Opinion
20-CV-1729 (PGG) (RWL)
03-29-2024
TYNAN HOFFMAN, Plaintiff, v. CITY UNIVERSITY OF NEW YORK Defendant.
REPORT AND RECOMMENDATION TO HON. PAUL G. GARDEPHE: MOTION FOR SUMMARY JUDGMENT
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Tynan Hoffman brings this case against his former employer, City University of New York (“CUNY”), alleging disability discrimination under Section 504 of the Rehabilitation Act. Hoffman alleges that while working at CUNY as a reference librarian, CUNY discriminated against him by denying him a reasonable accommodation and subsequently terminating his employment after he failed, according to CUNY, to meet the requirements of his position. Under CUNY's “up-or-out” policy, entry-level librarians like Hoffman are hired on a temporary basis and must acquire their second master's degree within five years of initially being hired in order to become eligible for a tenuretrack position. If they do not acquire their second master's degree after five years, their contract is not renewed. After failing to complete his second master's degree in five years, Hoffman received an extension of a year but still failed to complete the degree. He then requested, as a reasonable accommodation under Section 504, another extension of an additional year, which CUNY denied. CUNY has moved for summary judgment on Hoffman's claim, arguing that Hoffman's request for accommodation is unreasonable and would cause the school undue hardship by fundamentally altering CUNY's standards and the nature of the librarian position. For the reasons that follow, I recommend that Defendant's motion be DENIED.
This factual background is based on Defendant's Rule 56.1 Statement Of Material Facts (“Def. 56.1,” Dkt. 55); Plaintiff's Opposition To Defendant's Statement Of Uncontested Facts Pursuant To Rule 56.1 (“Pl. Opp. 56.1,” Dkt. 67); Defendant's Response To Plaintiff's Rule 56.1 Statement (“Def. Resp. 56.1,” Dkt. 63); the Declaration of Charles Stewart (“Stewart Decl.,” Dkt. 56); the Declaration of Diana Cuozzo (“Cuozzo Decl.,” Dkt. 58); the Declaration of Cornel Clarke (“Clarke Decl.,” Dkt. 59); the Declaration of Vincent Boudreau (“Boudreau Decl.,” Dkt. 60); and the Deposition of Tynan Hoffman (“Hoffman Dep.,” Dkt. 55-32). Pursuant to the standard for summary judgment, the Court resolves all ambiguities and draws all reasonable inferences in favor of Hoffman as the nonmoving party. The facts are undisputed unless otherwise noted.
A. The Librarian Instructor Position at CUNY
In 2013, Hoffman was hired to work as a librarian at The City College of New York (“CCNY”), a constituent of CUNY, where he was given the title and academic rank of “Instructor.” (Def 56.1 ¶ 1; Pl. Opp. 56.1 ¶ 1; Boudreau Decl. ¶ 1.) Throughout CUNY's colleges, librarians are considered faculty members and are subject to requirements that are similar to those of classroom professors. (Def 56.1 ¶ 2; Pl. Opp. 56.1 ¶ 2.) All Instructors, whether they are librarians or classroom teachers, are appointed on annual contracts, which, according to CUNY policy, may be renewed a maximum of four times for a total of five years in the position. (Def 56.1 ¶ 3; Pl. Opp. 56.1 ¶ 3.) During those five years, Instructors are required to reach certain academic goals. (Def 56.1 ¶ 3; Pl. Opp. 56.1 ¶ 3.) If they reach those goals, they become eligible for, and usually receive, an appointment as a tenure-track Assistant Professor. (Boudreau Decl. ¶ 3.) For Instructors who serve as librarians, the relevant academic goal to become eligible for an Assistant Professorship is to have completed - in addition to their initial master's degree in library science - a doctorate or a second master's degree in the discipline of their choice, or, according to CUNY's Code of Practice Regarding Instructional Staff Titles, “in exceptional cases some other logical combination of two years' graduate study or more beyond the bachelor's degree.” (Def 56.1 ¶ 6; Pl. Opp. 56.1 ¶ 6; Code Of Practice Regarding Instructional Staff Titles: Title Descriptions And Minimum Qualifications, attached as Ex. 2 to Def. 56.1, Dkt. 55-3, at 9.) Instructors who do not reach their prescribed academic goals are no longer eligible for employment after their fifth year in an Instructorship position. (Def 56.1 ¶ 4; Pl. Opp. 56.1 ¶ 4.) According to CUNY, an Instructor position functions as a time-limited apprenticeship and pathway to the more demanding position of Assistant Professor, which requires production of significant scholarly research in addition to day-to-day library service tasks. (Boudreau Decl. ¶ 4.)
B. Plaintiff Pursues His Second Master's Degree
Hoffman enrolled in CCNY's master's degree program in International Affairs in the spring semester of 2014. (Def 56.1 ¶ 7; Pl. Opp. 56.1 ¶ 7.) The degree required completion of 33 credits in courses while maintaining a cumulative grade point average of 3.0 and completion of a thesis of approximately 45 pages. (Def. 56.1 ¶ 8; Pl. Opp. 56.1 ¶¶ 8 9; Hoffman Dep. 18:4-24.) Hoffman had a promising start, earning grades of As and Bs in the four classes he took during his first two semesters. (Def. 56.1 ¶ 9; Pl. Opp. 56.1 ¶ 9; Hoffman Dep. 20:5-21:4). However, problems arose in the fall of 2015, when his grades began to drop, and he withdrew from a required course. (Hoffman Dep. 22:2323:24.) The following year, he took four courses, but only completed one. (Graduate Transcript, attached as Ex. 6 to Def. 56.1, Dkt. 55-7.) In 2017, he did not take any courses. (Id.; Hoffman Dep. 35:7-10.) By the end of the Spring 2018 semester, Hoffman had four incomplete grades, one withdrawn grade, and had “rough outlines” of his thesis. (Pl. Opp. 56.1 ¶ 9; Graduate Transcript; Hoffman Dep. 25:18-21.)
C. CUNY Grants Plaintiff An Extension Of One Year To Complete His Degree
In November 2017, Plaintiff told his supervisor Charles Stewart, Associate Dean and Chief Librarian at CCNY, that he was struggling with depression. (Def. 56.1 ¶¶ 1011; Pl. Opp. 56.1 ¶¶ 10-11.) Stewart thought Hoffman was a valuable employee and decided to seek an extension for him. (Def. 56.1 ¶ 12; Pl. Opp. 56.1 ¶ 12.) At the time, Stewart was led to believe that Hoffman had nearly finished his coursework and would soon complete his thesis. (Def. 56.1 ¶ 12; Pl. Opp. 56.1 ¶ 12.) On November 29, 2017, Stewart wrote a letter to CUNY's Office of Academic Affairs on Hoffman's behalf requesting an extension of the five-year limit on the Instructor position. (Stewart Letter, attached as Ex. 9 to Def. 56.1, Dkt. 55-10.) CCNY's Interim Provost, Mary Driscoll, then recommended a waiver of the five-year limit to CUNY's Executive Vice Chancellor and Provost, noting that she did not anticipate a need for an additional extension of his term as an Instructor. (Driscoll Letter, attached as Ex. 10 to Def. 56.1, Dkt. 55-11.) The CUNY Board of Trustees approved the waiver and granted Hoffman an additional year as an Instructor for the 2018-2019 academic year. (Human Resources Notification, attached as Ex. 11 to Def. 56.1, Dkt. 55-12; Def. 56.1 ¶ 15; Pl. Opp. 56.1 ¶ 15.)
D. Plaintiff Formally Requests An Accommodation For His Disability
Despite the extension, Hoffman was not able to earn his degree during his sixth year as an Instructor, as he still had 15 credits and a thesis to complete. (Graduate Transcript; Def. 56.1 ¶ 17; Pl. Opp. 56.1 ¶ 17.) In May 2019, when Hoffman and Stewart discussed Hoffman's progress toward the degree, Stewart told Hoffman he would not recommend another waiver of the five-year limit but suggested that Hoffman could apply to Human Resources to seek a formal disability accommodation. (Stewart Decl. ¶¶ 1819; Def. 56.1 ¶ 18; Pl. Opp. 56.1 ¶ 18.)
On May 9, 2019, Hoffman met with Cornel Clarke, Associate Director of Human Resources, to discuss Hoffman's requested accommodation of a second additional year in the Instructor position. (Def. 56.1 ¶¶ 19-20; Pl. Opp. 56.1 ¶¶ 19-20). As the Human Resource Director's designee, Clarke was responsible for rendering an initial decision on official accommodation requests. (Boudreau Decl. ¶¶ 5-6.) Shortly after meeting with Clarke, Hoffman submitted a Reasonable Accommodation Request Form and provided medical documentation of his disability to Human Resources. (See Reasonable Accommodation Request Form, attached as Ex. 16 to Def. 56.1, Dkt. 55-17; Redacted Healthcare Provider Accommodation Assessment Form, attached as Ex. 18 to Def. 56.1, Dkt. 55-19.)
Defendants submitted an identical copy - also redacted - of the Redacted Healthcare Provider Accommodation Assessment Form as Ex. 19 to Def. 56.1 (Dkt. 55-20). Plaintiffs submitted a redacted copy as Ex. G to the Declaration of Brittany Weiner (“Weiner Decl.,” Dkt. 68) (Dkt. 68-7) and an unredacted copy at Dkt. 69-1. While Dkts. 55-19, 55-20, and 68-7 redact a majority of Plaintiff's healthcare provider's assessments, Plaintiff quotes one of those assessments in his publicly filed brief. (See Plaintiff's Memorandum Of Law In Opposition To Defendant's Motion For Summary Judgment (“Pl. Mem.,” Dkt. 65) at 4.) The Court refers to an assessment in the unredacted copy below, as it is particularly relevant to the analysis and was quoted in Plaintiff's publicly filed brief.
In his request, Hoffman stated that he and his medical providers were in the process of finding the right combination of medications to effectively treat his depression and that they were “zeroing in on the management of [his] condition.” (Reasonable Accommodation Request Form, Dkt. 55-17 at 1.) In the assessment form provided to Human Resources, Hoffman's psychiatrist stated that his major depressive disorder likely significantly impaired his ability to complete his coursework but that she believed “treatment of his current depressive episode will likely enable him to complete this degree and return to his previously high level of functioning at work.” (Pl. Mem at 4.) And, both Hoffman's psychologist and psychiatrist indicated on their forms that after reviewing the job description of Instructor, they believed Hoffman's requested accommodation of an additional year would “enable [their] patient to perform the essential functions of the position.” (See Redacted Healthcare Provider Accommodation Assessment Form, Dkt. 55-19 at 7.) Clarke reviewed the medical documentation and concluded that Hoffman had a mental health condition that had impaired his ability to complete his degree requirements. (Def. 56.1 ¶ 22; Pl. Opp. 56.1 ¶ 22; Clarke Decl. ¶ 7.)
Although Clarke had handled about 100 disability accommodation requests before, he was not familiar with Hoffman's position as an Instructor in the library. (Clarke Decl. ¶ 8.) Therefore, after reviewing Hoffman's documents, Clarke spoke with Stewart three times to get his perspective on the requirements of the Instructor position, the reason for those requirements, and the impact granting an extension might have on them. (Id.) Clarke also spoke with Erica Stephen, who oversees faculty matters in Human Resources; William Gibbons, Hoffman's immediate supervisor; and Kenneth Norz, a staff member in CUNY's office of the Vice Chancellor for Academic Affairs, to better understand the requirements of the Instructor position and the impact an extension would have on CUNY policy. (Id. ¶¶ 8, 13.) In addition, Clarke reviewed the CUNY Bylaws and Code of Practice Regarding Instructional Staff Titles. (Id. ¶ 9.) Clarke determined that “the extension was not an accommodation that could be granted without fundamentally altering the nature, operations, or standards of the Instructor position.” (Id. ¶ 14.) On August 20, 2019, he wrote a letter informing Hoffman of his decision. (Id.; August 20, 2019 Decision Letter, attached as Ex. 20 to Def. 56.1, Dkt. 55-21.)
E. Plaintiff's Appeal And The Final Determination
On October 14, 2019, Hoffman appealed the denial of his accommodation request to CCNY's Chief Diversity Officer, Diana Cuozzo. (Def. 56.1 ¶ 28; Pl. Opp. 56.1 ¶ 28.) Cuozzo reviewed the relevant CUNY Bylaws, Code of Practice, and Clarke's files from the initial determination. (Def. 56.1 ¶ 29; Pl. Opp. 56.1 ¶ 29.) She spoke to both Clarke and Stewart to understand Hoffman's position and request. (Def. 56.1 ¶ 29; Pl. Opp. 56.1 ¶ 29.) Cuozzo also spoke with Hoffman and his attorney and reviewed their written submissions. (Def. 56.1 ¶ 31; Pl. Opp. 56.1 ¶ 31.)
Under CUNY's procedures, the final accommodation decision is issued by the college President. (Def. 56.1 ¶ 32; Pl. Opp. 56.1 ¶ 32.) Accordingly, Cuozzo prepared a recommendation to President Vincent Boudreau, recommending that the extension be denied “because it would be an undue hardship, fundamentally altering CUNY policies, procedures, and professional requirements.” (Cuozzo Decl. ¶ 13.) Boudreau agreed that affording Hoffman a second extension of the five-year time limit “would be inconsistent with the temporary nature of the Instructor position, which is, in its essence, a time-limited, up-or-out position in the nature of an apprenticeship preparing the Instructor for the anticipated duties of a tenure-track Assistant Professor.” (Boudreau Decl. ¶ 13.) On December 5, 2019, Boudreau issued a final decision denying Hoffman's request. (December 5, 2019 Decision Letter, attached as Ex. 24 to Def. 56.1, Dkt. 55-25.)
PROCEDURAL BACKGROUND
Hoffman filed this action on March 2, 2020, naming CCNY as the sole defendant and alleging disability discrimination under the Americans with Disabilities Act (“ADA”), the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”) and Administrative Code. (Complaint (“Compl.,” Dkt. 1).) On May 5, 2020, Hoffman filed an amended complaint adding CUNY and a claim under Section 503 of the Rehabilitation Act. (First Amended Complaint, Dkt. 12.) On August 4, 2020, Hoffman filed a motion for leave to amend to add a claim of disability discrimination under Section 504 of the Rehabilitation Act (Dkt. 23) and submitted a proposed Second Amended Complaint (Dkt. 23-1).
On August 28, 2020, Defendants moved to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. 25.) On March 30, 2021, Judge Gardephe granted Defendants' motion to dismiss with respect to the First Amended Complaint, but also granted Plaintiff's motion for leave to amend to file the Second Amended Complaint pleading a Rehabilitation Act Section 504 claim against CUNY.(Dkt. 29.) Hoffman filed the Second Amended Complaint on April 1, 2021. (Dkt. 30.) CUNY answered the Second Amended Complaint on May 11, 2021. (Dkt. 35.) The parties then participated in mediation, which was unsuccessful. (Dkt. 44.) On January 25, 2022, CUNY filed a motion for summary judgment on Hoffman's remaining Section 504 claim. (Dkt. 54.) Hoffman filed his opposition brief (Dkt. 65) and CUNY replied (Dkt. 64). CUNY filed a corrected reply brief on September 27, 2023. (Dkt. 77.) The motion has been referred to me for Report and Recommendation. (Dkt. 74.)
Defendants asserted that they were moving to dismiss Plaintiff's proposed Second Amended Complaint, but because the proposed Second Amended Complaint had not yet been approved for filing, Judge Gardephe construed Defendants' motion as one to dismiss the First Amended Complaint. (Dkt. 29 at 1 n.1.)
LEGAL STANDARD
To obtain summary judgment under Federal Rule of Civil Procedure 56, the movant must show that there is no genuine dispute of material fact. Fed.R.Civ.P. 56(a). The Court may grant summary judgment “only if no reasonable trier of fact could find in favor of the nonmoving party.” Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir. 1995); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Conversely, “[s]ummary judgment is improper if the evidence is such that a reasonable jury could return a verdict for a nonmoving party.” Banks v. General Motors, LLC, 81 F.4th 242, 258 (2d Cir. 2023) (internal quotation marks omitted).
The moving party bears the initial burden of identifying “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may demonstrate the absence of a genuine issue of material fact “in either of two ways: (1) by submitting evidence that negates an essential element of the non-moving party's claim, or (2) by demonstrating that the non-moving party's evidence is insufficient to establish an essential element of the non-moving party's claim.” Nick's Garage, Inc. v. Progressive Casualty Insurance Co., 875 F.3d 107, 114 (2d Cir. 2017) (quoting Farid v. Smith, 850 F.2d 917, 924 (2d Cir. 1988)).
The opposing party must then come forward with specific evidence establishing the existence of a genuine dispute; conclusory statements or mere allegations are not sufficient to defeat summary judgment. Anderson, 477 U.S. at 248; Geyer v. Choinski, 262 Fed.Appx. 318, 318 (2d Cir. 2008) (summary order). Where the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,” summary judgment must be granted. Celotex, 477 U.S. at 322; accord El-Nahal v. Yassky, 835 F.3d 248, 252 (2d Cir. 2016); see also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (finding that, if there is nothing more than a “metaphysical doubt as to the material facts,” summary judgment is proper).
In assessing the record to determine whether there is a genuine issue of material fact, the Court must “eschew credibility assessments,” Smith v. Barnesandnoble.com, LLC, 839 F.3d 163, 166 (2d Cir. 2016) (internal quotation marks omitted), and resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson, 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor”).
DISCUSSION
Hoffman has established a prima facie case that he was denied a reasonable accommodation, and the record, when viewed in the light most favorable to Hoffman, does not permit the Court to conclude as a matter of law that his proposed accommodation is unreasonable or would cause CUNY to suffer undue hardship. Because CUNY's evidence of undue hardship is overly conclusory and insufficient to take the issue away from a jury, summary judgment should be denied.
A. Failure To Accommodate Under Section 504 Of The Rehabilitation Act
Section 504 of the Rehabilitation Act applies to programs receiving federal funding and provides that “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under” any covered program or activity. 29 U.S.C.A. § 794. “In short, the Rehabilitation Act ... prohibits] discrimination against qualified disabled individuals by requiring that they receive ‘reasonable accommodations' that permit them to have access to and take a meaningful part in public services and public accommodations.” Powell v. National Board of Medical Examiners, 364 F.3d 79, 85 (2d Cir.), opinion corrected, 511 F.3d 238 (2d Cir. 2004).
To establish a prima facie case for failure to accommodate under the Act, a plaintiff “must establish that (1) she has a disability; (2) the defendant had notice of the disability; (3) she could perform the essential functions of the job with reasonable accommodation; and (4) the defendant refused to make such accommodations.” Kho v. New York and Presbyterian Hospital, 344 F.Supp.3d 705, 721 (S.D.N.Y. 2018) (citing Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006)). “After this prima facie case is established, an employer can defeat such a claim if it shows (1) that making a reasonable accommodation would cause it hardship, and (2) that the hardship would be undue.” Quadir v. New York State Department of Labor, No. 13-CV-3327, 2016 WL 3633406, at *2 (S.D.N.Y. June 29, 2016) (internal quotation marks omitted) (citing, inter alia, Borkowski v. Valley Central School District, 63 F.3d 131, 138 (2d Cir. 1995)), aff'd, 691 Fed.Appx. 674 (2d Cir. 2017). “[F]ailure-to-accommodate claims do not require proof of discriminatory intent.” Brooklyn Center for Psychotherapy, Inc. v. Philadelphia Indemnity Insurance Co., 955 F.3d 305, 312 (2d Cir. 2020).
B. Whether Plaintiff Is “Otherwise Qualified”
The parties agree that Hoffman has satisfied at least three of the four prongs of his prima facie case. There is no dispute as to prongs one, two, and four of Hoffman's prima facie case, i.e., that Hoffman has a disability; that CUNY was put on notice of Hoffman's disability; and that CUNY denied Hoffman his requested accommodation. (See Pl. Opp. 56.1 ¶¶ 11, 20, 22, 33.) The parties disagree, however, about prong three: whether Hoffman was “otherwise qualified” such that he could perform the essential functions of the job with or without a reasonable accommodation. Taking the facts in the light most favorable to Hoffman, the Court concludes that Hoffman has presented facts by which a reasonable factfinder could find that, at minimum, he could perform the essential functions of the job of Instructor with a reasonable accommodation and therefore is otherwise qualified.
Hoffman argues that there is a dispute of fact as to which member of CUNY's administration denied the accommodation request. (See Pl. Mem. at 11-12.) The Court disagrees. There is no genuine dispute that the final decision to deny the requested accommodation was made by President Boudreau. (See December 5, 2019 Decision Letter, Dkt. 55-25; Pl. Opp 56.1 ¶ 33.)
1. Ability To Perform The Essential Functions Of An Instructor
“[I]n the context of an employment discrimination claim ... [,] an individual is otherwise qualified for a job if she is able to perform the essential functions of that job, either with or without a reasonable accommodation.” Borkowski, 63 F.3d at 135. The plaintiff bears the burden of proving either that he can meet the requirements of the job without assistance, or that an accommodation exists that permits him to perform the job's essential functions. Id. at 137-38 . The plaintiff has a “light burden” of producing evidence as to the facial reasonableness or plausibility of the accommodation. Dean v. University at Buffalo School of Medicine and Biomedical Sciences, 804 F.3d 178, 190 (2d Cir. 2015); see also Borkowski, 63 F.3d at 138 (“As to the requirement that an accommodation be reasonable, we have held that the plaintiff bears only a burden of production. . This burden, we have said, is not a heavy one”) (citing Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir. 1991)). Here, the parties disagree about what the essential functions of the job are and whether they can be performed with a reasonable accommodation.
“Although courts are deferential to an employer's judgment regarding what functions are essential to a particular position, the question involves ‘a fact-specific inquiry into both the employer's description of a job and how the job is actually performed in practice.'” Kelleher v. Fred A. Cook, Inc., 939 F.3d 465, 469 (2d Cir. 2019) (quoting Stevens v. Rite Aid Corp., 851 F.3d 224, 229 (2d Cir. 2017)). While no one factor is dispositive, relevant factors courts consider include the employer's judgment, written job descriptions, the amount of time spent on the job, the mention of the function in a collective bargaining agreement, the work experience of past employees, and the work experience of current employees. Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997) (citing ADA regulations at 29 C.F.R. § 1630.2(n)).
The terms common to both the ADA and the Rehabilitation Act are to be interpreted in the same way. Stone, 118 F.3d at 96. Accordingly, the Court cites cases applying both the ADA and the Rehabilitation Act. See also 42 U.S.C. § 12117(b) (federal agencies administering federal disability statutes are to avoid subjecting employment discrimination claims to “inconsistent or conflicting standards”); Dean, 804 F.3d at 187 (“As the standards for actions under these provisions of the ADA and the Rehabilitation Act are generally equivalent, we analyze such claims together”); Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (“[a]lthough there are subtle differences between these disability acts, the standards adopted by Title II of the ADA for State and local government services are generally the same as those required under section 504 of federally assisted programs and activities. ... Indeed, unless one of those subtle distinctions is pertinent to a particular case, we treat claims under the two statutes identically”) (citing, inter alia, Henrietta D. v. Giuliani, 119 F.Supp.2d 181, 206 (E.D.N.Y. 2000)).
Hoffman argues that the Court must analyze how the Instructor position is performed on a day-to-day basis, and the essential functions of the job are therefore limited to the nine-to-five duties of a reference librarian that he had performed for six years. (Pl. Mem. at 9 (citing Calabro v. Westchester BMW, Inc., 398 F.Supp.2d 281, 288 (S.D.N.Y. 2005) (“To prove her qualification for the job, a plaintiff need only ‘establish basic eligibility for the position at issue,' by showing that she “possesses the basic skills necessary for performance of [the] job”)).) Indeed, as this Court observed in ruling on Hoffman's motion for leave to amend, the basic functions of the Instructor position will not change once Hoffman obtains a second master's degree. Hoffman v. City College of New York, No. 20-CV-1729, 2021 WL 1226498, at *9 (S.D.N.Y. March 30, 2021) (finding that the proposed second amended complaint “[pled] facts demonstrating that Plaintiff was able to perform the essential functions of his job”). And, Hoffman correctly observes that CUNY has not presented any evidence indicating that he could not continue to perform the basic skills required to complete his day-to-day tasks of reference librarian - i.e., staffing the reference desk, assisting in selecting materials for the library, teaching library users to navigate the library's holdings, and performing special projects - without a second master's degree.
CUNY asserts that it is “entitled to set its own standards for what is expected of employees in different academic job titles, and it requires, for legitimate reasons, that Instructors prove their fitness not just for their current position as an Instructor, but for their next position, as a tenure-track Assistant Professor, by showing the ability to do serious academic research within a reasonable time.” (Def. Mem. at 20.) As CUNY points out, such a requirement is not uncommon among universities, law firms, and other entities with positions that are apprentice-like in nature, and courts have held that employers do not necessarily violate anti-discrimination laws by terminating employees who do not show fitness for promotion by earning degrees, passing exams, or otherwise advancing at a pre-determined rate. (See id. at 18-19.)
Def. Mem. refers to Memorandum Of Law In Support Of Defendant's Motion For Summary Judgment filed Jan. 25, 2022 at Dkt. 61.
The cases cited by CUNY recognizing employers' rights to require employees to show fitness for promotion at a pre-determined rate are discussed below in the context of undue hardship.
The parties' arguments reflect the interplay between two separate material issues of fact. The first is whether obtaining a second master's degree is essential to being an Instructor librarian. The second is whether, if obtaining the second degree is essential, is doing so within five years essential. If obtaining a second master's degree is not essential to the Instructor position, then Hoffman would be entitled to judgment. If both obtaining a second master's degree and doing so within five years are essential, then CUNY would be entitled to judgment because no accommodation could enable him to now complete the second master's within the five-year period. If a second master's degree is essential to the Instructor job, but doing so within five years is not, then there may be reasonable accommodations that could be made. On both questions, there is evidence by which a reasonable juror could find for Hoffman.
For instance, on one hand, the job description for the librarian Instructor position does not state that an Instructor must earn a second master's degree at all, let alone within five years, although it does require that the candidate have “an interest in productive scholarship.” (Code Of Practice Regarding Instructional Staff Titles: Title Descriptions And Minimum Qualifications, Dkt. 55-3, at 8.) In contrast, the description of Assistant Professor does explicitly reference the need for an additional master's degree (or completed doctorate) as an essential requirement of that position: “In the libraries, for promotion to or appointment as assistant professor, the candidate must, in addition to the requirements of instructor, have completed a doctorate or an additional master's degree.” (Id. at 9.) One could reasonably infer from those descriptions that obtaining a second master's degree is a requirement of the Associate Professor position but not the Instructor position. Additionally, CUNY previously afforded Hoffman an extra year to obtain his master's degree, demonstrating that the five-year time limit may not be so essential as CUNY claims.
On the other hand, both CUNY and Hoffman expected that Hoffman would move on to a tenure-track Assistant Professor position after five years. (Hoffman Dep. 14:1419; Boudreau Decl. ¶ 3; Stewart Decl. ¶ 4.) And, the CUNY Bylaws provide that Instructors shall be appointed for no more than four successive annual reappointments. (CUNY Bylaws, attached as Ex. 1 to Def. 56.1, Dkt. 55-2.) Considering that limitation, together with the job descriptions for Instructor librarian and Assistant Professor librarian, a reasonable inference could be made that both obtaining a second master's and doing so within five years, while holding the Instructor position, are essential. Moreover, the declarations of Clarke, Stewart, Cuozzo, and Boudreau all state that a obtaining a second master's degree within five years is a “requirement” of the Instructor position. (See Stewart Decl. ¶¶ 5, 16, 23; Clarke Decl. ¶ 9; Cuozzo Decl. ¶¶ 2, 11; Boudreau Decl. ¶ 4). Additional evidence may be found in the experience of past and current Instructors, none of whom have held the position for more than four annual renewals. (Human Resources Spreadsheet, attached as Ex. 25 to Def. 56.1, Dkt. 55-26.)
In short, there is conflicting evidence as to whether obtaining a second master's degree, and doing so within five years, both are “essential” to the librarian Instructor position. There is thus a genuine dispute precluding summary judgment.
2. Reasonableness Of The Requested Accommodation
Summary judgment should also be denied because - in the event a fact-finder were to determine that obtaining a second master's is essential but doing so within five years is not - Hoffman has introduced evidence that a facially reasonable accommodation exists that permits him to perform the job at the same level as a non-disabled employee. The Second Circuit has held that the plaintiff has only a light burden of production as to the facial reasonableness of a requested accommodation. Borkowski, 63 F.3d at 138. “This burden, we have said, is not a heavy one. ... It is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits. Once the plaintiff has done this, she has made out a prima facie showing that a reasonable accommodation is available, and the risk of nonpersuasion falls on the defendant.” Id. (citing Gilbert, 949 F.2d at 642).
Here, Hoffman proposes an accommodation of a second extra year to complete his degree now that his depression is under control; and the costs of this requested accommodation do not, on their face, exceed the benefits. In Borkowski, the Second Circuit held that plaintiff met her burden to show the facial reasonableness of her requested accommodation of using a teacher's aide while teaching elementary school classes because the regulations applying Section 504 and cases applying the Rehabilitation Act loosely contemplated the possibility of the use of teacher's assistants as reasonable accommodations. See Borkowski, 63 F.3d at 142 (citing 34 C.F.R. § 104.12(b) (“Reasonable accommodation may include: ... the provision of readers or interpreters, and other similar actions”)). The same can be said for Hoffman. The regulations say that reasonable accommodation “may include: ... [j]ob restructuring, parttime or modified work schedules, ... and other similar actions.” 34. C.F.R. § 104.12(b). Viewed in the light most favorable to Plaintiff, Hoffman's requested additional year could be considered “job restructuring” or a “modified work schedule” or another “similar action.”
Moreover, courts have found that, like Hoffman's requested accommodation, accommodations that include a leave of absence to address mental health issues and additional time to study are facially reasonable. See, e.g., Bahl v. New York College of Osteopathic Medicine of New York Institute of Technology, No. 14-CV-4020, 2023 WL 4673007, at *8-9 (E.D.N.Y. July 21,2023) (plaintiff “met his ‘light' burden to show the facial reasonableness or plausibility of his requested accommodation” of a six-month leave of absence to treat his ADHD, anxiety disorder, deficits in executive function, and speech cluttering and to study for his exams); Dean, 804 F.3d at 191 (plaintiff's requested accommodation of three months leave to treat his depression and to study for a required licensing exam was facially reasonable). Like the plaintiffs in Dean and Bahl, Hoffman asserts that affording him an accommodation of additional time to complete his degree now that his mental health is under control would allow him to meet the requirement of getting his second master's degree. While the plaintiffs in Dean and Bahl were students as opposed to employees, and Hoffman is both a student and employee, the cases are analogous in that they underscore the facial reasonableness of his requested accommodation in an educational setting. See also Giblin v. College, No. 20-CV-0477, 2021 WL 781363 (N.D.N.Y. March 1,2021) (denying motion to dismiss plaintiff's failure to accommodate claim where plaintiff, who was hired as a professor with the expectation she would complete her doctoral degree within 12 months of her appointment, failed to complete the degree in time and requested an accommodation of additional time due to her ADHD).
Finally, there is evidence in the record to establish the reasonableness of the requested accommodation. Hoffman previously received a year's extension to obtain his master's degree, demonstrating that the requested accommodation is feasible. And, Hoffman and his doctors assert that his depression symptoms have improved enough to allow him to be successful in obtaining his master's degree within the next year. (See Reasonable Accommodation Request Form, Dkt. 55-17; Redacted Healthcare Provider Accommodation Assessment Form, Dkt. 55-19 at 7; Sealed Healthcare Provider Accommodation Assessment Form, Dkt. 69-1); Hoffman Dep. 63:7-16 (Q: Anything else discussed, any other options for getting the additional year? A: I explained to them - to him it had taken a while to find a cocktail of medication to work. I believe I told him about that, that I felt that the medication was finally, you know, actually working, that I felt confident that I could do it.”) So, extension of another year would appear reasonable as a means to allow Hoffman to obtain his second master's degree and move on to the position of an Assistant Professor. In sum, Hoffman has proffered evidence sufficient to create a triable issue as to whether he could perform the essential requirements of his position with a reasonable accommodation and thus is otherwise qualified. Borkowski, 63 F.3d at 141 (“once the plaintiff has introduced evidence that an accommodation exists that permits her to perform the job at the same level as a non-disabled employee, a fact question has been created”).
CUNY asserts that it was unlikely that Hoffman would be able to complete his second master's degree if given another year (see Def. Mem. at 20), but contends the issue is immaterial because CUNY did not base its decision on that question. (See Def. Corrected Reply at 7 (whether plaintiff could have completed his degree if given another year “is not an issue of fact at all; it is a matter of opinion having no bearing on the outcome of this case.”).) Regardless of what CUNY based its decision on, the issue of Hoffman's fitness for completing the second master's is material to whether his requested accommodation was reasonable.
C. Whether Accommodation Would Cause Undue Hardship
Having found that Hoffman can provide evidence to support a prima facie case of failure to accommodate under the Act, the Court turns to whether CUNY has established that there is no genuine dispute that the proposed accommodation would be unreasonable and (a) impose undue hardship on the operation of CUNY's service, program, or activity or (b) require a fundamental or substantial modification to the nature of its academic program or standards. On the record before the Court, CUNY has not met its burden.
“Once the plaintiff has met the light burden of producing evidence as to the facial reasonableness or plausibility of the accommodation, the burden falls to the defendant educational-institution to persuade the fact-finder that the proposed accommodation is unreasonable. Dean, 804 F.3d at 190. That burden may be met by establishing that the requested accommodation would (a) impose undue hardship on the operation of the defendant's service, program, or activity, or (b) require a fundamental or substantial modification to the nature of its academic program or standards.” Id. “At this point the defendant's burden of persuading the factfinder that the plaintiff's proposed accommodation is unreasonable merges, in effect, with its burden of showing, as an affirmative defense, that the proposed accommodation would cause it to suffer an undue hardship.” Borkowski, 63 F.3d at 138.
CUNY argues that granting Plaintiff's requested accommodation would be unreasonable (i.e., cause undue hardship) because it would force CUNY to fundamentally alter the temporary, transitional, apprentice-like nature of the Instructor position and alter CUNY's professional and academic standards. (Def. Mem. at 16, 19-20.) Hoffman counters that CUNY “has failed to present any evidence supporting that Plaintiff's request for an accommodation would cause an undue hardship.” (Pl. Mem. at 10-11.) Although CUNY's evidence of undue hardship is not as lacking as Hoffman asserts, it is nonetheless overly conclusory and insufficient to take the issue of undue hardship away from a jury.
The Second Circuit has interpreted undue hardship to mean “requiring significant difficulties or expense” and has stated that 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 (quoting, inter alia, Henrietta D. v. Bloomberg, 331 F.3d at 281). To establish an undue hardship, the employer must “perform a cost/benefit analysis.” Borkowski, 63 F.3d at 139. However, the employer need not “analyze the costs and benefits of proposed accommodations with mathematical precision.” Id. at 140. “[A] common-sense balancing of the costs and benefits in light of the factors listed in the regulations is all that is expected.” Id. The regulations implementing Section 504 state that the following factors are to be considered in assessing burden: (1) the overall size of the recipient's program or activity with respect to number of employees, number and type of facilities, and size of budget; (2) the type of the recipient's operation, including the composition and structure of the recipient's workforce; and (3) the nature and cost of the accommodation needed. 34 C.F.R. § 104.12(c); 45 C.F.R. § 84.12(c). See also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 606 n.16 (1999) (“§ 504 regulations make clear that the ‘undue hardship' inquiry requires not simply an assessment of the cost of the accommodation in relation to the recipient's overall budget, but a ‘case-by-case analysis weighing factors that include [those listed in the regulations]'”) (citing, inter alia, 45 C.F.R. § 84.12(c)).
In the education context, courts have found undue hardship where a plaintiff's requested accommodation would require the school to waive graduation or licensing requirements or change academic standards. See, e.g., Brief v. Albert Einstein College of Medicine, 423 Fed.Appx. 88, 91 (2d Cir. 2011) (granting summary judgment for defendant because allowing a medical student to remain in the program despite failing more exams than the school's bylaws permitted would be contrary to its “promulgated academic standards ... [concerning] failures of examinations”); Powell, 364 F.3d 79 (granting summary judgment for defendant because allowing a medical school student to continue with her medical degree without passing the first part of a required licensing exam “would unreasonably alter the nature of its program.”); Lipton v. New York University College of Dentistry, 865 F.Supp.2d 403, 410 (S.D.N.Y. 2012) (granting defendant's motion to dismiss because requested accommodations were unreasonable where they amounted to a “waiver of a graduation requirement”), aff'd, 507 Fed.Appx. 10 (2d Cir. 2013); Falchenberg v. New York State Department of Education, 642 F.Supp.2d 156, 161 (S.D.N.Y. 2008) (granting summary judgment for defendant where allowing plaintiff to take a teacher certification exam with a dictionary, extra time, frequent breaks, and as an oral exam would “fundamentally alter the measurement of the skills the examination is intended to test” and was therefore not a reasonable accommodation), aff'd, 338 Fed.Appx. 11 (2d Cir. 2009).
CUNY asserts that like the schools in the above cases, CUNY is entitled to regard timely attainment of academic benchmarks for further advancement as a fundamental aspect of its program that cannot be changed to accommodate Hoffman's disability. (Def. Mem. at 18.) Allowing Hoffman a second extra year to complete his second master's degree and remain in his position as an Instructor would, CUNY argues, force CUNY to change its academic and professional standards. (Id.) CUNY highlights as particularly apt Lipton v. NYU College of Dentistry. In Lipton, a dental school student repeatedly failed to pass a national board exam that the dental school required its students to pass within 14 months of completion of coursework. The plaintiff, who had already received an extension of time to take his exams, requested as an accommodation that he be permitted to take the exam “an unlimited number of times over a reasonable period” and a “waiver of graduation requirements.” 865 F.Supp.2d at 407. The court reasoned that the requested accommodation would impose an undue hardship on the defendant because it would “alter important academic policies to a great degree” and the school had “a right to impose a time limit in which its graduation requirements must be completed.” Id. at 409. So too at CUNY, CUNY argues.
Lipton is materially distinguishable. In Lipton, the plaintiff requested that he be allowed to retake the exam an unlimited number of times during an undefined “reasonable amount of time,” which amounted, in plaintiff's own words, to “a waiver of graduation requirements.” Id. at 410. Here, Hoffman does not request that his time in the Instructor position be extended indefinitely. Nor does he request that CUNY waive its requirement that Instructors earn their second master's degree before becoming eligible for an Assistant Professor position. Instead, he requests one more year to finalize his degree while remaining an Instructor.
Brief and Powell also are distinguishable on similar grounds. In Brief, the plaintiff requested that he be permitted to continue his medical school degree despite his repeated failure of multiple exams, which, under the school's bylaws, required that he be dismissed from the medical program. 423 Fed.Appx. 88, 91 (2d Cir. 2011). The Court reasoned that “in light of Brief's numerous exam failures, allowing him to continue as a student would be contrary to the school's academic standards.” Id. at 92. Unlike Brief, Hoffman does not ask to be excused from passing the classes required to earn his degree. Rather, he requests one more year to complete his outstanding courses and finish his thesis. In Powell, a medical student requested that she be permitted to advance to her third year of medical school, which would involve clinical work treating patients, without passing her second year of medical school. 364 F.2d at 88. Hoffman, in contrast, does not request dispensing with a requirement altogether. Rather, he asks for additional time to complete his second master's degree. Not to mention that treating patients without basic medical knowledge is quite different from performing the work of a reference librarian with a master's degree in library science but not a second master's degree in an unrelated field.
Still, CUNY argues that “employers can lawfully require timely attainment of academic benchmarks, promotions, or credentials relevant to future employment and its requirements.” (Def. Mem. at 18-19 (citing Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678 (7th Cir. 1998) (collecting cases); Geoghan v. Long Island Railroad, 06-CV-1435, 2009 WL 982451, at *21-22 (E.D.N.Y. Apr. 9, 2009) (dismissing ADA claim where employer required assistant signalmen to pass examination for signalman position within four years); Jiminez v. Mary Washington College, 57 F.3d 369, 383 (4th Cir. 1995) (dismissing Title VII claim where faculty member was denied a tenure-track position after failing to obtain Ph.D. within prescribed time, producing no scholarly work, and receiving five semesters of negative reviews); Murnane v. American Airlines, Inc., 482 F.Supp. 135, 145 (D.D.C. 1979) (dismissing ADEA claim where defendant airline required pilots to be younger than age 40 at the time of hiring); Higbee v. Kerry, 11-CV-2636, 2014 WL 1012397, at *11-12 (N.D. Tex. March 14, 2014) (dismissing former state department employee's retaliation and hostile work environment claims where plaintiff was placed in a rotational system for selecting leaders based on the state department's “up or out” promotion and retention system).)
As Hoffman points out, however, the cases CUNY cites for the proposition that employers are entitled to maintain time-limited, up-or-out positions are inapposite. For instance, in Dalton v. Subarau-Isuzu Automotive, the court held that the ADA did not compel an employer to reduce the number of temporary jobs for temporarily disabled employees by creating new full-time positions to accommodate permanently disabled employees. 141 F.3d at 680. The court did not address any “up-or-out” policy. In Jiminez v. Mary Washington College, the plaintiff did not bring a failure to accommodate claim or claim disability discrimination in any form. Instead, the plaintiff, who was denied a tenuretrack professor position after he failed to defend his dissertation and received five semesters of poor evaluations, alleged race and national origin discrimination in violation of Title VII. 57 F.3d at 382, 384. Likewise, neither Murnane v. American Airlines nor Higbee v. Kerry involved failure to accommodate claims or analyses of undue hardship. And in Geoghan v. Long Island Railroad, the court held that a reasonable jury could find the plaintiff was otherwise qualified, and denied defendant's motion for summary judgment with respect to plaintiff's requested accommodation for his ADHD. 2009 WL 982451, at *19. Even though the employer said the plaintiff was terminated pursuant to an “up-or-out” promotion scheme enshrined in a collective bargaining agreement, there were issues of fact as to whether that explanation was pretext for intentional discrimination. Id. at *23. None of these cases establishes that an academic institution need not accommodate a plaintiff who requests an additional year as a reasonable accommodation to an “up-or-out” policy.
CUNY insists that as an academic institution, its determination that Hoffman's requested accommodation would cause it undue hardship is owed “enhanced” deference from the Court. (See Def. Mem. at 17-18 (quoting Doe v. New York University, 666 F.2d 761, 776 (2d Cir. 1981) (“considerable judicial deference” is appropriate because “experienced educational administrators and professionals [are better able] to determine an applicant's qualifications and whether he or she would meet reasonable standards for academic and professional achievement established by a university or a non-legal profession”)).) True, courts “ordinarily” defer to an academic institution's decision that a particular accommodation would constitute an undue hardship when the institution has “diligently assessed the available options and then made an academic judgment ... that to accommodate the student would work a change in the substance of its ... program, and impose an undue hardship on its academic program.” Lipton, 865 F.Supp.2d at 409 (quoting Powell, 364 F.3d at 88). Yet, the Second Circuit has held that such deference is inappropriate in the absence of evidence that the academic institution has “diligently assessed” whether the accommodation would require a fundamental alteration to the academic caliber of its offerings. Dean, 804 F.3d at 191.
In Dean, the Second Circuit set aside the district court's grant of summary judgment to the defendant, a medical school, on the plaintiff's failure to accommodate claims brought under the ADA and Rehabilitation Act. Id. The student had requested a three-month leave to help treat his depression and prepare for re-taking a licensing exam that he had twice failed and was required to pass in three attempts within one academic year. Id. at 188. The school denied his requested leave but allowed him a shorter leave. Id. He did not pass the exam within the allotted period of time and was subsequently dismissed from the medical program pursuant to school policy. Id. Denying defendant's motion for summary judgment, the court reasoned:
In order to obtain summary judgment, it was incumbent upon Defendants to submit a factual record establishing that in rejecting [plaintiff's] requested scheduling modification they diligently assessed whether the alteration would allow [plaintiff] the opportunity to continue in the M.D. program without imposing undue financial and administrative burdens on [defendant] or requiring a fundamental alteration to the academic caliber of its offerings. ... Where, as here, the record is devoid of evidence indicating whether Defendants evaluated these considerations in determining the reasonableness of the accommodation sought, we decline to extend the deference we ordinarily accord to the professional, academic judgments of educational institutions.Id. at 191 (internal citations omitted). The court concluded that “Defendants' failure to adduce evidence as to the basis for denying [plaintiff's] requested modification to the exam schedule precludes any conclusion on summary judgment as to the unreasonableness of that accommodation.” (Id.) So too here.
CUNY's submissions in support of its motion for summary judgment repeatedly assert that Hoffman's requested accommodation of one year would require “fundamentally altering” CUNY policies, procedures, and professional requirements (see, e.g., Def. Mem. at 2, 10, 12, 15-17, 20; Cuozzo Decl. ¶¶ 9, 13; Clarke Decl. ¶¶ 8, 14; Boudreau Decl. ¶ 12), but CUNY provides virtually no explanation as to how allowing Hoffman an additional year would work a fundamental alteration, in any practical sense, to its Instructorship program. CUNY provides nothing beyond the merely conclusory to demonstrate that it engaged in “common-sense balancing of the costs and benefits” and considered the factors in the regulations. See Borkowski, 63 F.3d at 140 (“a commonsense balancing of the costs and benefits in light of the factors listed in the regulations is all that is expected”) (referring to 34 C.F.R. § 104.12(b)). CUNY does not, for example, point to negative effects on its overall academic rigor, financial or administrative burdens, or its ability to fill its reference librarian positions. Nor does CUNY suggest that it would be irresponsible to allow a librarian to continue to serve in their duties with only one master's degree, as the defendant in Powell argued with respect to allowing a medical student to continue her degree without proving mastery of basic medical knowledge. See Powell, 364 F.3d at 88.
Instead, CUNY repeats that affording Hoffman his requested accommodation would “fundamentally alter the nature of CUNY's service, program, or activity.” Such a conclusory statement is not enough to take the issue away from the trier of fact that the requested accommodation would be an undue hardship to CUNY and therefore unreasonable. See Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 122 (2d Cir. 2004) (denying summary judgment to defendant on employee's failure to accommodate claim where defendant “never adduced evidence to show that accommodating [plaintiff] would result in an undue hardship”); Felix v. New York City Department of Education, No. 21-CV-6109, 2023 WL 4706097, at *9 (S.D.N.Y. July 24, 2023) (denying summary judgment to defendant employer on employee's failure to accommodate claim where plaintiff satisfied her burden of “production and persuasion as to the existence of an accommodation that is facially reasonable” and defendant's only arguments as to undue hardship involved “[q]uoting a single email, and addressing none of the factors to be considered in determining whether an accommodation would impose an undue hardship”); Bahl, 2023 WL 4673007, at *9 (denying summary judgment to defendant medical school on plaintiff's failure to accommodate claim where defendant asserted only that the requested accommodation of a leave would cause a “substantial modification to its standards that students need to pass the [relevant exam] within a certain period of time” and was “per se unreasonable” due to the length of time.); Einsohn v. New York City Department of Education, No. 19-CV-2660, 2022 WL 955110, at *5 (E.D.N.Y. March 30, 2022) (denying summary judgment to defendant employer because it did not establish that employee's requested accommodation of a modified teaching schedule would cause an undue hardship where “[d]efendants do not explain why student safety required every single assistant principal to participate in hall duty, or why plaintiff's shift could not have been covered by another faculty member. Nor have defendants produced other ‘concrete evidence indicating the likely impact of [plaintiff's] accommodation' on school operations”) (citing Rodal, 369 F.3d at 122); Bied v. County of Rensselaer, No. 15-CV-1011, 2018 WL 1628831, at *19 (N.D.N.Y. March 30, 2018) (denying summary judgment to defendants on plaintiff's failure to accommodate claim where the evidence cited by defendants did “not squarely establish that, in rejecting additional scheduling modifications, [defendants] diligently assessed whether a scheduling alteration would allow Plaintiff the opportunity to continue [her course of study] without imposing undue financial and administrative burdens on [defendant] or requiring a fundamental alteration to the academic caliber of its offerings”).
To be sure, there is no genuine dispute that CUNY personnel consulted each other and applicable policies in reaching their decision. Moreover, CUNY has proffered some evidence that Hoffman's requested accommodation would alter the Instructorship program, but that evidence falls short of indisputably establishing that the accommodation would be an undue hardship. The declarations of Chief Diversity Officer Diana Cuozzo, Associate HR Director Cornel Clarke, and CUNY President Vincent Boudreau establish that CUNY administrators reviewed CUNY's Bylaws, Code of Practice, and the requirements of the Instructorship position when evaluating the accommodation request, but they do not explain at all how or why Hoffman's requested accommodation would fundamentally alter their program and therefore pose an undue hardship on them. (See Cuozzo Decl. ¶¶ 8-13; Clarke Decl. ¶¶ 8-14; Boudreau Decl. ¶¶ 4, 9-14.)
President Boudreau's explanation seems to be the most specific. In his declaration, Boudreau says that the main reason for the additional master's degree requirement is “to demonstrate that the Instructor has the capacity to take on the additional academic responsibilities of a tenure-track Assistant Professor, who, unlike an Instructor, will be expected to produce significant scholarly research as well as perform library service tasks.” (Boudreau Decl. ¶ 4.) The main reason for the time limit, according to Boudreau, “is that a tenure-track Assistant Professor must produce significant scholarly research within a limited time, so the Instructor must show the capacity to earn the necessary qualifications in a limited time.” (Id.) But this still does not explain why accommodating Hoffman for one additional year would fundamentally alter CUNY's Instructorship program. An additional year would still be a “limited” time, and Boudreau does not explain why, taking into account the time Hoffman needed to gain control over his mental disability, an extra year's time would be any less demonstrative of Hoffman's capacity to take on the additional academic responsibilities of a tenure-track Assistant Professor. Boudreau's explanation is not enough to dispel any issue of material fact.
Nor did other CUNY decisionmakers articulate how the requested accommodation would fundamentally alter the program. For instance, when asked in his deposition how he decided that the requested accommodation would cause an undue hardship, Clarke struggled to explain the meaning of “undue hardship” and could not recall why he ultimately denied Hoffman's requested accommodation. (Deposition of Cornel Clarke, attached as Ex. C to Weiner Decl. filed on January 25, 2022 at Dkt 68 (“Clarke Dep.”) 44:2-18 (Q: “I asked you earlier if you were familiar with the phrase undue hardship and you said that you were. Can you explain your understanding of that to me?” A: “Undue hardship is essentially if the impact of granting the accommodation causes or creates a problem for the employee in terms of cost impact to other - if granting the accommodation changes the way in which the operation changes greatly in the way in which the operation runs, you know, if it impacts the company in a way that is fundamentally - I'm sorry, I know this. If granting the accommodation causes a significant change in the way in which the organization's operation is run, so”), 45:12-17 (Q: “Why did you ultimately deny the request?” A: “Because we - I don't remember. I don't remember the specifics. We believed that we - I don't remember the specifics, I'm sorry”).)
Given that Clarke's deposition took place on September 29, 2021, while Boudreau's declaration is dated nearly three months later, Boudreau's declaration could reasonably be viewed as an attempt to create a more plausible post hoc justification. Whether that is so, however, is a credibility issue for a jury, and not the Court on summary judgment. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (“Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment”).
Finally, CUNY also puts forth as evidence of undue hardship a spreadsheet showing that over the last ten years, no one other than Hoffman received an extension to complete a second master's degree. (See Human Resources Spreadsheet, Dkt. 55-26.) But the fact that CUNY has never made an accommodation before is not necessarily evidence of undue hardship. It can just as well be evidence that what Hoffman requests would indeed be an accommodation. If employers could establish undue hardship by showing that any request would somehow alter their program, no accommodation would ever be made. Alexander v. Choate, 469 U.S. 287, 300 (1985) (“while a grantee need not be required to make ‘fundamental' or ‘substantial' modifications to accommodate the handicapped, it may be required to make ‘reasonable' ones”).
Drawing all reasonable inferences in Hoffman's favor, a reasonable factfinder could conclude that granting Hoffman's requested accommodation of an additional year would not have constituted a “fundamental alteration” of CUNY's programs or standards. Therefore, summary judgment should not be granted.
CONCLUSION
For the foregoing reasons, I recommend that the Court DENY Defendant's motion for summary judgment.
DEADLINE FOR OBJECTIONS AND APPELLATE REVIEW
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Any party shall have fourteen (14) days to file a written response to the other party's objections. Any such objections and responses shall be filed with the Clerk of Court, with courtesy copies delivered to the Chambers of the Honorable Paul G. Gardephe, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Any request for an extension of time for filing objections must be addressed to Judge Gardephe. Failure to file timely objections will result in a waiver of the right to object and will preclude appellate review.
SO ORDERED.