Opinion
99 Civ. 3110 (TPG)
September 9, 2002
OPINION
This is an action for disability discrimination. Plaintiff John Robert Keller claims that McGraw-Hill failed to reasonably accommodate his disability and that intolerable working conditions resulted in his constructive discharge. Plaintiff initially sued under 42 U.S.C. § 1981, the New York Human Rights Law, and the New York City Administrative Code. The § 1981 claims have been dismissed on consent. The accommodation claim asserted under the New York Human Rights Law has been withdrawn. This leaves an accommodation claim under the NYC Code and constructive discharge claims under the New York Human Rights Law and the NYC Code.
McGraw-Hill moves for summary judgment, claiming that plaintiff's remaining claims are barred by the statute of limitations. McGraw-Hill also argues that, even if such claims are not time-barred, summary judgment is still appropriate because there is no triable issue of fact.
The motion is granted.
Facts
Plaintiff is a Type I Diabetes patient and therefore is insulin dependent. His condition causes him to suffer from neuropathy, peripheral nephropathy, and retinopathy. These ailments are exacerbated by fluctuations in his blood sugar level.
Plaintiff began working for McGraw-Hill on March 17, 1981. Plaintiff disclosed that he suffered from Type I Diabetes. Plaintiff worked in the Platt Division, which provides market coverage of the petroleum, natural gas, petrochemicals, metals, and tankers' markets. Plaintiff started as an Associate Editor of the Oilgram Price Report. In 1985 plaintiff was promoted to Senior Editor and in 1987 promoted to Managing Editor.
In February 1992 plaintiff underwent eye surgery to both eyes to correct his retinopathy and took a month disability leave. In July 1992 plaintiff again had surgery on both eyes and again took the same amount of disability leave. Following these treatments, plaintiff was legally blind in his left eye.
Plaintiff lives in Parsippany, New Jersey and commuted to McGraw-Hill's offices in Manhattan. Beginning in August 1992 plaintiff was allowed to work from home three days a week for a period of three months in order for plaintiff to avoid the stress of commuting and thus to control his blood sugar level. Plaintiff then returned to working in the office on a daily basis.
On January 1, 1993 plaintiff was promoted to Executive Editor-Products of the Oilgram Price Report.
On May 27, 1994 plaintiffs physician, Dr. Samuel M. Dower, prepared a statement, which was submitted to McGraw-Hill, describing the seriousness of plaintiffs diabetes and recommending that plaintiff be allowed a period of time away from work. The length of the period was not specified. The purpose would be to have plaintiff improve his control of the diabetes. After this was achieved, plaintiff would be able to return to work and "follow an appropriate schedule."
From July 1 to December 20, 1994 plaintiff went on short-term disability leave, apparently as a result of Dr. Dower's recommendation. Plaintiff alleges that while on leave he requested to be kept informed of work-related matters, but that McGraw-Hill did not accommodate his request. Plaintiff claims that this made his transition back to work more difficult than it should have been.
After plaintiff's return to work, he was allowed to work from home two days a week in accordance with a recommendation of Dr. Dower. While this arrangement was in effect, the Oilgram Price Report evolved into a daily "real time" publication with instantaneous reporting on changes in the market.
McGraw-Hill claims that as a result plaintiffs responsibilities as Executive Editor-Products changed. By memorandum dated January 24, 1995 plaintiff's supervisor, Shirley Savage, informed him that he must be "on-site" in the New York office five days a week. This was because of the newly implemented "real time" nature of the Oilgram Price Report and the need to make instantaneous decisions about what would be covered and how reporters would perform their jobs. Plaintiff was informed that his transition back to working in the office on a full-time basis must be completed by February 10, 1995 or his employment would be terminated. Plaintiff was told that if he returned to working at the office full time, he should obtain a letter from his doctor approving this.
After receiving the memorandum, plaintiff voiced disagreement and requested that Savage permit him to continue working some days at home. Savage did not consent. Plaintiff then contacted Gayle Lennon, Director of Human Resources. Lennon allegedly asserted that it was not Human Resources's responsibility to disrupt what management had already decided. Lennon allegedly told plaintiff that the termination of his employment would proceed on February 10, 1995 if he did not return to working in the office on a full-time basis. Lennon also allegedly told plaintiff that he could resign prior to being terminated and that a resignation would look better than a termination on his employment record.
John Gilman, an Associate Editor in the Platt Division from 1993 to 1998, who was supervised by plaintiff, has given an affidavit supporting plaintiff, in which he states that managers such as plaintiff were primarily responsible for managing those who actually performed the reporting functions. Gilman alleges that such management functions even in a "real time reporting" environment could be accomplished from plaintiffs home just as effectively as from the office.
Plaintiff returned to the New York office full time after obtaining a letter from Dr. Dower dated February 7, 1995 stating that he was able to do so.
Plaintiff alleges that upon his return his staff was reduced and that he was made responsible for covering the West Coast markets, which had later deadlines than the Gulf Coast markets. Plaintiff claims that if McGraw-Hill had been at all concerned about plaintiffs disability it would have assigned plaintiff to cover the Gulf Coast markets rather than the West Coast markets, which would have allowed plaintiff to work on a schedule better suited to his medical needs.
Plaintiff alleges that the conditions of his employment after his return to work resulted in an unpredictable schedule that affected plaintiff's ability to have meals and to take medication, which in turn impacted his blood sugar level. Plaintiff perceived these changes as a demotion and as an attempt to force him. out of McGraw-Hill's employ.
On October 12, 1995 an attorney for plaintiff, Wendie L. Elovich, wrote McGraw-Hill asserting that plaintiff had not been afforded the accommodations required by law and requesting, among other things, that plaintiff be allowed to work at home to the extent needed to cope with his diabetes.
On November 8, 1995 plaintiff went on another short-term disability leave due to a foot injury caused by the diabetic condition. Upon his return from leave on November 20, 1995 plaintiff was informed that his position was being changed from Executive Editor-Products to Executive Editor-Special Projects. The Executive Editor-Special Projects position involved detailed work on a computer with database pricing tables that plaintiff asserts was difficult for him because of his poor vision.
Plaintiff claims that his change in position was in retaliation for his attorney's letter and was designed to make his working conditions intolerable so that he would fail and either resign or be terminated.
At some point, plaintiff requested a new computer screen because his retinopathy made it difficult for him to read from a regular screen. Although McGraw-Hill furnished plaintiff with a new screen and adjusted the lighting in plaintiffs office, plaintiff contends that these changes only aided him for a short period of time. Plaintiff asserts that he therefore requested a larger screen, which was never provided.
In November and December of 1995, plaintiff made separate requests to his immediate supervisor, Savage, and to Platt's President, Harry Sachims, asking to work from home as he had previously done. Plaintiff also requested that his database management responsibilities be changed from being primarily numerically oriented to text oriented or eliminated all together. Both Savage and Sachinis denied these requests at the time they were made.
Plaintiff has testified in his deposition that he believed that the denial of these requests amounted to discrimination.
Plaintiff has asserted in his Rule 56.1 statement that between April and June of 1996 he again continually requested that he be allowed to work from home and that his work schedule be adjusted because of his medical needs. Plaintiff alleges that Savage continually denied these requests but allowed other editors to work from home. McGraw-Hill asserts in its Rule 56.1 statement that plaintiff repeatedly and continuously requested to work at home both before and after November 1995 and admits that those requests were repeatedly denied. McGraw-Hill alleges that other editors were allowed to work from home only on a temporary basis because of emergencies. McGraw-Hill alleges that no editor was allowed to work continuously from home as plaintiff desired.
From April 23, 1996 to May 9, 1996 plaintiff went on disability leave due to chest pains. He then returned to work.
On June 7, 1996 Dr. Dower certified in writing that plaintiff was "completely and totally disabled from any and all employment at this time" because of the "severity of his diabetic condition and complications." Plaintiff went on disability leave in mid-June and never returned to work. On August 7, 1996 Dr. Dower again certified plaintiff's "complete and total disability" because of his "uncontrolled diabetes."
In November 1996 plaintiff applied for long term disability with McGraw-Hill's insurance carrier, Prudential Insurance Company. Dr. Dower supported this application by certifying that plaintiff was completely and totally disabled and that such disability was permanent. Plaintiffs employment at McGraw-Hill was terminated as of December 6, 1996 and he began receiving long-term disability benefits from Prudential on December 13, 1996.
Dr. Dower testified at his deposition that he made his statements about disability only to enable plaintiff to receive benefits. Dower also testified that plaintiff's disability did not in fact preclude plaintiff from working and that plaintiff had the ability to work for McGraw-Hill with accommodations.
On July 23, 1999 plaintiff applied for Social Security disability benefits. Plaintiff stated in his application that he became "unable to work" on June 14, 1996 and remained unable to work thereafter. Also, plaintiff's eye doctor, Cary Silverman, submitted a letter dated October 27, 1999 to Social Security that stated that plaintiff was "permanently disabled" because of the condition of his eyes resulting from diabetes.
At his deposition, plaintiff testified that he has not been able to work since June 1996 and therefore has not made any attempt to find alternative work. Plaintiff, however, also testified that he believed he could work if the accommodations he requested were provided.
The Claims
On April 29, 1999 plaintiff filed his original complaint in the instant action. Plaintiff then filed an amended complaint on June 17, 1999. In the amended complaint, plaintiff asserts that McGraw-Hill failed to reasonably accommodate his disability and that there were intolerable working conditions that resulted in his constructive discharge.
Plaintiff sued under 42 U.S.C. § 1981; the New York Human Rights Law, New York Executive Law § 290 et seq. ("NYHRL"); and New York City Administrative Code § 8-101 et seq. ("NYC Code").
Pursuant to a stipulation dated July 23, 1999 plaintiff's § 1981 claims were dismissed with prejudice. The court retained subject-matter jurisdiction on diversity of citizenship grounds on the remaining claims.
This leads to the question as to what causes of action are presented under state and city law. In this connection, a distinction must be drawn between (1) plaintiff's disability discrimination claim for alleged wrongdoing during the course of his employment, and (2) his claim of constructive discharge. Plaintiff has conceded on this motion that the first is based solely on the alleged failure to accommodate. Plaintiff has further conceded that he does not have an accommodation claim under the NYHRL because at the time plaintiff was employed by McGraw-Hill the NYHRL did not require accommodation.
This leaves in the case claims under the NYC Code for failure to accommodate and under both the NYHRL and NYC Code for constructive discharge.
Discussion
Summary judgment must be entered when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, "the [C]ourt must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Summary judgment "is properly granted only when no rational finder of fact could find in favor of the non-moving party." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000).
Statute of Limitations
McGraw-Hill contends that it is entitled to summary judgment because plaintiffs claims are untimely. A cause-of-action brought under the NYHRL is governed by the three-year statute of limitations. CPLR 214.2; Murphy v. American Home Products Corp., 58 N.Y.2d 293, 307, 461 N.Y.S.2d 232, 239 (1983). For the NYC Code claim, a three-year statute of limitations also applies. NYC Admin. Code § 8-402(b). Since plaintiff's complaint was filed on April 29, 1999, a claim accruing before April 29, 1996 is time-barred.
McGraw-Hill argues that plaintiffs claim for failure to accommodate his disability is time-barred because it accrued in November 1995. Plaintiff responds by invoking the continuing violation doctrine and contends that he was continually denied accommodations for his disability until June of 1996.
The continuing violation doctrine, as applied in employment discrimination cases, has been the subject of considerable-judicial treatment, which is given a thorough analysis in the decision of Magistrate Judge Homer in Patrosky v. New York State Dep't of Motor Vehicles, 72 F. Supp.2d 39 (N.D.N.Y. 1999). Mentioned prominently in Patrosky is Berry v. Board of Supervisors of L.S.U., 715 F.2d 971 (5th Cir. 1983), as providing a standard for determining when a continuing violation has been established. The Second Circuit has never indicated whether it adopts the reasoning in Berry, but various district courts in the circuit have made use of that decision. Berry lists certain factors to be considered in determining whether the continuing violation doctrine applies. One of these factors involves determining whether a time arrived, in the course of alleged continuous discriminatory conduct, when the plaintiff had notice that there was a discrimination claim which could be the subject of legal redress. Id. at 981. In fact, the Second Circuit, while not explicitly adopting the Berry formulation, has held that where an employee is on notice of all the elements that are sufficient to make a discrimination claim, the time for filing a lawsuit starts to run. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996).
It is the view of the court in the present case that the notice factor is dispositive.
Plaintiff was informed in the Savage memorandum of January 24, 1995 that he would be required to work full time at the office and that his failure to comply with this requirement would result in his termination. Plaintiff complied. But he continued to request the accommodation of being allowed to work part time at home, and he added the request to have a change with regard to the presentation of the database he used in his work. These requests were brought to a head in November and December, when he importuned not only his supervisor, Savage, but also Platt's president, Sachims. Plaintiff was decisively turned down, with no indication that there was any opening for reconsideration. Plaintiff has testified that he believed the denial of the requests amounted to discrimination. Indeed, on October 13, 1995 his attorney wrote McGraw-Hill asserting that the denial of accommodation to plaintiff was violating his legal rights. McGraw-Hill did not accede in any way, as witnesses by its rejection of plaintiffs requests in November and December 1995.
The evidence is conclusive that, although plaintiff continued making his requests after December 1995 and McGraw-Hill continued to deny them, McGraw-Hill had taken its final position at least by December 1995. Whatever employment actions were taken that might give rise to a claim for failure to accommodate were accomplished at least by December 1995. It is shown conclusively by the evidence that plaintiff was on notice as of this time of whatever claim he had for lack of accommodation.
The court concludes that plaintiffs cause of action for failure to accommodate accrued no later than December 1995. The continuing violation doctrine does not apply to postpone the start of the time for bringing suit until after the limitation date of April 29, 1996. The accommodation claim under the NYC Code is barred by the statute of limitations.
It is now necessary to turn to the constructive discharge claim. McGraw-Hill argues that the operative date for statute of limitations purposes is November 20, 1995 or thereabouts when plaintiff's position was changed to Executive Director-Special Products and plaintiff's request for accommodations was initially denied. Plaintiff argues that he was constructively discharged in mid-June 1996 when he went on disability because of the allegedly intolerable working condition created by the change in his position coupled with McGraw-Hill's refusal to grant plaintiff's request for certain accommodations.
In Flaherty v. Metromail Corp., 235 F.3d 133 (2d Cir. 2000), the court addressed the issue of when a claim for constructive discharge occasioned by unlawful discrimination accrues. The court stated that if an employer discriminates against an employee and purposely makes the employee's job conditions so intolerable that a reasonable person would feel forced to resign, then the resignation is a constructive discharge — a distinct discriminatory act for which there is a distinct cause of action. Flaherty at 138. The court also stated that in "the case of constructive discharge, it is only the employee who can know when the atmosphere has been made so intolerable by the discrimination-motivated employer that the employee must leave." Id.
In the present case the court holds that plaintiff's claim for constructive discharge accrued in mid-June 1996 when plaintiff in effect resigned, and is not time-barred.
Constructive Discharge Claims — Other Issues
The NYHRL provision regarding disability discrimination is as follows:
1. It shall be an unlawful discriminatory practice:
(a) For an employer or licensing agency, because of the . . . disability . . . of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.
Exec. Law § 296.
Although a requirement to provide reasonable accommodation was added to the NYHRL in 1998, there was no such requirement as of the time of the events involved in the present case. The cases have recognized this, and made no attempt to imply or create an accommodation requirement under the NYHRL. DiSanto v. McGraw-Hill, Inc./Platt's Div., 220 F.3d 61 (2d Cir. 2000); Guzman v. ARC XVI Inwood, Inc., No. 97 Civ. 0031, 1999 WL 178786, at *7 (S.D.N.Y. 1999).
Another provision of the NYHRL that is relevant to the present case is Exec. Law § 292.21, which defines "disability." In the form as it existed at the time of the events involved in this case, the provision was as follows:
21. The term "disability" means (a) a physical, mental or medical impairment resulting from anatomical, physiological or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.
The NYC Code, which did and still does have a requirement of accommodation, provides:
§ 8-107. Unlawful discriminatory practices.
1. Employment. It shall be an unlawful discriminatory practice:
(a) For an employer or an employee or agent thereof, because of the actual or perceived . . . disability . . . of any person to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.
. . .
15. Applicability; person with disabilities.
(a) Requirement to make reasonable accommodation to the needs of persons with disabilities. Except as provided in paragraph (b), any person prohibited by the provisions of this section from discriminating on the basis of disability shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job or enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.
(b) Affirmative defense in disability cases. In any case where the need for reasonable accommodation is placed in issue, it shall be an affirmative defense that the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodation, satisfy the essential requisites of the job or enjoy the right or rights in question.
In order to be within the class of persons covered by either the state or the city provision, an employee must have a certain degree of disability, but he still must be able to perform the duties of his particular job. Under the NYC Code, the requirement of ability to perform takes into account the duty of the employer to provide a reasonable accommodation. Under the NYHRL there must be a showing of the requisite ability without reference to any issue of accommodation. Guzman at *7-9
It is clear beyond any argument, and indeed is basically conceded by plaintiff himself, that at the time he stopped working for McGraw-Hill in June 1996 he could not perform the work required of him at McGraw-Hill without being allowed to work part time at home and without the database adjustment. There is a question, which will shortly be discussed, as to whether he could perform his work even with these accommodations. But certainly he could not perform without it.
For these reasons the court concludes that at the time plaintiff left McGraw-Hill he was not within the class of persons covered by the NYHRL. Therefore he has no valid claim for constructive discharge under the NYHRL, and there is no issue requiring trial on this claim.
Regarding the issue of constructive discharge under the NYC Code, which did require accommodation by the employer, the first issue is whether McGraw-Hill was obligated to accommodate plaintiff in the way that he requested. of course, as indicated repeatedly in this opinion, the prime and essential accommodation which he requested was to be allowed to work at least some days of the week at home. However, accommodation that creates an undue hardship for an employer is not reasonable an is not required by the law. Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 138 (2d Cir. 1995). Working at home is an extraordinary accommodation warranted only in exceptional cases. Lalla v. Consolidated Edison Co. of New York, 2001 WL 456248, at *4 (S.D.N.Y. 2001).
This court declines to hold that McGraw-Hill was required by law to accommodate plaintiff by having him work part time at home. Plaintiff's job was not on the road. He had an executive editorial position in which, among other things, he supervised other employees. It was a matter of grace for McGraw-Hill to allow plaintiff to work part time at his home while attempting to bring his diabetes under better control. But it was reasonable for McGraw-Hill to conclude, particularly after a perfectly legitimate change in plaintiffs responsbilities, that plaintiff should work full time at the office, and McGraw-Hill had a legal right to impose such a requirement.
McGraw-Hill did not have an obligation under the NYC Code to accommodate plaintiff in the way that he requested.
It is useful to consider, however, the question of whether, at the time of his de facto resignation in June 1996, plaintiff was even capable of performing his work partly at home and partly at the office as he requested. The court concludes that he was not. He was on short-term disability leave from July 1 to December 20, 1994 in order for him to attempt to improve the control of the diabetes. He was on short-term disability from November 8 to November 20, 1995, and from April 23 to May 8, 1996. He went on another short-term disability leave in mid-June 1996, which turned out to be long-term in the sense that he never came back to work. There is no evidence that plaintiff performed any work at all while he was at home on these disability leaves. On June 7, 1996 and August 7, 1996 Dr. Dower certified that plaintiff was completely and totally disabled, and unable to have any employment. In November 1996 plaintiff applied for long-term disability with McGraw-Hill's insurance carrier, and Dr. Dower supported this application with another certificate about complete and total disability of a permanent nature. On July 23, 1999 plaintiff applied for Social Security disability benefits on the ground that he was unable to work and had not worked since June 1996. This application was supported by an eye doctor's certificate of permanent disability. Plaintiff has been receiving disability benefits from the insurance carrier since December 1996 and from Social Security since 1999.
With some support from his doctor, plaintiff alleges that, despite all of the circumstances just described, he could have continued working for McGraw-Hill if accommodated. But the evidence is overwhemingly against such a proposition. One can only wish that plaintiff had brought his diabetes under control. But as far as making a claim for damages against McGraw-Hill on the theory that he was able to perform his work with accommodation, the record is so strongly-contrary to plaintff's claim that it must be denied. The evidence is conclusive and there is no issue of fact to be tried.
The court concludes that McGraw-Hill is entitled to summary judgment on the merits with regard to the constructive discharge claims under both the NYHRL and the NYC Code.
Conclusion
For the reasons set forth above, McGraw-Hill's motion for summary judgment is granted, and plaintiff's claims are dismissed in their entirety.