United States District Court
for the Eastern District of New York
Sabrina Vinson
Plaintiff,
-against-
New York City Department of Corrections,
and William
J. Frasier,
in his
capacity as Commissioner
of the
New York City Dept. of Corrections,
Defendant.
Civil Action
No. CV-01-6900(DGT)
2006 U.S. Dist. Lexis 3943
January 17, 2006, Decided
Memorandum and Order
Trager, District Judge
Plaintiff,
correction officer Sabrina Vinson (“plaintiff”),
brought this action against the New York City Department of Corrections (“DOC”)
and William J. Fraser as Commissioner (collectively “defendants”). Plaintiff
seeks relief under: (1) the Americans With Disabilities Act, 42 U.S.C. § 12001 et seq. (the “ADA”);
(2) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. (“Title
VII”); (3) the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (“OSHA”); (4) the New York Public Health Law, §§ 12(1),
309(1)(f), 1399-n through 1399-x; (5) the New
York Labor Law, Article 7, § 201-d ;
(6) the New York State Human Rights Law, N.Y.
Exec. Law § 296 (“SHRL”);
and (7) the New York City Human Rights Law, New York, N.Y., Admin.
Code tit. 8, ch.
1, § 8-107 (“CHRL”).
The root of plaintiff’s
complaint is that she alleges a sensitivity to
cigarette smoke and, as a result, she claims to need a smoke-free work
environment. Defendants now move for summary judgment.
Background
(1) Plaintiff’s
Ailments
According to plaintiff, a
dentist at the Staten Island University Hospital Emergency Room diagnosed her
with Lemierre’s disease in 1997. (Def. Rule 56.1 Statement (“Def. 56.1”) 2;
Sabrina Vinson Dep. Def. Ex. R (“Ex. R”) at 48.) Plaintiff claims the disease
caused her to develop a blood clot in her right jugular vein and this clot
eventually lead to respiratory problems. (Sabrina Vinson
Dep. Def. Ex. B (“Ex. B”) at 42.) Plaintiff remained in the university hospital
for a month and continued on blood thinners for six months. (Ex.
B at 46, 61.) This treatment cured the Lemierre’s
disease and dissolved the clot. Id. However, plaintiff claims that as a side effect of having the
disease she still suffers from high blood pressure, has trouble breathing and “uncontrollable”
bouts of coughing -- all brought about by the Lemierre’s
disease. (Ex. B at 43-46.) She claims these symptoms are all made significantly
worse when she is in the presence of cigarette smoke. n1
(Ex. B at 61.)
Plaintiff states that so long as
she avoids cigarette smoke, she has no symptoms. Id. She also claims that
before New York City instituted a ban on smoking in public enclosed areas, she
had stopped frequenting bars, clubs or other casual establishments where people
were smoking. n2 (Ex. B at 99.)
(2) History of
Plaintiff’s Claim
When plaintiff
returned to work following her treatment for Lemierre’s
disease, she discovered that the cigarette smoke present at the DOC facility
where she was stationed exacerbated her respiratory problems. (Ex. B at 72.) As
a result, in 1998 plaintiff requested the DOC transfer her to a smoke-free
facility. (Ex. B at 49.) When the DOC did not act on this request, plaintiff
filed a claim against the DOC with the U.S. Equal Employment Opportunity
Commission (the “EEOC”), charge number 160-99-1517. (Ex. B at
53-54; EEOC Settlement Agreement Def. Ex. D (“Ex. D”) at 1.) Through the
EEOC mediation process the parties reached a settlement. (Ex. D at 1.) Under
the settlement, defendants agreed to temporarily transfer plaintiff to a
smoke-free building pending defendant’s receipt and review of written
information provided by plaintiff regarding her current medical status and her
need for accommodation. (Ex. D at 2.)
In accordance
with the settlement agreement, on September 15, 1999 the DOC transferred
plaintiff from the Adolescent Reception Detention Center at Riker’s Island
Prison (the “ARDC”) to Bellevue Hospital (“Bellevue”), a completely smoke-free
facility. (Letter from Irma Ozer to
Thomas Bello, (September 15, 1999) Def. Ex. E (“Ex. E”).)
In September 1999 the DOC sent plaintiff a letter requesting her medical
information. Plaintiff, however, did not respond to the letter, and on January
28, 2000 the DOC sent plaintiff a second request for the information. (DOC Interdepartmental Mem. Def.
Ex. F.) This second request also went unanswered. (Ozer
Dep. Def. Ex. C (Ex. C) at 28.)
Despite her
failure to provide her medical documentation, plaintiff remained at Bellevue
through the end of 2000. (Ex. C 29.) In January 2001 the DOC transferred
plaintiff back to her previous facility, the ARDC, where smoking was permitted.
(Ex. C at 34.) In March 2001 the DOC posted plaintiff to Control Room No. 2, a Lexsan plastic enclosed, one person post, which according
to the DOC is smoke-free. (Letter from Irma Ozer to Thomas Bello (March 8,
2001) Def. Ex. G (“Ex. G”).)
Plaintiff
requested that the DOC return her to Bellevue, and the DOC responded that they
would do so only if she provided them with the requested medical information.
(Ex. C at 34-35.) In response, plaintiff faxed the DOC a handwritten letter
from Dr. David Manganaro, dated November 1, 1999. (Ex. R at 69; Ex. C at 35.) The letter stated that plaintiff
had been diagnosed with Lemierre’s disease, that she
must avoid anything that would “thicken her blood such as smoke and secondhand
smoke,” and that she could return to work in a “smoke-free environment.” (Letter form Dr. David Manganaro to
Thomas Bello (November 1, 1999) Def. Ex. M (“Ex. M”).)
The DOC reviewed
Dr. Manganaro’s letter, but was “puzzled by the
diagnosis and the statement that secondhand smoke ‘thickens’ the blood.”
(Letter form David Goodman to Irma Ozer (January 25,
2001).) The DOC requested plaintiff provide more
documentation to support the diagnosis, including test results and supporting
medical literature. Id. In response, plaintiff sent the DOC additional
literature on Lemierre’s disease. (Ex. C at 43.) The
DOC reviewed this new material but again found it to be insufficient to satisfy
the settlement agreement. (Letter from Gregory Smith to Irma Ozer (June 8, 2001).)
During the time
she was stationed at the ARDC, plaintiff claims that her health deteriorated.
(Ex. R at 89.) She claims she had to go back on high blood pressure medication,
which she had previously been taken off of. (Ex. R at 89.) Additionally, she
claims she was taken from the facility on two occasions by emergency medical
personal for breathing related issues. (Id.; Ex. C at 56.)
Since the DOC would not transfer
her, and she believed she was becoming sicker, in June 2001 plaintiff chose to
file a second complaint with the EEOC, charge number 160-A1-1935. (EEOC Compl. Def. Ex. J.) In July
2001 the EEOC dismissed the second complaint because the commission could not
determine “that the information obtained establishes a violation of the
statute.” (EEOC Dismissal and Notice of Rights Def. Ex
I.) Following this determination, plaintiff brought the present action in
October 2001.
Discussion
A court grants
summary judgment where the evidence presented shows that there are no issues of
fact upon which a reasonable jury could return a verdict for the nonmoving
party. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.
Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91
L. Ed. 2d 202 (1986). The moving party bears the burden. Sacay v. The Research Found. of
the City Univ. of New York, 193 F. Supp. 2d 611, 624 (2d Cir. 2002).
However, “the [non-moving] party must produce specific facts sufficient to
establish that there is a genuine factual issue for trial.” Id.
(quoting Celotex Corp., 477 U.S. at 322-23).
Based on this
standard defendants attack all of plaintiff’s claims, arguing that the entire
matter should be dismissed. They claim plaintiff cannot make out a prima facie
case for either discrimination or retaliation under the ADA. They argue that
plaintiff’s Title VII claim should be dismissed because she failed to exhaust
her administrative remedies. They contend that plaintiff’s OSHA and New York
Public Health Law claims should be dismissed because those laws lack private
rights of action. They claim that the New York Labor Law is inapplicable in
this situation, and lastly, defendants contend that the SHRL and CHRL claims
should be dismissed because again plaintiff cannot show she has a prima facie
case. These arguments will be evaluated in order.
(1)
Discrimination Under the ADA
To succeed in an
ADA employment discrimination case the plaintiff must show that: (1) the
employer is covered by the ADA; (2) the plaintiff is an individual with a
disability; (3) the plaintiff, whether accommodated or not, can perform the
essential functions of the job; and (4) the employer had notice of the
plaintiff’s disability and did not reasonably accommodate the disability. Ryan v. Grae & Rybicki, P.C., 135
F.3d 867, 869-70 (2d Cir. 1998); 42
U.S.C.A. § 12112 (a). In the present matter defendants concede
that the DOC is a covered entity under the ADA. (Mem. Of Law in Supp. of Def’s Mot. for Summ. J. (“Def’s
Summ. J.”) at 5.)
However, defendants argue that plaintiff is not an individual with a disability
as defined by the ADA.
The ADA defines a
disability inter alia as “(A) a physical or mental impairment that
substantially limits one or more of the major life activities of [an]
individual...” 42 U.S.C.A. § 12102 (2).
Under this definition, “merely having an impairment
does not make one disabled...” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195, 122 S. Ct.
681, 151 L. Ed. 2d 615 (2002). To determine whether a person has
a disability as defined by the ADA, courts use the three-part analysis employed
by the Supreme Court in Bragdon v.
Abbott. 524 U.S. 624, 631, 118 S. Ct. 2196, 141 L. Ed. 2d 540
(1998); Colwell v. Suffolk
County Police Department, 158 F.3d 635, 641 (2d Cir. 1998). First, does the
plaintiff have a physical or mental impairment; second, what activities does
the plaintiff claim are impaired and are those activities major life
activities; and third, are those activities substantially limited by the
impairment? Id. See Nugent
v. The Rogosin Institute, 105 F. Supp. 2d 106, 112-113 (E.D.N.Y.
2000) (applying the Bragdon analysis).
A. Does plaintiff have a physical impairmen
Initially, defendants take issue
with the first step in the analysis, saying that since plaintiff’s Lemierre’s disease has been cured, she no longer has an
infirmity. (Def’s Summ. J. At 6-7.) To support
this claim, defendants point to a passage in plaintiff’s deposition where she
is asked whether she still suffers from Lemierre’s
disease and she answers no. (Ex. B at 46.) However, that quotation alone is
somewhat misleading. In other parts of the deposition plaintiff makes clear
that she is not claiming to be currently suffering from Lemierre’s
disease. (Ex. B at 62.) Rather, she claims the disease and resulting blood clot
caused her permanent respiratory damage. (Ex. B at 46, 62.)
This claim is supported by Dr. Manganaro’s 1999
letter. (Ex. M.) Furthermore, plaintiff makes the claim, though does not
support it with documentary evidence, that since 2001 she has been taken from
the prison by emergency medical services on two occasions because she could not
breathe. (Ex. C at 56.) A “disorder or condition” affecting one’s respiratory
system is considered a physical impairment under the Equal Employment
Opportunity Commission (“EEOC”) regulations. 45 C.F.R. § 84.3(j)(2)(i)(A). See Muller
v. Costello, 187 F.3d 298, 312 (2d Cir. 1999) (“the EEOC’s regulations
are entitled to ‘great deference’ in interpreting the ADA”). From this it is
evident that plaintiff’s assertions concerning her condition are at least
sufficient to raise a triable issue of fact as to whether plaintiff has a
physical impairment. See Albertson’s,
Inc. v. Kirkingburg, 527 U.S. 555, 565, 119 S. Ct.
2162, 144 L. Ed. 2d 518 (1999) (citing 29 C.F.R. pt. 1630, App. §
1630.2(j)) (“The determination of whether an individual has a disability is not
necessarily based on the name or diagnosis of the impairment the person has,
but rather on the effect of that impairment on the life of the individual.”).
B. Does plaintiff’s impairment substantially limit her
ability to work or breathe?
Despite the fact that plaintiff
may be physically impaired, defendant’s next argument precludes her having a
disability under the ADA. Plaintiff claims that her respiratory problems
substantially limit her ability to work and breathe. Both working and breathing
“are specifically included in the regulatory definition of ‘major life
activities.’“ Nugent, 105 F.
Supp. 2d at 112 (citing 29 C.F.R. § 1630.2(i)).
However, defendants argue that plaintiff’s condition does not substantially
limit either activity.
i. Plaintiff’s ability to work
The EEOC has
promulgated specific regulations for determining whether an individual’s
ability to work is substantially limited by their impairment. Sutton v. United Air
Lines, Inc., 527 U.S. 471, 491, 119 S. Ct. 2139, 144 L. Ed. 2d 450 (1999);
Bartlett v. New York State Bd. of Law Exam’rs, 226 F.3d 69, 83 (2d Cir. 2000) (upholding
the use of the EEOC’s “substantially limits” definition in the work context).
In reference to work, the regulations state that “the term substantially limits
means significantly restricted in the ability to perform either a class of jobs
or a broad range of jobs in various classes as compared to the average person
having comparable training, skills and abilities. The inability to perform a
single, particular job does not constitute a substantial limitation.” 29 C.F.R.
§ 1630.2(j)(3)(i); Sutton, 527 U.S. at 491; Cameron v. Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 64-5 (2d Cir. 2003). The Second Circuit
interpreted this regulation in Muller v. Costello, a case very similar to the
one at bar. 187 F.3d
298 (2d Cir. 1999). Like Mrs. Vinson in
the present action, Muller was also a DOC correction officer who had trouble
breathing in smoke-filled environments. Id. at 302-3. The Second
Circuit rejected his claim. Id. at 313. The Circuit found that even with his
impairment he could still theoretically work as either a security guard or a
correction officer at a smoke-free facility. Id. Therefore, even though he was
precluded form the particular job he held at the DOC, he was not precluded from
the class of jobs that included correction officer. Id. As a result, the court
found that his ability to work was not substantially limited. Id. See Fink v. City of New York, 129 F. Supp. 2d
511, 529 (E.D.N.Y. 2001) (requiring a showing that the defendant was
precluded from a large class of jobs in order to prove that his major life
activity of working was impaired).
In the present matter there is
even more evidence than in Muller that plaintiff can still work in the class of
jobs that includes correction officer. Plaintiff concedes that while she worked
at Bellevue Hospital she had no physical problems. (Ex. B at 52-3.) At
Bellevue, plaintiff’s job title and responsibilities were the same as they had
been at her previous posting at the ARDC. (Ex. R at 23.) Since her work at
Bellevue and the ARDC both require the same “training, knowledge, skills or
abilities” both jobs are within the same broad class of jobs. Muller, 187 F.3d at 313 (citing 29
C.F.R. § 1630.2(j)(3)(ii)(B)). Therefore, unlike in
Muller where the court conjectured that Mr. Muller could work at similar jobs
in smoke-free environments, here there is proof that plaintiff can do so. Because she is not disqualified
from a broad class of jobs, plaintiff has not met the EEOC requirements to show
a substantial limitation on her ability to work. See Schapiro v. New York City Dep’t of Health, 179 F. Supp. 2d 170,
175-6 (S.D.N.Y. 2001) (rejecting an
argument that the plaintiff was severely limited in his ability to work where
he had previously performed the same job in a clean, well-ventilated work
place).
ii. Plaintiff’s
ability to breathe
Next, defendants
argue that plaintiff has not sufficiently shown that her condition substantially
limits her ability to breathe in settings outside of work. In support of her
claim, plaintiff argues that her statements made during her deposition
concerning her inability to go to smoke-filled bars and clubs are sufficient to
show that she has trouble breathing outside of work.
Unlike the major life activity
of working, there are no specific EEOC or Department of Justice regulations
governing whether a person’s ability to breathe is substantially limited.
Therefore, courts are left with the guidance provided by the general definition
of “substantially limits” found in 29 C.F.R. § 1630.2(j) (1):
(i) Unable to perform a
major life activity that the average person in the general population can
perform; or
(ii) Significantly restricted as to the condition,
manner or duration under which an individual can perform a particular major
life activity as compared to the condition, manner, or duration under which the
average person in the general population can perform that same major life
activity.
The Second
Circuit in the Muller case held that simply alleging on the job breathing
difficulty is insufficient to show a substantial limitation. Muller,
187 F.3d at 314. To prevail, plaintiff must
show that her breathing in general is impaired. Id. Similar cases have often
turned on whether the plaintiff provided sufficient evidence to show breathing
difficulties outside of work. E.g. id.; Medlin
v. Rome Strip Steel Co., Inc., 294 F. Supp. 2d 279, n.7 (N.D.N.Y. 2003)
(rejecting any argument that the plaintiff’s breathing was substantially
impaired where the plaintiff did not allege any specific off the job breathing
problems); Brown v. Triboro Coach Corp., 153 F. Supp. 2d 172, 182 (E.D.N.Y.
2001) (rejecting plaintiff’s claimed disability because plaintiff had
shown insufficient evidence that his sleep apnea affected his breathing outside
of work); Schapiro, 179 F. Supp. 2d at 176 (stating
that the plaintiff must show a general difficulty breathing, not just difficulty
at work). One indication is whether the impairment severely impinges the
plaintiff’s ability to exercise or otherwise be active. Keck v. New York State Office of Alcoholism & Substance Abuse Servs., 10 F. Supp. 2d 194, 199 (N.D.N.Y. 1998) (“Evidence
that a person regularly participates in recreational activities undermines a
claim that their ability to breathe is handicapped.”).
Here plaintiff has not shown a
sufficient limitation in her ability to breathe outside of her work. Plaintiff’s
bare allegation that she can no longer go to restaurants, bars and clubs that
allow smoking is insufficient to show a severe limitation. See Schapiro, 179 F. Supp. 2d at 176 (rejecting
the plaintiff’s argument that he is disabled because his breathing difficulties
make it such that he can not do some physical activities “to the same degree”
as before). Plaintiff has
provided no evidence that she is limited in her ability to exercise n3 or take
part in any recreational activities outside the presence of cigarette smoke. As
a result, plaintiff has not shown facts upon which a reasonable jury could find
that her impairment severely limits her ability to breathe. Contra Jeffrey v. Ashcroft, 285 F. Supp. 2d 583
(M.D. Pa. 2003) (finding under a similar standard that there was
sufficient evidence to go to a jury where the plaintiff showed that even “the
slightest exertion” caused “serious breathing difficulties”)
Since plaintiff
has not shown that any of her major life activities are substantially limited
by her breathing difficulties, she has failed to show she is disabled under the
ADA definition. Plaintiff’s ADA discrimination claim, therefore, must be
dismissed.
(2) Retaliation
In addition to
her claim for discrimination, plaintiff also asserts that defendants
transferred her from Bellevue back to the ARDC in retaliation for her filing a
claim with the EEOC. For plaintiff to prove retaliation under the ADA she must
first show she has a prima facie case for retaliation. Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35,
54 (2d Cir. 2002) .
Plaintiff must establish that: (1) she engaged in a protected activity, (2)
defendants knew about the activity, (3) defendants took an adverse employment
action against her, and (4) a causal connection exists between the protected
activity and the adverse action. Weissman v. Dawn Joy Fashions,
Inc., 214 F.3d 224, 234 (2d Cir. 2000). If plaintiff is unable to show a prima facie case,
then her retaliation claim must be dismissed.
A. Adverse employment action
Defendants first
disagree with plaintiff’s assertion that her transfer was an adverse employment
action. Plaintiff in response simply states that when defendants transferred
her they withdrew a reasonable accommodation and in that context the transfer
was an adverse employment action.
An adverse
employment action is a material change in “the terms and conditions of
employment.” Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). A material change
does not necessarily require a clearly quantifiable loss. Courts have found
that a wide variety of actions ranging from outright termination, Sacay, 193 F. Supp. 2d at 611, to a loss
of job title or responsibilities, Treglia v. Town
of Manlius, 313 F.3d 713, 720 (2d Cir. 2002), to simply a series of
negative performance evaluations, Morris
v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999),
are all sufficient to show a material change.
For a transfer
alone to be considered an adverse employment action plaintiff must show that it
“resulted in a change in responsibilities so significant as to constitute a
setback to [her] career.” Galabya v. New York City Bd. of
Educ., 202 F.3d 636, 641 (2d Cir. 2000). In the present
situation, plaintiff cannot do so. As mentioned, the job title and
responsibilities were the same at both Bellevue and the ARDC, thus the transfer
was at worst a lateral move, which is not an adverse action. See Loucar v. Boston Market Corp., 294 F. Supp. 2d
472, 481 (S.D.N.Y. 2003) (holding that a lateral transfer is not an
adverse action).
Nevertheless,
plaintiff is correct that a transfer resulting in a denial or withdrawal of a
reasonable accommodation can be considered an adverse employment action. See Honey v. County of Rockland, 200 F. Supp. 2d
311, 320 (S.D.N.Y. 2002) (stating that if the plaintiff showed that her
supervisor had refused to continue to accommodate her disability because she
had filed an EEOC complaint, that action would be considered an adverse
employment action); Adams v. N.Y.
State Thruway Auth., 2001 U.S. Dist. Lexis 3206, No. 97-CV-1909, 2001 WL 874785
n.11 (N.D.N.Y. March 22, 2001) (stating in dicta that a “denial of a
request for a reasonable accommodation can be an adverse employment action”).
The reason why the accommodation was withdrawn is not material at this stage of
the analysis. n4 To pass this prong of the prima facie
test, plaintiff must simply show that defendants had been accommodating her and
that they stopped accommodating her.
Plaintiff was transferred to
Bellevue to accommodate her request for a smoke-free facility. (Ex. E.) When
defendants transferred her back to the ARDC they withdrew an accommodation and
plaintiff suffered an adverse employment action.
B. Causal connection
Defendants next
argue that plaintiff cannot show a causal connection between the filing of the
EEOC action and the transfer. Unless there is direct evidence of a connection, typically courts
infer a causal connection from a relatively short time interval between the
protected activity and the adverse employment event. Treglia, 313 F.3d at 721.
In the matter at bar, plaintiff points to no direct evidence of a
casual connection. In addition, the greater than two year time lapse
between plaintiff’s EEOC filing in early 1998 and her transfer back to the ARDC
in 2001 is far too long to infer such a connection. Greco v. County of Nassau, 146 F. Supp. 2d 232, 245 (E.D.N.Y. 2001)
(finding a two year period between an EEOC complaint and an adverse employment
action too long to infer a causal connection in an ADA retaliation claim); Gallo v. Eaton Corp., 122 F. Supp. 2d 293,
303 (D. Conn. 2000) (holding that a two year lapse between plaintiff’s
filing a claim and his termination was too long to establish a causal
connection). Plaintiff claims that the parties engaged in “continuous
negotiations” during the two year period and that those negotiations should be
used to determine if a causal connection exists.
Plaintiff cites
no case law to support this argument n5 and indeed the argument itself is
belied by the facts. The parties entered into the settlement agreement for the
1998 EEOC filing in May 1999 and defendants transferred plaintiff to Bellevue
in September 1999. Subsequent to this transfer, defendants assert, and
plaintiff does not convincingly dispute, that the parties had no discussions
until January 2001, after plaintiff’s transfer back to the ARDC. (Ex. C at
28-29.) Defendants’ assertion is supported by their letters to plaintiff in
September 1999 and January 2000, both of which went unanswered. (Exhibits F-G.) From this dearth of
communications, at best plaintiff can argue that negotiations continued until
plaintiff’s transfer to Bellevue. After that, the parties appear to have
taken a fifteen month hiatus. Contra Treglia, 313
F.3d at 721 (accepting, for purposes of establishing a causal
connection, the various additional protected actions taken between the initial
protected action and the adverse employment event). Even this fifteen month
period, though, is still is too long to infer a causal connection between
plaintiff’s complaint and her transfer back to the ARDC. See Gurry v. Merck & Co., 2003 U.S. Dist. Lexis
6161, No. 01 Civ. 5659, 2003 WL 1878414 at *6 (S. D.N.Y. April 14, 2003)
(stating that a fifteen month period was too long to establish a causal
connection in a Title VII case); Allen
v. St. Cabrini Nursing Home, Inc., 198 F. Supp. 2d
442, 449-50 (S.D.N.Y. 2002) (declining to find a causal connection in a
Title VII case where a fifteen month gap existed between the protected action
and the termination).
Since plaintiff is unable to
show a causal connection between her initial filing with the EEOC and her
transfer back to the ARDC, she cannot show a prima facie case for retaliation.
Therefore, no reasonable jury could return a verdict in her favor on her
retaliation claim and the claim must be dismissed.
(3) Title VII Claim
Concerning the
Title VII claim, Defendants argued it should be dismissed for a failure to
exhaust administrative remedies. Plaintiff concedes this point. Plaintiff’s
claim under Title VII is, therefore, dismissed.
(4) Occupational
Safety and Health Act (“OSHA”) Claim
Plaintiff’s claim
under OSHA is also dismissed. OSHA does not contain a private right of action. 29 U.S.C. § 653(b)(4);
Donovan v. Occupational Safety and
Health Review Com’n, 713 F.2d 918, 926 (2d Cir. 1983).
(5) New York
Public Health Law Claims
Defendants
contend that plaintiff’s claim under Article 13-E ( §§ 1399-n through 1399-x) of the New York Public Health Law
should be dismissed because that article does not allow for a private right of
action. Plaintiff’s brief, however, is silent on this issue.
Defendants are
correct. No private right of action exists to enforce Public Health Law Article
13-E. N.Y. Pub. Health Law § 1399-w (McKinney 2002) (“Nothing in any
other section of this article shall be construed to create . . . any theory of
liability upon which any person may be held liable to any other person for
exposure to smoke.”); Herbert Paul,
CPA, PC. v. 370 LEX, L.L.C., 7 Misc. 3d 747, 751, 794 N.Y.S.2d 869, , 7 Misc. 3d 747,
794 N.Y.S.2d 869, 873 (Sup. Ct. N.Y. County 2005). As there is no
private right of action, plaintiff’s claim under the New York Public Health Law
is dismissed.
(6) New York
Labor Law Claims
As to plaintiff’s
claim under the New York Labor Law §
201-d, defendants argue that it must be dismissed because that section
only protects certain activities by workers, none of which plaintiff
participated in. Again, plaintiff’s response brief does not mention this claim.
New York State
Labor Law § 201-d states that
an employer can not fire, refuse to hire, or otherwise discriminate against a
person based on the person’s political or recreational activities, use of
consumable products, or membership in a union.
N.Y. Lab. Law § 201-d(2)(McKinney 2002). Plaintiff presents no evidence
that defendants discriminated against her based on any of these activities or
even that she partook in any of these activities. Therefore, plaintiff’s New
York State Labor Law claims are dismissed.
(7) State and
City Human Rights Laws Claims
As plaintiff’s
other claims have been dismissed, the only claims remaining are those under the
New York State and New York City Human Rights Laws. These laws closely track
the ADA. However, the Second Circuit
noted in Reeves v. Johnson Controls
World Services, 140 F.3d 144, 147 (2d Cir. 1998), that the New York
Court of Appeals has interpreted the state and city laws to have a broader
definition of the term disability. Id.; Romain v. Ferrara Bros. Bldg. Materials Corp., 2004 U.S. Dist. Lexis 9618,
No. 97-CV-4001, 2004 WL 1179352 at *4 (E.D.N.Y. May 28, 2004). Under
this broader definition a plaintiff does not need to identify any major life
activities that the disability limits. Reeves, 140 F.3d at 156; Picinich v. United Parcel Service, 321 F. Supp. 2d
485, 500 (N.D.N.Y. 2004). A plaintiff need only show that she has
a disability which “is demonstrable by medically accepted clinical or
laboratory diagnostic techniques . . . .” N.Y. Exec. Law § 292(21) (McKinney’s 2002); Reeves, 140 F.3d at 154. Plaintiff in the
matter at bar has shown evidence that she may have a medically demonstrable
disability. However, as all the federal claims have been dismissed, there is no
reason to exercise supplemental jurisdiction over plaintiff’s SHRL and CHRL
claims. See Scott v. Flaghouse, Inc., 159 F.3d 1348 (Table), 1998 WL 536764 at
*2 (2d Cir. July 07, 1998) (relying on Reeves to vacate summary judgment
of SHRL claims, but then dismissing the SHRL claims because no federal claim
survived summary judgment).
Conclusion
For the foregoing
reasons, defendants’ summary judgment motion is granted as to all claims. The
Clerk of the Court is directed to close the case.
Brooklyn, New
York
January 17, 2006
SO ORDERED:
/s/
David G. Trager
United States
District Judge
Notes:
1 In her deposition, plaintiff also claimed a sensitivity to chemical products like Lysol or Mace (“Odious
Capsicom” [sic]). (Ex. B at 45-46.) In the complaint
and the moving papers, however, the parties predominantly discuss only
plaintiff’s sensitivity to cigarette smoke. Therefore, for purposes of this
opinion, only plaintiff’s sensitivity to cigarette smoke will be considered.
2 Since 2003, the city of New York has prohibited smoking
in all public enclosed areas. New York, N.Y., R.C.N.Y. tit. 17, ch. 5, § 17-503 (2006) WL 17 RCNY S 17-503. However, this
case was filed in 2001, when most clubs, bars and restaurants still permitted
smoking.
3 Plaintiff did mention in her deposition that she has
hypertension and high blood pressure, but she has not alleged that either
condition prevents her from exercising. (Ex. B at 61.)
4 All ADA retaliation claims are “analyzed under the same
burden-shifting framework established for Title VII cases;” where first the
plaintiff must show she has a prima facie case for retaliation. Treglia, 313 F.3d at 719. It is
under the second step in this burden-shifting analysis where the defendant
presents their legitimate, non-retaliatory reason for taking the adverse
employment action. Id. at 721.
5 Plaintiff’s entire reply concerning retaliation consists
of two short paragraphs which cite to only one case (for the standard for prima
facie retaliation) and consists entirely of conclusory assertions concerning
the facts in this case. (Pl.’s Mem. of Law in Opp’n to Def. Mot. for Summ. J. at 14.)