Petition for Writ of Certiorari — Delson v. Cino (No. 06-184)

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No. OO- as 8 fist 1. iy la wi: RK

IN THE

Supreme Court of the United States

ROBERTA A. DELSON, PH.D,

Petitioner,

MARIA CINO,

Acting Secretary of the Department of Transportation,

an executive agency of the federal government,

————- - : Respondent.

ON PeTirion FOR A Writ of CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NiIntTiH Cincuir

PETITION FOR A WRIT OF CERTIORARI

Roy J. KARLIN

SHapiro, Bemy, ROSENBERG,

Levy, ARoNowiTz & Fox, LLP

225 Broadway, 13" Floor

New York, New York 10007

(212) 267-9020

Attorneys for Petitioner

QUESTIONS PRESENTED

The Second Circuit in Delson v. Mineta, 2005 WL 1712856

(2d Cir. 2005), overlooks the clear language of the ADA and

its legislative history, disregards EEOC’s published

guidelines, and conflicts with the Seventh, Eighth, Ninth

and Tenth Circuit Courts of Appeal that recognize-a cause

of action under'the ADA for the unauthorized breach of an

employee's medical privacy by unlawful inquiries outside

strict exceptions. Delson presents this conflict although the

Second Circuit had recognized a cause of action for medical

privacy in Conroy v. New York State Department of Correctional

Services, 333 F.3d 88 (2d Cir. 2003) before Delson.

The conflict presented by Delson promotes confusion

and disharmony among the federal courts charged with

administering the remedies available to individuals with

disabilities. By exercising jurisdiction in this case, this Court

can eliminate the conflict presented by the Second Circuit

regarding the limits imposed on access to confidential

medical data, as well as provide rationality, certainty and

uniformity to this area of medical inquiries. Review should

also be granted because this case involves questions of

exceptional importance that impact on the nation’s goals to

assure individuals with disabilities self-reliance, economic

self-sufficiency, and equal opportunity to participate in and

contribute to society.

Seven questions are presented:

1. Does the ADA recognize a private cause of action

against an employer for an unlawful medical inquiry

outside strict exceptions?

2. May an employee hold back medical information

where the employer refuses to treat the information as

confidential medical records consistent with the ADA?

3. Is an employee’s failure to respond to a request for

medical information excused by unlawful inquiries

requiring disclosure that is too broad or more intrusive than

necessary?

4. Isanemployer’s refusal to consider accommodations

that are obvious for the employee’s known disability and

the employer's reliance on impermissible inquiries to justify

this decision an unlawful discriminatory practice?

5. Once a finding on the issue of unlawful inquiry has

been made, is the question of reasonable accommodation a

separate one that should be considered and resolved in the

assessment of damages?

6. Once a finding on the issue of unlawful inquiry has

been made, must the employer bear the cost of its “lost

opportunity” to determine whether, with reasonable

accommodations, the employee could have remained

otherwise qualified for the position?

7. Or, in the alternative, once a finding on the issue of

unlawful inquiry has been made, does the burden shift to

the employer to plead and prove that no reasonable

accommodation exists that would render the employee an

otherwise qualified individual for the position?

LIST OF INTERESTED PARTIES

The following persons were parties below and have an

interest in the outcome of this case.

Roberta A. Delson, Ph.D

Maria Cino, Acting Secretary of the Department of

Transportation, has succeeded Norman Mineta, former

Secretary of the Department of Transportation, an executive

agency of the federal government

TABLE OF CONTENTS

Questions Presented

We Oe Trees FPO noe ono os ec ew ee eke cee

Table of Contents

Table of Appendices

Opinion Below

Statement of Jurisdiction

Statutory Provisions Involved

Statement of the Case

Reasons for Granting the Petition

Delson permits exactly the kind of compelled

disclosure of disability-related medical data

that Congress intended tocurb. ..........

The questions asked are unrelated to the

disability of MS-related fatigue for which Dr.

Delson requested accommodation, and, as

such, the scope of the inquiries exceeds the

legitimate needs of the Academy.

Requiring further information about the

ADA disability and the need for an

accommodation that already were known

and obvious served no _ legitimate

ne Eg ar er ee

Contents .

Absent conflicting expert testimony, the

sufficiency of documentation Dr. Kamin

provided was not placed in doubt.

Prohibited inquiry claims have their own

specialized legal standards.

The Academy must bear the cost of its “lost

opportunity” to determine whether, with

reasonable accommodations, Dr. Delson

could have remained an “otherwise” qualified

individual with a disability.

The Academy by its own admission concedes

that Dr. Delson is an “otherwise qualified”

individual with a disability.

The expert medical testimony established

without contradiction that accommodating

Dr. Delson would not pose an undue hardship.

Promotion standards for the senior rank of

Full Professor are not relevant.

The record does not reflect that accommodat-

ing Dr. Delson requires significant difficulty

. or expense.

The unpaid leave of absence did not pose an

undue hardship First Term.

Contents

The record does not reflect the impact on the

Academy that would be caused by a three

day teaching schedule comprised of three

courses that each meet twice a week for a

total of six class hours and end no later than

2:00 p.m., Friday, Second Term. ..........

The record does not reflect the specific

impact of a three-day teaching schedule

comprised of three courses that each meet

twice a week (for a total of six class hours)

and end no later than 2:00 p.m. Friday after

Second Term.

The record does not reflect the impact on the

Academy that would be caused by a three-

day teaching schedule comprised of three

courses that each meet three days a week and

end no later than 2:40 p.m. Thursday. .....

The record does not reflect the specific

impact on the Academy that would be

caused in the event Dr. Delson were given

further unpaid leave of absence. ..........

The record does not reflect the specific

impact on the Academy that would be

caused if Dr. Delson were assigned no

courses that met four days a week during

PE IU nbsp oa ee Gis we wees oe ee eee

Contents

Page

The record does not reflect the specific

impact on the Academy that would be

caused in the event the Academy afforded

Dr. Delson the same favorable treatment

given non-disabled employees, similarly

situated.

Conclusion

vill

TAB: . +#FCITED AUTHORITIES

Case Law

Alexander v. Choate,

469 U.S. 287, 105 S. Ct. 712, 83 L. Ed. 2d 661

(1985)

Bennett v. Henderson,

15 F. Supp. 2d 1097, aff'd, 172 F.3d 62

(10th Cir. 1999) 18, 19, 21, 26

Borkowski v. Valley Central School District,

63 F.3d 131 (2d Cir. 1995) 20, 21, 22, 25, 26

Cehrs v. Northeast Ohio Alzheimer’s Research Ctr.,

155 F.3d 775 (6th Cir. 1998)

Connors v. University Associates In Obstetrics

and Gynecology, Inc.,

4 F.3d 123 (2d Cir. 1993)

Conroy v. New York State Department of

Correctic» | Services,

333 F.3d 88 (2d Cir. 2003)

Cosgrove v. Sears, Roebuck & Co.,

9 F.3d 1033 (2d Cir. 1993)

Cossette v. Minn. Power & Light,

188 F.3d 964 (8th Cir. 1999)

Criado v. IBM Corp.,

145 F.3d 437 (1st Cir. 1998)

Cripe v. City of San Jose,

261 F.3d 877 (9th Cir. 2001)

Cited Authorities

Detwiler v. Bristol-Myers Squibb Co.,

884 F. Supp. 117 (S.D.N.Y. 1995)

Doe v. Kohn Nast & Graf, P.C.,

866 F. Supp. 190 (E.D. Pa. 1994)

Detroit Edison v. N.L.R.B.,

440 U.S. 301, 99S. Ct. 1123, 59 L. Ed. 2d 333

(1979)

Durrant v. Chemical/Chase Bank,

81 F. Supp. 2d 518 (S.D.N.Y. 2000)

Fredenburg v. Contra Costa County Department of

Health Services,

172 F.3d 1176 (9th Cir. 1999)

Gonzales v. Sandoval County,

2 F. Supp. 2d 1442 (D. N.M. 1998)

Griffin v. Steeltek, Inc.,

160 F.3d 591 (10th Cir. 1998), cert. denied,

526 U.S. 1065, 119 S. Ct. 1455, 143 L. Ed. 2d 542

(1999)

Haschmann v. Time Warner Entertainment ce...

151 F.3d 591 (7th Cir. 1998)

Hegger v. Green,

646 F.2d 22 (2d Cir. 1981)

Humphrey v. Memorial Hospitals Association,

239 F.3d 1128 (9th Cir. 2001)

Cited Authorities

Israel-British Bank (London, Ltd. v. Federal

Deposit Ins.,

PO Fede POE UO Gs BITOD cnet ccesivavisiewes 7

Kimbro v. Atlantic Richfield Co.,

889 F.2d 869 (9th Cir. 1989),

cert. den., 498 U.S. 814, 111S. Ct. 53,

BEd tes CE. SE. vo kaw Vive ee eec es de aude 29

McDermott v. Manhattan Eye, Ear and Throat Hospital,

15 N.Y.2d 20, 255 N.Y.S.2d 65,

Bee TE NT ERP Kibccce kwh eee ayaseeewes' 17

Morgan v. State of New York,

40 A.D.2d 891, 337 N.Y.S.2d 536 (3rd Dept. 1972),

aff’'d,34 N.Y.2d 709, 356 N.Y.S.2d 860,

SAS FC Rime OOO TAPED 6 ck nck iw whveteneraeuhen 23, 24

Morton v. UPS, Inc.,

272 F.3d 1249 (9th Cir. 2001), cert. denied,

535 U.S. 1054, 122 S. Ct. 1910,

See Mas Sc EE CO 65 ho So bas veces. 10, 11

Murdock v. Wash.

193 F.3d 510 (7th Cir. 1999), cert. den.,

529 U.S. 1134, 120 S. Ct. 2015,

SOD 1. TAG; BG Pe CRE cho Hoe sea kd Wes ees 21

Nathanson v. Medical College of Pennsylvania,

926 F 20 13GB Cee Cis. TID) on vcccivee sires 18

Nunes v. Wal-Mart Stores, Inc.,

164 F.3d 1243, 1247 (9th Cir.1999) ............. 28

Nussle v. Willette,

ROT oe te Ce CH oes Ski ee 7

Cited Authorities

Page

Parker v. Columbia Pictures Industries,

204 F.3d 326 (2d Cir. 2000) . 5... wee ee. 19, 20, 21

Parker v. Sony Pictures Entertainment, Inc.,

em € 3a 100 Gd Cir. 2001)... foc s 4,18

Powers v. Polygram Holding, Inc.,

40 F. Supp. 2d 195 (S.D.N.Y. 1999) ............ 28

Rascon v. U.S. West Communications, Inc.,

143 F.3d 1324 (10th Cir. 1990) ........:.¢..... 22, 29

Rodgers v. New York University,

250 F. Supp. 2d 310 (S.D.N.Y. 2002) ........... 28

Roe v. Cheyenne Mountain Conference Resort,

920 F. Supp. 1153 (D. Colo. 1996)

aff'd in pertinent part,

124 F.3d 1221 (10th Cir. 1997) ............. 10, 19, 20

Signal Capital Corp. v. Eastern Maine

Management, Inc.,

899 F. Supp. 1167 (S.D.N.Y. 1995) ............. 7

Sutton v. United Air Lines, Inc.,

927 U.S. 471, 1119S. Ct. 2139,

BOW Gn ee GOA i ooo veh doe kc ee 11

Transport Workers Union of America, Local 100,

AFL-CIO v. New York City Transit Authority,

341 F. Supp. 2d 432 (S.D.N.Y. 2004) ........... 6

X11

Cited Authorities

Page F

US Airways, Inc. v. Barnett,

535 U.S, 391, 122 S. Ct. 1536,

FOR GME GUT LMR oi cee b eee ei ee ea biadene a0

Woodman v. Runyon,

ERE Fa AST CAG, FPF iene ccs nbere care 19, 26

Statutes

The Americans with Disabilities Act of 1990

42 U.S.C.A. § 12111 et seq.

CUTE TSR TD bdikxs'e kre Roden ne eaes 3

NU EUR AEOD 0 po cil nce cvs ecce bak epee eee 21, 22

ANI FOE BAUR ok hess bees ocd eeae ewes 25

OCONEE T RICE) be Seis cc iecane eas ees af 7,6, 19

SOC TZIF OD 65 6 bce ke wie rdccnnees passim

OCI TEE LAUD) 6 05 6s siccccecneeavars 7,8

SENN TATE 6 is Cc ca dc cccdavav eds passim

CUO RET RAUETCGIOD oo ens a eased on ue’ 6, 7, 8, 10, 20

OTIS BALA MUNPORM). bce 3 choo n S408 ie ws passim

The Rehabilitation Act, 29 U.S.C. § 791, et seq.

Secon 2 EER ee SEE aren eS Meer ae PAC

aa a sc, 4

xiii

Cited Authorities

Regulations

Federal Sector Equal Employment Opportunity,

29 C.F.R. § 1613, et seq.

29 C.F.R. § 1614.203(a)

29 C.F.R. § 1614.203(b)

Regulations to Implement the Equal Employment

Provisions of the American With Disabilities Act, 29

C.F.R. § 1630, et seq.

29 C.F.R. § 1630.1(c)

29 C.F.R. § 1630.14(c)(1)(i)

29 C.F.R. § 1630 app. § 1630.2(0)

EEOC - Enforcement Guidance

Enforcement Guidance: Disability-Related Inquiries

and Medical Examinations of Employees Under

the Americans With Disabilities Act, 8 FEP (BNA)

405:7701, et seq. 6, 9, 10, 11, 15, 16

EEOC Enforcement Guidance: Reasonable

Accommodation and Undue Hardship Under the

Americans with Disabilities Act, 8 FEP (BNA)

405:7601, et seq. 9,10, 11, 15, 16

xiv

TABLE OF APPENDICES

Appendix A — Summary Order Of The United

States Court Of Appeals For The Second Circuit

Dated And Filed July 22, 2005

Appendix B — Memorandum, Decision And Order

After Bench Trial Of The United States District

Court Eastern District Of New York Dated June

Appendix C — Order Of The United States Court

Of Appeals For The Second Circuit Denying

Petition For Rehearing Dated And Filed May 5,

OPINION BELOW

The summary order of the United States Court of the

Second Circuit is reported at 2005 WL 1712856. The Second

Circuit affirmed the June 9, 2004 Memorandum, Decision and

Order of the United States District Court for the Eastern District

of New York, that is unreported. See Appendices A and B.

STATEMENT OF JURISDICTION

Petitioner seeks review of the Second Circuit's summary

order that was rendered on July 22, 2005. The Petition for Panel

Rehearing with Suggestion for Rehearing En Banc was denied

on May 5, 2006. See Appendix C. This Court's jurisdiction is

invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The Americans with Disabilities Act of 1990, 42 U.S.C.A.

§ 12111 et seq.

Title 42 United States Code, Section 12112(d)(1)

Medical Examinations and Inquiries

The prohibition against discrimination as referred to in

subsection (a) of this section shall include medical

examinations and inquiries.

The provisions of 29 U.S.C. § 791(g); 42 U.S.C. §§ 12112(d)

(2), (A) (3) (B), (d)(3)(B) (i), (d)(4)(A), (d)(4)(B) and (d)(4)(C); 42

U.S.C. § 12116; 29 C.F.R. § 1614.203; 29 C.F.R. §§ 1630.14(c)(1)

and (c)(1)(i), are lengthy and, therefore, set out in Appendix

D, pursuant to Supreme Court Rule 14.1(f).

STATEMENT OF THE CASE

Roberta M. Delson, Ph.D., a former full time tenured

Associate Professor at the United States Merchant Marine

Academy (hereinafter the “ Academy”) suffers fatigue due to

multiple sclerosis (“MS”), a covered disability within the

meaning of the Rehabilitation Act of 1973, as amended

(hereinafter the “Act”). 29 U.S.C.A. § 701, et seg. As an

employee with MS-related-fatigue, Dr. Delson was, and still

is, able to perform a full time job when given a schedule that

requires her to be at the workplace no more than three daysa

week, and permits her to work from home the remaining two

days. She would have been able to perform the duties of her

position, without a modified schedule, were it not for fatigue.

First Term AY98-99, Dr. Delson was assigned courses that

each met four-days a week, in disregard of a longstanding

accommodation of a three-day teaching schedule established

five years earlier. Without a modified schedule, she had to

request an unpaid leave of absence for the term. The trial court

found that the leave was a reasonable accommodation. Thus,

Dr. Delson was an individual with a disability “otherwise”

qualified, since she could perform the essential functions of

the job when she returned from leave for the second term.

Her schedule called for courses that each met twice a week.

However, Warren Mazek, the Dean of Academic Affairs

(hereinafter the “Dean”), refused to grant the First Term leave

unless Dr. Delson disclosed her complete medical record in

response to unnecessarily intrusive and overbroad medical

inquiries, dated May 15, 1998. The Dean also insisted that Dr.

Delson authorize the disclosure of this confidential

information to the Dean himself, as well as to other supervisors

and managers. The Dean told Dr. Delson that no

accommodation would be considered unless she complied.

The inquiries, dated May 15, 1998, are far-ranging and

ask for unnecessarily intrusive details about Dr. Delson’s

physical and mental health and medical history in general,

such as:

Current and complete medical evaluation outlining

her present health, including, but not limited to, her

present neurological status (multiple sclerosis) and

its effect on her entire physical and mental health in

general

Clinical findings from the most recent medical

evaluation, including the results of a complete

neurological examination, laboratory tests, x-rays,

MRIs, and other special evaluations or diagnostic

procedures

History of her medical condition, including

references to findings from previous medical

examinations, treatments and responses to

treatments

Prognosis and plans for futuretreatment in general

Medications Dr. Delson used for any medical

condition and her history of and compliance with

taking these drugs

Any drug side effects, drug reactions, drug-to-drug

interactions, or any other drug related medical

complications, if any, that may have an impact on

safe, efficient and effective job performance

The inquiry on its face, and in its application, constitutes

an impermissible medical inquiry prohibited by the Act. Dr.

Delson, nevertheless, complied in good faith with the

Dean's request, in that her neurologist, Stephen S. Kamin,

Associate Director, Bernard W. Gimbel Multiple Sclerosis

Comprehensive Care Center, Holy Name Hospital, Teaneck,

New Jersey, provided further documentation and reaffirmed

his recommendations and findings stated in four previous

reports with sufficiently reasonable detail to identify Dr.

Delson’s functional limitation and the accommodation she

needed.

Moreover, Dr. Delson in good faith also agreed to produce

her complete medical record as long as it was kept confidential

and used only by a qualified medical expert designated by

the Academy to evaluate and inform the Dean and other

relevant supervisors and managers, such as the Head of the

Humanities Department, who may need to know, only about

the “necessary restrictions on the duties of the position” and

the “necessary accommodations.” Dr. Delson was not required

to respond to disability related-inquiries under which she

would be compelled to waive her right of privacy guaranteed

under the Act. The Dean, however, rejected her request and

refused to treat the medical records as confidential.

At trial, the Dean testified:

THE COURT: Whether it’s necessary or not, is it

your position that your letters require Professor

Delson to sign an authorization that would allow you

to look at the medical records?

THE WITNESS: It would allow me to but I don’t

think it was necessary. * * * What I’d need to know is

in our physician’s judgment she was capable of doing

and how we might accommodate that.

On September 4, 1998, the Dean revoked the leave,

retroactively, because Dr. Delson would not waive her right

of privacy and held back the confidential medical information.

The Dean suspended Dr. Delson for the Second Term, and

she was fired on January 15, 1999, because of her

noncompliance with the inquiries and her absence First Term.

Dr. Delson was unable to return to work because the Academy

failed to restore a modified schedule once leave was revoked,

retroactively, two months before she was due to return for

Second Term on November 9, 1998.

The Academy’s assertion that it fired Dr. Delson based

on her noncompliance with the inquiries, and her absence First

Term, amounts to discharge solely because of her disability.

Refusing to consider accommodations that were obvious for

her known disability and relying on impermissible inquiries

to justify this decision is disability discrimination. Thus, the

Academy must bear the cost of its “lost opportunity” to

determine whether, with reasonable accommodations that

existed, Dr. Delson could have remained “otherwise” qualified

for the position of employment.

REASONS FOR GRANTING THE PETITION

A. Delson permits exactly the kind of compelled disclosure

of disability-related medical data that Congress

intended to curb.

One purpose of the Act! is to ensure that truly disabled,

but genuinely capable individuals will not face discrimination

because of stereotypes about the insurmountability of their

disabilities. Parker v. Sony Pictures Entertainment, Inc., 260 F.3d

100, 113 (2d Cir. 2001). Too often, unnecessary information

about employee disabilities comes into the hands of employers

and may create:

Barriers which prevent qualified ind viduals with

disabilities from enjoying the same employment

opportunities that are available to persons without

disabilities.

'Dr. Delson invoked section 501 of the Re! «vilitation Act, 29 U.S.C. §

791, in her complaint. The standards for determining whether there has

been a violation of section 501 are the same as those applied under Title |

of the Americans with Disabilities Act (“ADA”). 29 U.S.C. § 791(g); 42

U.S.C.A. § 12111 et seq., 29 C.F.R. § 1630.1(c).

EEOC Interpretive Guidance on Qualifications, Standards,

Tests, Other Selection Criteria, 29 C.F.R., App. § 1630.10.

Legislative “Findings” at the outset of the ADA stress the

adverse impact of stereotypes on opportunities for persons

with disabilities:

individuals with disabilities ... have been faced with

restrictions and limitations, subjected to a history of

purposeful unequal treatment, and relegated to a

position of political powerlessness in our society,

based on characteristics that are beyond the control

of such individuals and resulting from stereotypic

assumptions not truly indicative of the individual

ability of such individuals to participate in, and

contribute to society . . . 42 U.S.C. § 12101(a)(7).

As with every question of statutory interpretation, we start

with the language of the statute. The preventive approach to

combating discrimination is embedded in various provisions

of the ADA that impose strict limits on access to employee

medical data to prevent its potential harm as a basis for -

workplace discrimination. 42 U.S.C.A. §§ 12101(d)(1),

12112(d)(3)(B) and (d)(4)(C).

The ADA prohibition against discrimination specifically

includes medical inquiries and examinations. ADA, 42 U.S.C.

12112(d)(1). Subsection (d)(1) states that medical inquiries may

not be used to discriminate and directs courts to treat medical

examinations and inquiries as unlawful employment

discrimination.

The ADA creates limited exceptions to the general

prohibition on medical inquiries. One exception of the ADA

provides:

A[n employer] shall 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).

Thus, an employee's failure to respond to a request for

medical information is excused by unlawful medical inquiries

requiring disclosure that is too broad or more intrusive than

necessary. 42 U.S.C. § 12112 (d) (4) (A) and (d) (4) (B).

Employers cannot require employees to respond to medical

inquiries unless the inquiries are shown to be “job-related and

justified by business necessity.” 42 U.S.C. § 12112 (d) (4) (A)

and (d) (4) (B); E.E.O.C. Guidance: Disability-Related Inquiries

and Medical Examinations of Employees Under the Americans

with Disabilities Act (ADA), 8 FEP (BNA) 405:7701 and 7703,

n. 14, citing S. Rep. No. 101-116 at 39-40 (1989); H.R. Rep. No.

101-485, pt. 2, at 75 (1990) [EEOC Enforcement Guidance on

Disability Related Inquiries].2 The ADA “entitles employees

(of covered institutions) to maintain a special zone of privacy

from their employers concerning their health and medical

conditions.” Transport Workers Union of America, Local 100, AFL-

CIO v. New York City Transit Authority, 341 F.Supp.2d 432, 437

(S.D.N.Y. 2004).

In addition, the ADA requires that medical information

obtained from medical inquires and examinations must be

treated as confidential. 42 U.S.C. §§12112(d)(3)(B) and

(d)(4)(C); 29 C.F.R. §1630.14(b)-(d). This restriction is of key

importance to people with disabilities. Employees in

responding to requests for medical information outside strict

exceptions are not obligated to waive or bargain away their

right of privacy. 42 U.S.C. § 12112 (d)(3)(B), (d)(4)(B) and

(d)(4}(C). The employee with a disability may hold back

medical information where the employer refuses to treat it as

confidential medical records consistent with the ADA. 42

U.S.C. §§12112(d) (1), (d) (3) (B) and (d)(4)(C); 29 C.F.R.

§1630.14(c).

Every employer must comply with the strict regulations

that protect the confidentiality of medical records under the

ADA. See, 42 U.S.C. § 12112(d)(3)(B) and d(4)(C) and 29 C.F.R.

1630.14(c); they must collect and maintain information

* Both houses of Congress that crafted the ADA determined that: “An

inquiry or medical examination that is not job-related serves no legitimate

employer purpose, but simply serves to stigmatize the person with a

disability.” H.R. Rep. 101-485 (II) at 75 (1990), reprinted in 1990 U.S.C.C.A.N.

303, 358; H.R. Rep. 101-485 (IIT) at 44 (1990), reprinted in 1990 U.S.C.C.A.N.

445, 467; S. Rep. 101-116, at 40 (1989) cited in Disability-Related Inquiries,

supra, 8 FEP (BNA) 405:7703, n. 14.

regarding the medical condition or history of the employee

on separate forms and in separate medical files and treat them

as a confidential medical record. 42 U.S.C.A. §§1 2112(d)(3)(B)

and (d)(4)(C); 29 C.F.R. §1630.14(b)-(d).

The ADA specifically prohibits the disclosure of medical

information collected, except in certain limited situations. 42

U.S.C.A. 12112(d)(3)(B), (d)(4)(B) and (d)(4)(C). The ADA is

remedial legislation and should therefore be given a liberal

interpretation; but for the same reason exceptions from its

sweep should be construed narrowly and limited so that the

major policy underlying the general rule is not defeated. Israel-

British Bank (London, Ltd. v. Federal Deposit Ins., 536 F.2d 509,

513 (2d Cir. 1976); Nussle v. Willette, 224 F.3d 95, 99 (2nd Cir.

2000); Signal Capital Corp. v. Eastern Marine Management, Inc.,

899 F.Supp. 1169, 1170 (S.D.N.Y. 1995).

Supervisors and managers involved in the

accommodation process who need to know may be informed

only of “the necessary restriction on the work or duties of the

employee and of necessary accommodations.” 42 U.S.C.A.

12112(d)(3)(B)(i), (d)(4)(B) and (d)(4)(C); 29 C.F.R. §

1630.14(c)(i). The ADA makes no exception that would require

Dr. Delson to disclose the complete medical record of her

health and medical history in general to a supervisor or

manager. Where a general rule is established by statute with

exceptions, the court will not curtail the former nor add to the

latter by implication, and it is the general rule that an express

exception excludes all others. Israel-British Bank (London, Ltd.

v. Federal Deposit Ins., supra, 536 F.2d at 513; Signal Capital Corp.

v. Eastern Maine Management, Inc., supra, 899 F.Supp. at 1170.

Dr. Delson reasonably expected that the documentation

about her health and medical history in general would be kept

confidential and only viewed by the Academy’s medical expert

for evaluation. 42 U.S.C. § 12112 (d) (1), (d) (3) (B), (d) (4) (A),

(d) (4) (B) and (d) (4) (C); 29 C.F.R. § 1630.14(c)(i). A disabled

employee may not have the same expectations of medical

privacy as others once she or he requests reasonable

accommodation. But even an employee with a disability is

not required to respond to disability related inquiries under

which the employee would waive her or his right of privacy

guaranteed under the ADA. 42 U.S.C. § 12112 (d) (1), (d) (3)

(B), (d) (4) (A), (d) (4) (B) and (d) (4) (C); 29 C_F.R. § 1630.14(c)(i).

Dr. Delson in good faith engaged in an interactive process.

She agreed to produce her complete medical record as long as

it was kept confidential and was used only by a qualified

medical expert designated by the Academy. The expert would

evaluate, and, then, inform the Dean and other relevant

supervisors and managers who need to know only of the

necessary restrictions on the work or duties of the position

and of the accommodations needed consistent with the ADA

(A. 1606-1607 and 1610-1611). 42 U.S.C. 12112(d)(3)(B)(i) and

(d)(4)(C); 29 C.F.R. 1630.14(c)(1)(i).

The Dean denied Dr. Delson’s request. He continued to

insist that she release her complete medical record and

authorize its disclosure to the Dean and other supervisors and

managers. The Dean refused to budge and derailed the

interactive process.

The Academy’s asserted interest easily could have been

served by requiring medical documentation for inspection by

a health care provider with expertise to evaluate and render

an opinion. Requiring employees to provide confidential

information about their health and medical history in general

to non-medical personnel provides no assurance that these

employees are trained to make determinations based on that

documentation. Quite the contrary, providing a medical record

to a supervisor or manager is more likely to have the effect of

coloring judgment based on stereotypes or misconceptions,

the very harm the ADA was enacted to prevent.

B. The questions asked are unrelated to the disability of

MS-related fatigue for which Dr. Delson requested

accommodation, and, as such, the scope of the inquiries

exceeds the legitimate needs of the Academy.

Delson fails to make an individualized assessment of the

inquiries asked and allows the employer to rely on superficial

assertions of business need without having to explore effective,

less intrusive alternatives, thereby exposing the employee to

discrimination. The inquiries asked were triggered to aid in

the reasonable accommodation process. The leave request was

not an invitation for far-ranging inquiries outside strict

statutory exceptions.

[I]n most situations an employer cannot request a

person’s complete medical records because they are

likely to contain information unrelated to the

disability at issue and the need for accommodation.

EEOC Enforcement Guideline on Reasonable Accommodation

and Undue Hardship Under the Americans with Disabilities

Act, 8 FEP (BNA) 405:7608. [Hereinafter EEOC Enforcement

Guidance on Reasonable Accommodation]. See, also, EEOC

Guidance on Disability-Related Inquiries, supra, 8 FEP

405:7715.

It is both the likelihood that the inquiries require

disclosure of disabilities or perceived disabilities unrelated to

the accommodation requested and the absolute lack of a

legitimate need for such information that renders the inquiries

in violation of the ADA. E.E.O.C. Guidance: Disability-Related

Inquiries, supra, 8 FEP (BNA) 405:7701 and 7703, n. 14. The

ADA requires that employers use methods that serve

legitimate operational business needs without trammeling the

rights of workers. Delson; however, creates a safe harbor foi

employers who neglect to explore effective; less intrusive

alternatives, and thereby risk causing widespread

discrimination.

Dr. Delson did not affirmatively place her general physical

or mental health or medical history in issue when she

requested an unpaid leave. The scope of her request for an

accommodation was based on fatigue, precisely the disabling

source of her admitted functional limitation. This does not

permit wholesale discovery of information regarding

unrelated diagnoses, illnesses, disabilities, tests, treatments,

medications,’ medical history or her current physical and

* The Academy’s operational business needs are not served by

questions about every prescription drug medication Dr. Delson takes.

Requiring an employee to disclose all prescription drug medication she or

he was taking is a prohibited inquiry unless safety is a genuine business

necessity. Enforcement Guidance: Disability-Related Inquiries, supra, 8 FEP

(BNA) 405:7712-16; Enforcement Guidance: Disability-Related Inquiries,

supra, 8 FEP (BNA) 405:7712-13: Roe v. Cheyenne Mountain Conference Resort,

124 F.3d 1221, 1229 (10th Cir. 1997),

mental health in general. Although Dr. Delson may have other

neurological signs and symptoms these have not caused a

significant disability. She would still be able to perform all

the duties of her position without a modified schedule, were

it not for fatigue. Requiring disclosure of her complete medical

record would likely elicit disclosure of disabilities or perceived

disabilities unrelated to the accommodation needed, but serve

no legitimate purpose of the Academy.

A disability-related inquiry is lawful only if it is shown

to be “job-related and consistent with business necessity.”

U.S.C. §12112(d) (4) (A) and (d) (4) (B); 29 C.F.R. §1630.14(c).

This is an affirmative defense as to which the employer has

the burden to plead and prove that its asserted business

interest is served by the intrusion into the employee's privacy.

Conroy v. New York State Department of Correctional Services,

333 F.3d 88, 97-98 (2d Cir. 2003).

The employer is required to make a two-part showing.

First, the business necessity must be vital to the business.

Second, the inquiry must genuinely serve the asserted business

necessity and it must be shown to be no broader or more

intrusive than necessary. Conroy, supra, 333 F.3d at 97-98 and

101 citing Cripe v. City of San Jose, 261 F.3d 877, 890 (9" Cir.

2001); Morton v.. UPS, Inc., 272 F.3d 1249, 1257 and 1260 (9"

Cir. 2001), cert. denied, 535 U.S. 1054, 122S. Ct. 1910, 152 L.Ed.2d

821 (2002) (referring to “the stringent elements” of the business

necessity defense).

The Academy has proven neither a specific business need

to demand Dr. Delson’s complete medical record, nor a lack

of less intrusive alternatives. An “[e]mployer” can request

information pertaining only to the disability that requires a

reasonable accommodation.” EEOC Enforcement Guideline

on Reasonable Accommodation supra, 8 FEP 405:7608-7609;

[EEOC Enforcement Guideline: Disability-Related Inquiries,

supra, 8 FEP (BNA) 405:7713, n. 53. “The employer, in response

to a request for reasonable accommodation, cannot ask for

documentation that is unrelated to determining the existence

of a disability and the necessity for an accommodation.” EEOC

Enforcement Guideline on Reasonable Accommodation, supra,

8 FEP (BNA) 405:7608-7709. “If an individual has more than

one disability, an employer can request information pertaining

only to the disability for which the employee is requesting an

accommodation.” EEOC Enforcement Guideline: Disability-

Related Inquiries, supra, 8 FEP 405:7713, n. 53. See, also, EEOC

Enforcement Guideline on Reasonable Accommodation supra,

8 FEP 405:7608-7609.

“The business necessity standard is quite high, and is not

[to be] confused with mere expediency.” Conroy v. New York

State Department of Correctional Services, supra, 333 F.3d at 97-

98 and 101 citing Cripe v. City of San Jose, supra, 261 F.3d at 890

(9"" Cir. 2001); Morton v. UPS, Inc., supra, 272 F.3d 1249, 1257

and 1260. Interpretation of the “business necessity” standard

such that the employer has the burden of proving less intrusive

means are unavailable or too difficult to implement, is central

to preventing disability discrimination before it takes place.

Conroy v. New-York State Department of Correctional Services,

supra, 333 F.3d at 97-98 and 101 citing Cripe v. City of San Jose

261 F.3d 877, 890 (9 Cir. 2001); Morton v. UPS, Inc., 272 F.3d

1249, 1257 and 1260 (9" Cir. 2001 ), cert. denied, 122S. Ct. 1910

(2002).

Congress enacted the ADA because ““society’s

accumulated myths and fears about disability and disease are

as handicapping as are the physical limitations that flow from

actual impairments.” Sutton v. United Air Lines, Inc., 527 US.

471, 489, 119S.Ct. 2139, 144 L.Ed.2d 450 (1999) (quoting School

Bd. Of Nassau County v. Arline, 480 U.S. 273, 284 (1987)). Only

by strictly limiting employer access to information about

employee disabilities to data truly necessary to permit safe

and efficient employer operations can the anti-discrimination

goals of the ADA be realized. Guidance: Disability-Related

Inquiries, supra, 8 FEP (BNA) 405:7701 and 7703, n. 14, citing

S. Rep. No. 101-116 at 39-40 (1989); H.R. Rep. No. 101-485, pt.

2, at 75 (1990), It would seem that these observations apply

here.

Since 1993, when Dr. Delson first requested an

accommodation, copies of the medical information collected

were incorrectly distributed and held by both of her

supervisors - i.e., the Dean and Jane Brickman, Head of the

Humanities Department (hereinafter “Dr. Brickman”). The

content was discussed and examined by each of them. As a

result, Dr. Delson was repeatedly subjected to their ridicule

and repeated inquiries based on stereotypic assumptions.*

The trial court simply characterized the conduct of Dr.

Brickman, Dr. Delson’s immediate supervisor, as being

“insensitive to [Dr. Delson’s] condition..” At trial, Dr. Brickman

answered YES, in response to the question: Do you believe

that Dr. Delson is in remission and appears to be in good

health?

Dr. Brickman testified:

Q. What was the basis of that belief that she was

possibly in remission?

A. Well, she appeared very strong and vigorous.

x**k*

Q. What period of time was this?

A. I guess this was for most of the time that she and

I were together in that department.

Dr. Delson’s condition is precisely the type of case that

led the United States Supreme Court to find a right of

confidentiality of private sector employees in their employer-

held medical records in the case of Detroit Edison v. N.L.R.B.,

440 U.S. 301, 318, 99 S.Ct. 1123, 1133, 59 L.Ed.2d 333 (1979). In

upholding the utility’s refusal to disclose to their union

psychological test results without first receiving the

‘From the outset, Dr. Delson was subjected to intrusive inquiries that

were not job related and without business necessity: Dr. Brickman, made

specific reference to detailed medical information regarding a particular

medication listed in Dr. Kamin’s report of September 8, 1993. Dr. Brickman

told Dr.Delson that she understood Dr. Delson was taking a stimulant that

she believed had changed Dr. Delson’s personality. Dr. Brickman also

questioned why Dr. Delson was not taking Betaseron. In another instance,

Dr. Brickman was skeptical about Dr. Delson’s handicap driver’s permit

and claimed that doctors freely supply them to patients just for the asking

without cause. Dr. Brickman also asked whether Dr. Delslon wore slacks

because her legs were a = shied .

employee’s written authorization, the Court stated: “The

sensitivity of any human being to disclosure of information

that may be taken to bear on her or his basic competence is

sufficiently well known to be an appropriate subject of judicial

notice.” Id. at 318-19, 99 S.Ct. at 1133. Dr. Delson’s also is the

type of case that led Congress to codify the right of

confidentiality in the ADA.

The Academy initially received two reports from Dr.

Delson’s neurologist, Stephen S. Kamin, dated May 26, 1993,

and September 8, 1993, respectively, asking for an

accommodation of a modified schedule. The Dean treated Dr.

Kamin’s submission as reasonable medical documentation that

was sufficiently detailed to substantiate an ADA disability,

the restriction it imposed on the duties of the position, and

the necessity of a modified schedule that required Dr. Delson’s

presence at the Academy no more than three days a week and

permitted her to work from home with no assignments that

required her to be on campus the remaining two days. There

was no indication that the accommodation was denied or the

medical submission lacked sufficient detail.

Dr. Kamin reported that Dr. Delson has MS and her major

symptom is overwhelming fatigue and a decrease in stamina.

Dr. Kamin explained that if she overextends herself, fatigue

would exacerbate her symptoms and place her health and

safety at risk. Dr. Kamin pointed out that Dr. Delson required

rest periods and should schedule activities of the day when

her energy level is highest, so that tasks may be completed

and destinations reached safely.

Dr. Kamin also specifically confirmed Dr. Delson’s need

for an accommodation that required Dr. Delson’s presence no

more than three days a week at the Academy, stating:

*** [I]t is clear that Dr. Delson’s severe fatigue does

impose limitations on the scheduling of her activities.

Because of her reduced stamina, a schedule of three

days a week of teaching is medically warranted. ***

From this time on, the Academy assigned Dr. Delson a

modified schedule that conformed to the accommodation

requested until First Term AY98-99. She was excused from

committees, which would have required her presence at the

Academy more than three days a week, and she was

consistently given a three day teaching schedule, with classes

between 10:00 a.m. and 3:00 p.m., and no classes after 2:00

p.m. on Fridays. Dr. Delson worked from home and was not

required to be on campus at all on the two days she was not

scheduled to teach. :

In 1996, Dr. Brickman for the first time told Dr. Delson

that she believed Dr. Delson’s condition was “not serious.”

Dr. Brickman asserted, “So what if you are a little spastic and

you have a little problem with your gait.” Dr. Brickman also

specifically referred to the medical report by Dr. Kamin, dated

September 8, 1993, and claimed the report was only sufficient

for an accommodation of a three-day teaching schedule and

not a schedule permitting Dr. Delson to work from home on

the two days free of classes. As a result, the Dean, with the

consent of Dr, Delson, spoke to Dr. Kamin directly, and asked

Dr. Kamin for further information about the need for an

accommodation that did not require Dr. Delson’s presence on

campus on the two non-teaching days.

In December of 1996, Dr. Kamin again wrote to the Dean

and reaffirmed that Dr. Delson should have no more than a

three-day presence on campus:

Dr. Delson’s condition is permanent. There is no

likelihood of recovery from this condition or of

amelioration of her disability. However, she is fully

capable of discharging the duties of her position with

the limitation that she spend no more than three days

a week on campus, and that her duties be scheduled

to avoid late afternoon responsibilities. These are the

same recommendations for an accommodation

which I made in 1993. At that time, I had stated these

limitations as a “schedule of three days a week of

teaching”. However, it is clear that I meant this to

encompass all other duties of her position as well,

and I am making it explicit that a limitation of three

days a week on campus refers to any and all of the

duties of her position.

In May 1997, the Dean again asked for more information.

This time he insisted that Dr. Delson sign a general release,

effective for one year, that would authorize the disclosure of her

complete medical record to any “Academy official.” The

release form contained no limitations. Dr. Delson informed

the Dean that the Civil Rights Officer of the Department of

Transportation “advised [her] not to sign the release form.”°

C. Requiring further information about the ADA disability

and the need for an accommodation that already were

known and obvious served no legitimate operational

purpose.

EEOC Enforcement Guidance delineates when an

employer cannot ask for further documentation:

An employer cannot ask for documentation when:

(1) both the disability and the need for reasonable

accommodation are obvious, or (2) the individual has

already provided the employer with sufficient

information to substantiate that s/he has an ADA

disability and needs the reasonable accommodation

requested.

EEOC Enforcement Guideline on Reasonable Accommodation,

8 FEP (BNA) 405:7607-08. See, also, EEOC Guidance on

Disability-Related Inquiries, supra, 8 FEP (BNA) 405:7713, n.

54, citing EEOC Guidance on Reasonable Accommodation,

supra, note 6, at 14-15, 16-17, 8 FEP at 405:7609.

No vital need existed for the Dean to ask for additional

documentation. Dr. Delson required an unpaid leave for the

same reason she requested a modified schedule five years

earlier. Both the nature and severity of the MS-related fatigue

and need for a modified schedule or, in the alternative, a leave

of absence were known and obvious. There was no need to

ask for more medical documentation. The Dean knew that she

has a covered disability for which her need for an

accommodation was obvious. He also realized that Dr. Delson

> The Dean did not question the sufficiency of the medical

documentation submitted previously to substantiate an ADA disability and

the need for an accommodation of a three day teaching schedule established

four years earlier in 1993. The Dean claimed that he sought this

authorization in order to further evaluate the need for an accommodation

that did not require her to be on campus on non-teaching days. He gave no

reason explaining why he considered Dr. Kamin’s reports sufficient for a

three-day teaching schedule but not a schedule that permitted Dr. Delson

to work from home on the two days free of classes. :

requested a leave for the same reason she first requested an

accommodation five years earlier.

EEOC Enforcement Guidance delineates further when an

employer cannot ask for more documentation in examples

substantially identical to the circumstances of the instant case:

Example B: One year ago, an employer learned that

an employee had bipolar disorder after he requested

a reasonable accommodation. The documentation

provided at that time from the employee's

psychiatrist indicated that this was a permanent

condition which would always involve periods in

which the disability would remit and then intensify.

The psychiatrist’s letter explained that during

periods when the condition flared up, the person’s

manic moods or depressive episodes could be severe

enough to create serious problems for the individual

in caring for himself or working, and that medication

controlled the frequency and severity of these

episodes.

Now, one year later, the employee again requests a

reasonable accommodation related to his bipolar

disorder. Under these facts, the employer may ask

for reasonable documentation on the need for the

accommodation (if the need is not obvious), but it

cannot ask for documentation that the person has an

ADA disability. The medical information provided

one year ago established the existence of a long-term

impairment that substantially limits a major life

activity.

Enforcement Guidance: Reasonable Accommodation, supra, 8

FEP at 405:7610. See, also, Enforcement Guidance: Reasonable

Accommodation supra, 8 FEP (BNA) 405:7609-10; Enforcement

Guidance: Disability-Related Inquiries, supra, 8 FEP 405:7713,

n. 54, citing Reasonable Accommodation, supra, 8 FEP at

405:7607-09.

Here, requiring more documentation was not founded on

an interest adequate to satisfy the business necessity standard

but simply would expose Dr. Delson to blatant and subtle

stigma. She already provided medical information, which the

Academy itself treated as sufficiently detailed to substantiate

an ADA disability, the restriction it imposed, and the necessity

of a modified schedule.

Nevertheless, Dr. Delson in good faith sought to cooperate

and asked Dr. Kamin to update the medical reports already

provided to the Academy. On July 22, 1998, Dr. Kamin, wrote

his most recent update to the Academy, stating that no

additional accommodation was required, and reaffirmed his

findings and recommendations stated in his four previous

reports, dated May 26, 1993, September 8, 1993, December 17,

1996, and February 13, 1997, that Dr. Delson suffers from MS-

related fatigue, a permanent condition, and she is capable of

fulfilling the duties of her position on campus and at home,

with the limitation that she spend no more than three daysa

week on campus, and the balance of the week working from

home.

D. Absent conflicting expert testimony, the sufficiency of

documentation Dr. Kamin provided was not placed in

doubt.

The difficulty of proof that medical inquiries must be

shown by the employer to be no broader or more intrusive

than necessary rests upon the technical nature of the subject

matter involved. The disability and the necessity of

accommodations are ordinarily not matters of ordinary lay

knowledge, but require special scientific training to elucidate.

Connors v. University Associates In Obstetrics and Gynecology,

Inc., 4 F.3d 123, 127 (2d Cir. 1993); McDermott v. Manhattan

Eye, Ear and Throat Hospital, 15 N.Y.2d 20, 24, 255 N.Y.S.2d

65,69, 203 N.E.2d 469, 471-472 (1964).

At trial, the Academy did not present expert testimony in

this regard identifying any insufficiency in the medical

documentation submitted to substantiate an ADA disability

and the need for the accommodations requested. Without the

essential medical expert testimony establishing the necessity

for the medical data requested, all suggestions of such a

genuine need are purely conjectural and unreliable. The

sufficiency of medical data already provided was not placed

in doubt.’

E. Prohibited inquiry claims have their own specialized

legal standards.

The protocol for evaluating Dr. Delson’s claims is not

subject to the analysis necessary for evaluating a reasonable

accommodation claim or a general discrimination claim.®

Merely showing that the Dean required Dr. Delson to respond

to the inquiries but refused to treat the medical information

requested as a confidential medical record is sufficient to assert

a cause of action for unlawful inquiry under the Act.’ 42

U.S.C.A. §§12112(d)(3)(B) and (d)(4)(C); 29 C.F.R. §1630.14(b)-

(d).

A separate and distinct cause of action predicated on an

inquiry that lacks a legitimate business purpose also has its

own specialized legal standards. Conroy v. New York State

Department of Correctional Services, supra. The first issue that

must be addressed is whether the employer's question is a

disability-related inquiry. The second issue is whether the

® The trial court erroneously relied on an alleged out of court statement

of a health care professional who did not testify at the trial. The statement,

over Dr. Delson’s objection, was admitted as an exception to the hearsay

rule to show the alleged good faith of the Academy, and not to verify that

it lacked less intrusive alternatives or that the medical documentation

provided was insufficient. See, Parker v. Sony Pictures Entertainment, 260

F.3d 100, 113 (2d Cir. 2001) (employer’s good faith belief in the legality of

its practices is a factor relevant only to the scope of relief, not the existence

of liability). In any event, the Dean withheld from the health care provider

a copy of Dr. Kamin’s most recent update, dated July 22, 1998. “

’ Dr. Delson need not establish that there has been an intention to

discriminate in order to prevail in this case. Alexander v. Choate, 469 U.S.

287, 295-97, 105 S.Ct. 712, 717-18, 83 L.Ed.2d 661 (1985); Parker v. Sony

Pictures Entertainment, supra, 260 F.3d at 113; Nathanson v. Medical College of

Pennsylvania, 926 F.2d 1368 (3"% Cir. 1990). “[T]he Rehabilitation Act was

directed particularly at unintentional conduct because “[d]Jiscrimination

against the handicapped was perceived by Congress to,be most often the

product, not of invidious animus, but rather of thoughtlessness and

indifference — of benign neglect.” Bennett v. Henderson, supra, 15 F.‘Supp.2d

at 1107, quoting Alexander v. Choate, supra, 469 U.S. 287, 295, 105 S.Ct. 712.

* Even if a finding on the issue of business necessity has been made, a

claim challenging an employer's refusal to treat information requested as

a confidential medical record is a separate one that still would have to be

considered and resolved. 42 U.S.C.A. §§12112(d)(3)(B) and (d)(4)(C).

person is an employee. If the person is an employee, the final

question is whether the inquiry is job-related and consistent

with business necessity.

Under section 12112(d)(4)(a), a “disability related inquiry”

in and of itself will be enough to assert a cause of action. Merely

showing questions were asked is sufficient to prove

discrimination. 42 U.S.C. § 12112 (d)(1), (d)(4)(A); Conroy v.

New York State Department of Correctional Services, supra, 333

F.3d at 96 (requesting a general diagnosis from an employee

returning from a one-day absence is sufficient to trigger the

protection of the ADA prohibition forbidding disability-

related inquiries); Roe v. Cheyenne Mountain Conference Resort,

920 F.Supp. 1153, 1154-1155 (D. Colo. 1996) aff'd in pertinent

part, 124 F.3d 1221 (10" Cir. 1997) (requiring employees to

disclose their prescription drug medication is a prohibited

inquiry because such a disclosure would likely force

employees to reveal disabilities or perceived disabilities); Doe

v. Kohn Nast & Graf, P.C., 866 F. Supp. 190 (E.D. Pa. 1994)

(employer conducted an unlawful medical inquiry when it

searched the office of an employee to confirm its suspicions

about the employee’s medical condition, and discovered a

letter indicating the employee had AIDS).

F. The Academy must bear the cost of its “lost opportunity”

to determine whether, with reasonable accommodations,

Dr. Delson could have remained an “otherwise”

qualified individual with a disability.

“Once a plaintiff demonstrates that a discriminatory factor

‘play[ed] a motivating part in an employment decision,’

defendant must demonstrate that it would have made the same

decision based upon the legitimate factor alone.” Cosgrove v.

Sears, Roebuck & Co., 9 F.3d 1033, 1039-1040 (2d Cir. 1993).”

* The mixed-motive analysis available in the Title VII context applies

equally to cases brought under the ADA. Parker v. Columbia Pictures

Industries, 204 F.3d 326, 336-337 (2d Cir. 2000). The Academy may not prevail

by offering a reason for its decision if that reason did not motivate it at the

time of the decision.’ Cosgrove, supra, 9 F.3d at 1039-1040 citing Price

Waterhouse v. Hopkins, 490 U.S, 228, 252, 109 S.Ct. 1775, 1791, 104 L.Ed.2d

268 (1989). Bennett v. Henderson, supra, 15 F.Supp.2d at 1103 citing Woodman

v. Runyon, 132 F.3d 1330 (10% Cir. 1997) (“[C]ourts should be wary of

(Cont'd)

The Academy’s assertion that it fired Dr. Delson based on her

noncompliance with the inquiries and her absence First Term,

amounts to discharge solely because of her disability. By

refusing to consider accommodations that were obvious for

Dr. Delson’s known disability and by relying on impermissible

inquiries to justify this decision, requires a finding that she

was, in fact, otherwise qualified for the position, and was

terminated because of her disability.’° Thus, the Academy must

bear the cost of its “lost opportunity” to determine whether,

with reasonable accommodations, Dr. Delson could have

remained otherwise qualified for the position of employment.

Cosgrove v. Sears, Roebuck & Co., supra, 9 F.3d 1033, 1040.

Dr. Delson herself need not establish that she is an

“otherwise” qualified individual with a disability, in order to

state a claim challenging an unlawful inquiry. 42 U.S.C. §

12112(d). Conroy v. New York State Department of Correctional

Services, 333 F.3d 88, 94-95 bias Cir. 2003)."' Once a finding on

(Cont'd)

applying cases interpreting federal grantees’ duties of reasonable

accommodation under section 504 to cases brought under section 501,”

due to the ‘heightened duties of ‘reasonable accommodation’ and

affirmative action placed upon federal employers under section 501, not

applicable to federal grantees and under 504, or private employers under

the ADA”).

" Terminating a disabled employee based on absenteeism where the

absence was the reasonable accommodation requested is disability

discrimination. Parker v. Columbia Pictures Industries, supra, 204 F.3d 326

(2d Cir. 2000) citing Borkowski v. Valley Cent. Sch. Dist., supra, 63 F.3d 131,

143 (2d Cir. 1995).

"' The statutory. guage does not refer to qualified individuals with

disabilities, but instead merely to “employees.” 42 U.S.C. § 12112(d)(3)(B),

(d)(4)(A), (d)(4)(B) and (d)(4)(C). The statutory language makes clear that

the ADA’s restrictions on inquiries and examinations apply to al!

employees, not just those with disabilities. Conroy v. New York State

Department of Correctional Services, supra, at 95, citing Enforcement Guidance

on Disability-Related Inquiries. See, also, Roe v. Cheyenne Mountain

Conference Resort, inc., supra, at 1229; Griffin v. Steeltek ,Inc., 160 F.3d 591,

595 (10" Cir. 1998), cert. denied, 526 U.S. 1065, 119 S.Ct. 1455 (1999){a job

applicant without a disability can sue under the ADA regarding medical

history questions); Fredenburg v. Contra Costa County Department of Health

(Cont'd)

the issue of unlawful inquiry has been made, the question of

reasonable accommodation is a separate one that should be

considered and resolved in the assessment of damages. The

Academy cannot simply invoke the disability of Dr. Delson

for the purpose of reducing the damages for which it is liable.

The burden shifts to the Academy to affirmatively plead and

prove that Dr. Delson is no longer an individual “otherwise”

qualified to perform the duties of the position of Associate

Professor. If an accommodation is needed, the Academy must

show that no effective reasonable accommodation exists that

would render Dr. Delson “otherwise” qualified for the

position.” If the Academy cannot show that the

(Cont'd)

Services, 172 F.3d 1176, 1182 (9" Cir. 1999) (requiring plaintiffs to prove

that they are persons with disabilities to challenge a medical examination

would render §12112(d)(4)(A) of the ADA “nugatory” ; thus, plaintiffs need

not prove that they are qualified individuals witha disability to bring claims

challenging the scope of medical examinations under the ADA); Cossette v.

Minn. Power & Light, 188 F.3d 964, 969 (8" Cir. 1999) (“We are persuaded

by the holdings of the Ninth and Tenth Circuits that a plaintiff need not be

disabled to state a claim for the unauthorized gathering or disclosure of

confidential medical information”); accord Murdock v. Wash. 193 F.3d 510,

512 (7 Cir. 1999), cert. denied, 529 U.S. 1134 (2000) (the ADA “does not

require that an individual be disabled to state a claim” for unlawful

employer inquiries); Gonzales v. Sandoval County, 2 F.Supp. 2d 1442, 1445,

(D. N.M. 1998) (plaintiff need not establish disability to state a claim for a

prohibited inquiry under the ADA).

The applicable regulations provide that the federal government

“shall become a model employer of individuals with handicaps.” 29 C.F.R.

§ 1614.203(b). Federal employers “must play a considerable role in ensuring

that every reasonable effort” is made to find suitable jobs for disabled

employees. Bennett v. Henderson, supra, 15 F.Supp.2d at 1107-1109. An

employer, to meet its burden may not merely speculate that a suggested

accommodation is not feasible.” In Bennett v. Henderson, supra, 15 F.Supp.2d

at 1107-1109. The duty to make reasonable accommodations at the very

least triggers a responsibility on the employer's part to investigate a request

for accommodation and determine its feasibility. Parker v. Columbia Pictures

Industries, supra, citing Borkowski v. Valley Cent. Sch. Dist., supra, 63 F.3d at

143. The employer also must engage with the employee in an interactive

process to determine the appropriate accommodation under the

circumstances. 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2(0)(3); Part 1630; Part

1630 App., § 1630.9; Haschmann v. Time Warner Entertainment Company, 151

F.3d 591 (7" Cir. 1998).

accommodation needed poses an undue hardship, then she is

otherwise qualified for the job in question and there is no

reason to deny her the accommodation to enable her to perform

the essential functions of the job. 42 U.S.C. § 12111(8) and (9);

Borkowski v. Valley Central School District, 63 F.3d supra, at 134

and 139; Rascon v. U.S. West Communications, Inc., 143 F.3d 1324,

1330 (10" Cir. 1990).

G. The Academy by its own admission concedes that Dr.

Delson is an “otherwise qualified” individual with a

disability.

The Academy affirmatively pleaded and admitted that

until Dr. Delson went on leave she maintained a good record

of employment without cause for dismissal. The facts are not

in controversy.’? The Dean and Dr. Brickman, in her capacity

as Department Head, made this assessment based on

standards of performance applicable to the position of

Associate Professor. The facts are not in controversy.

H. The expert medical testimony established without

contradiction that accommodating Dr. Delson would not

pose an undue hardship.

In published reports, Dr. Delson’s neurologist opined that

with the reasonable accommodation of a modified schedule

she was fully capable of fulfilling the duties of her position on

campus and at home, with the limitation that she spend no

more than three days a week on campus.

'. In paragraph “17” of its amended answer, the Academy “admits

that [Dr. Delson] had, prior to-June 1998, been rated Fully Successful in her

position...” Under the Academy’s Performance Management Appraisal

System, Dr. Delson received an “Exceptional” evaluation each year from

AY89-90 until AY96-97, when the rating levels were revised - i.e.,

“Exceptional” was eliminated and “Fully Successful” was renamed

“Proficient.” Thereafter, Dr. Delson’s work was consistently rated as Fully

Successful, with no need for improvement. The medical expert testimony

supports this conclusion without material conflict. The Academy never

made an assessment that Dr. Delson’s standard of performance was below

minimum standards applicable to the position of Associate Professor.

The concurring trial testimony of the Academy’s medical

expert shows:

A. [felt that based upon her objective neurological

findings, and my knowledge of her work

requirements as an associate professor, that there was

no reason why she could not teach a 40-hour

workweek.

Expert testimony in this regard was essential to support

the conclusion of the trial court that Dr. Delson was unable to

perform any function of the position except between the hours

of 10:00 a.m. and 3 p.m., Monday and Wednesday, and

between 10 a.m. and 2:00 p.m. on Friday. Connors v. University

Associates In Obstetrics and Gynecology, Inc., supra, 4 F.3d at 127:

Hegger v. Green, 646 F.2d 22, 28 (2d Cir. 1981); Detwiler v. Bristol-

Myers Squibb Co., 884 F.Supp. 117, 122 (S.D.N.Y. 1995) Morgan

v. State of New York, 40 A.D.2d 891, 337 N.Y.S.2d 536 (3'¢ Dept.

1972) aff'd 34 N.Y.2d 709, 356 N.Y.S.2d 860, 313 N.E.2d 340

(1974). The expert testimony unanimously supports the

opposite conclusion without any material conflict.

Dr. Delson never required an accommodation that

compressed every essential function of the job within the block

of time she was scheduled to teach. Rather, she requested a

teaching schedule within a block of time when her energy level

is highest between 10:00 a.m. and 3:00 p.m., and no later than

2:00 p.m. Friday. And she was available to teach any three-

business days (Monday through Friday). Applying this

request, Dr. Delson was available to teach at least 14 class

periods per week, not eight periods a week. "4

“ Dr. Delson requested a class scheduled no earlier 10:00 a.m..

Granting this request eliminates periods one and two as potential

scheduling times. She also requested no classes after 3:00 p.m. and not

later than 2:00 p.m. Friday. Granting this request eliminates period six

Monday through Thursday and periods five and six on Fridays. This means

that Dr. Delson is available to teach, a minimum of three class hours a day

(periods three, four and five) Monday through Thursday, and two class

hours (periods three and four) on Friday, for a total of 14 periods a week,

with the restriction that she spend no more than three days a week on

campus. She did not request a teaching schedule limited to Monday,

Wednesday and Friday for only eight class periods a week.

Expert medical testimony also established without

contradiction that Dr. Delson with reasonable accommodation

was capable of working eight hours daily to fulfill all the duties

of her position on campus and at home, with the limitation

that she spend no more than three days a week on campus,

and work at home the balance of the week. Under the

circumstances of the present case, where the ultimate

accommodation required could have been determined only

in light of highly specialized medical knowledge, expert

medical testimony is essential for the Academy to establish

that Dr. Delson could not, if granted the reasonable

accommodation requested, fulfill the essential functions of the

position. Connors v. University Associates In Obstetrics and

Gynecology, Inc., supra, 4 F.3d at 127; Hegger v. Green, supra, 646

F.2d at 28; Detwiler v. Bristol-Myers Squibb Co., supra, 884

F.Supp. at 122; Morgan v. State of New York, supra.

I. Promotion standards for the senior rank of Full Professor

are not relevant.

At trial, Dr. Brickman, Department Head, answered YES,

in response to the question: Do the standards for promotion

to the senior rank of Full Professor require a higher level of

achievement than the standards of performance Dr. Delson

was expected to maintain to be “Fully Successful” in her

position as an Associate Professor?" The trial court by relying

'S Before Dr. Delson went on leave, Dr. Brickman, as Head of the

Humanities Department, wrote in a promotion review on May 7, 1998,

that Dr. Delson is a “dynamic lecturer,” “effective teacher” and “well

regarded historian” who presents a “fine record of publications” and

“regularly receives high evaluations.” In December of 1997, Dr. Brickman

also judged Dr. Delson’s institutional service (i.e., Faculty Advisor to the

Debate Team and Chair of the Faculty Forum’s Library Committee) of the

standard necessary to merit promotion to the rank of Full Professor. Five

months later, Dr. Brickman raised the bar. She wrote on May 7, 1998, that

Dr. Delson’s institutional service has “improved this year” but because

she lacked membership on an “institutional governance committee,” her

level of service was not sufficiently distinctive to merit promotion from

Associate Professor to the senior rank of Full Professor. Five months earlier,

Dr. Brickman did not believe Dr. Delson required membership on “a

governance committee” in order to distinguish herself to merit promotion.

on a standard for promotion to Full Professor erroneously

required Dr. Delson to demonstrate a greater level of

performance than an Associate Professor is expected to

maintain.

J. The record does not reflect that accommodating Dr.

Delson requires significant difficulty or expense.

Although the record contains no estimates of the costs

involved in making the accommodation, the cost would clearly

not exceed the benefit to be derived in view of the fact that

evidence indicates that the requested accommodations would

permit Dr. Delson to perform the essential functions of an

Associate Professor.'° Under the ADA, “undue hardship”

means “an action requiring significant difficulty or expense”

when considered in light of various factors. 42 U.S.C. § 12111

(10)(A).” The record before the trial court does not reflect that

'* “By definition any special ‘accommodation’ requires the employer

to treat an employee with a disability differently, i-e., preferentially. And

the fact that the difference in treatment violates an employer's disability-

neutral rule cannot by itself place the accommodation beyond the [ADA’s]

potential reach.” US Airways, Inc. v. Barnett, 535 U.S. 391, 397, 122 S.Ct.

1516, 152 L.Ed2d 589 (2002). “ * * * The simple fact that an accommodation

would provide a ‘preference’ - in the sense that it would permit the worker

with a disability to violate a rule that others must obey - cannot, in and or

itself, automatically show that the accommodation is not ‘reasonable’. “ Id.

“(T]he requirement of reasonable accommodation anticipates that it

may cost more to cbtain that level of performance from an employee with

a disability than it would to obtain the same level of performance from a

non-disabled employee. See id. And Congress fully expected that the duty

of reasonable accommodation would require employers to assume more

than a de minimis cost. See id., pt. 2, at 68, reprinted in 1990 US.C.C.A.N. at

350; id., pt. 3, at 40, reprinted in 1990 US.C.C.A.N. at 463.” Borkowski v.

Valley Central School District, supra, 63 F.3d at 138, n. 3.

’’ When considering undue hardship, the ADA requires the courts to

consider the following factors:

(i) the nature and cost of the accommodation needed under

this chapter;

(ii) the overall financial resources of the facility or facilities

involved in the provision of the reasonable accommodation;

the number of persons employed at such facility; the effect

(Cont'd)

the impact on the Academy of accommodating Dr. Delson

would reach that point. Moreover, “[i]n view of the affirmative

goal of the federal government to be a model employer for

those with disabilities ... am accommodation which would be

unreasonable for a private employer could be found to be a

reasonable undertaking for the federal government. See

Woodman, 132 F.3d at 1344 n. 14.” Bennett v. Henderson, 15

F.Supp.2d 1097, 1112 aff'd 172 F.3d 62 (10" Cir. 1999)."*®

K. The unpaid leave of absence did not pose an undue

hardship First Term.

Thé trial court found that the leave First Term AY98-99

was a reasonable accommodation, and, thus, Dr. Delson was

an “ otherwise qualified” individual with a disability since she

could perform the essential functions of the job upon

completion of the leave. The trial court’s finding that the

accommodation was reasonable prevents the Academy from

(Cont'd)

on expenses and resources, or the impact otherwise of such

accommodation upon the operation of the facility;

(iii) the overall financial resources of the covered entity; the

overall size of the business of a covered entity with respect to

the number of its employees; the number, type, and location

of its facilities; and

(iv) the type of operation or operations of the covered entity,

including the composition, structure, and functions of the

workforce of such entity. 42 U.S.C. § 12111(10)(B).

“Tt is well established both by the statutory language and Supreme

Court decisions interpreting the [Rehabilitation] Act that federal employers

have greater duties to accommodate disabled workers under section 501

than the duties owed by federal grantees under section 504 or those owed

by employers under the ADA.” Woodman v. Runyon, supra, 132 F.3d at 1343;

Bennett v. Henderson, supra, 15 F.Supp.2d at 1104-1105. “There is little to

stop the federal government from expending considerable money and effort

to become a model employer of handicapped individuals, when that is its

chosen policy,” (quoting Lex K. Larson, Employment Discrimination §

T106.44(a) (2d ed.1977).” Bennett v. Henderson, supra, 15 F.Supp.2d at 1112.

Borkowski v. Valley Central School District, supra, 63 F.3d at 142-143, n.5 (“..

. Section 501 requires federal employers to take affirmative steps (above

and beyond reasonable accommodation) . . . Federal employers therefore

may be required to do more under Section 501 than recipients of federal

funds under Section 504.”).

asserting the unpaid leave of absence First Term posed an

undue hardship requiring significant difficulty or expense.

L. The record does not reflect the impact on the Academy

that would be caused by a three day teaching schedule

comprised of three courses that each meet twice a week

for a total of six class hours and end no later than 2:00

p-m., Friday, Second Term.

Dr. Delson’s assignment Second Term called for three

courses that each met twice a week for a total of six class hours

a week upon her return from leave. The facts are not in

controversy.” Although the record contains no estimates of

the costs involved in making the accommodation requested,

the cost would clearly not exceed the benefit to be derived

in view of the fact that evidence indicates that this

accommodations would permit Dr. Delson to perform all

essential functions of her position as associate professor.

M. The record does not reflect the specific impact of a three-

day teaching schedule comprised of three courses that

each meet twice a week (for a total of six class hours)

and end no later than 2:00 p.m. Friday after Second Term.

First Term AY98-99 the Academy commenced a three-year

transition to a trimester calendar from a quarter system. The

Academy introduced an ample number of courses that met

for one hour twice a week for a total of two hours a week

during the transition to the new trimester system. Although

the record contains no estimates of the costs involved in

affording Dr. Delson a three-day teaching schedule comprised

of three courses that each meet twice a week for a total Six

hours and end no later than 2:00 p-m. on Friday as an

accommodation, the cost would clearly not exceed the benefit

to be derived in view of the fact that evidence indicates that

the requested accommodations would permit Dr. De’son to

Tn paragraph “17” of its amended answer, the Academy

affirmatively pleads and admits: “. . . that Dr. Delson was scheduled for

the Winter Term 1998 to work twice a week, for a total of six classes a

week.”. The facts are not in controversy. The trial court concluded, with no

foundation in the record, that a three-day teaching schedule Second Term

would pose an undue hardship based on the mistaken assumption that

Dr. Delson was assigned three classes that each met three times a week

(for a total of nine hours) on Monday, Wednesday and Friday. This finding,

contrary to «ae undisputed facts, is definitely mistaken.

perform all essential functions of her position as associate

professor.

N. The record does not reflect the impact on the Academy

that would be caused by a three-day teaching schedule

comprised of three courses that each meet three days a week

and end no later than 2:40 p.m. on Thursday.

Under the quarter system, the Academy routinely assigned

three day schedules comprised of three courses that each met

three times a week through the Fourth Quarter AY97-98. During

the transition, the Academy still scheduled classes for the most

part that met for one hour three days a week for a total of three

hours a week. Dr. Delson was available any three-business days

(Monday through Friday). Further, classes are assigned that meet

no more than three days a week and end no later than 2:40 p.m.

on Thursday. Although the record contains no estimate of the

costs involved in affording Dr. Delson a three-day teaching

schedule comprised of three courses that each meet three times.a

week for a total of nine hours and no later than 2:40 p.m., on

Thursday, the cost would clearly not exceed the benefit to be

derived in view of the fact that evidence indicates that the

requested accommodations would permit Dr. Delson to perform

all essential functions of her position as associate professor.

O. The record does not reflect the specific impact on the

Academy that would be caused in the event Dr. Delson

were given further unpaid leave of absence.

Allowing Dr. Delson an unpaid leave of absence did not

absolve the Academy of its duty to ensure that every reasonable

effort is made to find a suitable accommodation. The Academy’s

liberal leave policy permits instructors to routinely take extended

leaves of absence with “no limitation” on the amount of time

that a leave without pay (LWOP) may be granted.” A further

* See 29 C.F.R. 1630 app. § 1630.2(0), Rodgers v. New York University,

143 F.Supp.2d 310 (S.D.N.Y. 2002); Durant v. Chemical/Chase Bank, 81 F.

Supp.2d 518, 522 (S.D.N.Y. 2000); Powers v. Polygram Holding, Inc., 40

F.Supp.2d 195, 202 (S.D.N.Y. 1999); Criado v. IBM Corp., 145 F.3d 437 (1*

Cir. 1998); Celirs v. Northeast Olno Alzheimer’s Research Ctr., 155 F.3d 775 (6™

Cir. 1998); Haschmann v. Time Warner Entertainment Co., 151 F.3d 591 (7%

Cir. 1998); Humphrey v. Memorial Hospitals Association, 239 F.3d 1128, 1136

(9" Cir. 2001), citing Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th

(Cont'd)

leave would be less accommodating than the federal employer's

own policies required. The fact that Dr. Delson’s duties continued

to be covered by co-workers and adjunct faculty after she went

on leave does not establish that granting her an accommodation

would have caused the Academy undue hardship during the

transition. This prevents the Academy from asserting that a

further leave would produce an undue burden on its operations.

Thus, the Academy failed to carry its burden of demonstrating

that the accommodation requested would cause undue hardship.

P. The record does not reflect the specific impact on the

Academy that would be caused if Dr. Delson were assigned

no courses that met four days a week during the transition.

Classes that met four days a week as “slash” courses also

were introduced for the transition to a trimester calendar. After

the three-year transition, slash courses were eliminated and all

courses again are taught no more than three days a week.

Moreover, courses that had been designated slash courses were

“unslashed” and rescheduled to meet no more than three daysa

week.

First Term AY98-99 the Academy assigned Dr. Delson

“slash” courses, thereby requiring her to be on campus

four days a week. The Dean refused to consider any

accommodation unless she complied with the medical inquiry.

In addition, members of the Academy Faculty Committee,

including the Dean and Dr. Brickman, who were responsible for

switching Dr. Delson’s assignment, testified that continuation of

three day teaching schedule as an accommodation of a modified

schedule was not given any consideration, the decision to assign

a four-day teaching schedule was” purely arbitrary,” “it was not

‘essential’ to slash the courses [Dr. Delson] taught” and, as such,

four-day schedule may not be considered an essential job function.

Although the record centains no estimate of the costs involved

in affording Dr. Delson a three-day teaching schedule that ended

no later than 1:10 p.m. on Friday, with no “slash” classes, the cost

“uld clearly not exceed the benefit to be derived in view of the

fact that evidence indicates that the requested accommodations

(Cont'd)

Cir.1999); Kimbro v. Atlantic Richfield Co., 889 F.2d 869 (9 Cir. 1989) cert.

den. 498 U.S. 814, 111 S.Ct. 53, 112 L.Ed.2d 28 (1990); Rascon v. U.S. West

Communications, Inc., 143 F.3d 1324 (10" Cir. 1998).

would permit Dr. Delson to perform all essential functions of her

position as associate professor.

Q. The record does not reflect the specific impact on the

Academy that would be caused in the event the Academy

afforded Dr. Delson the same favorable treatment given

non-disabled employees, similarly situated.

Nondisabled employees, similarly situated were given

modified schedules which, if given Dr. Delson, would have

afforded her a three day assignment of no “slash” courses at all,

or, in the alternative, “slash” courses that met for extended 90

minute periods some days or simply cut one class hour a week.”

Although the record contains no estimate of the costs involved

in affording Dr. Delson the same favorable treatment given non-

disabled employees, similarly situated, the cost would clearly

not exceed the benefit to be derived in view of the fact that

evidence indicates that the requested accommodations would

permit Dr. Delson to perform all essential functions of her position

as associate professor,

CONCLUSION

For all the foregoing reasons, petitioner respectfully requests

that the Supreme Court grant review of this matter.

*! Daily attendance at the Academy is not an essential job duty. The

Academy has a liberal policy that allows instructors to work from home

and not be on campus every day. The Academy adopted this policy based

on the recognition that faculty members are professional scholars and the

nature of their responsibilities makes it necessary and desirable that they

have maximum freedom and flexibility in the performance of their duties.

The Academy, moreover, invites instructors to request teaching assignments

in conformance with their own individual scheduling preferences, which

the Academy has almost always been able to arrange.

The Academy routinely fashions schedules to conform to scheduling

preferences of instructors and to resolve scheduling conflicts, which, if given

Dr. Delson, would have afforded her no more than a three-day schedule

(e.g., Classes meet less frequently for extended periods; classes meet less

frequently and fewer hours than the standard schedule; classes are

approved for lunch hour sandwiched between the third period and fourth

period in conformance with the instructor's for a two day teaching schedule;

students carry an extra course in order that the course schedule conforms

with the instructor's preterence for no more than two class meetings a week;

and, independent studies allow students to complete a required course

but attend fewer meetings than the number of class sessions assigned for

the same course on the regular teaching schedule.

Respectfully submitted,

Roy J. KARLIN

SHAPIRO, BEILLY, ROSENBERG,

Levy, Aronowitz & Fox, LLP

225 Broadway, 13" Floor

New York, New York 10007

(212) 267-9020

Attorneys for Petitioner

APPENDIX

APPENDIX A— SUMMARY ORDER OFTHE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT DATED AND FILED JULY 22, 2005

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No. 04-4118

- ROBERTA M. DELSON,

Plaintiff-Appellant,

nae

NORMAN MINETA, in his capacity as Secretary of the

United States Department of Transportation,

Defendant-Appellee.

July 22, 2005

Present: WESLEY, HALL, Circuit Judges, and SCULLIN,

District Judge. '

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the

judgment of the district court be AFFIRMED.

1. The Honorable Frederick J. Scullin, Chief Judge of the United

States District Court for the Northern District of New York. sitting

by designation.

Appendix A

Plaintiff-appellant Delson appeals from a Memorandum,

Decision, and Order of the United States District Court for

the Eastern District of New York (Seybert, J.), issued after

an eight-day bench trial, finding in favor of defendant on all

of plaintiff's claims and dismissing the action. Familiarity

by the parties is assumed as to the facts, the procedural

context, and the specification of appellate issues.

“{U]nder . . . the Rehabilitation Act, a plaintiff can state

a claim for discrimination based upon her empluyer’s failure

to accommodate her handicap by alleging facts showing (1)

that the employer is subject to the statute under which the

claim 1s brought, (2) that she is an individual with a disability

within the meaning of the statute in question, (3) that, with

or without reasonable accommodation, she could perform

the essential functions of the job, and (4) that the employer

had notice of the plaintiff's disability and failed to provide

such accommodation.” Lyons v. Legal Aid Soc., 68 F.3d 1512,

1515 (2d Cir. 1995). Substantially for the reasons stated in

the district court’s opinion, we agree that plaintiff failed to

show the defendant denied her a reasonable accommodation.

We agree with the district court’s assessment that it was

plaintiff's refusal to provide the defendant with any specific

medical documentation and her refusal to compromise on

any of her scheduling demands, that precipitated the failure

of the “interactive process” between employer and employee

that the ADA envisions. See generally Jackan v. New York

State Dep t of Labor, 205 F.3d 562, 566 (2d Cir. 2000).

We similarly reject plaintiff's claim that the defendant’s

medical inquiries were unlawful. In seeking to determine the

extent and types of accommodation that were truly necessary

Appendix A

for plaintiff, the defendant’s inquiries were “job-related and

consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A).

See Conroy v. N.Y. State Dept of Corr. Servs., 333 F.3d 88,

97-98 (2d Cir. 2003) (explaining that “business necessities

may include ensuring that the workplace is safe and secure

or cutting down on egregious absenteeism”). We have

considered all of plaintiff's remaining arguments and find

them to be without merit.

Accordingly, for the reasons set forth above, the

judgment of the district court is hereby AFFIRMED.

For the Court

Roseann B. MacKechnie, Clerk

s/ Lucille Carr

By:

APPENDIX B — MEMORANDUM, DECISION AND

ORDER AFTER BENCH TRIAL OF THE UNITED

STATES DISTRICT COURT EASTERN DISTRICT OF

NEW YORK DATED JUNE 9, 2004

UNITED STATES DISTRICT COURT EASTERN

DISTRICT OF NEW YORK

99-CV-4723 (JS)

ROBERTA M. DELSON,

Plaintiff,

- against -

NORMAN MINETA, in his capacity as

SECRETARY OF THE UNITED STATES

DEPARTMENT OF TRANSPORTATION |,

Defendant.

MEMORANDUM, DeCISION

AND ORDER AFTER BLNCH TRIAL

|. The United States Secretary of Transportation is the

appropriate Defendant in this action, in that the Academy is a federal

service academy and part of the Maritime Administration of the U.S.

Department of Transportation. The originally named Defendant,

Rodney Slater, is the former United States Secretary of Transportation,

he was replaced in 2001 by Norman Mineta. Pursuant to Federal

Rule of Civil Procedure 25, Secretary Mineta is hereby substituted

as the Defendant in this action.

Appendix B

SEYBERT, District Judge:

INTRODUCTION

Plaintiff, Roberta Delson (“Plaintiff”), commenced the

instant action on August 16, 1999. Plaintiff alleges that

Defendant violated the Rehabilitation Act of 1973, 29 U.S.C.

§ 701, et seq., by discriminating against her in her employ-

ment, by reason of her disability.

BACKGROUND

The Court presided over an eight-day bench trial

beginning on May 12, 2003. Based upon the evidence and

arguments presented, the Court makes the following findings

of fact and conclusions of law pursuant to Rule 52(a) of the

Federal Rules of Civil Procedure. To the extent that any of

the findings of fact may be deemed conclusions of law, they

also shall be considered conclusions. Likewise, to the extent

that any of the conclusions of law may be deemed findings

of fact, they shall be considered findings. See Miller v.

Fenton, 474 U.S. 104, 113-14, 106 S. Ct. 445, 451-52, 88 L.

Ed. 2d 405, 413-14 (1985) (noting the difficulty, at times, of

distinguishing findings of fact from conclusions of law).

FINDINGS OF FACT

Plaintiff, a published scholar and seasoned history

teacher on a college level, was hired by the United States

Merchant Marine Academy (the “Academy”) as an adjunct

professor of history in the Humanities Department in 1987.

In 1989, she was hired as a full-time associate professor.

Appendix B

Tr. 847-48. She remained in the position of associate

professor until her termination in January 1999. Pl. Ex. 135.

The Academy is a federal service academy and is part of

the Maritime Administration of the U.S. Department of

Transportation. It is a four-year academic college located in

Kings Point, New York. Tr. 726, 984. The mission of the

Academy is to train and educate people who will serve as

officers on U.S. flagships, as naval reservists, and to train

leaders of the maritime industry. Tr. 726. The curriculum at

the Academy is particularly rigorous, most classes taken by

students are assigned to them; there are few electives. Tr.

747. As a result of the Academy’s rigorous academic

curriculum, class schedules are driven by the needs and

requirements of students, unlike most institutions of higher

learning where class schedules are driven by the preferences

of professors. It is the registrar at the Academy who makes

the final decisions regarding teachers’ schedules each term.

Tr. 746-47, 323-24.

Professors at the Academy are permitted to state

preferences as to their teaching schedules, but because of

the complexities of scheduling, the registrar cannot always

provide the preferred schedules. Tr. 324-33. Where possible,

the Academy had a history of accommodating professors

scheduling preferences. For example, instructor Alan Arnold

was given modified schedules which conformed with his

request for no classes after 2:00 p.m. Tr. 168; Pl. Ex. 6, 120A.

Instructor Rosanne Wasserman was granted a schedule

according to her preference that classes not begin earlier than

9:00 a.m., and end no later than 2:00 p.m., because of child

care. Tr. 166-67; PI. Ex. 6, 1201. Instructor Laury Magnus

Appendix B

was given a modified schedule that conformed with her

request for classes that met no later than 2:00 p.m. Tr. 164-

66; Pl. Ex. 6, 120G.

However, in many instances during Plaintiff’s time at

the Academy, professors other than the Plaintiff were not

granted their stated preferences. Tr. 324-333, 494-495: Def.

Ex. 234, 251. Further, the Plaintiff was granted a number of

her stated preferences. Tr. 623, 640-42, 757-58, 760-61; PI.

Ex. 36, 163. In addition to teaching, professors are expected

to work with students, to meet with them through regular

office hours, to perform “institutional service” by serving

on both Academy-wide and Department-wide committees,

and to contribute to efforts for change within their

departments. Tr. 338-39, 750, 810.

Daily attendance at the Academy is not an essential job

duty. The Academy has a liberal policy that allows instructors

to work from home and not be on campus every day. The

Academy adopted this policy based on the recognition that

faculty members are professional scholars and the nature of

their responsibilities makes it necessary and desirable that

they have maximum freedom and flexibility in the

performance of their duties. Pl. Ex. 3.

Plaintiff's Multiple Sclerosis

Plaintiff was diagnosed with Multiple Sclerosis (“MS”)

in or about 1986, before she started working at the Academy.

Tr. 981. MS is a neurological disorder which can cause

different symptoms in different individuals afflicted with

the illness and which can have different degrees of severity.

Appendix B

Tr. 1057-1058. When she started at the Academy, Plaintiff

filled out a form in which she identified herself as

handicapped, due to blindness in one eye and partial paralysis.

Tr. 981. She did not disclose her MS in the form, nor did she

identify herself as having disabling fatigue. Tr. 982.

The most prominent symptom of Plaintiff's MS at

present is fatigue. Tr. 1062. The fatigue associated with

Plaintiff's MS occurs every day. Rest does not eliminate it.

The nature of the fatigue is not related to what the Plaintiff

does or does not do. Tr. 987.

Plaintiff first saw her treating physician, Dr. Stephen

Kamin, in 1991. Tr. 1083. At that time, her major complaints

were pain on the right side of her head, some urinary

frequency, and some fatigue. Tr. 1083. Her fatigue became

prominent in July 1992. Tr. 1063. At that time, Plaintiff began

to take Cylert, a medication which helps control her fatigue.

Tr. 988-989, 1063, 1066-67.

Scheduling Accommodations

In or about or February 1993, Plaintiff learned that she

would receive tenure. Tr. 989-90. Shortly thereafter, in April

1993, Plaintiff asked to be relieved from service on the

Outcomes Assessment Committee, an Academy-wide

committee she had served on for approximately four terms.

Tr. 751, 990-91. Dean Warren Mazek (“Mazek” or the

“Dean”) wrote to Plaintiff on or about April 10, 1993,

and informed Plaintiff that he would not excuse her from

serving on the Outcomes Assessment Committee. Tr. 752;

Def. Ex. 9. In response, Plaintiff explained that she was

Appendix B

asking to be excused because she had research to complete

and because she was tired. Tr. 752, 991-92: Def. Ex. 10.

Again, on April 29, 1993, the Dean wrote to the Plaintiff

and reiterated that she was not being excused from the

committee. Def. Ex. 11. Having received the Dean’s letter,

in early May 1993, Plaintiff told Dr. Arthur Donovan

(“Donovan”), the head of her department and her direct first-

line supervisor, that she had MS and that it caused her to be

fatigued. She told Donovan that this was the reason she

sought to be retieved from the Outcomes Assessment

Committee. Tr. 576-77, 992-93. She also told Donovan that

because of her MS, she desired certain adjustments in her

teaching schedule. Specifically, she told Donovan that she

needed a three-day schedule, no classes before 10 a.m., no

classes after 3 p.m.,.2 p.m. on Fridays, teaching back to back

days, and no teaching day of more than 5 hours. PI. Ex. 29.

In May 1993, Dr. Stephen Kamin (“Kamin”), Plaintiff's

treating physician, wrote a letter to Donovan, as department

head, stating that Plaintiff had MS and describing the

condition generally. Tr. 578-80, 993-94: PI. Ex. 30. Kamin

reported that the Plaintiff has MS and her major symptom is

overwhelming fatigue and a decrease in stamina. Kamin

explained that if Plaintiff overextends herself, fatigue will

exacerbate her symptoms and place her health and safety at

risk. Kamin further pointed out that Plaintiff required rest

periods and shoutd-sehedtle activities of the day when her

energy level is highest, so that tasks may be completed and

destinations reached safely. Pl. Ex. 30. On or about June 9,

1993, Donovan wrote to the Academy Registrar, Dr. Janet

Palmer (“Palmer”), who was responsible for preparing the

students’ and teachers’ class schedules, requesting that

10a

Appendix B

Plaintiff's schedule, which had already been established for

the following quarter, be modified because Plaintiff recently

had identified a medical problem. Tr. 583-85; Pl. Ex. 29.

Ultimately, with input from Mazek, Palmer provided the

Plaintiff with a three-day teaching schedule. Tr. 592, 626-

27, 757; Pl. Ex. 36. Mazek also arranged for Plaintiff to have

no class earlier than 10 a.m. or later than 3 p.m., 2 p.m. on

Fridays, for that term. Tr. 642-43.

In July 1993, with Plaintiff's consent, Mazek wrote to

Kamin to obtain further information about Plaintiff's medical

condition, and about her need for scheduling

accommodations in the future. Tr. 759, 996; PI. Ex. 37. Kamin

responded to Mazek’s request with a letter dated September

8, 1993. In his letter, he described Plaintiff's condition and

its effects on Plaintiff. He indicated that a three-day teaching

schedule was “medically warranted,” that she should avoid

late afternoon classes, and should be provided with an

air-conditioned classroom. Tr. 760; Pl. Ex. 38. Thereafter,

until the summer of 1998, the Academy granted Plaintiff

an accommodation of a three-day teaching schedule, and

tried to give her no classes after 3 p.m., 2 p.m. on Fridays.

Tr. 760-61, 1003. Although Kamin’s letter said nothing about

early morning classes, the Academy also granted Plaintiff's

stated preference that she not be required to teach before

10 a.m. Tr. 761; Def. Ex. 126; Pl. Ex. 163. The evidence

established that there was a fundamental misunderstanding

between the parties, in that the Plaintiff believed that she

had been granted a firm accommodation incorporating all of

her scheduling preferences while the officials at the Academy

viewed the scheduling preferences as having been granted

more as a courtesy than as an official accommodation.

lla

Appendix B

Further, it seems there was a misunderstanding between

the parties, in that the Plaintiff understood that she had been

granted a three-day on campus schedule while the Academy

officials believed that she had been granted a three-day

teaching schedule and could be expected to attend to other

~ responsibilities on campus on the other two days. Tr. 357-58,

760-61, 1010-14, 1017; Def. Ex. 55, 56: PI. Ex. 110, 163.

Other Accommodations

The Plaintiff was granted a variety of non-scheduling

related accommodations throughout the course of her

employment. For example, during AY 1993-94, the Academy

established handicapped parking close to the building in

which she taught. Tr. 1003. The Academy also provided

Plaintiff elevator access to the second floor of the Humanities

Building, where her office and classroom were located.

Tr. 1001-02. Plaintiff also received an air-conditioned

classroom. Tr. 1001. Finally, Plaintiff received permission

to wear comfortable, non-regulation shoes. Tr. 1003.

Conflicts Regarding Scheduling

A 1995 Committee Meeting

In September 1995, Dr. Jane Brickman (“Brickman”),

who had become the head of the Humanities Department

in 1994, assembled an ad hoc committee made up of several

members of the Humanities Department to try to develop

a new History curriculum. Tr. 339-40. On or about

February 2, 1996, Dr. Robert Gardella (“Gardella”), one of

the members of the Curriculum Committee, requested that

12a

Appendix B

the committee meet on Thursday, February 15, 1996, for two

hours. Def. Ex. 53. Curriculum committee meetings were

generally held on Mondays, Wednesdays, or Fridays, the days

that Plaintiff was scheduled to teach. Tr. 344. Plaintiff

objected to the scheduling of the meeting because she did

not teach on Thursdays. Tr. 355, 1008-09. After Plaintiff

objected to the scheduling of the meeting, Brickman spoke

with Gardella to satisfy herself that it was necessary to hold

the meeting on a Thursday. Tr. 356-57. In fact, it was

necessary because several lengthy proposals needed to be

presented, which required more time than was normally

available during the one-hour Wednesday meetings. Tr. 355-

57. The Thursday afternoon period was the only time that all

six members of the committee were available for two

consecutive hours. Tr. 355.

Brickman directed Plaintiff to attend the meeting because

it was important that Plaintiff participate in the development

of the new curriculum. Tr. 358, 1009. Plaintiff asserted that

being required to attend the meeting violated her

accommodation; she asserted that the Academy had granted

her a “three-day work schedule.” Tr. 1010-11; Def. Ex. 55;

P]. Ex. 110. Brickman demurred; to the best of her knowledge,

as Plaintiff's direct supervisor, the meeting did not run afoul

of her accommodation. As Brickman understood it, the

Academy had granted plaintiff only a three-day teaching

schedule, and that Plaintiff could be required to be on campus

for meetings and other official business on a fourth day.

Tr. 357-58; Def. Ex. 56. Brickman referred to the language

of Kamin’s letter dated September 8, 1993. Pl. Ex. 38.

13a

Appendix B

B Academic Schedule: First Quarter 1993-94

[n the first quarter of AY 1993-94, Plaintiff was assigned

a schedule which required her to teach four days per week.

Pl. Ex. 31. The Plaintiff objected to this schedule and asserted

that it was “prejudicial to [her] handicapped status.” Pl]. Ex.

34. The Plaintiff also registered a complaint regarding the

schedule with the Superintendent in charge of the Academy,

Thomas T. Matteson. Thereafter, Plaintiff's schedule for the

term was changed to a three day per week schedule-Tr. 623-

24, 863-66; Pl. Ex. 36.

C Academic Schedule: Fourth Quarter 1997-98

In the fourth quarter of AY 1997-98, Plaintiff was

assigned a schedule which required her to teach a class from

2-3 p.m. on Fridays. Tr. 429. Plaintiff objected to this

schedule, claiming that it violated her accommodation.

Tr. 429, 786. The Academy denied that the schedule violated

her accommodation, as set forth in Mazek’s October 3, 1997

letter. Tr. 786. Nonetheless, Mazek offered to move the class

to 8 a.m. on Fridays. Tr. 787. Plaintiff rejected this offer,

claiming that an 8 a.m. class also was a violation of her

accommodation. Tr. 432-33, 1037.

Plaintiff requested that the Academy reschedule the class

to 9 a.m. Tr. 433, 438. Plaintiff taught the class once at

9 a.m. Tr. 434. However, she never asked the Academy to

make this change permanent. Rather, she proposed combining

her 2-3 p.m. class on Fridays with her 10 a.m. class on

Fridays. The Academy rejected Plaintiff's suggestion that her

class from 2-3 p.m. be combined with her 10 a.m. Class

14a

Appendix B

because the Academy had a policy against doubling up of

classes. Tr. 435-37; Def. Ex. 150.

Plaintiff also proposed moving her 2 pm. class on

Fridays to | p.m. on Fridays. Tr. 786-88. The Academy also

rejected moving the class to | p.m. because not all of the

students assigned to Plaintiff's 2-3 p.m. class were available

at those times. Tr. 786-88. Ultimately, Plaintiff taught her

Friday afternoon classes from 2-3 p.m. throughout the rest

of the term. Tr. 441.

The Oversized Class

In March 1997, Plaintiff was assigned to teach three

classes, three days per week. Due to the complexities of

scheduling classes at the Academy, the Registrar designated

one of Plaintiff's classes to have more than 30 students.

Tr. 377. The size of the one larger class did not increase the

total number of students Plaintiff was assigned to teach

during the term as compared to the same term the previous

year. Tr. 389. When she learned that she would be assigned a

class of more than 30 students, Plaintiff objected. She

asserted that her voice and larynx would be damaged by

having to teach a class so large. Tr. 377. Prior to March 1997,

Plaintiff had never asked for an accommodation related to

the size of the class she was assigned to teach. Tr. 1030.

Plaintiff accused the Academy of discriminating and

retaliating against her by “penalizing” her with an “oversized”

class. Tr. 1032-33.

lSa

Appendix B

Brickman offered Plaintiff a microphone to ameliorate

any problems caused by the oversized class. Tr. 381. Plaintiff

declined this offer. Tr. 381. On or about March 21, 1997, ten

days before the beginning of the term, Plaintiff told Brickman

that she would not teach that term because teaching a class

~ of more than 30 students would be hazardous to her health.

Tr. 389-90. Brickman informed Plaintiff that she could apply

for leave without pay for the term. However, she told Plaintiff

that because she was requesting leave so shortly before the

term commenced, she would only approve Plaintiff's

application for leave if Plaintiff provided medical

documentation. Tr. 393, 395-96.

Plaintiff applied for leave without pay and agreed to

provide the requested medical documentation. Tr. 394. Based

upon Plaintiff's agreement to provide medical justification

for her request for leave, Brickman granted Plaintiff two

weeks’ leave without pay, in order for Plaintiff to obtain the

necessary medical documentation. Tr. 396; Def. Ex. 103. Dr.

Brickman also arranged for Beth Vihlen, an adjunct professor,

to teach Plaintiff's courses for the term. Tr. 396-97. Plaintiff

did not provide the required medical information to support

her request for leave without pay. Tr. 394.

On or about April 9, 1997, when it became clear to

Brickman that Plaintiff would not provide the requested

medical documentation, Brickman informed Plaintiff that she

would not approve Plaintiff's application for leave for the

rest of the term. Tr. 398: Def. Ex. 103. Accordingly, Plaintiff

returned to the Academy on or about April 16, 1997, and

taught the classes assigned her for the term, including a class

with approximately 34 students. Tr. 412, 418.

l6a

Appendix B

Relationship With Brickman

The evidence established that there was a level of tension

between the Plaintiff and Brickman, the Department Head.

The Plaintiff asserts that Brickman subjected her to a number

of insensitive comments and intrusive questions. For

example, the Plaintiff alleges that Brickman questioned why

Plaintiff was not taking Betaseron and asked whether the

medication was unaffordable on her income. Tr. 905. Plaintiff

further alleges that Brickman questioned Plaintiff about bee

sting therapy, asked whether she wore slacks because her

legs were atrophied, and inquired whether she was injecting

Botox, a medication that reduces spacticity in MS patients,

to reduce wrinkles. Tr. 903-06. In another instance, Plaintiff

alleges that Brickman was skeptical about her handicap

driver’s permit and claimed that doctors freely supply them

to patients just for the asking without cause. Tr. 905. Having

reviewed the testimony and having observed the demeanor

of both Brickman and the Plaintiff on the stand, the Court

concludes that the Plaintiff could not prove, by a preponderance

of the evidence, that Brickman in fact subjected her to

inappropriate or harassing treatment. The Court does find

that the Plaintiff established that there was tension between

the two women and the Court finds it likely that Brickman

was, at times, insensitive to the Plaintiff's condition.

Attempts to Obtain Medical Records

Following her dispute with Brickman regarding the

Thursday committee meeting in 1996, Plaintiff asserted that

it was a breach of her privacy rights for Brickman to have a

copy of Kamin’s letter. Tr. 1015-16. Brickman had obtained

17a

Appendix B

Kamin’s letter from the Department Head personnel file

maintained in the Department Head’s office, in a filing

cabinet kept locked at all times. Tr. 367-68.

On or about May 7, 1996, Mazek wrote to Plaintiff to

request that Plaintiff provide further information from Kamin

to justify her request for, what Academy officials believed

to be a new accommodation, a three-day on campus schedule.

Tr. 655, 769-70; Pl. Ex. 97, 98. Plaintiff did not provide the

requested medical information in May 1996. Tr 770, 772.

As a result, in or about June 1996, Mazek wrote to Plaintiff

again, reiterating the Academy’s request for additional

medical information. Tr. 772. He wrote to her again on

September 18, 1996. Tr. 772: Def. Ex. 70.

On or about December 17, 1996, Kamin wrote to Mazek

in response to Mazek’s requests for additional medical

information in June and September. Kamin largely reiterated

the contents of his September 8, 1993 letter, but also clarified

that he intended to recommend that Plaintiff receive a

schedule of three days per week on campus. Tr. 775-77.

He aise stated that Plaintiff's condition had worsened.

Pl. Ex. 99.

Mazek found this response to be inadequate. Tr. 776-77.

As a result, in February 1997, with Plaintiff's permission,

Mazek spoke to Kamin for clarification of the December 7,

1996 letter; among other things, he wished to learn if Plaintiff

was capable of working at home on days she did not teach

Tr. 777. Kamin only reiterated his prior general statements

regarding Plaintiff's condition. Tr. 777: Pl. Ex. 96.

18a

Appendix B

Later in February 1997, Dr. Mazek telephoned Plaintiff

and asked her to provide him with a list of technologies and

approaches that might assist her in performing her duties.

Tr. 777-78. Plaintiff agreed to get back to Mazek in one week

with a list of requests. Tr. 778; Def. Ex. 89. She never

provided such a list. Tr. 779; Def. Ex. 93.

On or about May |, 1997, Mazek wrote to Plaintiff and

again requested that Plaintiff provide the Academy with

access to her doctor and to her medical records. Along with

his letter, Dr. Mazek included a medical release form for

Plaintiff to sign. Tr. 678; Pl. Ex 165. The medical release

form provided for Plaintiff's medical records to be released

to Academy officials on an “as needed basis,” as well as to

an Academy-designated physician. Tr. 679. The officials who

were to have access to the records were Mazek, the Academy

personnel director, the Maritime Administration personnel

director and maritime attorneys. Tr. 679.

Plaintiff refused to sign the medical release form. Instead,

she complained to the Office of Civil Rights of the Maritime

Administration about the request. On or about August 18,

1997, she wrote to Mazek and told him that she was advised

by the Office of Civil Rights of the Department of

Transportation not to sign the authorization. Tr. 680-81;

Pl. Ex. 166.

On October 3, 1997, Mazek wrote to Plaintiff to advise

her in writing of the precise terms of the scheduling

accommodation the Academy would provide her. Tr. 784;

Def. Ex. 126. Specifically, he wrote that the Academy would

provide Plaintiff with a three-day teaching schedule, and no

classes earlier than 10 a.m. or later than 3 p.m. Tr. 784.

19a

Appendix B

Plaintiff's Performance Ratings and Efforts to Be Promoted

At the time that the Academy awarded Plaintiff tenure,

her evaluation described her “great professional competence”

and “welcome personal attributes.” PI. Ex. 15, 16. In the

professional judgment of her supervisors and colleagues,

Plaintiff was a “first rate” teacher with an “established” record

of scholarship, and “an active, intelligent and constructive

member of the faculty.” Tr. 560-77; Pl. Ex. 15, 16, 19, 23,

25, 26, 28. Immediately following the grant of tenure, the

Plaintiff continued to receive positive performance

appraisals. The Dean and Brickman, then Department Head,

rated Plaintiff’s performance with accommodation

“Exceptional” in AY’s 1993-94, 1994-95 and 1995-96.

Pl. Ex. 54, 56, 58, 62, 63, 64, 65, 66. Further, Plaintiffs

teaching and scholarship were rated at the highest performance

level of “Outstanding” for some years. Pl. Ex. 53, 57.

However, as time progressed, the Plaintiff's performance

appraisals became less positive and the Plaintiff was unable

to proceed successfully to promotion.

During her tenure at the Academy, Plaintiff repeatedly

sought promotion to Full Professor. Applications for

promotion are initially reviewed by the Faculty Promotion

Committee. Tr. 445. After the committee considers an

applicant’s documents, it interviews the candidate, and makes

4 recommendation to the Academic Dean. Tr. 445, 119-20.

The committee considers five criteria or factors in evaluating

a candidate — professional competence, scholarship,

teaching, institutional service and personal attributes

(“collegiality”). Tr. 120; Def. Ex. 37.

20a

Appendix B

Plaintiff first applied to be a Full Professor in 1993,

a few months after she had received tenure. Tr. 607; Def.

Ex. 19. In order to be promoted to Full Professor, a tenured

professor at the Academy ordinarily is required to have taught

at the Academy for six full years. Tr. 607, 731. At the

time she applied for promotion to Full Professor in 1993,

Plaintiff did not satisfy this requirement, having taught at

the Academy for five and three-quarter years. Tr. 607-08,

731-32; Def. Ex. 19. Plaintiff applied for a waiver of the

six-year requirement. Tr. 607-08, 732 The sole criterion for

granting a waiver is that failure to grant the waiver would

act to the disadvantage to the Academy. Tr. 608, 732. Plaintiff

asserted that she should receive the waiver in recognition of

her superior performance and to recognize the importance of

the Americans with Disabilities Act. Tr. 733; Def. Ex. 20.

Donovan and Mazek recommended against granting the

waiver because denying Plaintiff the waiver did not act to

the disadvantage of the Academy. Tr. 734; Def. Ex. 23.

The next year, 1994, Plaintiff insisted that she was

eligible for promotion to Full Professor without having to

reapply. Tr. 738-39; Def. Ex. 38. This was inaccurate.

Tr. 738-39.

Beginning in 1994, the head of the department, Brickman,

prepared a “Progress Towards Promotion” memorandum for

each professor eligible for promotion in a given academic

year. Tr. 441-42. She also prepared an evaluation form called

a “Bingo Sheet.” Tr. 447-48. See also e.g., Pl. Ex. 53.’

2. The bingo sheet contained five ranking categories:

Outstanding, Exceptional, Fully Successful, Partially Successful and,

(Cont'd)

21a

Appendix B

In 1994, Plaintiff's progress towards promotion

was good. Brickman wrote that Plaintiffs service records

had been good based on her coaching of the debate team.

However, she noted that, because the debate team was in

decline, Plaintiff needed to find other sources of service.

Tr. 447-48; Def. Ex. 75.

in 1995, Brickman noted that Plaintiff was a strong

teacher, but remained weak in performing service. Tr. 451.

This was in large part because Plaintiff made substantial

misrepresentations in her draft report for the Academy’s

Middle States committee. Tr. 451-55; Def. Ex. 75. Plaintiff

also was rated less than exceptional for her collegiality, due

to her attempts to monopolize the floor at Faculty Forum

meetings. Tr. 460-61.

in 1996, Brickinan rated Plaintiff's service to be inadequate

in her Progress Toward Promotion memorandum. Tr. 462:

Pl. Ex. 100. She did so due to Plaintiff's poor participation

in the department’s ad hoc curriculum committee and her

minimal service outside of the Department. Tr. 464. Plaintiff

was rated only fully successful for her service and collegiality

that year on the Bingo Sheet, due to the tensions which

existed in the ad hoc curriculum committee. Tr. 464, 467:

Pl. Ex. $7.

(Cont'd)

finally, Unsuccessful. Although the Plaintiff received many ratings

in the Exceptional and even Outstanding categories she also reccived

many and, as time progressed, increasing numbers, of rankings in

the lower category Fully Successful.

22a

Appendix B

In AY 1996-97, Brickman rated Plaintiff only fully

successful for service and collegiality. Pl. Ex. 59. Plaintiff

had been on leave for three terms, and returned to significant

conflict in March 1997, regarding the size of her assigned

class. Tr. 470-71. Moreover, Plaintiff was not maintaining

proper office hours. Tr. 474.

Plaintiff again applied for promotion in the fall of 1997.

Brickman assessed Plainti’f as less than qualified for

promotion in the areas of service and personal attributes. Tr.

472-73. She rated Plaintiff's service as low because, as head

of the Library Committee, Plaintiff had a chance to make a

“splash.” Instead, Pla.atiff did nothing — the committee

never even met. Tr. 473. Moreover, Plaintiff had excessive

absences and continued to fail to maintain proper office

hours. Tr. 474.

However, on December 5, 1997, Brickman wrote to the

head of the Faculty Personnel Committee and asked for

additional time to prepare a full assessment of Plaintiff's

work. Brickman explained that she had observed Plaintiff

for only a limited number of weeks during the prior period

because the Plaintiff had been on leave and/or sabbatical for

the prior three terms. Brickman wrote that if Plaintiff

maintained her level of service and improved her collegiality,

she would be in a position to recommend Plaintiff for

promotion; otherwise, she would have to recommend against

promotion. The extension was granted. Tr. 477-78, 743-44;

Def. Ex. 128. Defendant objected, asserting that Brickman

was delaying her promotion. Tr. 944.

23a

Appendix B

In 1998, the Faculty Personne! Committee rejected

Plaintiff's application for promotion, Stating that it was

“unimpressed with Delson’s record of institutional service”

and because “she is not collegial, is excessively guided by

self-interest and at times is disruptive to the good order of

the Humanities Department and the Academy at large.” Def.

Ex. 171.

Conflicts in 1998-99 Culminating in Termination

A The New Schedule and the Creation of Slash Courses

As of July 1998, the Academy reformulated its entire

academic structure. The Academy's academic year was

broken into three thirteen week trimesters, rather than four

ten week quarters. Class periods were changed to 60 minutes

instead of 50 minutes. In addition, incoming first-year

(freshman) students’ schedules and curricula would be

different than those for existing students. Tr. 112-13, 806.

This reformulation was the end result of a process which

began in 1996. That year, Middle States, the accrediting body

for colleges in the region, recommended calendar reform to

reduce the hectic pace of classes at the Academy. Tr. 109-10.

As a result, the Academy’s Superintendent formed the

Academic Calendar Action Group to investigate possible

restructuring of the Academy’s curriculum and calendar.

Tr. 109. The chair of the committee was Charles Weber, a

mathematics professor. Tr. 109. That committee recommended

the transition to a trimester system. Tr. 111-12.

24a

Appendix B

The Superintendent then formed two committees in AY

1997-98 to determine how to implement the change to a

trimester system. Tr. 52-53, 686. Among the committees’

tasks was to create new curriculum matrices. Curriculum

matrices specify which courses incoming students in the

various majors would be assigned each term under the new

calendar. Tr. 55-56. In addition, “transition matrices” had to

be created, setting forth the classes each term that existing

students (who entered the Academy before July 1998) would

take under the trimester system while taking old “quarter”

courses. Tr. 56; Pl. Ex. 70A-E, 71.

Because there was one term less per year, upperclass

midshipmen who had started under the quarter system were

required to take more classes each term, compressing into

three terms courses that had been spread over four quarters.

Tr. 113-14. Rather than require upperclass students to take

additional courses simultaneously, the Academy created

“slash” courses. Slash courses were full term courses taught

over half a term. Thus, rather than assigning students two

additional classes two times per week for the entire trimester,

slash courses met four times per week for half the term. After

approximately seven weeks, students would complete one

of the two classes, and then commence the other. Tr. 114,

687. Each “slash course” compressed a standard 13 week

course syllabus into 6.5 weeks so that professors would have

to convey the same required information and give the same

exams and papers in a shorter interval of time. The “pace”

of “slash” courses was “faster” for this reason, and also “more

intense.” Tr. 131-32. It was Dr. Weber who decided which

classes would be slashed. Tr. 115. He slashed those courses

it made sense to put together — courses with similar subjects.

Tr. 115-16.

25a

Appendix B

In the first term of AY 1998-99, in the Humanities

Department, the two Comparative Culture classes and H istory

| and History 2 were among the classes designated to be

Slashed. Tr. 116. Plaintiff generally taught Comparative

Culture and both History | and 2 at various times.

Accordingly, in the first term of AY 1998-99, Plaintiff was

projected to teach two slash courses for eight hours per week,

in the first trimester. Tr. 281, 687-88. Plaintiff objected to

her assignment, asserting that it gave her an unfairly large

credit load to teach. Tr. 486. She also objected because the

assignment required her to teach four days per week. Tr. 1045,

486. Upon realizing that her schedule would not be modified,

the Plaintiff requested a leave of absence for the term.

Tr. 688.

The following Academic Year, AY 1999-2000, first term,

some, but not all, courses which had been designated slash

courses, including Comparative Culture, were “unslashed.”

Tr. 118. This was done in large part because of complaints

received from the students regarding the slash courses. Tr.

118. Students had concerns about when papers were due and

complained that there should have been better coordination

between the teachers of slash courses and teachers of other

Classes. Tr. 94.

B Request for Medical Documents

In response to Plaintiff’s objections, the Academy

informed Plaintiff that it would provide her with leave

without pay for the first trimester if she provided the Academy

with the long sought-after medical records. Tr. 688-89, 701.

Mazek wrote to Plaintiff on May 15, 1998, to request again

26a

Appendix B

that Plaintiff produce her medical records in June 1998.

Plaintiff did not meet that deadline. Tr. 790. On June 9, 1998,

Mazek wrote to Plaintiff again, reiterating his request for

medical documentation. Tr. 791.

Plaintiff provided the Academy with an additional letter

from Kamin dated July 22, 1998. Tr. 689; Pl. Ex. 142.

However, the Academy did not consider this letter adequate

because it simply reiterated the information already related

in Kamin’s previous letters. Tr. 1085-87. Dr. Delson refused

to provide the Academy, or its designated medical evaluator,

with medical information to supplement Kamin’s letters.

Tr. 689.

In July 1998, the Academy sent Kamin’s September 8,

1993 and December 17, 1996 letters to Dr. Neil Presant, an

occupational specialist with the United States Public Health

Service (“Presant”). Tr. 796; Pl. Ex>38 and 99. On or about

August 18, 1998, Presant wrote to the Academy personnel

officer, Thomas Goodwin. Presant informed Mr. Goodwin

that the information provided was too dated and not

sufficiently detailed to make a valid assessment of the

Plaintiff's ability to perform her duties. Def. Ex. 187.

On July 27, 1998, Plaintiff formally applied for Leave

Without Pay (“LWOP”) for the first trimester of AY 1998-

99. Tr. 793; Def. Ex. 182. In her application for leave, the

reasons that she gave for requesting leave was that “my

disability prevents me from doing the academic workload as

scheduled for me for the fall trimester without the reasonable

accommodation of a three-day on campus presence which |

have had since 1993.” Tr. 1045; Def. Ex. 182. Mazek granted

27a

Appendix B

Plaintiff LWOP for that term, contingent upon her providing

her medical records by August 14, 1998. Tr. 793-95, 1045-

46. Mazek wrote to Plaintiff that if she did not want to send

her medical records to the Academy, she could send them

directly to Presant. Tr. 1099; Def. Ex. 185.

Plaintiff did not release her medical records to the

Academy or to Presant as requested. Tr. 795. Mazek extended

again the deadline to do so until August 31, 1998. Tr. 795.

He informed Plaintiff that if she did not provide the required

medical records, he would revoke his consent to her LWOP

and would consider her Absent Without Leave (“AWOL”).

Tr. 1095; Def. Ex. 185. Plaintiff did not meet that deadline.

Tr. 795-96, 1098. Accordingly, on September 8, 1998,

Plaintiff was designated AWOL. Tr. 701: Def. Ex. 189.

The letter to Plaintiff from Mazek also warned Plaintiff that

if she did not return to work by September 15, 1998,

additional disciplinary action would be contemplated. Def.

Ex. 189. Plaintiff did not return to work on September 14,

1998. Tr. 1101.

On or about November 9, 1998, Mazek sent to Plaintiff

a letter of proposed removal. Tr. 802; Def. Ex. 203. The

decision was based upon Plaintiff's refusal to provide-proper

medical information to the Academy to be able to determine

what she could do under the new trimester system, as well

as Plaintiff's claim that she was medically unable to teach

the classes assigned t her. Tr. 714, 803-04.

In December 1998, Admiral Joseph Stewart, the new

Superintendent of the Academy, telephoned Plaintiff and

asked her to give the Academy access to her medical records.

28a

Appendix B

Plaintiff again refused. Tr. 888. Plaintiff was dismissed as of

January 15, 1999. Tr. 713-14; Pl. Ex. 135.

Plaintiff's EEO Complaints

In August 1997, Plaintiff filed a formal written EEO

agency complaint based on the assignment of an over enrolled

class and denial of professional advancement opportunities.

Tr. 685-86, 274-77.

In January 1998, Plaintiff filed a formal written EEO

agency complaint based on threats of possible campus

assignments on non-teaching days. PI. Ex. 151.

On May 5, 1998, Plaintiff filed a written EEO agency

complaint based on the alleged rescission of a reasonable

accommodation that called for a teaching schedule that ended

no later than 2 p.m. on Friday afternoons. PI. Ex. 129.

On July 14, 1998, Plaintiff filed an addendum to her

May 5, 1998 EEO agency complaint based on the assignment

of a four day teaching schedule and the alleged withdrawal

of the longstanding accommodation of a modified teaching

schedule. Pl. Ex. 131.

On December 21, 1998, Plaintiff filed an EEO agency

complaint based on revocation of leave of absence,

suspension, and proposed termination. Pl. Ex. 146.

On February 6, 1999, Plaintiff filed an EEO agency

complaint based on the termination of her employment.

Pl. Ex. 147.

29a

Appendix B

CONCLUSIONS OF LAW

In this civil action, the Plaintiff bears the burden of

proving, by a preponderance of the evidence, each of the

elements of the alleged causes of action. See Herman &

Maclean vy. Huddleston, 459 U.S. 375, 387-88, 103 S. Ct.

683, 690, 74 L. Ed. 2d 548, 559 (1983). In light of the facts

and evidence presented and the applicable burden of proof.

the following constitute the Court’s conclusions of law.

[ Discriminatory F ailure to Accommodate

The Plaintiff alleges that she was discriminated against,

by reason of her disability, in violation of the Rehabilitation

Act, in various ways. The Plaintiff's principle complaint is

that in 1998 she was denied the requested accommodation

of a three-day work week and/or an unpaid leave of absence.

As a result, Plaintiff alleges, she was suspended and

ultimately terminated.

“ [U] nder the. . . Rehabilitation Act, a plaintiff can state -

a Claim for discrimination based upon her employer’s failure

to accommodate her handicap by alleging facts showing

(1) that the employer is subject to the statute under which

the claim is brought, (2) that she is an individual with a

disability within the meaning of the statute in question,

(3) that, with or without reasonable accommodation, she

could perform the essential functions of the job, and (4) that

the employer had notice of the plaintiff's disability and failed

to provide such accommodation.” Lyons v. Legal Aid Society,

68 F.3d 1512, 1515 (2d Cir. 1995).

30a

Appendix B

There is no dispute that the Defendant receives federal

financial assistance and, therefore, is subject to the

requirements of the Rehabilitation Act. There is also no

dispute that the Plaintiff is disabled within the meaning

of the statute. See Def. Proposed Findings of Fact and

Conclusions of Law p. 26. At issue in this case is the

Plaintiff's allegation that, had the Defendant provided her

with the reasonable accommodation of either a three-day

work schedule or an unpaid leave of absence, she would have

been able to perform the essential functions of her position

and, therefore, Defendant’s failure to provide said

accommodation was a discriminatory action.

The Rehabilitation Act does not include a definition of

reasonable accommodation. The term is to be interpreted in

accordance with the Americans With Disabilities Act

(“ADA”) and the EEOC regulations promulgated under both

the Rehabilitation Act and the ADA. See Lyons, 68 F.3d

at 1515. The ADA provides that “the term ‘reasonable

accommodation’ may include. . . part-time or modified work

schedules.” 42 U.S.C. § 12111(9). Further, the EEOC

regulations provide that an employer has a duty to provide

accommodations “that enable a qualified individual with

a disability to perform the essential functions of that

position....” 29 C.F.R. § 1630.2. It is not, however,

discriminatory to fail to provide an accommodation if

the employer “can demonstrate that the accommodation

would impose an undue hardship on the operation of [its]

business.” 42 U.S.C. § 12112(b)(S)(A). Further, “‘reasonabhe

accommodation’ does not mean elimination of any of the

3la

Appendix B

job’s essential functions,” Gilbert v Frank, 949 F.2d 637,

644 (2d Cir. 1991), and there is no requirement that “the

employer ... provide every accommodation the disabled

employee may request... .” Fink y. New York City Dept of

Personnel, 53 F.3d 565, 567 (2d Cir. 1995), “Whether or not

something constitutes a reasonable accommodation is

necessarily fact-specific. Therefore, determinations on this

issue must be made on a case-by-case basis.” Wernick y

Federal Reserve Bank of New York, 91 F.3d 379, 385 (2d

Cir. 1996),

In this case, the Plaintiff asserts that she was entitled to

a three-day work week as a reasonable accommodation for

her disability. The Court finds that the Plaintiff has failed to

prove that a three-day work week constitutes a reasonable

accommodation within the meaning of the Rehabilitation Act.

First, the Court finds that the Plaintiff, had she been granted

the requested accommodation, would not have been able to

perform the essential functions of her position. Second, the

Court finds that requiring the Academy to grant the requested

accommodation would put an undue burden on its Operations.

A Essential Functions

The evidence produced at trial established that the

essential functions of the position of Professor at the

Academy were (1) teaching; (2) one office hour per week

for each class taught; and (3) participation in extracurricular

activities or committees. Tr. 750. 810; Def. Ex. 217. The

evidence further established that. beginning in the fall of

32a

Appendix B

1998, with the transition to the trimester system, the schedule

at the Academy was as follows:

Period Time

8:00-9:00

9:10-10:10

10:20-11:20

11:30-12:30

12:30-1:30

1:40-2:40

2:45-3:45

Tr. 806; Def. Ex. 252. Applying the Plaintiff's requested

accommodation to the Academy’s schedule, it is clear that

the Plaintiff would be unable to fulfill the essential functions

of the position if she were granted the accommodation.

First, the Plaintiff requested that she not be scheduled

to teach before 10:00 a.m. PI. Ex. 29. Granting this request

eliminates periods | and 2 as potential scheduling times for

the Plaintiff. Next, the Plaintiff requested that she not be

scheduled to teach after 3:00 p.m. and/or after 2:00 p.m. on

Fridays. Pl. Ex. 29. Granting this request eliminates period

6 on all days and periods 5 and 6 on Fridays. This means

that Plaintiff would be available to teach only periods 3, 4,

and 5 on Monday through Thursday and periods 3 and 4 on

Friday. Finally, Plaintiff requests that she only teach three

days per week. PI. Ex. 29. Applying this request, it is clear

that, at the very most, the Plaintiff would be available only

33a

Appendix B

9 periods per week. It is simply not possible for the Plaintiff

to perform all of the essential functions of the position of

Professor in 9 periods per week. Nine periods per week would

allow her to teach three courses that met three times per week.

This course load may have been acceptable, although, the

evidence tends to show that Professors in the Plaintiff's

department typically carried a course load of three or four

courses. However, even assuming that carrying a three course

load would fulfill the teaching function of the Plaintiff's

position, she would have no available time to schedule office

hours or be available to participate in extracurricular

activities or committees. As such, the Plaintiff could not, if

granted her requested accommodation, fulfill all of the

essential functions of her position.

The Plaintiff makes a conclusory statement that, had she

been granted the requested accommodation, she would have

been able to perform the essential functions of her position.

However, the evidence simply does not support that

proposition. First, it is important to note that, prior to the

scheduling change, the Plaintiff had a history of failing to

adequately perform the functions of office hours and

committee responsibilities. Tr. 447, 466-67, 472-74: Def. Ex.

75, 110; Pl. Ex. 57, 59, 100. As such, it is unclear that the

3. Even this schedule is unlikely because it requires that Friday

be one of the days that Plaintiff is scheduled to be off campus. The

evidence shows that the classes taught by Plaintiff are generally

scheduled for Monday, Wednesday and Friday and that, therefore, it

is likely that Plaintiff would not be able to be scheduled to be off

campus on Fridays. In the event that Plaintiff maintained a schedule

providing that her off campus days were Tuesday and Thursday, she

would only be available 8 periods per week.

34a

Appendix B

Plaintiff was truly able to perform all of the essential

functions of her position even prior to the scheduling change.

Further, although the Plaintiff testified that her requested

accommodation of classes between the hours of 10 and 2

only applied to teaching hours and that she would be available

to perform other functions of her position outside of those

hours, that self serving testimony alone is not enough to

satisfy the Plaintiff's burden. Tr. 1116. The Court notes that

the evidence considered as a whole indicates that the officials

at the Academy did not understand that the Plaintiff was

willing to perform any of her job functions outside of the

hours of 10 and 2. And, again, the evidence established that

the Plaintiff had not been adequately performing those

functions prior to the scheduling change and, as such, there

is no evidence to support the contention that she would have

began to do so after the implementation of the new schedule.

Finally, it is important to note that the Academy, unlike other

institutions of higher education, has unique scheduling

problems that require the needs of the students to drive

teaching schedules. Tr. 746-47. As such, even assuming that

the Plaintiff could perform her non-teaching duties outside

of the hours of 10 and 2, it is highly unlikely that the Academy

would be able to schedule the Plaintiff's required 9 class

hours within the 9 hours that she is available to teach. Put

simply, the Plaintiff's requested accommodation is too

restrained to allow her to perform the essential functions of

her position within the Academy’s new trimester schedule.

The Plaintiff argues, in the alternative, that the Academy

could have granted her the reasonable accommodation of an

unpaid lea‘ of absence for the Fall 1998 term and that,

if granted the? aecommodation, she would have been uble to

35a

Appendix B

return to the Academy the following term and perform the

essential functions of her job. Again, the evidence does not

support this contention. Had the Academy granted the

Plaintiff the unpaid leave for the Fall 1998, it would not have

alleviated the scheduling problems discussed above. The

Plaintiff's principal complaint at that time was that she was

scheduled to teach slash courses and that she was scheduled

to teach four days per week and, although that complaint

may have been alleviated by the granting of an unpaid leave

for that term, that accommodation would not have alleviated

any of the other scheduling problems discussed above. As

such, there is no indication that the granting of an unpaid

leave for the Fall 1998 term would have allowed the Plaintiff

to perform the essential functions of her position.

B Undue Burden

Moreover, even if the Plaintiff would have been able to

perform the essential functions of her position if granted the

scheduling accommodation that she requested, the Court

finds that the schedule would have been an undue burden on

the Academy and, as such, does not constitute a reasonable

accommodation. Undue burden is an affirmative defense and,

as such, the burcen of proving it is on the Defendant. See

Stone v. Mount Vernon, 118 F.3d 92, 98 (2d Cir. 1997). An

undue hardship is one that requires significant difficulty or

expense when considered in light of various factors, including

the nature and cost of the accommodation, the overall

resources of the Defendant, the effect of providing the

accommodation on the overall resources of the Defendant.

and the type of services being offered by the Defendant.

See id.; Powell v. Nat'l Bd. of Med. Examiners, 364 F.3d 79,

36a

Appendix B

88 (2d Cir. 2004); 42 U.S.C. § 12111(10). “In addition, a

defendant need not make an accommodation at all if the

requested accommodation would fundamentally alter the

nature of the service, program or activity.” Powell, 364 F.3d

at 88 (internal quotations omitted).

In this case, the Defendant is an educational institution

and, as such, has a responsibility to the needs of its students.

Further, the evidence has established that the Academy, unlike

more traditional colleges and universities, has unique

scheduling requirements for its students and, as such, requires

that students needs, and not the preferences of professors,

must be considered a priority in scheduling. Tr. 746-47. Given

the unique nature of the services provided by the Academy,

requiring it to provide a scheduling accommodation as limited

and rigid as the one requested by the Plaintiff would impose

an undue burden.

The Court finds that the Plaintiff's request for a one term

unpaid leave would not, standing alone, have amounted to

an undue burden. However, if the Plaintiff had been granted

an unpaid leave, it would not, as discussed above, have

allowed her to perform all of the esseitial functions of her

position in future terms. As such, in order for the unpaid

leave to have been effective, it would have had to be indefinite

until such time as either (1) the Plaintiff's availability became

more flexible or (2) the Academy’s schedule changed in such

a way that it allowed the Plaintiff to perform her functions

within her requested schedule. Because it is clear that neither

of these events was reasonably foreseeable, it is also clear

that requiring the Academy to grant such an indefinite unpaid

leave would amount to an undue burden.

37a

Appendix B

C Reasonable Accommodation

Finally, the Court notes that, although the accom-

modations requested by Plaintiff were not reasonable, the

Defendant did have a duty to provide the Plaintiff with a

reasonable accommodation if one had been discovered.

However, the Plaintiff has a duty to engage in the process of

developing an appropriate accommodation. The evidence

produced at trial, and particularly, the Court’s observations

of the Plaintiff's demeanor while testifying, indicated that

the Plaintiff was unrelenting in her demand for the requested

accommodation and that she was unwilling to consider

alternative accommodations. Tr. 773-75, 1110, 1122. Further,

the evidence produced at trial established that the Academy

had in fact provided the Plaintiff with various other

accommodations, including a parking spot, the right to wear

non-regulation shoes, elevator access, an air conditioned

classroom, and various scheduling allowances. Tr. 583, 592,

623, 642, 648, 652, 757, 760-62, 1001-03. Given the

Academy’s apparent willingness to provide the Plaintiff with

accommodations within its means, and given the Plaintiff's

demonstrated unwillingness to consider other

accommodations, the Court finds that the Academy satisfied

its Rehabilitation Act obligations to attempt to accommodate

the Plaintiffs disability.

For all of these reasons, the Plaintiff has failed to prove

her discriminatory failure to accommodate claim and the

Defendant is entitled to judgment on that claim.

38a

Appendix B

Il Discriminatory Treatment

The Plaintiff also asserts that she was subjected to

various instances of intentional disability discrimination.

Specifically the Defendant alleges that (1) she was required

to carry a heavier load than other professors and was not

given the same favorable flexibility in scheduling and

(2) that she was denied promotion. “We analyze claims of

intentional discrimination under ... the Rehabilitation Act

under the familiar McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973),

burden-shifting analysis established for employment

discrimination cases under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seg.” Regional Economic

Community Action Program, Inc. v. Middletown, 294 F.3d

35, 48-49 (2d Cir. 2002). The plaintiff bears the initial burden

of proving a prima facie case of discrimination. See

McDonnell Douglas, 411 U.S. at 802. “To establish a prima

facie case under the Rehabilitation Act, ... the plaintiff|]

must show that the defendants [took the challenged action]

‘solely’ because of the disability.” Middletown, 294 F.3d at

49. If Plaintiff establishes a prima facie case, Defendant must

proffer a legitimate, non-discriminatory explanation for the

allegedly discriminatory action. Upon doing so, the burden

shifts back to the Plaintiff to demonstrate that the proffered

explanation is merely a pretext. See Tomka v. Seiler Corp.,

66 F.3d 1295, 1308 (2d Cir. 1995).

A Course Load and Scheduling Flexibility

The Plaintiff asserts that the Academy’s failure to provide

her with the schedule that she requested and requirement that

39a

Appendix B

she teach slash courses, were acts taken with a discriminatory

motive. Specifically, the Plaintiff asserts that other professors

were treated differently and more favorably and that

the difference in treatment was a result of disability

discrimination. Having reviewed the evidence produced at

trial, the Court finds that the Plaintiff has failed to prove

that any of the actions taken were taken solely because of

. her disability and has failed to prove that the Academy’s

proffered explanations were pretext.

The Plaintiff seeks to prove that the Academy had a

discriminatory motive for scheduling her to teach slash

courses and to teach four days per week during the fall term

of 1998. As evidence of the discriminatory motive, the

Plaintiff asserts that other professors’ scheduling preferences

were accommodated and that other professors weren’t asked

to carry as rigorous a load that term. Having reviewed the

evidence, the Court finds that the Plaintiff failed to meet her

burden of establishing disparate treatment. First, the Court

notes that, while many of the scheduling preferences of the

Plaintiff's colleagues were honored by the Academy, so too

were many of the Plaintiff's. Tr. 583, 592, 623, 642, 648,

652, 757, 760-62; Pl. Ex. 29, 36, 163. Further, the Court

notes that while some of the Plaintiff's scheduling demands

were refused during the fall term of 1998, the evidence also

established that scheduling preferences of her colleagues had

also been denied when necessary. Tr. 325-33, 493-95: Def.

Ex. 234, 251. As such, the evidence does not, as the Plaintiff

claims, e*abiish that all of the other professors were granted

scheduling flexibility and that she alone was treated

differeatiy when her requested schedule was not granted.

In fact, the evidence shows that the Academy had a history

40a

Appendix B

of accommodating the scheduling preferences of its

professors, including the Plaintiff, when at all possible and

- denying them when necessitated by the Academy’s schedule

and/or the needs of the students.

The evidence produced also does not support the

Plaintiff's contention that, in the fall term of 1998, she was

asked to carry a more rigorous load than her colleagues. In

fact, the evidence shows that the Plaintiff was asked to carry

a course load nearly identical to, or even lighter than, most

of her colleagues. Tr. 487-91; Def. Ex. 234. In the fall term

of 1998, the Plaintiff was scheduled to teach four “slash”

courses, totaling eight credit hours for the term. This schedule

called for her to teach four days per week. Six other professors

in the Plaintiff's department carried a teaching load that term.

Of the six, all were scheduled to teach four days per week;

one of the six was scheduled to teach four “slash” courses,

for a total of eight credit hours, identical to the schedule

proposed for the Plaintiff; three of the six were scheduled to

teach nine credit hours for the term, although none of the

courses were “slash” courses; the remaining two were

scheduled to teach less credit hours than the Plaintiff for the

term, one with five and one with four. It is, therefore, clear

that the Plaintiff was not singled out to teach the most

rigorous schedule for the term. Tr. 487-91; Def. Ex. 234.

The Plaintiff argues that she was scheduled to teach four

courses in #!.e fall term of 1998 and that the other professors

in her department had a lighter course load, most only

teaching three courses. However, Plaintiff's interpretation

of the proposed schedule for the term is misleading. Although

the Plaintiff was scheduled to carry four courses throughout

4la

Appendix B

the term, each course only lasted half of the term, as such,

the Plaintiff was scheduled to teach no more than two courses

at any time. In contrast, the Plaintiff's colleagues scheduled

to carry nine credit hours for the semester only taught three

courses for the term, but taught all three simultaneously for

the entire term. As a result, the professors scheduled to teach

three courses would actually teach more hours than the

Plaintiff. While the Plaintiff's proposed schedule would be

more rigorous in that it would require her to grade papers

and/or exams for one extra class, it would have been less

rigorous in that she would have had one less teaching hour

per week throughout the semester. As such, the Court finds

that the Plaintiff failed to establish that the schedule proposed

for her was more rigorous than those proposed for her

colleagues.

Finally, the Plaintiff alleges that hostile and/or

discriminatory remarks made by officials at the Academy are

evidence of a discriminatory motive for the scheduling

decisions. The Plaintiff alleges that Brickman made various

disparaging remarks to her, including invasive questions

about certain medications and therapies, questions about

whether the Plaintiff suffered from atrophy, and remarks

indicating Skepticism regarding Plaintiff’s need for a

handicapped parking permit. Tr. 903-06. Brickman is alleged

to have stated to the Plaintiff, “so what if you have some

paralysis, so what if you have a problem with your gate [sic.]

and you get tired too.” Tr. 899. Having reviewed the

testimony, and particularly the demeanor of the witnesses,

the Court finds that the Plaintiff may tend to exaggerate the

persecution that she is alleged to have suffered, however,

the Court also finds it likely that Brickman was, at times,

42a

Appendix B

insensitive to the Plaintiff's feelings and perhaps

inappropriate in her comments. However, the Court finds

that Brickman’s insensitivity cannot, alone, satisfy the

Plaintiff's burden of establishing that the Academy’s

employment actions were taken solely by reason of her

disability.

Even assuming the Plaintiff had satisfied her burden of

establishing her prima facie case of discrimination by

showing that the Academy’s scheduling decisions in the fall

term of 1998 were made because of her disability, the

Academy has proffered a legitimate, non-discriminatory

explanation for the scheduling decisions which the Plaintiff

is unable to refute.

The Academy’s decision to reform its academic calendar

was the result of a recommendation from Middle States, the

accrediting body for colleges in the region. Tr. 109-110.

Middle States recommended that the Academy reduce the

hectic pace of the Academy’s academic system as it existed

under the quarter system. In responsé, the Academy instituted

various changes including changing from a quarter calendar

to a trimester calendar, extending classes from 50 to 60

minutes and, ultimately, decreasing the number of classes

that the Academy’s students would take each term. Tr. 109-

13. When the trimester calendar was instituted in the fall

term of 1998, the Academy needed to address a scheduling

problem. Specifically, the upperclass students at the

Academy, who had already begun their education under the

quarter system, needed to complete the classes required in

the quarter system within the new trimester calendar. In order

to complete four terms worth of classes in three terms, the

43a

Appendix B

upperclass students were facing the task of taking

significantly more courses per term than they had under the

quarter system. This alternative was unacceptable to the

Academy, as the purpose of the new academic calendar was

to decrease the course load of the students and slow the hectic

pace of the academic calendar. Tr. 113-14.

In order to accommodate the upperclass students, the

Academy instituted “slash” courses. These courses would

meet for half of a term, thereby allowing the students to take

their classes in three terms instead of four, without requiring

them to take any more courses than usual at any given time.

Tr. 113-14, 687. In other words, the evidence shows that the

Academy instituted the new academic schedule and

developed “slash” courses at the recommendation of the

accrediting body and for the good of its students. As such,

the Defendant has established that the changes were made

for a legitimate, ron-discriminatory reason. The Plaintiff has

offered no evidence to rebut this explanation or to establish

that it was a mere pretext for discrimination.

Not all of the courses taught to the upperclass students

were taught as “slash” courses. However, History I and

History II as well as Comparative Culture, all courses that

the Plaintiff taught, were among the courses “slashed.”

Tr. 116. The Plaintiff claims that this decision was made with

a discriminatory purpose. However, the evidence presented

established that the decision to “slash” those courses, as well

as the other courses slashed, was driven not by discriminatory

animus, but by common sense. Classes that consisted of

similar subject matter, such as History I and History II and

Mathematics I and Mathematics II, were “slashed” and paired

44a

Appendix B

together. The credible testimony established that faculty

schedules and assignments were not considered in deciding

which courses to “slash,” but that the decisions were made

in an effort to combine similar courses, because that made

sense and provided the most benefit. Tr. 115-16. This

constitutes a legitimate, non-discriminatory explanation for

the decision to “slash” the courses taught by the Plaintiff

and the Plaintiff has failed to rebut the explanation or offer

evidence to prove that it was a pretext.

B Denial of Unpaid Leave

The Plaintiff further argues that she was discriminated

against when the Academy failed to grant her an unpaid leave

for the fall term 1998. The Plaintiff asserts that the Academy

had a liberal leave policy and that the denial of Plaintiff's

requested leave was the result of disability discrimination.

Again, the Court finds that the Plaintiff did not prove that

the requested leave was denied solely because of her

disability. The evidence established that the Plaintiff's leave

was denied because she failed to submit requested medical

documentation. Tr. 688-89, 701, 790-91, 793-95, 1045-46,

1098; Pl. Ex. 142; Def. Ex. 183, 185, 187, 189. As discussed

below, there was nothing improper about the Academy’s

request that the Plaintiff supply medical documentation to

support her need for accommodation. As such, the Plaintiff

did not prove that the denial of the unpaid leave was a

discriminatory action.

45a

Appendix B

C Failure to Promote

Finally, the Plaintiff asserts that the Academy’s failure

to promote her to the position of Full Professor was

discriminatory. In order to be promoted to Full Professor at

the Academy, a professor must have six years teaching

experience at the Academy. Tr. 607, 731. Upon completion

of six years teaching, a professor may seek promotion by

applying to the Faculty Personnel Committee. Tr. 445. A letter

of recommendation must be written on behalf of a professor

seeking promotion by the head of the professor’s department.

Tr. 119-20. Upon review of the application and the letter of

recommendation, the Faculty Personnel Committee makes a

recommendation to the Academic Dean. Tr. 119-20, 445.

Applicants for promotion are rated in five categories:

teaching, scholarship, professional competence, institutional

service and personal attributes. Tr. 120, Def. Ex. 37.

Plaintiff first applied for promotion to Full Professor in

1993 and continued to be considered thereafter. Tr. 607: Def.

Ex. 19. The Plaintiff was not promoted before her termination

in 1998. The Plaintiff alleges that the failure to promote was

the result of disability discrimination. However, the Court

finds, having reviewed all of the evidence, that the Plaintiff

was unable to prove that the failure to promote was solely

because of her disability.

In 1993, when the Plaintiff first applied for promotion,

she had been teaching at the Academy for 5 3/4 years.

Tr. 607-08, 731-32. Because she did not have the 6 years

required teaching experience, she applied for a waiver of that

46a

Appendix B

requirement. Tr. 608, 732. Waivers are granted by the

Academy only if a failure to grant the waiver would act to

the disadvantage of the Academy. Tr. 608, 732. Dr. Donovan

and Dean Mazek recommended against waiver, as there was

no evidence that denying the waiver would act to the

detriment of the Academy. Tr. 734; Def. Ex. 23. This

constitutes a legitimate, non-discriminatory explanation for

the failure to promote in 1993 and the Plaintiff has offered

no evidence that she was entitled to a waiver, that the policy

was arbitrarily applied against her, or that the explanation is

otherwise a pretext.

Thereafter, Plaintiff was not granted a promotion because

the Faculty Personal Committee and/or her Department Head

refused to recommend her. The Plaintiff asserts that these

refusals to promote were discriminatory; the Defendant

asserts that the Plaintiff was found lacking in the categories

of institutional service and personal attributes and that these

shortcomings were the cause of the failure to promote.

Having reviewed the evidence, the Court finds that the

Defendant has properly established a legitimate, non-

discriminatory reason for the failure to promote and that the

Plaintiff has not met her burden of rebutting the proffered

explanation and proving that the action was discriminatory.

The evidence established that the Plaintiff had a history of

displaying an argumentative attitude and interacting with her

colleagues in an unprofessional manner. Further, the evidence

established that the Plaintiff failed to make any significant

contribution to the Academy by way of institutional service

through committees or extracurricular activities and that she

failed to maintain proper office hours. Tr. 447-48, 451-55,

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Appendix B

460-61, 462, 464, 467, 470-73: Def. Ex. 75, 171, 110; PI.

Ex. 57, 59, 100. As such, the Plaintiff has failed to meet her

burden of proof on this claim.

Il Confidentiality of and Request for Plaintiff's Medical

Records

The Plaintiff asserts various claims related to Dean

Mazek’s May 15, 1998 letter to the Plaintiff requesting that

she release certain medical information. The Plaintiff asserts

that the letter (1) violates the statute’s prohibition against

medical inquiries; (2) violates the statute’s limitations

restricting access to medical information; (3) violates the

Statute’s requirement that the Defendant engage in good faith

in an interactive process with a disabled employee; (4)

constitutes a discriminatory employment practice; and (5)

constitutes retaliation.

A Discriminatory or Retaliatory Act

First, the Court finds that the Plaintiff has failed to prove

that the letter was written with either a discriminatory or a

retaliatory motive. The evidence clearly established that Dean

Mazek wrote the letter in an effort to verify the Plaintiff's

need for an accommodation that she requested. Tr. 700-01.

Further, the evidence established that the Academy had a

history of providing the Plaintiff with accommodations where

practicable and that, therefore, there is no basis for inferring

that the Dean’s inquiries were made with any discriminatory

or retaliatory intent. Tr. 583, 592, 623, 642, 648, 652, 757,

760-62, 873, 1001-03; Pl. Ex. 29, 36, 163. Although the

Plaintiff contends that the inquiry constituted a sudden

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Appendix B

departure from a longstanding policy of freely granting the

requested accommodations, the evidence presented at trial

does not support her position. First, the evidence showed

that there existed a fundamental misunderstanding between

the parties, in that the Plaintiff and the officials at the

Academy had divergent understandings of the parameters of

the accommodations granted Plaintiff. Tr. 357-58, 760-61,

1010-14, 1017; Def. Ex. 55, 56; Pl. Ex. 110, 163. Further,

the evidence showed that there had been a change in

circumstances, in that the Academy’s scheduling needs had

changed. Tr. 109-13. Because of this changed circumstance,

the Academy was no longer able to freely grant the Plaintiff's

requested accommodations. In fact, it is not clear that the

Academy would have been able to grant the accommodation

as requested even if the Plaintiff's need had been documented.

It is, however, clear that the changed circumstances

necessitated that the Plaintiff document her need for

accommodations which were no longer easily granted.

In short, the Plaintiff failed to prove that the letter was written

with a discriminatory or retaliatory motive.

B Failure to Engage in the Interactive Process

The Court further finds that the Plaintiff failed to prove

that the letter represented a failure, by the Academy, to engage

in the interactive process and attempt to accommodate the

Plaintiff. “The ADA envisions an ‘interactive process’ by

which employers and employees work together to assess

whether an employee’s disability can be reasonably

accommodated.” Jackan v. New York State Dept of Labor,

205 F.3d 562, 566 (2d Cir. 2000). An employer should initiate

an informal interactive process in an effort to identify a

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Appendix B

reasonable accommodation, see 29 C.F.R. Pt. 1630, App.

§ 1630.2(0) (3), and this can include making relevant medical

inquiries, see 29 C.F.R. § 1630.14(c). In this case, the evidence

shows that the Academy did in fact attempt to engage in an

interactive process with the Plaintiff in order to establish a

reasonable accommodation. In fact, the Academy attempted

to initiate the process with a request for medical information.

Tr. 688-89, 701. Having reviewed all of the evidence, the

Court finds that the Academy did in fact attempt to engage

in the required interactive process and that it was the Plaintiff,

in refusing to provide the Academy with medical documentation

or to attempt to compromise on any of her sch

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