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UNITED STATES DISTRICT COURT
For the Northern District of New York
BELINDA
FOUNTAIN,
Plaintiff,
vs
NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES
and GLENN S. GOORD,
Defendants.
99-CV-389
2002
U.S. Dist. Lexis 4100
March
11, 2002, Decided
David N. Hurd, United
States District Judge.
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Belinda
Fountain ("Fountain" or "plaintiff") commenced this action
pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §
12112(d)(4)(A) to challenge a policy promulgated by the defendant, New York
State Department of Correctional Services' ("DOCS"), which requires
her to provide a diagnosis of her medical condition each time she is absent
from work. She also sues defendant Glenn S. Goord ("Goord")
(collectively, "defendants") in his capacity as Commissioner of DOCS
for causing the policy to be issued and enforced. Defendants have moved
for summary judgment pursuant to Fed. R. Civ. P. 56. Plaintiff made a
cross-motion for summary judgment. Oral argument was heard on July 27, 2001, in
Albany, New York. Decision was reserved.
II. FACTS
The following are the undisputed facts in this case, and where
noted, the facts as alleged by each side. Fountain has been employed as a
Corrections Officer by DOCS since 1989. Goord serves as Commissioner of DOCS. DOCS is an agency of the State
of New York that maintains 71 correctional facilities throughout the state, in
which over 69,000 inmates are confined. DOCS employs a workforce of over
30,000.
The subject matter of the instant litigation is a DOCS' time and
attendance policy regarding paid sick leave to its employees. This policy authorizes DOCS
employees to use sick leave for personal illness, medical or dental
appointments, and illness or death in an employee's immediate family.
This policy
also provides that an employee returning to work after taking sick leave may be
required to provide a medical certificate containing a diagnosis. "[A]
supervisor may exercise the right to request certification for any absence
charged to sick leave or family sick leave regardless of duration." (Mindel
Aff. at Ex. B.) The doctor's certification must be on the doctor's letterhead
and must contain: (1) a brief diagnosis of the condition treated; (2) a
statement that the employee was unable to work during the absence; and (3) a
prognosis including, where possible, the date of return to work or continued
absence until next scheduled appointment date. It must also state that the
employee is fit to perform their duties. In addition, the certificate must be
signed by the doctor. The facility's "Time and Attendance Lieutenant"
reviews the medical certification from employees who wish to charge their
absence to sick leave to determine if they may do so. (Baxter Aff. at P
16.)
There is a
dispute as to whether the "brief" diagnosis may be specific or
general. DOCS contends that the diagnosis may be general, such as
"recovering from minor surgery." Plaintiff submitted her affidavit
stating that in the past, certifications containing such general diagnoses were
rejected by DOCS. When the medical certification is rejected, employees may be
reprimanded and punished.
Plaintiff filed a complaint with the Equal Employment
Opportunity Commission ("EEOC") in August of 1998. She received a
Notice of Right to Sue letter on December 17, 1998, and this suit followed.
III. DISCUSSION
A. Summary Judgment Standard
A moving party is entitled to summary judgment "if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c). The ultimate inquiry is whether a
reasonable jury could find for the nonmoving party based on the evidence
presented, the legitimate inferences that could be drawn from that evidence in
favor of the nonmoving party, and the applicable burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In determining a motion for
summary judgment, all inferences to be drawn from the facts contained in the
exhibits and depositions "must be viewed in the light most favorable to
the party opposing the motion." United States v. Diebold, Inc., 369 U.S.
654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Hawkins v. Steingut, 829 F.2d
317, 319 (2d Cir. 1987). Nevertheless, "the litigant opposing summary
judgment 'may not rest upon mere conclusory allegations or denials' as a
vehicle for obtaining a trial." Quinn v. Syracuse Model Neighborhood
Corp., 613 F.2d 438, 445 (2d Cir. 1980) (quoting SEC v. Research Automation
Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
The ADA is
designed, in part, to protect employees from discrimination based on
disabilities or perceived disabilities. Toward that end, the ADA prohibits
employers from inquiring into whether the employee has a disability and the
nature or severity of such a disability. See 42 U.S.C. § 12112(d)(4)(A). It
also restricts the employer's ability to conduct medical examinations and to
conduct inquiries that may uncover employees' disabilities or perceived
disabilities. Id.
Under this
provision, a prohibited inquiry in and of itself will be enough to assert a
cause of action. See id. at (d)(4)(A). The plaintiff need not establish a
disability in order to state a claim for prohibited inquiry under the ADA. Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 520
(3d Cir. 2001). See Griffin v. Steeltek, Inc. 160 F.3d 591, 594 (10th Cir.
1998) (disability not required for prohibited inquiry plaintiff); accord Cossette v. Minnesota Power & Light,
188 F.3d 964, 969 (8th Cir. 1999).
In order to
determine whether an inquiry is of the type prohibited by the ADA, it is necessary
to determine whether the inquiry would be likely to require employees to
disclose their disabilities or perceived disabilities. See Roe v. Cheyenne Mt. Conf. Resort, 124 F.3d
1221, 1237 (10th Cir. 1997) (affirming district court's finding that 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).
The ADA
provides a limited exception to the general prohibition on medical inquires.
Such inquiries are permitted only when "shown to be job-related and
consistent with business necessity." 42 U.S.C. § 12112(d)(4)(A). An inquiry falls within this
exception when it is necessary to "determine whether an employee is still
able to perform essential functions of his or her job," Riechmann
v. Cutler-Hammer, Inc., 2001 U.S. Dist. Lexis 22544 *10 (D. Kan. Sept. 12,
2001), or to ascertain
whether "[the] employee will pose a direct threat to health and safety [in
the workplace] due to a medical condition." Lent v. Goldman Sachs
& Co., 1998 U.S. Dist. Lexis 20371, *26 (S.D.N.Y. Dec. 29, 1998).
A prohibited inquiry claim does not necessitate the same
analysis of legitimate non-pretextual reasons for the inquiry that a general
discrimination claim would. See
Gonzales v. Sandoval County, 2 F. Supp.2d 1442, 1445 (D.N.M. 1998).
Instead, in order to fall within the exception provided for in Section
12112(d)(4)(A), the employer must demonstrate some reasonable basis for concluding
that the inquiry was necessary. That is, the employer must show that it had
some reason for suspecting that the employee, or class of employees, would be
unable to perform essential job functions or would pose a danger to the health
and safety of the workplace. "'An employee's behavior cannot be merely
annoying or inefficient to justify an examination; rather, there must be
genuine reason to doubt whether that employee can perform job-related
functions."' Ditullio v. Village of Massena, 81 F. Supp. 2d 397, 411
(N.D.N.Y. 2000) (quoting Sullivan v. River Valley School District, 197 F.3d
804, 811 (6th Cir. 1999)).
In cases
applying this exception, the employer's inquiries were motivated by facts that
led it to suspect that the employee might not be able to perform job functions
or might pose a threat to the health and safety of their work environment. For
example, in Ditullio, the court held that the employer's request for a medical
examination was related to plaintiff's ability to safely perform his duties as
a police officer patrolman after he suffered an eye injury which caused
blindness. Id. In Riechmann, the court held that it was consistent with
a business necessity for the defendants to inquire whether a traveling
salesperson was able to perform the functions of her job after suffering a
severe stroke that caused her to be absent from work for six months. Riechmann, 2001 U.S. Dist. Lexis 22544, *18.
An employer's inquiry into an employee's ability to perform the functions of
his job after he suffered a back injury at work was held not to violate the ADA
because the injury appeared to affect his ability to do his work. Porter v. United States Alumoweld Co., 125
F.3d 243, 246 (4th Cir. 1997). See also,
Donofrio v. N.Y. Times, 2001 U.S. Dist. Lexis 13788, at *21 (S.D.N.Y.
Aug. 24, 2001)(stating that where an employee had not reported to work in over
three weeks inquiry may be made as to whether he is capable of performing the
functions of the job); Strong v. Bd. of Educ. of Uniondale Union Free Sch.
Dist., 902 F.2d 208, 212 (2d Cir. 1990)(stating that inquiry is appropriate
where teacher did not report to work for approximately a month at the end of
the school year).
C. DOCS' Policy
1. Prohibited Inquiry
DOCS'
policy makes inquiries into the medical status of employees by requesting a
brief diagnosis from employees returning from an absence. Assuming that the
"brief" diagnosis need not be specific even a diagnosis in general
terms, "received chemotherapy," could cause an employee in some
circumstances to divulge a disability or perceived disability. See Roe, 124 F.3d 1221(stating that inquiry
into an employee's prescription medication is prohibited because it may reveal
a disability).
DOCS' sick leave policy permits the Time and Attendance
Lieutenant to require the employee to provide medical certification, including
a diagnosis, whenever the employee takes an unauthorized absence for any length
of time. Just like the disclosure of prescription drug information, the
required disclosure of a medical diagnosis would be likely to cause employees
to reveal a disability or perceived disability.
2. Business Necessity
It must then be asked whether DOCS' policy falls within the
exception provided in 42 U.S.C. § 12112(d)(4). In order to fall within this
exception, the DOCS' policy must be based upon a reasonable expectation that
the inquiry into the protected information would reveal that the employee was
unable to perform work related functions or was a danger to the health and
safety of the workplace. The defendants argue that employees are rarely
required to provide medical documentation and diagnosis for short term
absences. Nevertheless, the sick leave policy provides no limitation on the
ability of the defendants to ask for medical diagnosis. Employees may take an unplanned single day leave
of absence for a myriad of reasons, the vast majority of which do not suggest
an inability to do their job or a threat to their work environment. Examples of
such reasons include the common cold or care of a sick child. Therefore, no
reasonable factfinder could conclude that an inquiry triggered by a single
day's absence from work is the type of reasonable expectation discussed above.
It should be noted that this opinion is tailored to the DOCS'
policy as it is currently written. This opinion does not reach other
circumstances under which DOCS may request medical certification, including a
request for a diagnosis. However, the policy as it is currently written allows
inquiry after only a single day's absence from work. DOCS must have more reason
to suspect that an employee is unable to perform their job functions or needs
an accommodation than a few days' absence from work.
IV. CONCLUSION
Accordingly, it is
ORDERED that
1. The defendants, New York State Department of Correctional
Services and Glenn S. Goord's, motion for summary judgment is DENIED;
2. The cross-motion for summary judgment by plaintiff Belinda
Fountain is GRANTED;
3. The
defendants are permanently enjoined from implementing their sick leave policy
in so far as such implementation is inconsistent with this opinion;
4. The
plaintiff, Belinda Fountain, is entitled to reasonable attorneys fees and
expenses pursuant to 42 U.S.C. § 12205;
5. The plaintiff shall file and serve a verified application for
attorneys' fees and expenses on or before March 26, 2002. The defendants may
file and serve in opposition on or before April 9, 2002. The application will
be on submit.
The Clerk will thereafter be directed to enter a final judgment.
IT IS SO ORDERED.
s/David N. Hurd
United States District Judge
March 11, 2002
Utica, New York.
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