 20a-21a.

The District Court, in reaching its conclusions, also

held "A claim of disability discrimination arising from

termination of an employee based on failure to accommodate

is not make out under the ADA unless the employee's request

for a reasonable accommodation has been denied by the

employer." Pet. App. 22a-23a. Because the District Court

concluded that petitioner had not actually requested to be

reasonably accommodated, respondents were entitled to

summary judgment on that issue.

In a Summary Order dated April 11, 2001, the United

States Court of Appeals for the Second Circuit affirmed the

Opinion and Order of the District Court " Substantially for the

reasons stated in Judge Gershon's Opinion and Order dated

August 3, 2000.”

This Petition for Writ of Certiorari follows because

petitioner believes that several fundamental issues, dispositive

to the decision sought to be reviewed herein, are in conflict

with the decisions of other United States Courts of Appeals on

very important issues of reasonable accommodation as they

pertain to the ADA. These conflicts should be reconciled by

this Court, especially since the ADA is fairly new legislation

and many important facets thereof have not yet been ruled

upon by this Court. Such review is important so that the

rights of disabled employees, including countless police

officers and firefighters may be protected.

Shia rinaciboaiah

REASONS FOR GRANTING THE WRIT

1. There Is A Conflict Among The Circuits As

To Whether Paid Or Unpaid Leave

Constitutes A Reasonable Accommodation

Under The Americans With Disabilities Act

And Whether Regular And Predictable

Attendance Is A Requirement Thereunder

The courts below refused to consider the propriety of

respondents extending petitioner's leave, as a reasonable

accommodation, and, instead, concluded that petitioner's then

present inability to work rendered him unqualified to perform

the essential functions of his position. This conclusion was

buttressed by citations to courts within the Second Circuit.

However, the rationale of the courts below is in conflict with

conclusions reached in other Circuits.

Circuits have disagreed about whether paid or unpaid

leave, or the extension thereof, can constitute a reasonable

accommodation under the ADA. Some courts, such as those

in the within case, have presumed that regular and predictable

attendance is an essential element or regular job requirement

and that an employer is not required to provide leave as an

accommodation. See also, Tyndall v. National Education

Centers Inc., 31 F.3d 209 (4th Cir. 1994); Carr v. Reno, 23

F. 3d 525, 530 (D.C. Cir. 1994); Jackson v. Dept. of

Veterans Administration, 22 F. 3d 277, 278-79 (11th Cir.

1994). Such holdings lead to the conclusion that someone on

leave, and without present ability to work, is automatically

unqualified under the ADA's prima facie showing. These

courts, such as the ones below, would reject the idea that

attendance is not an essential function as defined by the ADA

and that leave, itself, may be a reasonable accommodation and

that the employee, therefore, need not show a present ability

to work.

Other Circuits disagree and have concluded that

attendance is not an essential function, as defined by the

ADA, and that leave may be a reasonable accommodation.

For example, in Cirado v. IBM Corp., 145 F.3d 437 (1st Cir.

1998), the First Circuit upheld a jury verdict finding that IBM

had violated the ADA by firing an employee who requested

temporary leave to receive treatment for depression. The

court held that the request for leave was a reasonable

accommodation and did not unduly burden IBM. /d. at 444.

With particular relevance to the case at bar, the First Circuit

also rejected IBM's justification that it never received a note

from the employee's doctor requesting the leave. The First

Circuit further rejected IBM's claim that it had already

accommodated the employee by granting previous leaves. In

doing so, the First Circuit held that the duty to accommodate

is "a continuing one." /d. at 445. These rulings conflict with

those of the courts below in the case at bar.

A similar result was reached by the Sixth Circuit in

Cehrs v. Northeast Ohio Alzheimer's Research Center, 155

F.3d 775 (6th Cir. 1998). There, the Sixth Circuit agreed

that the "presumption that uninterrupted attendance is an

essential job requirement improperly dispenses with

‘appropriate burden shifting analysis.'" The court also noted

- that "the presumption eviscerates the individualized attention

that [this Court] has deemed ‘essential’ in each disability

claim." School Board of Nassau County v. Arline, 480 US.

273, 287, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). In Arline,

this Court had held that in order to determine whether a

disabled person is otherwise qualified "the district court will

need to conduct an individualized inquiry and make

appropriate findings of fact." /d. at 287, 107 S.Ct. 1123. As

the court in Cehrs further noted, "If we were to presume that

uninterrupted attendance in all instances is a mandatory job

requirement, then the policies and needs of both the individual

employer and employee would never be considered." /d. at

782.

~ The Sixth Circuit in Cehrs also concluded that the

presumption "leads to an illogical consequence" and citing the

Family and Medical Leave Act noted "Congress has already

determined that uninterupted attendance in the face of a family

medical emergency is not a necessary job requirement and

does not unduly burden employers." /d. at 783. Thus, the

Sixth Circuit concluded, in obvious disagreement with the

courts below, that "no presumption should exist that

uninterrupted attendance is an essential job requirement, and

find that a medical leave of absence can constitute a

reasonable accommodation under appropriate circumstances."

Id.

Other Circuits have also held that a leave of absence

and leave extensions are reasonable accommodations. For

example, in Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir.

1989), the Fourth Circuit, in a Rehabilitation Act case,

approved of a leave of absence as a_ reasonable

accommodation for alcoholics. The Ninth Circuit, in Kimbro

v. Atlantic Ridgefield Co., 889 F.2d 869, 878-79 (9th Cir.

1989), interpreted a Washington state statute to provide leave

“as a form of accommodation. In Kimbro, the Ninth Circuit

recognized that an employee who suffered from acute

migraine episodes was justified in seeking leave as an

accommodation, where the leave would have permitted his

doctor to formulate an effective treatment and to eventually

adequately perform his job. The court in Kimbro concluded,

that "as long as a reasonable accommodation available to the

employer could have plausibly enabled a handicapped

employee to adequately perform his job, an employer is liable

for failing to attempt that accommodation." /d. at 879. See

also, Haschmann v. Time Warner Entertainment Co., 151 F.

3d 591, 602 (7th Cir. 1998).

Federal regulations are also in accord. For example,

29 C.F.R. Pt. 32, App. A(b), states that a reasonable

accommodation may require an employer "to grant liberal

time off or leave without pay when paid sick leave is

exhausted and when the disability is of a nature that is likely

to respond to treatment." The EEOC Interpretive Guidance

on the ADA, 29 C.F.R. Pt. 630, App., states that a

reasonable accommodation "could include permitting the use

of accrued paid leave or providing additional unpaid leave for

necessary treatment.". The EEOC document entitled

"Enforcement Guidance : Reasonable Accommodation and

Undue Hardship under the Americans with Disabilities Act"

is also enlightening. It states "Permitting the use of accrued

paid leave or unpaid leave, is a form of reasonable

accommodation, when necessitated by an employee's

disability." Moreover, it states that an employer may not

automatically terminate an employee after he/she has been on

leave for a certain period of time if the employee with a

disability needs leave beyond the said period. The employer

must then modify its policy to provide additional leave and

hold open an employee's job. Moreover, the employer may

not penalize an employee for work missed during leave taken

as a reasonable accommodation.

These Circuits' and regulations, which are in conflict

' District Courts, including Schmidt v. Safeway Inc.,

864 F. Supp. 991 (D. Oregon 1994) and Norris v. Allied-

Sysco Food Services Inc., 948 F. Supp. 1418 (N.D. Cal.

1996), are examples of decisions where District Courts have

with other Circuits including the Second Circuit in the case at

bar, clearly state that medical leave may be a reasonable

accommodation under the ADA. Even an extended medical

leave or an extension of an existing leave period may be a

reasonable accommodation. Therefore, under the authority of

these Circuits, petitioner's medical leave was a reasonable

accommodation and his then present inability to work during

the leave period should not have automatically rendered him

unqualified. It should have, instead, created a question of fact

as to the reasonableness of the accommodation and resulted in

the denial of respondents' motion for summary judgment.

Jankowski Lee & Assoc. ¥. Cisneros, 91 F.3d 891, 896 (7th

Cir. 1996).

This conclusion should have been clear on the record

that was developed in the District Court. The record

established that petitioner's medical authorities had opined

that he would be able to return to work in the not too distant

future and petitioner, himself, had advised respondents that

his condition was improving. In addition, respondents have

an unlimited sick leave policy and will routinely maintain a

Police Officer on leave for up to eighteen months before

rendering a suitability determination. We will also remember

that one of the Police Surgeons advised petitioner that a

decision would not be forthcoming for another six months at

a time when the Police Surgeons' Office had already

determined that petitioner be dismissed.

held that a leave of absence was an accommodation under the

ADA. In Norris, the court held that "an unpaid leave of

indefinite duration or a very lengthy period, such as one year,

may constitute a reasonable accommodation under the ADA."

Id. at 1439. The court was particularly swayed by the

employer's leave policy. Jd. at 1440.

The foregoing discussion has revealed that the decision

below conflicts with the holding of other Circuits with respect

to whether paid or unpaid leave constitute a reasonable

accommodation under the Americans with Disabilities Act and

whether regular and predictable attendance is a job

requirement thereunder. Both of these issues are important

aspects of the ADA, which should be reviewed and reconciled

by this Court. Upon such review, the decision below should

be reversed.

2. There Is A Conflict Among The Circuits As

To Whether An Employee Must Request

That He/She Be Reasonably Accommodated

In Order To Invoke The Reasonable

Accommodation Provisions Of The

Americans With Disabilities Act

The courts below found that their belief that petitioner

had never actually requested to be reasonably accommodated

was dispositive. Other Circuits and authority, however,

would reach a opposite decision and rule that an employee

does not have to actually request to be accommodated under

the ADA. This Court must reconcile the difference.

The ADA does not require a plaintiff "to speak any

magic words before he is subject to its protections. The

employee need not mention the ADA nor even the term

‘accommodation.'" However, when an employer knows an

employee has a disability, then the duty to accommodate

attaches. See, Schmidt v. Safeway, Inc., supra. at 997. A

similar result was reached in Cirado v. IBM Corp., supra..

There, the court found the fact that the employer was on

notice that the employee was suffering from a disability and

needed time to adjust to be dispositive. The First Circuit

continued that the crucial criteria is whether the employer is

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aware of the difficulties. If so, it must assist the employee in

determining the necessary specific accommodations. See

also, Hendricks-Robinson v. Excel Corp., 154 F. 3d 685, 694

(7th Cir. 1998) ("a request as straight forward as asking for

continued employment is a_ sufficient request for

accommodation."); Bultemeyer v. Fort Wayne Community

School, 100 F. 3d 1281, 1285 (7th Cir. 1996) Unlike the

courts below, these courts concluded that whether an

employee actually asks to be accommodated is not dispositive.

The Sixth Circuit in Cehrs v. Northeast Ohio

Alzheimer's Research Center, supra., is also in conflict with

the decisions below. The court there held "The employee's

initial burden of articulating a reasonable accommodation

need not be onerous. For purposes of a prima facie showing,

the plaintiff must merely ‘suggest the existence of a plausible

accommodation, the costs of which, facially, do not Clearly

exceed its benefits. /d. at 781. There can be no question

that, upon the record herein, had the courts below applied

this standard, summary judgment would have been denied.

The Ninth Circuit in Kimbro v. Atlantic Ridgefield

Co., supra., also minimized the need for an employee to

actually request to be accommodated. The key factor, held

the court, was whether the employer had sufficient knowledge

of the disabling condition. The court noted that the employer

could not be responsible for any failure to attempt a

reasonable accommodation where it did not have sufficient

knowledge of the disabling condition. /d. at 875. Thus,

summarized the court, "an employee's failure to formally

request an accommodation -- as occurred in this case -- does

not absolve the employer of its obligation to reasonably

accommodate its employee's disabilities." /d. at 877.

The decisions below are also in conflict with the

EEOC's Enforcement Guidance, previously identified.

Firstly, the Enforcement Guidance states that a request for

reasonable accommodation need not be in_ writing.

Individuals may request accommodation in conversations or

may use any other mode of communication. Surely,

petitioner's doctor's note and his conversations with the

Police Surgeons were probative and the search of the courts

below for a specific request should not have been dispositive.

The Enforcement Guidance also tells us that a family member

[i.e. petitioner's father], health professional or other

representative may request an accommodation on behalf of the

individual.

Moreover, the Enforcement Guidance further states

that there are circumstances when an employer should initiate

the reasonable accommodation interactive process, without

being asked, in circumstances where the employer knows that

the employee has a disability and knows or has reason to

know that the employee is experiencing workplace problems

because of the disability. Moreover, according to the

Enforcement Guidance, "An employer may not assert that it

never received a request for reasonable accommodation, as a

defense to a claim of failure to provide reasonable

accommodation, if it actively discouraged an individual from

making such a request." EEOC Enforcement Guidance at

Footnote 100.

The record is very clear that respondents, as a result

of petitioner's regular visits to the Police Surgeon, were

aware of petitioner's disability, his prognosis and his obvious

need to be accommodated. Respondents should have

understood that petitioner required an accommodation, such

as extended leave, without petitioner being required to make

a formal request. Instead, respondents lulled petitioner into

believing that he would not be terminated and that he would

be given a full and fair Opportunity to recover and return to

work. For example, we wili remember that one of the Police

Surgeons represented to petitioner that nothing would occur

for an additional six months. In doing so, respondents

actively discouraged petitioner from making any specific

accommodation request and from returning to work. By

doing so, respondents violated the reasonable accommodation

dictates of the ADA.

Unfortunately, the courts below interpreted the

reasonable accommodation provisions of the ADA in a

restrictive manner, which is at odds with other Circuits and

EEOC guidelines. This Court should grant the within petition

in order to review, clarify and reconcile the differing

decisions in the Circuits with reference to the important

reasonable accommodation issues contained herein. Upon

such review, this Court must reverse the courts below.

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

WOLIN & WOLIN

By: Alan E. Wolin, Esq.

Attorney for Petitioner

420 Jericho Turnpike

Suite 215

Jericho, NY 11753

(516) 938-1199

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

[Filed April 11, 2001]

No. 00-9146

GARY MAZZA,

Plaintiff-Appellant,

Nee ee eae GS

WILLIAM BRATTON, as Commissioner )

of the New York City Police Department, )

RAYMOND P. KELLY, as Commissioner )

of the New York City Police Department, )

LEE P. BROWN, as Commissioner of the )

New York City Police Department, THE )

) NEW YORK CITY POLICE )

DEPARTMENT and THE POLICE )

PENSION FUND ARTICLE II OF THE _)

NEW YORK CITY POLICE )

DEPARTMENT, )

)

Defendants-Appellees.

Court of Appeals Summary Order - 4/11/01

SUMMARY ORDER

Ata stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York, on the 11" day of

April two thousand one.

Present: HONORABLE AMALYA L. KEARSE,

HONORABLE JOSE A. CABRANES, Circuit

Judges.

HONORABLE DAVID G. TRAGER, District

Judge’

Appearing for Appellant: Alan E. Wolin, Wolin &

Wolin, Jericho, N.Y.

Appearing for Appellees: Sharyn Rootenberg, Ass’t

Corp. Counsel, N.Y., N.Y.

Appeal from the United States District Court of the

Eastern District of New York.

This cause came on to be heard on the record from the

United States District Court for the Eastern District of New |

York, and was argued by counsel. |

“Honorable David G. Trager, of the United States District

Court for the Eastern District of New York, sitting by designation.

——— ———_—————————

Court of Appeals Summary Order - 4/11/01

ON CONSIDERATION WHEREOE., it is now hereby

ordered, adjudged, and decreed that the judgment of said

District Court be and it hereby is affirmed substantially for

the reasons stated in Judge Gershon's Opinion and Order

dated August 3, 2000.

We have considered all of plaintiff's contentions on

this appeal and have found in them no basis for reversal. The

judgment of the district court is affirmed.

FOR THE COURT:

ROSEANN B. MacKECHNIE, Clerk

by:

/s/

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

[August 3, 2000, Decided]

[August 4, 2000, Filed]

Case No. 94 CV 5065 (NG) (CLP)

GARY MAZZA,

Plaintiff,

ee ee ae ee

WILLIAM BRATTON, as Commissioner)

of the New York City Police Department, )

RAYMOND P. KELLY, as Commissioner )

of the New York City Police Department, )

LEE P. BROWN, as Commissioner of the )

New York City Police Department, THE )

NEW YORK CITY POLICE )

DEPARTMENT and THE POLICE )

PENSION FUND ARTICLE II OF THE _)

NEW YORK CITY POLICE )

DEPARTMENT, )

Defendants. )

)

District Court Opinion & Order - 8/4/00

OPINION AND ORDER

GERSHON, United States District Judge:

Gary Mazza was terminated as a probationary

patrolman with the New York City Police Department

("NYPD") on February 25 , 1993, after he had been out sick

almost ten months with severe ulcerative colitis. He filed a

claim of disability discrimination with the Equal Employment

Opportunity Commission ("EEOC"), which rejected his claim

on the ground that, although Mazza was disabled, he was not

a qualified person with a disability because, at the time of

termination, he could not perform the essential functions of

his job as a police officer, with or without accommodation.

(Def. Ex. H).' This action followed, naming as defendants

several former NYPD Commissioners, the NYPD and an

NYPD Pension Fund (referred to herein collectively as

"NYPD" or "defendant"). The complaint alleges disability

discrimination in violation of the Americans with Disabilities

Act ("ADA"), 42 U.S.C. §§ 12101 et seg. and the New York

State Human Rights Law, N.Y. Exec. L. §§ 290 et seq.

Plaintiff seeks reinstatement, back pay and benefits, and

damages. Plaintiff also claims that he was wrongfully

deprived of a pension and/or the opportunity to apply for a

pension. Although the complaint is unclear as to whether the

claims relating to the pension are based on federal as well as

state law, plaintiff has explained in his memorandum and at

oral argument of this motion that the claims are based on

'Def. Ex." and "Pl. Ex." refer to the exhibits submitted by

defendants and plaintiff, respectively, in connection with the

summary judgment motion. "Tr." designates the pages of the

deposition transcript of the party identified.

District Court Opinion & Order - 8/4/00

alleged violation of his rights under his contract and

provisions of the New York State Constitution and state law,

not the federal Constitution or statutes.

Defendant now moves for summary judgment on the

ADA claim, on the grounds that plaintiff has not raised

factual issues that he was disabled, qualified, wrongfully

denied a reasonable accommodation, or improperly

terminated. Defendant argues that plaintiff cannot establish:

(1) that his condition substantially limited major life activities,

as required to show a "disability" under the ADA; (2) that

plaintiff could perform the essential functions of a police

officer, with or without reasonable accommodation; and (3)

that he ever requested a reasonable accommodation.

Defendant also argues that plaintiff's claims relating to a ~

pension should be rejected as a matter of law, contending that

any rights plaintiff may have had as a probationary patrolman

were automatically extinguished upon his termination, and

further that the court should not exercise supplemental

jurisdiction over the state law claims upon dismissal of the

federal claims.

A. The Facts

Unless otherwise indicated, the facts set forth below

are undisputed.

Gary Mazza was employed as a probationary police

officer with the NYPD beginning October 15, 1990. He

graduated from the Police Academy in April 1991, and

entered upon duty as a police officer. Before he developed the

colitis condition, plaintiff had been recorded as being out sick

on six occasions, leading automatically to his designation by

POL Ob DALAL De sat 8 Se

Lo aN a ae AN

District Court Opinion & Order - 8/4/00

computer as a "chronic category B officer" because of the

total number of illnesses and days of work missed within a

year.

When plaintiff returned from vacation toward the end

of April 1992, he began suffering diarrhea and bloody stool.

On May 2, 1992, plaintiff collapsed and was taken to St.

Vincent's Medical Center in Staten Island, where he was

diagnosed and treated for severe ulcerative colitis. Plaintiff

was admitted to St. Vincent's and treated three or four times

between May 2 and June 14, 1992, and remained hospitalized

for over thirty days in that period. (Pl. Exs. L, M, N). While

hospitalized, plaintiff experienced numerous bloody bowel

movements, averaging about eight per day during severe

periods, and was described as dehydrated and "quite

symptomatic" upon his second admission. (Pl. Ex. M). Colitis

is inflammation of the colon, part of the gastrointestinal tract.

In severe cases, the patient also can experience severe

abdominal pain, cramps and "bowel urgency" (a feeling of

>The parties devote considerable attention to details of these

absences and to unsatisfactory performance ratings that plaintiff

received; plaintiff endeavors to show that he was treated unfairly by

his superiors and discriminated against after being designated

"category B," while defendant seeks to portray plaintiff as a poorly-

motivated and problematic probationary patrolman with a poor

attendance record. These details are omitted, since they are

irrelevant to this motion. There is no genuine factual dispute that

the NYPD terminated plaintiff based on his medical condition, not

on his performance as a police officer, and it is not disputed that

this medical condition was an actual one, whether or not it rose to

the level of a "disability" under the ADA (and I find infra that it

did).

District Court Opinion & Order - 8/4/00

having to make a bowel movement immediately) in addition

to the symptoms described above. (Pl. Ex. P). When

symptomatic, a person with colitis will need to relieve himself

very suddenly, and can soil himself. During and after his

hospitalizations, plaintiff was placed on numerous anti-

inflammatory and other medications, including

corticosteroids. (Pl. Exs. N, V). Plaintiff continued to be

medicated in the following years, and apparently will have to

take some medications for the rest of his life. In some cases,

medication is not successful in controlling the inflammation

and surgery to remove the affected area is required. (PI. Ex.

S, at 5).

Plaintiff in his deposition (Tr. 276-80) described his

symptoms during and in the months following his

-hospitalizations as diarrhea, loose and bloody stool, cramps

(including stomach cramps resulting from medication),

nausea, gas, bowel urgency, weight loss, dehydration,

fatigue, pain and hemorrhoids. Plaintiff explained that at the

relevant time he had good and bad days, and that there were

days that he suffered few or no symptoms and other days

where he would have to make bowel movements ten times

(Id. at 279). Plaintiff's affidavit submitted in opposition to the

summary judgment motion (at 4 45) describes the symptoms

he experienced as "severe diarrhea, bloody and loose stool,

inflammation, severe cramps, nausea, loss of appetite, loss of

weight, gas, severe pain in different degrees, dehydration,

fever, sleep deprivation, fatigue, mood changes, sexual

disfunction, severe joint pain and anemia, due to loss of blood

. . . [and] fissures, hemorrhoids and cracks to my rectal area

[that] were very painful." He alleges in his affidavit (at { 46)

that as a result, he "had difficulty cooking, cleaning,

shopping, showering, engaging in personal hygiene, sitting up

District Court Opinion & Order - 8/4/00

in bed, washing clothes and changing clothes," avoided

"social activities," and was "bedridden" at times. Plaintiff's

affidavit fails to describe the degree of "difficulty" he

allegedly had in performing these activities.

Plaintiff further testified at his deposition (Tr. 292-93)

that his condition improved "around the time of the

termination" in February 1993 with the use of the

medications. Thereafter, although he suffered flareups,

including incidents where he soiled himself, and lacked

energy some days, plaintiff's bowel movements and cramping

decreased, and his condition did not affect his ability to bathe,

go shopping, drive, learn, exercise, do recreational activity or

work. (/d. at 292-97). Plaintiff maintained that he would have

been able to work with only the accommodation of being

allowed to use bathrooms as needed. (/d. at 300-02).

Plaintiff's testimony in this respect differs significantly from

the allegations of the complaint, which alleges that his

condition rapidly improved after his hospital discharge on

June 14, 1992, that in July he began requesting that he be

restored to duty with reasonable accommodations in

anticipation of his return to full duty, and that the symptoms

of his disease had disappeared before he was terminated

(Comp. 4§ 29-31).

Dr. Stanley Edelman, a NYPD District Surgeon, saw

plaintiff on June 29, 1992. He reviewed the hospitalization

records that showed that plaintiff had experienced severe

episodes of bleeding ulcerative colitis, and that he had been

placed on various medications. (Edelman Tr. 26). In

subsequent biweekly visits, Dr. Edelman continued plaintiff

on sick leave. (/d. at 29-31). After plaintiff's visit on August

28, 1992, Dr. Edelman recommended that plaintiff's

District Court Opinion & Order - 8/4/00

employment be terminated, a recommendation that plaintiff

claims without contradiction was concealed from him before

his actual termination almost six months later, although Dr.

Edelman continued to meet with plaintiff regularly to extend

his sick leave. Dr. Edelman explained that, as of August 28,

he had concluded that plaintiff was very sick, that he had a

very serious and debilitating case of ulcerative colitis

complicated by bleeding, multiple bowel movements and

weight loss, and that he would eventually require major colon

surgery. Dr. Edelman concluded that plaintiff's prognosis was

poor. Plaintiff had failed to improve clinically despite multiple

medications, including steroids, and Dr. Edelman felt that

plaintiff was unabie to work, would be unable to perform the

functions of his job in the near future and that his future

ability to be a full-duty police officer was in serious doubt.

(Id. at 29-30, 34).

Dr. Edelman acknowledged that plaintiff would have

been capable of doing clerical work if his condition had been

under better control with medication, although even then

plaintiff's ability to perform the full range of police work

remained highly questionable. (/d. at 37, 41-42). Dr.

Edelman testified that plaintiff had not stated that he was able

to work as of the time that termination was recommended.

(Id. at 32). Although Dr. Edelman did not recall ever having

discussed with plaintiff the possibility of modifying his job

duties to enable him to continue working as a police officer

(id. at 47), the transcript of a conversation between plaintiff

and Dr. Edelman in October 1992 shows that in fact, Dr.

Edelman had suggested that plaintiff return to light duty or

clerical work, perhaps at his local precinct so that he would

not have to travel, but that plaintiff insisted he was completely

unable to work. (Def. Ex. G). This conversation, and others

10a

District Court Opinion & Order - 8/4/00

by plaintiff with Dr. Edelman and another NYPD surgeon,

Dr. Leah Dann, were secretly recorded by plaintiff, but

plaintiff has not attached transcripts or produced tapes of any

of those conversations in his response to the motion although

he uses a few selected purported quotations from those

conversations to claim that he was not treated fairly. The

tapes were turned over to defendant in discovery. The

transcript of the above conversation prepared by defendant

even quotes Dr. Edelman referring to the obligation of the

NYPD under the ADA to accommodate someone with colitis

who was able to perform some work. Dr. Edelman stated, "I

don't know why you're not able to -- sit at a desk and answer

a telephone." Plaintiff responded, "It's pretty obvious," but

Dr. Edelman replied, "No, it isn't obvious." (Def. Ex. G,

p.5).

Notwithstanding this tape, plaintiff insists in general

terms that, before February 1993, he had requested to be

allowed to return to work with the accommodation of being

allowed to work near a bathroom. (Mazza Aff. ¢ 51). He fails

to identify to whom he communicated this request, or when.

Instead, plaintiff's affidavit cites to paragraph 30 of the

complaint, which as noted above, is refuted by his own

deposition testimony, and also cites to pages of his deposition

testimony that likewise do not identify any communications.

Plaintiff's affidavit (at ¢ 52) then proceeds to quote from the

affidavit he gave before the EEOC (PI. Ex. T), which like the

complaint is hearsay in this proceeding, and plaintiff does not

now swear to its truth. Plaintiff asserted in his EEOC affidavit

that, in October 1992, he had requested of Dr. Edelman that

he be allowed to return to work with an accommodation, but

was not allowed to -- which is directly contrary to the

recorded conversation described above. Plaintiff has not

lla

District Court Opinion & Order - 8/4/00

attempted in his papers to explain this recorded conversation

and, significantly, plaintiff has not attempted to explain his

inability to produce a recorded conversation that corroborates

his claim although he "routinely tape recorded the

conversations" with NYPD doctors without their knowledge.

(Mazza Aff. ¢ 75). Plaintiff's EEOC affidavit also claimed

that in December 1992, plaintiff's father had requested of

NYPD Surgeon Dr. Leah Dann that plaintiff be allowed to

return to work with accommodation, but plaintiff has not

submitted any evidence of that alleged conversation in

response to the summary judgment motion.

Plaintiff also alleges that he was lulled by the NYPD

surgeons into believing that his job was not in jeopardy before

he was terminated. He quotes Dr. Edelman and Dr. Dann on

October 6, 1992, as assuring him that no one was interested

in terminating him now, he should not worry, and that maybe

if there was no improvement in six months they would have

to "look hard" at his situation. (/d.). Plaintiff further quotes

Dr. Edelman as telling plaintiff and plaintiff's father in a

recorded telephone conversation on November 20 that

plaintiff would be returning to work the next week, and Dr.

Edelman would try to arrange for plaintiff to work at his local

precinct. (/d. | 76). Yet, plaintiff does not attempt to explain

why he did not in fact return to work in the week after

November 20. Plaintiff also does not assert that he had

followup discussions with anyone when he did not return to

work as Dr. Edelman had allegedly promised, as would have

been expected if plaintiff wanted to and was able to return to

work. Plaintiff does not submit transcripts of these

conversations.

12a

District Court Opinion & Order - 8/4/00

On December 10, 1992, Dr. Dann recommended that

plaintiff be terminated. (Def. Ex. A). Her memorandum to

the Supervising Chief Surgeon states that plaintiff had been

out sick since May 2 with active inflammatory bowel disease,

"has a biopsy proven IBD and has had cramps and bloody

diarrhea (6-8 times/day) since then," and was on

corticosteroids and 6-mercaptopurine (a drug that affects

immune cells involved in inflamation, see Pl. Ex. S at 4-5).-

Dr. Dann recommended termination in view of plaintiff's

"continued disease activity, with no possibility to be restored

to full duty in the near future" after being out sick for seven

months. Dr. Robert Thomas, the Supervising Chief Surgeon,

concurred, noting plaintiff's "serious intestinal condition," his

required "use of strong therapeutic agents which have the

potential of serious side effects," and the fact that his disease

still was not in remission despite these measures.

Plaintiff's treating physician, Dr. Prasanna

Wickremesinghe, gave plaintiff a note dated January 6, 1993,

which plaintiff submitted to the NYPD, reading as follows:

"This patient is still under intensive medical therapy for

chronic universal ulcerative colitis. Should he respond

favorably he will be able to resume his previous duties with

some accommodations." (P]. Ex. U). Although plaintiff

asserts that Dr. Wickremesinghe "intended to mean that I was

responding favorably and that I could then return to duty with

some accommodation," (Mazza Aff. ¢ 54), the note clearly

does not so state, nor has Dr. Wickremesinghe supported

plaintiff's interpretation of the note even though he has

submitted other statements on plaintiff's behalf. (Pl. Ex. V).

In March 1993, after plaintiff's employment had been

terminated on February 25, medical testing revealed that

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plaintiff's colitis had improved substantially. (Pl. Exs. DD,

EE, FF). His symptoms thereafter were controlled more

successfully with medication, and his doctors determined that

surgery was not needed. Plaintiff has submitted letters from

doctors that describe this improvement or the prognosis for a

typical patient with colitis (Pl. Ex. V) but, contrary to

plaintiff's characterizations, those letters do not offer opinions

on the severity of plaintiff's condition or his ability to work

before he was terminated. The letter most favorable to

plaintiff was submitted by Dr. David Sachar, Professor of

Medicine, Director of the Division of Gastroenterology and

Vice Chairman of the Department of Medicine at Mount Sinai

Hospital. (Pl. Ex. DD). Dr. Sachar did not examine plaintiff

until 1995, but upon review of the medical records, he

asserted that the decision to terminate plaintiff based on “his

successful treatment program . . . seems to me unjustifiable

in science, law, or common sense. "’ Other letters simply offer

observations as to the ability of a typical individual who has

colitis to work, and that ulcerative colitis does not

automatically exclude an individual from police work. (PI.

Ex. V).4

*Dr. Sachar's letter also states: "Needless to say, the fact

that Mr. Mazza's condition suddenly and unexpectedly deteriorated

years later following a Salmonella infection is totally irrelevant to

the question of his termination in January 1993." This later event

is not mentioned elsewhere in the record.

“Defendant challenges the admissibility of two letters from

doctors that state that plaintiff has "chronic universal ulcerative

colitis" and briefly address the condition generally. These letters are

worded identically and are not signed. (Pl. Exs. Q, R). Since the

information they contain is cumulative of information otherwise

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B. Discussion

1. Standard of Review

Summary judgment should be entered "against a party

who fails to make a showing sufficient to establish the

existence of an element essential to that party's case, and on

which that party will bear the burden of proof at trial."

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In

evaluating whether a genuine issue of material fact exists,

"[t]he evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor." Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). These

standards are applicable to the resolution of summary

judgment motions involving ADA claims. Reeves v. Johnson

Controls World Servs., Inc., 140 F.3d 144, 149 (2d Cir.

1998).

2. Disability Discrimination Under the ADA

This court recently reviewed the requirements for a

plaintiff to establish a prima facie case of disability

discrimination under the ADA:

The ADA provides that "[n]o covered entity

shall discriminate against a qualified individual

with a disability because of the disability of

such individual in regard to . . . discharge of

employees. . . ." 42 U.S.C. § 12112(a). A

plaintiff bringing a claim of discriminatory

part of the record, the objection need not be considered.

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discharge under the ADA bears the initial

burden of establishing a prima facie case of

discrimination. To meet this burden, a plaintiff

must show that: (1) her employer is subject to

the ADA; (2) she suffers from a disability

within the meaning of the ADA; (3) she could

perform the essential functions of her job with

or without reasonable accommodation; and (4)

she was fired because of her disability. See

Ryan v. Grae & Rybicki, P.C., 135 F.3d 867,

869-70 (2d Cir. 1998). The ADA describes an

individual as suffering from a “disability” if

she makes a showing of any one of the

following: "(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(2). "Only a ‘qualified

individual with a disability’ may state a claim

for discrimination under the ADA;" even if a

plaintiff alleges a firing because of a medical

condition, she can bring a claim under the

ADA only if her medical condition rises to the

level of a "disability." Parker v. Sony Pictures

Entertainment, Inc., 19 F. Supp. 2d 141, 147

(S.D.N.Y. 1998) [rev'd in part on other

grounds sub nom. Parker v. Columbia

Pictures Indus., 204 F.3d 326 (2d Cir. 2000).]

Sacay v. Research Found. of the City Univ. of New York, 44

F. Supp. 2d 496, 500 (E.D.N.Y. 1999).

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a. Disability

Defendant argues that plaintiff has failed to produce

evidence raising a factual issue that he suffers from a

"disability" within the meaning of the ADA. In making this

argument, defendant flatly contradicts its position before the

EEOC, where it successfully urged that plaintiff was so

disabled that his termination without accommodation was

justified. The argument is without merit because plaintiff has

produced sufficient evidence that he was actually impaired,

and also that he was regarded as being impaired, within the

meaning of subsections (a) and (c) of 42 U.S.C. § 12102(2)

quoted above.

In evaluating a claim of disability under the ADA, the

court follows a three-step process to determine: (1) whether

plaintiff had an impairment; (2) whether the impairment

affected a “major life activity" within the meaning of the

ADA; and (3) whether that major life activity was

substantially limited by the impairment. Bragdon v. Abbott,

524 U.S. 624, 631 (1998); Sacay, 44 F. Supp. 2d at 500.

Plaintiff has an impairment, defined in the regulations

under the ADA as including "[a]ny physiological disorder, or

condition" affecting the digestive system. 29 C.F.R.

1630.2(h)(1); Johnson v. New York Med. College, 1997 WL

580708, at *5 (S.D.N.Y. 1997) ("the Court is convinced that

colitis is a 'physical impairment’ within the meaning of the

ADA").

The evidence also would support a finding that the

impairment affected "major life activities," which includes

under the regulations functions such as "caring for oneself"

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and "working". 29 C.F.R. 1630.2(i). The Supreme Court has

recently questioned the authoritativeness and persuasiveness

of the regulations and EEOC interpretations, and specifically

has questioned the inclusion of "working," Sutton v. United

Airlines, Inc., 527 U.S. 471, 119 S. Ct. 2139, 2151 (1999),

but the Second Circuit in post-Sutton decisions has continued

to view the regulations and agency interpretations as entitled

to substantial deference in interpreting the ADA, and has

specifically continued to treat working as a major life activity.

Heyman v. Queens Village Comm. for Mental Health, 198

F.3d 68, 72-73 (2d Cir. 1999); Muller v. Costello, 187 F.3d

298, 312 & n.5 (2d Cir. 1999).

In Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 871

(2d Cir. 1998), the Circuit assumed without deciding that "the

ability to control one's elimination of waste is a major life

activity," but then proceeded to find that plaintiff had failed

to raise a triable issue of fact that her colitis was a substantial

limitation upon that activity, or that other major life activities

were substantially limited. The symptoms described by

plaintiff in this case, supported by the medical evidence in this

record, satisfy the court that the trier of fact could find that

plaintiff's impairment affected major life activities.

Plaintiff has also introduced sufficient evidence to

create a triable issue of fact that he was "substantially" limited

in the activities of controlling elimination of wastes and

working. Ryan emphasized that its decision against plaintiff

was limited to its facts, where Ryan was asymptomatic for

long periods,-suffered severe symptoms only in the summer,

and did not miss work because of her colitis. Jd. at 871-72.

The court described its determination as "fact specific,"

explaining that it "does not mean that colitis may never

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impose such a limitation." /d. at 872; see Reeves, 140 F.3d at

151-52 (describing Ryan as mandating case-by-case inquiry of

the effect of colitis on the mz,or life activity of the

individual's ability to care for oneself). Other cases which

have evaluated colitis or similar conditions, and that have

reached differing results, similarly are fact-specific. See

Johnson v. New York Med. College, supra (summary

judgment granted against plaintiff whose colitis did not affect

her ability to work); Caporilli v. City of Rome, 1992 WL

209327 (N.D.N.Y. 1992) (finding for defendant after non-

jury trial); Ferguson v. West Carolina Reg'l Sewer Auth., 914

F. Supp. 1297 (D.S.C.), aff'd mem. on other grounds, 104

F.3d 358 (4th Cir. 1996) (summary judgment against plaintiff

with "irritable bowel syndrome" and other ailments); Jones v.

Hodel, 711 F. Supp. 1048, 1048-49 (D. Utah 1989) (plaintiff

who had colon removed because of chronic ulcerative colitis

is disabled); Branch v. City of New Orleans, 1995 WL

295320 (E.D. La. 1995), aff'd mem., 78 F.3d 582 (Sth Cir.

1996) (jury verdict in favor of defendants sustained where

plaintiff's symptoms were in remission). {In Sacay, 44 F.

Supp. 2d at 501-02 & n.1, similarly, this court dismissed the

complaint for failure to set forth factual allegations that were

necessary to allege that plaintiff's colitis and other ailments

substantially limited a major life activity.

In this case, plaintiff has described severe limitations

upon his ability to control elimination of wastes and to work

during the relevant period, and the hospital records and

undisputed medical evidence substantiate the severity of his

condition. A trier of fact could reasonably find that plaintiff

was disabled.

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Plaintiff has failed to create a triable issue that he was

substantially limited in the major life activity of caring for

oneself. Plaintiff's conclusory assertion in his affidavit,

unsupported by any details or by his deposition testimony,

that he had "difficulty" in performing such routine tasks as

cooking, cleaning, shopping and showering is insufficient to

make a prima facie showing that his ability to care for himself

was substantially limited. Ryan, 135 F.3d at 871-72.

The court also concludes, in the alternative, that

plaintiff has presented sufficient evidence to show that he has

a disability under the ADA because defendant regarded him

as having an impairment which substantially limited major life

activities, not just his ability to perform a particular

specialized job. See Murphy v. United Parcel Serv. , 527 U.S.

516, 119 S. Ct. 2133, 2137-38 (1999); Heyman, 198 F.3d at

73. Reeves, 140 F.3d at 153-54. Since defendant terminated

plaintiff in the belief that plaintiff was seriously disabled,

unable to work, and that his prognosis was poor, defendant

cannot now claim that there is not even a genuine factual issue

concerning whether defendant regarded plaintiff as disabled.

b. Qualified Individual

Plaintiff has failed to present sufficient evidence to

create a triable factual issue that he was able to perform the

essential functions of his position, with or without

accommodation. Therefore, defendant is entitled to summary

judgment on this issue.

An individual is not qualified for his position if he is

unable to come to work. Bobrowsky v. New York City Bd. of

Educ. , 1999 WL 737919, at *4(E.D.N.Y. 1999), aff'd mem.,

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213 F.3d 625 (2d Cir. 2000) ("[t]here could be no reasonable

accommodation because attendance is an essential function of

her employment"); Daddazio v. Katharine Gibbs Sch., Inc.,

1999 WL 228344, at *5 (S.D.N.Y. 1999), aff'd mem., 205

F.3d 1322 (2d Cir. 2000) ("'[rlegularly attending work' is an

essential function of virtually every job"); Querry v. Messar,

14 F. Supp. 2d 437, 444-45 (S.D.N.Y. 1998) (ADA does not

require an employer to accommodate an employee who cannot

get to work). Moreover, the ADA does not require that a

position be kept “open indefinitely" while an employee

convalesces. Parker v. Columbia Pictures Indus. , 204 F.3d

326, 338 (2d Cir. 2000).

Plaintiff offers no medical or other evidence to support

his conclusory claim in this action that he was able to work at

the time of his termination. On the contrary, the note from

plaintiff's treating physician, Dr. Wickremesinghe, states that

plaintiff would be able to return to his duties with

accommodations if he responded favorably to intensive

medical therapy. The clear import of this note, written after

plaintiff had missed work for eight months following his first

hospitalization for colitis, is that plaintiff still could not report

for work even with accommodations, and it was not yet

known if plaintiff would be able to do so in the future.

Moreover, since plaintiff had already undergone intensive

medical therapy for most of this eight month period and

remained unable to work, Dr. Wickremesinghe's note did not

provide a basis for optimism. It necessarily confirmed the

evaluation of NYPD physicians that plaintiff's prognosis was

poor. Plaintiff's interpretation of Dr. Wickremesinghe's note,

as meaning that plaintiff had improved and was now able to

work with accommodations, is contradicted by the plain

language of the note, not supported by other statements

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plaintiff has submitted from that doctor, and does not create

a genuine factual issue concerning plaintiff's ability to work.

That plaintiff's condition improved following his

termination cannot overcome the undisputed evidence from

the earlier time period that plaintiff was not qualified to

perform the essential functions of his position, and was not

able to report for work at all. Plaintiff cannot salvage his

claim with his bald assertion of a belief that he was able to

work at the time, unsupported by any medical or other

objective evidence. See Daddazio, at *5 (granting summary

judgment dismissing ADA claim where plaintiff's "conclusory

statement" that he was able to perform the essential functions

of his job was "belied by the evidence that plaintiff himself

has submitted for the Court's review," including medical

evidence).

Since plaintiff has failed to raise a genuine issue of

fact concerning his ability to come to work at all, it is

unnecessary to consider defendant's argument that plaintiff

was not qualified to perform the essential functions of the

specialized occupation of police officer, and therefore was

properly terminated even if he had been able to do

administrative work. Cf. Stone v. City of Mount Vernon, 118

F.3d 92 (2d Cir. 1997), cert. denied, 522 U.S. 1112 (1998)

(analyzing possible duty to accommodate paraplegic

firefighter by assignment to specialized bureau).

e. Reasonable Accommodation

A claim of disability discrimination arising from

termination of an empioyee based on failure to accommodate

is not made out under the ADA unless the employee's request

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for a reasonable accommodation has been denied by the

employer. As explained in Parker, 204 F.3d at 338, the duty

to make reasonable accommodations does not require an

employer to hold open a disabled employee's position

indefinitely, nor does it require the employer “to investigate

every aspect of an employee's condition before terminating

him based on his inability to work." The ADA does require

that when an employee proposes an accommodation weeks

before termination, the employer is obligated to "investigate

that request and determine its feasibility. An employer who

fails to do so, and instead terminates the employee based on

exhaustion of leave, has discriminated ‘because of' disability

within the meaning of the ADA." /d.; see Lanci v. Arthur

Andersen, LLP, 2000 WL 329226, at *8 (S.D.N.Y. 2000)

(duty of employee to request reasonable accommodation);

Baker v. City of New York, 1999 WL 33115, at *4 (E.D.N.Y.

1999) (same); DeMar v. Car-Freshner Corp., 49 F. Supp. 2d

84, 95-96 (N.D.N.Y. 1999) (employee who fails to request an

accommodation of employer cannot hold employer liable for

failing to provide one). But cf. Durrant v.

Chemical/ChaseBank/Manhattan Bank, N.A., 81 F. Supp. 2d

518 (S.D.N.Y. 2000) (denying summary judgment even

though employee disabled by depression had not tried to

return to work and had not requested an accommodation

before she was terminated). j

Defendant is entitled to summary judgment on this

issue. As the review of the facts demonstrates, plaintiff has

failed to present any genuine issue of disputed fact concerning

his alleged requests for an accommodation. Even if the EEOC

affidavit were taken as sworn to in this action, the plaintiff's

claim that he made a request for accommodation from Dr.

Edelman is not on any of the tapes. In fact, the only tape

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presented on this motion that refers to an accommodation

shows the opposite. In that tape, plaintiff rejects Dr.

Edelman's suggestion that he return to work at a desk job or

other restricted duty. Plaintiff admits that he "routinely tape

recorded the conversations" with NYPD physicians (Mazza

Aff. $75). If a conversation took place such as plaintiff

described in his EEOC affidavit, he would have been able to

produce a tape and transcript of that conversation. Plaintiff

has not done so, nor has he attempted to explain his inability

to do so. Moreover, plaintiff has not reaffirmed the truth of

his statements in the EEOC affidavit in the sworn statement

he submitted in opposition to the summary judgment motion.

Plaintiff also has not attempted to identify the alleged

conversations by date or participants in response to the

summary judgment motion. The transcript of plaintiff's

conversation with Dr. Edelman, in which plaintiff resists any

effort to return to work with reasonable accommodations, is

neither challenged nor explained, and completely undermines

his position. Having-continued plaintiff on sick leave for

almost ten months with no request by plaintiff to return to

work in any capacity, without any indication from plaintiff

that he could resume his duties soon, and having been

presented with evidence of plaintiff's serious medical

condition and no evidence that it had improved or was

expected to improve imminently, defendant did not engage in

unlawful discrimination when it discharged plaintiff.

Conclusion

The motion of the defendants for summary judgment

on the ADA claim is granted. The court declines to exercise

supplemental jurisdiction over the remaining claims which, as

plaintiff acknowledged at oral argument, are based only on

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State statutory and constitutional law and common-law breach

of contract. Those claims are dismissed without prejudice to

their being brought in state court.

SO ORDERED.

/s/

NINA GERSHON

United States District Judge

Dated: Brooklyn, New York

August 3, 2000

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.