De La Rosa v. The City of NY Police Dept. et al, No. 1:2009cv05290 - Document 45 (S.D.N.Y. 2010)

Court Description: OPINION AND ORDER, that Defendants' motion is granted. The Clerk of the Court is directed to close this motion (docket #34) and this case. (Signed by Judge Shira A. Scheindlin on 10/22/10) (pl) Modified on 10/22/2010 (pl).
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De La Rosa v. The City of NY Police Dept. et al Doc. 45 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK .--------------------------------------------------- )( RAMONA DE LA ROSA, OPINION AND ORDER Plaintiff, 09 Civ. 5290 (SAS) - againstTHE CITY OF NEW YORK POLICE DEPARTMENT AND THE CITY OF NEW YORK, . , "" ...., . I '·'·-"'1 Defendants. ._-------------------------------------------------- )( SHIRA A. SCHEINDLIN, U.S.D.J.: I. INTRODUCTION Ramona De La Rosa, a former Police Administrative Aide ("PAA") with the New York City Police Department ("NYPD"), proceeding pro se, brings suit against the NYPD and the City of New York (collectively, "Defendants"), alleging failure to accommodate her disability, discrimination, retaliation, and a hostile work environment under the Americans with Disabilities Act of 1990 ("ADA,,).l Defendants move for summary judgment with respect to all claims. For the reasons set forth below, Defendants' motion is granted in full. See 42 U.S.C. § 12112 et seq. 1 Dockets.Justia.com II. BACKGROUND 2 De La Rosa suffers from degenerative disc disorder, arthritis in her knees, and herniated discs in her neck and back. 3 These conditions affect her Local Civil Rule 56.1 (a) requires a party moving for summary judgment to "annex[] to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." Rule 56.1(b) requires the party opposing summary judgment to respond to the movant's statement with a correspondingly numbered statement. "Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party." Rule 56.1(c). lfthe non-moving party controverts any statement, the non-moving party must cite to evidence that would be admissible at trial that shows that the controverted statement is in fact in dispute. See Rule 56.1(d); see also Rodriguez v. Schneider, No. 95 Civ. 4083, 1999 WL 459813, at *1 n.3 (S.D.N.Y. June 29,1999). Although De La Rosa's response to Defendants' 56.1 statement contains correspondingly numbered paragraphs, De La Rosa does not, with the exceptions of paragraphs 40, 43, 49-50, 60-62, 66, 76, and 83, identify any evidence in the record, or any evidence at all, to support her contention that certain facts are disputed. See Plaintiffs 56.1(b) Statement ("PI. 56.1"). Further, many of De La Rosa's response paragraphs either do not specifically dispute Defendants' statements or consist of "conclusory allegations, speculation or conjecture." Cifarelli v. Village ofBabylon, 93 F.3d 47, 51 (2d Cir. 1996). Accordingly, I deem Defendants' 56.1 statement admitted by De La Rosa, except insofar as De La Rosa disputes statements made in paragraphs 40,43,49-50, 60-62, 66, 76, and 83. Nevertheless, in light of the more lenient standards applied to the pleadings of pro se litigants, see Hughes v. Rowe, 449 U.S. 5,9 (1980) (per curiam), I consider De La Rosa's disputed statements to the extent that they might be material to the outcome of this motion. 2 See 4/2911 0 Deposition of Ramona De La Rosa ("De La Rosa Dep."), Exs. D-H to 6/2811 0 Declaration of Devor Deland Perry, counsel to Defendants, in 3 Support of Defendants' Motion for Summary Judgment ("Perry Decl."), at 193:18194: 13. 2 ability to walk and to stand. 4 A. Employment History and Reasonable Accommodation Requests De La Rosa began as a civilian employee with the NYPD on July 10, 2002. 5 On November 5 of that year, De La Rosa took an unpaid medical leave of absence. 6 While on leave, she requested an assignment upon return that would not involve standing for long periods of time or climbing stairs. 7 The NYPD's Office of Equal Employment Opportunity ("OEEO") responded to her request for accommodation by offering De La Rosa a position in the 4S th Precinct in the Bronx. 8 A resident of the borough, De La Rosa explained that she could not work there as she did not want her family or friends knowing about her employment with the NYPD. 9 De La Rosa further advised that she could not travel to the 4S th Precinct as the length of the trip on public transportation required her to stand for See id at 194:15-23 ("Basically, I can't sit or stand."); id at 203:4-13 ("I can't stand for a long time. I can't sit for a long time."); id at 204: II-IS ("I can't go places that requires [sic] walking."). 4 See 6116/04 Personnel Profile of Ramona De La Rosa ("Profile"), Ex. B to Perry Decl., at 1-2. 5 6 See id at 2. See 2/20103 Request for Reasonable Accommodation for New York City Police Department Employees ("First Request"), Ex. G to Perry Decl" at 1. 7 8 See 2/2S/03 Investigating Officer's Report, Ex. G to Perry Decl. 9 See id 3 too long. to In response, the OEEO offered her two additional choices, the 40 th or 44th Precincts. I I De La Rosa resumed active duty on March 17,2003, returning to medical leave two days later on March 19. 12 During this time, the OEEO and De La Rosa continued to discuss her reassignment location options. 13 In response to her concerns regarding public transportation, the OEEO offered her information on the Access-a-Ride program, to which De La Rosa also objected. 14 Finally, the OEEO assigned De La Rosa to the 44th Precinct, informing her that her request for accommodation to a location that would not require climbing stairs or standing for long periods of time was deemed granted. 15 10 See 3/12/03 Investigating Officer's Report, Ex. G to Perry Decl. See id.; 3/18/03 Investigating Officer's Report ("3/18/03 Report"), Ex. G to Perry Decl. II 12 See Profile at 2-3. 13 See 3/18/03 Report. See id. De La Rosa later explained to the OEEO that the Access-aRide program caused her back pain. See 5/22/03 Letter from Ramona De La Rosa to Neldra M. Zeigler ("5/22/03 Letter"), Ex. P-351 to Declaration of Ramona De La Rosa in Opposition to Defendants' Motion for Summary Judgment ("De La Rosa Decl."). 14 See 3/25/03 Letter from Neldra M. Zeigler to Ramona De La Rosa, Ex. G to Perry Decl.; 5/16/03 Letter from Neldra M. Zeigler to Ramona De La Rosa ("5/16/03 Letter"), Ex. H to Perry Decl. 15 4 Following her reassignment to the 44th Precinct, De La Rosa and the NYPD continued to correspond regarding her accommodation request. 16 In these letters, De La Rosa repeated her objections to the three precincts for the reasons she had previously articulated-the length of the commute on public transportation and the location near her home. 17 In response, the OEEO explained that her assignment to the 44th Precinct, a location accessible by public transportation and offering either an elevator or no stairs, responded to her request. IS During this second medical leave, De La Rosa made an additional OEEO request for a chair with lumbar support. 19 The OEEO approved the request for the chair on November 21,2003. 20 De La Rosa's second medical leave lasted until December 16,2003 when she reported to the 44th Precinct. 21 She immediately See 5/16/03 Letter; 5/22/03 Letter; 5/25/03 Letter from Ramona De La Rosa to Raymond W. Kelly ("5125/03 Letter"), Ex. H to Perry Dec!.; 7/8/03 Letter from Neldra M. Zeigler to Ramona De La Rosa ("7/8103 Letter"), Ex. H to Perry Decl. 16 17 See 5/22103 Letter; 5/25/03 Letter. 18 See 5116103 Letter; 7/8/03 Letter. See 1116/03 Office of Equal Employment Opportunity Reasonable Accommodation Request Report ("Second Request"), Ex. H to Perry Decl. 19 20 See id. 21 See Profile at 2-3. 5 requested a transfer from the precinct due to safety concerns,22 and on January 8, 2004, the NYPD reassigned De La Rosa to Transit District 11 ("TD-ll ").23 De La Rosa received the requested chair with lumbar support at this location on January 28, 2004.24 On March 2, 2004, De La Rosa submitted a third request for reasonable accommodation: to remain stationary throughout the day.25 This request occurred at the same time as a scheduled meeting with her supervisor, Yvette Santiago, regarding her first performance evaluation. 26 According to De La Rosa, the performance evaluation meeting was then rescheduled to include more See 12115/03 Memorandum from Ramona De La Rosa to Commanding Officer, Ex. P-20 to De La Rosa Decl. 22 23 See Profile at 2-3. 24 See 12/1/03 Letter from Commanding Officer, 44th Precinct to Deputy Commissioner, Equal Employment Opportunity, Ex. H to Perry Dec!.; 3/2/04 Request for Reasonable Accommodation for New York City Police Department Employees ("Third Request"), Ex. H to Perry Decl., at 2. See Third Request at 1-2; see also 2111104 Letter from Harvey Insler, M.D. ("2111/04 Letter"), Ex. P-24 to De La Rosa Dec!. (stating De La Rosa must remain stationary to avoid health complications); 3/1/04 Letter from Harvey Insler, M.D. ("3/1/04 Letter"), Ex. P-31 to De La Rosa DecL (same). 25 26 See 3/6/04 Letter from Ramona De La Rosa to Janine Thomas, Union Grievance Representative ("3/6/04 Letter"), Ex. P-36-37 to De La Rosa Dec!. at 12. 6 senior personnel. 27 At the meeting, De La Rosa's supervisors discussed her problems with arriving to work on time and removed her from the Flextime program. 28 Santiago initially denied De La Rosa's third request to remain stationary, explaining that "[De La Rosa] is currently assigned to the 124 Rm in a stationary capacity.,,29 In response, De La Rosa informed OEEO that her main concern with her posting at TD-ll, where she wished to remain, was "not standing for long periods of time" because "most of her duties require standing.,,30 Later, 27 See id. at 2. 28 See 3/2/04 Memorandum from Commanding Officer, Transit Bureau Dist #11 to Deputy Director, CivilianizationiStaffDevelopment re Deletion from Flextime Program ("3/2/04 Memorandum"), Ex. H to Perry Decl. The NYPD noted that De La Rosa's removal from the Flextime Program was "due to her excessive pattern of tardiness eleven (11) times in two months." 5/19/04 Memorandum from Captain Warner S. Frye, Commanding Officer, Transit Bureau District 11 to Director, Employee Management Division re Recommendation for Termination of Probationary P.A.A. Ramona De La Rosa ("5/19/04 Termination Recommendation"), Ex. K to Perry DecL at 1. But see 3/6/04 Letter at 2 ("My lateness was never an issue until I handed over the EEOC reasonable accommodation form."). 29 Third Request at 2. Santiago further noted that De La Rosa's job required her to "mov[e] her swivel chair with wheels six (6) feet to another desk to use the PC" and make copies "in an office approx. 15 ft. from her desk." Id. 30 3/9/04 Investigating Officer's Report, Ex. H to Perry Dec!. The Investigating Officer noted that De La Rosa also mentioned "many concerns regarding her assignment at Transit District 11," suggesting transfer to another command as a possible solution.ld. OEEO instructed her to have a full medical 7 the parties compromised by allowing De La Rosa to perform any work activity requiring walking or standing between 3:30-5:30 pm, a proposal with which De La Rosa agreed. 31 This accommodation also addressed De La Rosa's request for Flextime by moving the start of her tour back from 9:00 a.m. to 9:30 a.m. 32 On March 24, 2004, De La Rosa filed a complaint with the OEEO, alleging she had endured disparaging remarks regarding her disability at TD-II and retaliation in connection with the March 2 meeting, where she had presented her third accommodation request. 33 In her complaint, De La Rosa alleged that her removal from Flextime was in response to her request for reasonable accommodation. 34 In addition, she reported that Santiago called her a "make believe handicap" and suggested that she apply for disability if she could not evaluation before more comprehensive accommodations would be discussed. See id. See 3/18/04 Investigating Officer's Report, Ex. H to Perry Decl. ("1/0 conferred with PAA Delarosa, who agreed with the aforementioned proposal. "); 3/29/04 Memorandum from Deputy Commissioner, Equal Employment Opportunity to Commanding Officer, Transit District 11 re Request for Reasonable Accommodation ("3129/04 Memorandum"), Ex. H to Perry Decl.; 3/29/04 Letter from Neldra M. Zeigler to Ramona De La Rosa ("3/29/04 Letter"), Ex. H to Perry Decl. 31 32 See 3/29/04 Memorandum; 3/29/04 Letter. See 3/24/04 Office of Equal Employment Opportunity Case Report ("3/24/04 OEEO Report"), Ex. K to Perry Decl. at 1. 33 34 See id. at 2. 8 perform her job functions. 35 The OEEO later exonerated Santiago on both allegations. 36 B. Disciplinary Actions While De La Rosa and the OEEO were negotiating her request to remain stationary, she told TD-ll she would not be reporting for her scheduled tour on March 19,2004. 37 To grant an Emergency Excusal Day, De La Rosa had to provide a reason for the proposed absence, which she refused to give, explaining only that it was for personal reasons. 38 In response, Lieutenant Gonzalez ordered De La Rosa to report to work to avoid being documented Absent Without Leave ("AWOL,,).39 De La Rosa did not report for duty, and she was later punished for being AWOL. 40 35 See id. See 9/1104 Report of Investigation Into Allegation That Principal Administrative Associate Yvette Santiago Retaliated Against Police Administrative Aide Ramona De La Rosa After Receiving a Reasonable Accommodation, Both Assigned to Transit District # 11 ("911104 Report"), Ex. L to Perry Dec!. at 4. 36 See 3119104 Diary Entry prepared by Lt. Gonzalez ("3119/04 Diary Entry"), Ex. J to Perry Decl. 37 38 Seeid. 39 See id. See 3119/04 Report of Violation of the Rules and Procedures ("3/19/04 Report"), Ex. J to Perry Decl.; 4/23/04 Memorandum from Yvette 40 9 From March until May 2004, the NYPD documented other actions for which De La Rosa received discipline, including her failure to sign out of roll calVI insubordination,42 early arrival to work,43 and lateness. 44 Additionally, De Santiago to Ramona De La Rosa re G.O. 15 on A.W.O.L. of 3119/04 ("4/23/04 Memorandum"), Ex. P-73 to De La Rosa Decl. A Command Discipline was also issued to De La Rosa for being "Absent Without Leave" and "Refus[al] to Comply With an Order." See 5/19/04 Termination Recommendation at 1. De La Rosa was the subject of a Departmental Hearing regarding the AWOL incident on May 4, 2004. See id. at 2. See 3/9/04 Report of Violation of the Rules and Procedures ("3/9/04 Report of Violation"), Ex. J to Perry Decl. (documenting in addition three prior occasions in February and March where De La Rosa failed to sign out of roll call). A Command Discipline was issued in connection with these incidents. See 5119/04 Termination Recommendation. 41 See 4116/04 Report of Violation of the Rules and Procedures ("4/16/04 Report of Violation"), Ex. J to Perry Decl. (recounting an incident reported by Santiago where De La Rosa refused to move her chair to a nearby computer station to perform an assigned task). A Command Discipline was also issued after this incident for being "Insubordinate to a Civilian Supervisor." 5119/04 Termination Recommendation at 1. 42 See 4/22/04 Memorandum from Yvette Santiago to Ramona De La Rosa re Early Arrival to Work ("4/22/04 Early Arrival Memorandum"), Ex. J to Perry Decl. (noting that arriving early and signing out early constitutes an "unauthorized tour change"). 43 See 5/8/04 Report of Violation of the Rules and Procedures ("5/8/04 Report of Violation"), Ex. J to Perry Decl. (documenting twelve instances of lateness between March 6 and May 8); 6/5/04 Report of Violation of the Rules and Procedures ("6/5/04 Report of Violation"), Ex. J to Perry Decl. (documenting eight additional instances oflateness between May 12 and June 5). A Command Discipline was issued in connection with the twelve instances of lateness between 44 10 La Rosa's first performance evaluation documented seven sick days through March 8, 2004, while her second evaluation documented twelve total sick days through May 9. 45 As part of her placement in the NYPD Performance Monitoring Program in April stemming from "poor performance, excessive absenteeism and/or tardiness, misconduct or below standard evaluation,"46 De La Rosa acknowledged that termination might result if her absenteeism did not improve. 47 c. Performance Evaluations De La Rosa's first performance evaluation, covering the period January 8 through March 8, 2004, awarded her an overall score of "Below Standards.,,48 Santiago prepared the evaluation and described De La Rosa as lacking "professionalism, cooperation, motivation, and self-initiative" and being March and May. See 5/19/04 Termination Recommendation at 1. See 311 0/04 Performance Evaluation of Ramona De La Rosa ("3/1 0/04 Evaluation"), Ex. I to Perry Decl. at NYPD00516; 5/17/04 Performance Evaluation of Ramona De La Rosa ("5/17/04 Evaluation"), Ex. I to Perry Decl. at NYPD00503. 45 46 4/15/04 Notice of Placement into Performance Monitoring ("4/15/04 Performance Monitoring"), Ex. I to Perry Decl. at NYPD 00481-82. 47 4/15/04 Acknowledgment of Performance Monitoring, Ex. I to Perry 48 See 3/10/04 Evaluation at NYPD00516. Decl. 11 "argumentative and impudent with her supervisors.,,49 Specifically, Santiago rated De La Rosa "Below Standards" with respect to four out of the six critical tasks for her position: updating files, records, and reports; performing routine clerical tasks; answering telephone calls; and updating roll calls. 50 Santiago also appended a list of fourteen poor performance incidents to the evaluation. 51 At De La Rosa's second performance evaluation in May 2004, covering the period March 9 through May 9,2004, she again received a "Below Standards" rating. 52 Santiago noted that De La Rosa had "demonstrated no change in her performance skills since the conference held on March 2nd. ,,53 De La Rosa "continue[d] to be argumentative" and "[did] not follow instructions as given by her uniform supervisors.,,54 This evaluation rated her "Below Standards" in five of the six critical tasks: processing forms; typing reports and forms; filing records, reports, and forms; performing routine clerical tasks; and updating roll calls. 55 49 Id. 50 See id. at NYPD00517-18. 51 See id. at NYPD00520-22. 52 5117/04 Evaluation at NYPD00503. 53 Id. 54 Id. 55 See id. at NYPD00504-05. 12 Santiago again attached a list of eight specific incidents related to De La Rosa's poor performance rating. 56 D. Suspension and Termination Following her second performance evaluation, Santiago recommended that De La Rosa be terminated because of her "negative attitude towards her work," "lack of respect for those who serve as her supervisors," "lack of cooperation when given clerical tasks to complete," and "rude demeanor."57 The Commanding Officer ofTD-ll, Captain Warner Frye, also recommended De La Rosa's termination to his superiors due to her accumulation of four Command Disciplines, two "Below Standards" performance evaluations, and her "poor attendance and job performance.,,58 The NYPD suspended De La Rosa for thirty days following an incident of insubordination on June 9, 2004. 59 According to the incident report prepared by Captain Frye, De La Rosa refused Lieutenant Morillo's order to close 56 See id. at NYPD00506-08. 57 5118/04 Memorandum from Yvette Santiago to Commanding Officer, TD-ll re Performance Appraisal Interview, Ex. J to Perry Dec!. 58 5119/04 Termination Recommendation at 1-2. See 6/9/04 Report of On Duty Police Administrative Aid was Suspended as a Result of an Investigation Conducted under LA.B. Log # 04-17272 ("6/9/04 Suspension Report"), Ex. K to Perry Decl. at NYPD00462-65. 59 13 an open complaint report at 10:30 a.m., telling him that "she ha[ d] a reasonable accommodation letter from the Office of Equal Employment Opportunity, recommending that she is to remain at her desk until 1530 hours, barring exigent circumstances.,,60 Lieutenant Morillo repeated his order twice, with De La Rosa refusing to comply each time. 61 After hearing the warning that her behavior could result in suspension, De La Rosa replied that she did not care and the lieutenant should "do what he had to do. ,,62 The report concluded that De La Rosa was "insubordinate and discourteous toward a supervisor" and recommended that Charges and Specifications be filed. 63 Id. at NYPD00462. The report documented that the computer De La Rosa would need to complete the task was located three feet from her desk. See id. After the incident, De La Rosa made a voluntary statement to investigating officers that she refused the lieutenant's order because of her reasonable accommodation letter, recommending that she remain at her desk until 3:30 p.m. See id. at 2. De La Rosa repeated this explanation to the OEEO Investigating Officer during her suspension, explaining that there was another P AA with a computer who could have completed the task. See 6/15/04 Investigating Officer's Report, Ex. L to Perry Decl. 60 61 See 6/9/04 Suspension Report at NYPD00462-63. 62 Id. at NYPD00463. Id. at NYPD00464. Charges and Specifications were filed on June 15. See 6/15/04 Charges and Specifications against Ramona De La Rosa, Ex. K to Perry Decl. 63 14 De La Rosa returned from her suspension on July 9,2004. 64 On the same day, the NYPD again placed her in the Performance Monitoring Program. 65 As before, De La Rosa acknowledged that her "record of misconduct" might result in her termination. 66 The NYPD terminated De La Rosa on July 21, 2004. 67 E. Retaliation and Hostile Work Environment Claims De La Rosa cites several instances of perceived retaliatory and hostile actions at TD-11. For example, De La Rosa objected to the nature of her work at TD-ll, in particular her varying duties regarding "summonses, statistics, and warrant checks" to "roll call" duties to working in the complaint room, believing it to be a greater amount of work than given to the other P AAs. 68 De La Rosa also alleged that insults about her disability affected her working environment. Specifically, she cites an instance where Santiago allegedly called her "a want to See 7/9/04 Memorandum from Herbert G. Woods, Jr., Assistant Commissioner, to Chief of Personnel re Change in Duty Status for Member of the Service, Ex. K to Perry Dec!. 64 See 7/9/04 Notice of Placement into Performance Monitoring ("7/9/04 Performance Monitoring"), Ex. J to Perry DecL at NYPD00456-57. 65 66 7/9/04 Acknowledgment of Performance Monitoring, Ex. J to Perry 67 See 7/21/04 Termination Notice ("7/21104 Notice"), Ex. B to Perry Dec!. Dec!. De La Rosa Dep. at 113: 17-114: 11 ("Instead of just doing things dealing with the complaint room, I also was doing the duties of other P AAs like roll call updates and statistics and whatever duties the PAAs probably had."). 68 15 be handicapped,,69 and threatened her by saying "she wanted to take my head and kick it out in the middle of the street.,,70 Santiago denies that she made these disparaging remarks towards De La Rosa. 71 De La Rosa also objected to other discrete instances at TD-11, including being asked to type a lieutenant's eva1uation,72 the threat of receiving a Command Discipline,?3 use of her chair by other employees,14 damage to her chair, desk, and ID card,75 denial of a sick day, 76 the inability to eat lunch at her desk 69 Id. at 116:22-23. 70 Id. at 116:17-18. See 9/1/04 Report at 4. The OEEO later deemed this allegation unfounded. See id. at 5. 71 72 See De La Rosa Dep. at 119:9-18. 73 See id. at 144:7-20. 74 See id. at 121: 17-25. See id. at 145:4-146:18,148:2-12,192:15-16; 4/22/04 Memorandum from Ramona De La Rosa to Deputy Commissioner of OEEO re Reprisal and Retaliation Needs to Stop ("4122/04 Memorandum"), Ex. P-71-73 to De La Rosa Decl., セ@ 2. 75 See De La Rosa Dep. at 152:14-154:121; 5/20104 Letter from Ramona De La Rosa to Janine Thomas ("5120104 Letter"), Ex. P-85 to De La Rosa Decl.; 5/21104 Memorandum from Ramona De La Rosa to Commanding Officer, TD-Il re Supervisor's Retaliation Tactics ("5/21104 Memorandum"), Ex. P-88 to De La Rosa Dec!., セ@ 1. 76 16 when other employees were allowed to do SO,77 calling her name over a microphone while on break,78 not being included in a coworker's retirement party,19 dim lighting,80 and the general attitude towards her. S ! F. Procedural History On August 4, 2004, De La Rosa filed a formal complaint against Defendants with the New York City Commission on Human Rights. s2 The Commission dismissed the complaint in August 2008, finding no probable cause that the Defendants had discriminated against De La Rosa.s 3 The U.S. Equal Employment Opportunity Commission ("EEOC") issued a "Dismissal and Notice of Rights" on March 4,2009, noting that the agency had "adopted the findings of the state ... agency that investigated this charge.,,84 De La Rosa initiated the 77 See De La Rosa Dep. at 170: 16-172: 11; 4/22/04 Memorandum, 3. 78 See Complaint ("Compl.") " 58-59. 79 See De La Rosa Dep. at 169:20-170: 15. 80 See id. at 173:23-174:10. 8! See id. at 125:5-7, 172:14-173:22. S2 See 8/5/04 Verified Complaint, Ex. L to Perry Decl. 83 See 8/4/08 Determination and Order after Investigation, Ex. M to Perry Decl. 84 3/4/09 Dismissal and Notice of Rights, Ex. M to Perry Decl. 17 instant action on June 8, 2009. 85 III. LEGAL STANDARD A. Summary Judgment Summary judgment is appropriate "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 judgment as a matter of law."86 '''An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law. ",87 "[T]he burden of demonstrating that no material fact exists lies with the moving party ....,,88 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. "When the burden of proof at 85 See Docket Sheet. 86 Fed. R. Civ. P. 56(c). SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009) (quoting Roe v. City o/Waterbury, 542 F.3d 31,35 (2d Cir. 2008)). 87 Miner v. Clinton County, N. Y, 541 F.3d 464,471 (2d Cir. 2008) (citing McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184,202 (2d Cir. 2007)). Accord Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004). 88 18 trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim."89 To counter a motion for summary judgment, the nonmoving party must do more than show that there is '"some metaphysical doubt as to the material facts, ",90 and it '''may not rely on conclusory allegations or unsubstantiated speculation.",91 However, '''all that is required [from a nonmoving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial. ",92 In determining whether a genuine issue of material fact exists, the court must "constru[e] the evidence in the light most favorable to the non-moving Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). Accord In re September 11 Litig., No. 21 Civ. 97, 2007 WL 2332514, at *4 (S.D.N.Y. Aug. 15,2007) ("Where the nonmoving party bears the burden of proof at trial, the burden on the moving party may be discharged by showing - that is, pointing out to the district court that there is an absence of evidence to support the nonmoving party's case.") (quotation marks omitted). 89 Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,586 (1986)). 90 Jeffreys v. City ofNew York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423,428 (2d Cir. 2001)). 91 Kessler v. Westchester County Dep 't ofSoc. Servs., 461 F.3d 199,206 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). 92 19 party and draw all reasonable inferences" in that party's favor. 93 However, "[i]t is a settled rule that' [c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.",94 Summary judgment is therefore "appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law."95 The submissions of a pro se party should be held "'to less stringent standards than formal pleadings drafted by lawyers .... ",96 District courts should "read the pleadings of a pro se plaintiff liberally and interpret them 'to raise the strongest arguments that they suggest. ",97 These same principles apply to briefs and opposition papers submitted by pro se litigants. 98 Nonetheless, proceeding pro Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009) (citing Anderson, 477 U.S. at 247-50, 255). 93 McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997)). Accord Anderson, 477 U.S. at 249. 94 95 Pyke v. Cuomo, 567 F.3d 74, 76 (2d Cir. 2009) (per curium). Hughes, 449 U.S. at 9 (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)). 96 McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). 97 98 See Ortiz v. McBride, 323 F.3d 191, 194 (2d Cir. 2003); Burgos, 14 F.3d at 790. 20 se "does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment. ,,99 B. Americans with Disabilities Act The ADA prohibits discrimination against a "qualified" individual on the basis of disability. 100 An individual is qualified if, with or without reasonable accommodation, she "can perform the essential functions of the employment position that such individual holds or desires."lOl The ADA defines disability as either "a physical or mental impairment that substantially limits one or more major life activities," "a record of such impairment," or "being regarded as having such an impairment.",02 As H[t]he ADA does not define 'impairment,' 'major life activities,' or 'substantial limitation,,,,)03 the Equal Employment Opportunity Commission's ("EEOC") Cole v. Artuz, No. 93 Civ. 5981,1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999) (quoting Carey v. Crescenzi, 923 F.2d 18,21 (2d Cir. 1991)). 99 100 42 U.S.C. § 12112(a). ld. § 12112(8). The ADA defers to the employer's judgment of which job requirements qualify as essential functions. See id. 101 102 ld. § 12102. Delgado v. Triborough Bridge & Tunnel Auth., 485 F. Supp. 2d 453, 459 (S.D.N.Y. 2007). 103 21 administrative regulations implementing the ADA provide guidance. 104 First, the EEOC defines a physical or mental impairment as "[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more ... body systems ...."105 Next, a claimant must also demonstrate that her impairment substantially limits a major life activity.l06 The EEOC lists major life activities as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.,,107 Finally, substantially limit means an individual is "[u]nable to perform See 29 C.F.R. § 1630. "We accord 'great deference' to the EEOC's interpretation of the ADA, since it is charged with administering the statute." Francis v. City ofMeriden, 129 F .3d 281, 283 n.1 (2d Cir. 1997) (quoting Ford v. Bernard Fineson Dev. Ctr., 81 F.3d 304, 309 (2d Cir. 1996)); see also Ryan v. Grae & Rybicki, PC, 135 F.3d 867,870 (2d Cir. 1998) ("While these regulations are not binding, they provide us with guidance in interpreting the ADA."). 104 105 29 C.F.R. § I 630.2(h)(l ); see also Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998) (explaining that initial analysis of whether a plaintiff qualifies as disabled under the ADA queries whether she suffers from a mental or physical impairment). See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002) ("Merely having an impairment does not make one disabled for purposes of ADA."). 106 29 C.F.R. § 1630.2(i); see also Colwell, 158 F.3d at 641 (noting that the second step in the ADA disability analysis identifies the limited life activity and determines whether it qualifies as major). 107 22 a major life activity that the average person in the general population can perform" or "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity," compared to an average person in the general population. 108 Three factors aid in the consideration of whether the impairment substantially limits a major life activity: first, "the nature and severity of the impairment;" second, "the duration or expected duration of the impairment;" and third, "the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.,,109 1. Failure to Accommodate To prove failure to accommodate, a plaintiff is required to show that "(a) plaintiff is a person with a disability under the meaning of the ADA; (b) an employer covered by the statute had notice ofh[er] disability; (c) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (d) the employer has refused to make such accommodations." I10 "The ADA envisions an 'interactive process' by which employers and 108 29 C.F.R. §§ 1630.2(i)(l)(i)-(ii); see also Colwell, 158 F.3d at 641 (listing the last step in the disability determination as determining whether the impairment substantially limits the major life activity). 109 29 C.F.R. §§ 1630.2G)(2)(i)-(iii). JlO Rodal v. Anesthesia Grp. a/Onondaga, P.C, 369 F.3d 113, 118 (2d Cir. 2004). 23 employees work together to assess whether an employee's disability can be reasonably accommodated." 11 I "If an employer has made reasonable efforts to communicate with an employee, or if the employee causes 'the interactive process to collapse,' an employer will not be liable for failing to make an accommodation under the ADA.,,112 Moreover, an employer's reasonable accommodation does not have to be the plaintiff's requested accommodation. 1]] 2. Disability Discrimination The ADA creates a private right of action for disability-based employment discrimination. 114 To establish a prima facie case of discrimination under the ADA, a plaintiff must show: (a) her employer is subject to the ADA; (b) she was a person with a disability within the meaning of the ADA; (c) she was otherwise qualified to perform the essential functions of her job, with or without lackan v. New York State Dep 't ofLabor, 205 FJd 562, 566 (2d Cir. 2000) (citation omitted). 111 Julius v. Department ofHum an Res. Admin., No. 08 Civ. 3091,2010 WL 1253163, at *10 (S.D.N.Y. Mar. 24, 2010) (quoting Williams v. British Airways, PLC, Nos. 04 Civ. 0471, 06 Civ. 5085,2007 WL 2907426, at *9 (E.D.N.Y. Sept. 27, 2007)). 112 See Misek-Falkoffv. International Bus. Machs. Corp., 854 F. Supp. 215,228 (S.D.N.Y. 1994) ("A plaintiff may not, however, complain successfully about the employer's choices if reasonable."). 113 114 See 42 U.S.C. § 12112(a). 24 reasonable accommodation; and (d) she suffered an adverse employment action because of her disability.lls Courts analyze claims of ADA disability discrimination using a threepart burden shifting analysis. I 16 The plaintiff has the initial burden of establishing a prima facie case of discrimination. 117 If the plaintiff succeeds, the burden shifts to the employer to show a "legitimate, nondiscriminatory reason" for the actions. I 18 If the employer can articulate such a reason, the plaintiff may show that the stated justification is pretext and that the employer intentionally discriminated against her.119 If the plaintiff '''make[s] a substantial showing' that the defendants' proffered explanation [i]s false, 'it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation.",120 3. 115 Retaliation See Shannon v. New York City Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003). See Regional Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48-49 (2d Cir. 2002). 116 117 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 118 Id. 119 See id. at 804; Middletown, 294 F.3d at 49. Middletown, 294 F.3d at 49 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 144, 147 (2000» (emphasis in original). 120 25 The ADA prohibits retaliation by employers directed at employees who have opposed a protected practice or filed a charge under the statute. 121 Proving retaliation requires a plaintiff to show "( 1) she was engaged in an activity protected under [the ADA]; (2) the employer was aware of plaintiff's participation in the protected activity; (3) the employer took adverse action against plaintiff based upon her activity; and (4) a causal connection existed between the plaintiff's protected activity and the adverse action taken by the employer.,,122 Like discrimination, retaliation claims are also subject to the McDonnell Douglas threepart burden-shifting analysis. 123 A plaintiff need not show that the employer actually violated the ADA to establish her participation in a protected activity.124 For example, a complaint is protected activity so long as the plaintiff had a "goodfaith, reasonable belief that 121 See 42 U.S.C. § 12203(a). Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993) (explaining a Title VII prima facie case). Accord Lovejoy- Wilson v. NaCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001) ("We analyze a retaliation claim under the ADA using the same framework employed in Title VII cases."). 122 See Flynn v. New York State Div. ofParole, 620 F. Supp. 2d 463,488 (S.D.N.Y.2009). 123 124 See id. at 489 n.31. 26 the underlying challenged actions of the employer violated the law.,,125 A request for reasonable accommodation also constitutes protected activity for a retaliation claim. 126 An employer takes an adverse action against a plaintiff if the plaintiff experiences "a 'materially adverse change' in the terms and conditions of employment.,,127 This material adverse change must be "more than a mere inconvenience or an alteration injob responsibilities."128 Indeed "'[a]n employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. '" 129 Whether an employer's action is materially adverse is objective and should be evaluated under a reasonable person in the plaintiff's Id. (quoting Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998» (emphasis in original). 125 See Weixel v. Board ofEduc. ofN Y, 287 F.3d 138, 149 (2d Cir. 2002); Jenkins v. New York City Transit Auth., No. 08 Civ. 6814,2009 WL 1940103, at *7 (S.D.N.Y. July 1,2009). 126 127 Galabya v. New York City Bd. ofEduc., 202 F.3d 636,640 (2d Cir. 2000) (citation omitted). 128 Alvarez v. Nicholson, No. 03 Civ. 4173, 2005 WL 1844595, at *8 (S.D.N.Y. Aug. 3, 2005). Flynn, 620 F. Supp. 2d at 490 (quoting Burlington N. & Sante Fe R.R. Co. v. White, 548 U.S. 53, 68 (2006)). 129 27 position standard, considering all the circumstances. 130 Last, the causation requirement between the protected activity and the adverse change in employment status may be established indirectly by showing a short time period between the twO. 131 4. Hostile Work Environment A hostile work environment claim is evaluated under the same standard in Title VII and ADA actions.132 "[A]n employee seeking to bring a hostile work environment claim must show that she: 1) is a member of a protected class; 2) that she suffered unwelcome harassment; 3) that she was harassed because of her membership in a protected class; and 4) that the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment.,,133 The standard for a hostile work environment claim is "demanding," 130 131 See id. See Cifra v. G.E. Co., 252 F.3d 205,217 (2d Cir. 2001). See Disanto v. McGraw-Hill, Inc.!Platt's Div., No. 97 Civ. 1090, 1998 WL 474136, at *5 (S.D.N.Y. Aug. 10, 1998). 132 Monterroso v. Sullivan & Cromwell, LLP, 591 F. Supp. 2d 567, 584 (S.D.N.Y.2008). The Second Circuit has not explicitly held that a hostile work environment claim is actionable under the ADA, but the district courts have so held. See id. 133 28 and the plaintiff must prove that the conduct was "offensive, pervasive, and continuous enough to amount to a constructive discharge.,,134 Evaluating a hostile environment involves reviewing the totality of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."135 The question is whether a reasonable person would have found the environment to be hostile and if the plaintiff subjectively perceived it as SUCh. 136 Isolated acts, unless serious, ordinarily do not meet the threshold of pervasiveness. 137 5. Statute of Limitations Before bringing a claim in federal court, a New York plaintiff must file a charge with the EEOC within 300 days of the allegedly discriminatory action. 138 This statutory requirement functions as a statute of limitations. 139 A Scott v. Memorial Sloan-Kettering Cancer Ctr., 190 F. Supp. 2d 590, 599 (S.D.N.Y. 2002). 134 135 136 Harris v. ForkliftSys., Inc., 510 U.S. 17,23 (1993). See Brennan v. Metropolitan Opera Ass 'n, Inc., 192 F.3d 310, 318 (2d Cir. 1999). 137 See id. See 42 U.S.C. § 12117(a) (incorporating Title VII's statutory limitations, codified at 42 U.S.C. § 200e-5(e)(1)). As New York has its own state enforcement agency, the 300 day limitation applies instead of Title VII's general 138 29 plaintiff who fails to file a timely charge with the EEOC is generally barred from bringing a claim of discrimination in federal court,140 unless she "come[ s] forward with evidence of exceptional circumstances that would justifY tolling the 300-day filing period."141 IV. DISCUSSION A. First Accommodation Request De La Rosa filed a complaint with the New York City Commission on Human Rights on August 4,2004. Thus, barring exceptional circumstances that would warrant tolling, any actions occurring before October 10, 2003 are timebarred. De La Rosa made a request on February 20, 2003 to be assigned to a precinct where her job would not require standing for long periods of time or 180-day limitation. See Hill v. CUibank Corp., 312 F. Supp. 2d 464,472 & n.4 (S.D.N. Y. 2004). 139 Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 140 Butts v. City ofNew York Dep't ofHous., Pres. & Dev., 990 F.2d 1996). 1397,1401 (2dCir. 1993). Tsai v. Rockefeller Univ., No. 00 Civ. 329, 2002 WL 237843, at *4 (S.D.N.Y. Feb. 15,2002). 141 30 climbing stairs. 142 The DEED deemed the request granted on July 8, 2003. 143 As she presents no evidence supporting an extension of the limitations period,144 any claim relating to her first request for reasonable accommodation is time-barred. B. New Claims In her 56.1 statement,145 De La Rosa alleges two new claims: the first for "negligence, tort" and the second for denial of rights under "all State Human Rights Law.,,146 Plaintiff's amended complaint alleges neither state law nor tort law causes of action. Because these new claims appear for the first time in opposition papers, they will not be considered by the Court. 147 In the alternative, if the tort and state law claims had been pleaded in the complaint, both would be 142 See First Request at 1. 143 See 7/8/03 Letter. 144 Nor can this Court, through an independent search of the record, find any evidence to warrant tolling. 145 In response to Defendants' Motion for Summary Judgment, De La Rosa submitted only a Statement of Undisputed Facts Pursuant to Local Rule 56.1, not a Memorandum of Law. To the extent that the document raises legal arguments, they will be addressed herein. 146 PI. 56.1 at 1. See Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 170 F.R.D. 111, 119 (S.D.N.Y. 1997) ("[I]t is inappropriate to raise new claims for the first time in submissions in opposition to summary judgment."). 147 31 procedurally barred. 148 C. Disability For the purposes of the failure to accommodate and discrimination claims, Defendants contend that De La Rosa does not meet the ADA's definition of an individual with a disability. 149 Defendants concede that De La Rosa suffers from a mental or physical impairment. 150 Defendants also agree that walking and standing are major life activities. 151 Defendants contest that De La Rosa's osteoarthritis and herniated discs substantially limit the major life activities of walking and standing. 152 Finding De La Rosa's walking to be substantially limited requires Any discrimination claims arising under state or local law are barred by De La Rosa's election of remedies, that is her Complaint with the New York City Commission on Human Rights. See N.Y. Exec. Law § 297(9); N.Y.C. Admin Code §8-502(a). Further, De La Rosa was required to file a notice of claim if she had intended to assert tort claims against Defendants. See N.Y. Gen. Mun. Law §§ 50-e, 50-i. 148 See Defendants' Memorandum of Law in Support of Motion for Summary Judgment ("Def. Mem.") at 3-6. 149 150 See id. at 3. 151 See id. 152 See id. at 4-6. 32 overcoming a high threshold. 153 Moderate limitations on walking do not ordinarily meet this threshold. 154 Similarly, infringements on the ability to stand are not generally considered to be substantial limitations. 155 De La Rosa's evidence of substantially limited ability to walk and stand consists primarily of doctor's notes l56 and deposition testimony. She testified See, e.g., Elfenbein v. Bronx Lebanon Hosp. Ctr., No. 08 Civ. 5382, 2009 WL 3459215, at *9 (S.D.N.Y. Oct. 27, 2009) (,"Courts have placed the bar relatively high when determining when the activity of walking has been substantially limited. "') (quoting Potenza v. City ofNY. Dep 't of Transp., No. 00 Civ. 0707, 2001 WL 1267172, at *10 (S.D.N.Y. Oct. 23, 2001), aff'd in part, 95 Fed. App'x 390 (2d Cir. 2004)); Watson v. Arts & Entm 't Television Network, No. 04 Civ. 1932, 2008 WL 793596, at * 12 (S.D.N.Y. Mar. 26, 2008) ("Courts in this district have repeatedly held that the need to walk slowly and the inability to walk long distances or for long periods of time ... do not constitute substantial limits on walking."). 153 See Watson, 2008 WL 793596, at * 14 (avoiding excessive walking is not a substantial limitation); Garvin v. Potter, 367 F. Supp. 2d 548, 562 (S.D.N.Y. 2005) (finding no substantial limitation where plaintiff could not walk quickly or walk for over eight hours); Rosa v. Brinks, lnc., 103 F. Supp. 2d 287, 290-91 (S.D.N.Y. 2000) (finding limitations on walking or sitting or standing for long periods of time to be insufficiently substantial). 154 See Colwell, 158 F.3d at 643-44 (inability to engage in prolonged standing is not a substantial limitation); Glozman v. Retail, Wholesale & Chain Store Food Emps. Union, Local 338,204 F. Supp. 2d 615,622 (S.D.N.Y. 2002) ("The inability to ... stand for an extended duration does not amount to a substantial limitation on a major life activity."). 155 See, e.g., 8/2/02 Letter from Concourse Plaza Medical Complex, Ex. P-4 to De La Rosa Decl.; 9113/02 Letter from Harvey Insler, M.D., Ex. P-6 to De La Rosa DecL; 116/03 Letter from Harvey Insler, M.D., Ex. P-I 0 to De La Rosa Decl.; 6/20103 Letter from Harvey Insler, M.D., Ex. P-17 to De La Rosa Decl.; 156 33 that her impairments caused chronic pain and affected her ability to walk or to stand for a protracted time period. 157 Further, she explained that alternating between standing and sitting aggravated her condition. 158 Medicine is ineffective in relieving the pain. IS9 A doctor's report prepared after her termination from the NYPD capped her ability to stand and walk at less than two hours in an eight-hour 2/4/04 Letter from Harvey Insler, M.D., Ex. P-23 to De La Rosa Decl.; 2111/04 Letter; 3/1104 Letter. See, e.g., De La Rosa Dep. at 194: 15-23 ("Basically, I can't sit or stand. Sitting is bad and then standing is bad so what am I supposed to do? Even laying down is not that good .... Everything is bad. If I had one thing like before when 1 just had back pain, at least I know like I could stand and relieve some of the back pain like my knee and I wouldn't feel pain in my legs. Then 1 started feeling pain in my legs and then my neck. "); id. at 203 :4-13 ("I can't stand for a long time. 1 can't sit for a long time."); id. at 204:11-18 ("I can't go places that requires walking.") 157 See, e.g., 112811 0 Deposition of Ramona De La Rosa ("De La Rosa Dep. II"), Ex. D to Perry DecL, at 80: 17-24 (responding that getting up and sitting down hurts her knees "if [she does] it all the time); De La Rosa Dep. at 138: 20-24 ("[I]fyou are going to give me something that requires me to get up, sit down, get up and sit down, it is going to take a toll on my knees."). 158 See, e.g., 112811 0 Deposition of Ramona De La Rosa, Ex. 14 to De La Rosa Dec!., at 89:2-6 ("I've been dealing with pain for so long, for so many years, I've grown to have some tolerance. Plus, like I said before, you saw me take the medication. It helps me with the pain but the medication does not take the pain away completely."); De La Rosa Dep. at 203: 14-20 ("[The medication] helps but not really."); id. at 204:1-8, 19-25 ("[The symptoms are] basically constant because I think if I don't take the medication or sometimes I spend a long time without taking the medication and it starts burning."). 159 34 workday. 160 De La Rosa's testimony and medical documentation does not clearly describe the extent to which her ability to walk and to stand are substantially limited by her back and knee problems. Viewed in the light most favorable to De La Rosa, and considering her pro se status, I cannot conclude that she is not disabled within the meaning of the ADA. The question of whether De La Rosa's herniated disks and osteoarthritis substantially limit her ability to walk and to stand raises a disputed issue of material fact. D. Failure to Accommodate Although I cannot conclude that De La Rosa is not disabled under the ADA, she fails to establish a prima facie case of failure to accommodate her disability because she cannot identify a requested accommodation denied by the NYPD. As her first request is time-barred, De La Rosa's remaining claims are that Defendants failed to accommodate her second request for a chair with lumbar support 161 and her third request to remain stationary during the work day. 162 It is undisputed that the NYPD provided De La Rosa with the 160 See 7118/05 Social Security Administration Medical Source Statement of Ability to do Work-Related Activities (Physical), Ex. G to Perry Decl., at 1. 161 See Second Request at 1. 162 See Third Request. 35 requested chair on January 28,2004, although she did not have it when she returned from medical leave in December 2003. 163 To prevail on the claim that the Defendants failed to accommodate her request in a timely manner, De La Rosa must prove that the delay was motivated by discriminatory intent. 164 De La Rosa does not offer any evidence to support that the delay was motivated by such an intent. It is also undisputed that the NYPD responded to De La Rosa's third request by allowing her to remain stationary at her desk for the first six hours of the day and requiring her to perform tasks requiring walking and standing only in the last two hours of her tour. 165 De La Rosa's deposition testimony confirms that even the end of her day was not spent walking or standing continuously. 166 De La Rosa's 56.1 statement alleges an additional eighteen instances of the NYPD's failure to accommodate her disability: 1) Failure to provide accommodations at first assignment Midtown North, 2) [F]ailure to allow plaintiff to return to work 163 See id. at 2. See Lyman v. City ofNew York, No. 01 Civ. 3789,2003 WL 22171518, at *6 (S.D.N.Y. Sept. 19,2003). 164 165 See 3/29/04 Memorandum; 3/29/04 Letter. See De La Rosa Dep. II at 80:10-19 ("It wasn't the whole two hours, like walking two hours and not sitting down."). 166 36 with physical limitations on two (2) written notices, 3) Failure to abide by plaintiffs first request to not be place at residential precinct the 44th for safety concerns 4) Failure to realize that the 44th precinct require taking two public busses and walking three blocks everyday causing pain in knees and back 5) Failure to provide the granted request of a chair with lumbar support at the 44th precinct on plaintiffs return to duty on December 15, 2004. [sic] 6) Failure to continue to not provide chair and having plaintiff sit on hard uncomfortable chair, during Plaintiffs stay at the 44th precinct and when plaintiff left to work at Transit District 11 on January 8, 2004 no chair was granted 7) Failure to provide chair at Transit District 11 until January 28, 2004 while they had plaintiff in charge of Roll Call 8) Failure to provide original request of not being place in a precinct that require extensive walking or standing, Transit District 11 gave me assignment requiring walking. [sic] and standing 9) Failure to provide assignment that does not require walking or standing for long periods oftime throughout the tour 10) Failure to provide flextime schedule the same as the other members at the precinct 11) Failure to provide a computer at plaintiffs desk so that she can complete her task relating to her assignment on a timely manner and avoid having to stand on her feet to complete assignments dealing with making copies while standing or filing documents in folders that require bending 12) Failure to provide a stationary assignment where plaintiff is sitting 90% of the time 13) Failure to provide accommodations request to remain stationary for over 3 weeks until the accident occur that caused injuries due to weak knees from extensive walking throughout the tour 14) Failure to abide by partial accommodations for plaintiff to remain stationary for 5 hours in the early part of her tour unless there is an exigent circumstance requiring assistance 15)Failure [sic] to provide adequate accommodations that would avoid pain and suffering from walking, standing, sitting in hard chairs 16) Failure to provide chair that is not misuse by other members and is for the plaintiffs use only to alleviate any pain while sitting 17)Failure [sic] to enforce any granted accommodations 18) Failure to provide remedy to hostile work environment that cause further 37 health complications. 167 These additional allegations largely overlap with previously-discussed accommodation claims. The second, third, fourth, eighth, and ninth examples relate to plaintiffs first, time-barred request for an accommodation involving an assignment where she would not have to stand for long periods of time or climb stairs. 168 While De La Rosa was on medical leave, she and the OEEO negotiated this accommodation, which was finalized in July 2003. 169 Similarly, the first instance alleged in the 56.1 statement concerns a September 22, 2002 request to be transferred from Midtown North,170 which is also time-barred for falling beyond the 300-day statute of limitations. The fifth, sixth, seventh, fifteenth, and sixteenth allegations relate to her second request for the chair with lumbar support. It is undisputed that Defendants provided De La Rosa this accommodation. The eleventh, twelfth, thirteenth, and fourteenth instances relate to her third request to remain stationary. 167 PI. 56.1 セ@ 125. 168 See First Request at 1. 169 See 7/8/03 Letter. See 9/22/02 Memorandum from Ramona De La Rosa to Commanding Officer, Midtown North Precinct re Transfer from Command for Medical Reasons, Ex. P-7 to De La Rosa Decl. 170 38 That Defendants provided this accommodation is also undisputed. While Defendants had to provide De La Rosa with a reasonable accommodation for her disability, they were not required to provide her with the accommodation of her choosing.171 De La Rosa's daily work schedule was arranged so that she could remain stationary for at least 75% of her tour, allowing her to perform essential job tasks requiring walking or standing only at the end of the day. "An employer is not required to accommodate a disabled employee by eliminating one of the essential functions of the job.,,172 Regarding the seventeenth allegation that Defendants failed to enforce the granted accommodations, Defendants provided De La Rosa with the requested chair and rearranged her work schedule, enabling her to remain seated for most of her tour. De La Rosa even admitted that she was stationary for at least part of the last two hours of her shift.173 In short, De La Rosa points to nothing in the record showing that Defendants failed to enforce the accommodations she received. Only the tenth and eighteenth allegations are not duplicative or time- See EEOC v.  Yellow Freight Sys., Inc., No. 98 Civ. 2270,2002 WL  31011859, at *21  (S.D.N.Y.  Sept. 9, 2002) ("[U]nder the ADA an employee has no  right to any particular accommodation, but merely to a reasonable accommodation  ...."). I7l 172  Misek-Falkoff, 854 F.  Supp. at 228.  173 See De La Rosa Dep. II at 80:10­19.  39   barred. Neither are meritorious. As to the tenth new instance of failure to accommodate, De La Rosa alleges that Defendants failed to provide her with Flextime. De La Rosa initially was part of the program but lost its privileges due to chronic lateness. 174 Further, Defendants' accommodations to her work schedule to allow her to remain stationary also changed her start time to account for the loss of Flextime. 175 Last, as detailed below, De La Rosa's claims regarding a hostile work environment fail; accordingly, her eighteenth allegation that Defendants did not remedy the environment cannot support a claim. C. Disability Discrimination Although I cannot conclude that De La Rosa is not disabled under the ADA, she fails to establish a prima facie case of discrimination because she cannot show a causal link between the adverse employment actions and her disability. Specifically, De La Rosa alleges that Defendants discriminated against her by (a) removing her from the Flextime program; 176 (b) disciplining her for being 174 See 3/2/04 Memorandum; 5/19/04 Termination Recommendation. 175 See 3/29/04 Memorandum; 3/29/04 Letter. 176 See 3/2104 Memorandum. 40 AWOL;i77 (c) placing her in the Performance Monitoring program;178 (d) denying her a sick day when another PAA was granted the same day off;179 (e) suspending her;180 and (1) terminating her employment. 181 Defendants argue that De La Rosa fails to establish a prima facie case of disabiHty discrimination because the alleged adverse employment actions did not occur as a result of her disability.182 They insist that only De La Rosa's conclusory allegations support her causation argument. IS3 To defeat a motion for summary judgment, De La Rosa must rely on more than mere speculation. 184 Indeed, De La Rosa's unsubstantiated allegations that her disability caused the six allegations of discriminatory behavior is not supported by the record and is 177 See 3119/04 Report; 4/23/04 Memorandum. 178 See 4115104 Performance Monitoring at NYPD 00481-82; 7/9/04 Performance Monitoring at NYPD00456-57. 179 See De La Rosa Dep. at 152:14-154:121; 5/20/04 Letter; 5/21/04 Memorandum' 1. 180 See 6/9104 Suspension Report. 181 See 7121104 Notice. 182 See Def. Mem. at 13-18. For the purposes of the motion, Defendants assume that De La Rosa could establish that these instances were materially adverse changes to her working conditions. See id. at 14. 183 See id. at 14-18. 184 See Jeffreys, 426 F.3d at 554. 41 insufficient to allow an inference of discrimination. 185 Defendants further argue that they have legitimate reasons for their actions, and De La Rosa cannot show that they intentionally discriminated against her. 186 The record here shows that Defendants' stated reasons for disciplining and eventually terminating De La Rosa legitimately relate to her work performance. First, the NYPD withdrew De La Rosa's Flextime privileges because of her chronic tardiness. 187 Even De La Rosa admitted that she signed into work later than Flextime allowed before she lost the privilege. 188 Second, the record shows that De La Rosa's refusal to report for work on March 19 caused her to receive a Command Discipline for being A WOL. 189 Third, with regard to the sick day she was not allowed to take, De La Rosa herself explained that the lack of staff at TD-ll that day made her attendance 185 See Hawana v. City o/New York, 230 F. Supp. 2d 518, 528 (S.D.N.Y. 186 See Def. Mem. at 18. 2002). See 3/2/04 Memorandum; 5/19/04 Termination Recommendation. Santiago later clarified that De La Rosa reported to work later than Flextime allowed. See 9/1/04 Report at NYPD00742. 187 188 See De La Rosa Dep. II at 87:22-25. See 3/19/04 Diary Entry; 3/19/04 Report; 4123/04 Memorandum; 5/19/04 Termination Recommendation. 189 42 necessary. 190 Fourth, the record also establishes that the NYPD placed De La Rosa in the Performance Monitoring program twice because of her "poor performance, excessive absenteeism and/or tardiness, misconduct or below standard evaluation." 191 Fifth, her suspension resulted directly from her refusal to follow an order of a superior officer and resulting verbal altercation. 192 Although De La Rosa explains that she refused to perform the order because of the accommodation allowing her to remain stationary in the mornings, her suspension actually resulted from her insubordination and attitude towards Lieutenant Morillo. 193 Sixth, her termination resulted from her below standards performance, poor disciplinary record, and problems with absenteeism and lateness, all extensively documented by written performance evaluations and requests for disciplinary action. 194 190 See De La Rosa Dep. at 152:23-153:8. 191 4/15/04 Performance Monitoring; 7/9/04 Performance Monitoring. 192 See 6/9/04 Suspension Report. 193 See id. at 2 ("[S]he was suspended as of 1621 hours for insubordination and being discourteous to a supervisor."). See, e.g., 3/9/04 Report of Violation; 3/10/04 Performance Evaluation; 4/15/04 Performance Monitoring; 4/16/04 Report of Violation; 4/22/04 Early 194 43 D. Retaliation As retaliation, De La Rosa alleges the same six instances as the disability discrimination claim. She also asserts that Defendants retaliated against her by (a) failing to accommodate her disability; 195 (b) evaluating her employment performance negatively;196 (c) the varied nature of her assignments at TD-11;197 (d) name calling and derogatory remarks; 198 (e) use of her chair by other employees; 199 (f) negative attitudes towards her;20o (g) the design of her work space. 201 Regarding examples (c) through (g), Defendants argue that a reasonable employee would not have found these actions materially adverse. 202 Arrival Memorandum; 5/8/04 Report of Violation; 5117/04 Performance Evaluation; 5119/04 Termination Recommendation; 6/5/04 Report of Violation; 7/9/04 Performance Monitoring. 195 See De La Rosa Dep. at 113:10-16,114:11-14. See 3/10/04 Evaluation at NYPD 00516, 518, 520-22; 5117/04 Evaluation NYPD00503, 505-08. 196 197 See De La Rosa Dep. at 113: 17-114: 11; 119:9-119: 18. 198 See id. at 116:16-118:3. 199 See id. at 121:10-25. 200 See id. at 125:2-22. 201 See 3/6/04 Letter at 1-2; 4/13/04 Complaint of Emp10yment Discrimination, Ex. P-66 to De La Rosa Decl. 202 See Def. Mem. at 20. 44 The standard is that of a reasonable person. 203 "[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.,,204 De La Rosa's examples (c) through (g) fail here. Specifically, a reasonable person would not find the varied nature of her assignments, use of her chair by other employees, negative attitudes, or office design to change materially the terms and conditions of employment. As for the allegations of name calling and derogatory remarks, such comments also do not constitute an adverse change in employment. 205 "While verbal abuse might at times be sufficiently severe and chronic to constitute an adverse employment action, such behavior, without more, hardly rises to the level of actionable retaliation.,,206 F or the remaining examples, Defendants argue that De La Rosa 203 See Flynn, 620 F. Supp. 2d at 490. 204 Id. (quoting Burlington N. & Sante Fe R.R. Co. v. White, 548 U.S. 53, 64 (2006)). See Alvarez v. Nicholson, No. 03 Civ. 4173, 2005 WL 1844595, at *7 (S.D.N.Y. Aug. 3,2005); Brennan v. City o/White Plains, 67 F. Supp. 2d 362, 374 (S.D.N.Y. 1999); Pomillo v. Wachtell, Lipton, Rosen & Katz, No. 97 Civ. 2230, 1999 WL 9843, at *8 (S.D.N.Y. Jan. 11, 1999). 205 206 Brennan, 67 F. Supp. 2d at 374. 45 cannot establish a causal connection between her protected activities and any adverse employment action. 207 Defendants further insist that they have legitimate non-retaliatory reasons for their actions. 208 Assuming that the other instances of alleged retaliatory activity did materially affect her employment, De La Rosa offers no evidence save speculation that Defendants retaliated against her for requesting accommodations and complaining to OEEO by disciplining her and terminating her employment. These instances overlap with the discrimination claim, where Defendants have already offered legitimate justifications for their actions, and De La Rosa did not identify any evidence tending to show that these reasons are pretextual. As for her two remaining allegations, examples (a) and (b), De La Rosa has not identified any accommodation she was not provided. Finally, her negative performance evaluations directly resulted from her negative work performance. De La Rosa suggests that the timing of her first evaluation-shortly after her last request for reasonable accommodation-shows that it is the result of an improper motive. 209 Still, De La Rosa offers no evidence save speculation that 207 See Def. Mem. at 19. 208 See id. at 20. 209 See 3/6/04 Letter at 2. 46 she received a negative performance evaluation because of her request for accommodation, and Defendants maintain that her poor performance justified her poor review. The timing of De La Rosa's performance evaluation is a question within the professional judgment of her supervisors. Courts may not "second-guess an employer's non-discriminatory business decisions, regardless of their wisdom.,,21o Accordingly, De La Rosa fails to allege an instance where Defendants retaliated against her for engaging in a protected activity. E. Hostile Work Environment De La Rosa's hostile work claims largely overlap with earlier allegations. As in the discrimination and retaliation claims, De La Rosa also alleges that Defendants created a hostile work environment by (a) removing her from the Flextime program;211 (b) disciplining her for being AWOL;212 (c) denying her a sick day when another PAA was granted the same day off;213 and (d) suspending her. 2J4 Overlapping with her other retaliation claims, she also alleges 210 Williams v. NYC Dep 't ofSan itation , No. 00 Civ. 7371,2001 WL 1154627, at *18 (S.D.N.Y. Sept. 28,2001). 211 212 See 3/2/04 Memorandum. See 3/19/04 Report; 4/23/04 Memorandum. See De La Rosa Dep. at 152:14-154:12l; 5120104 Letter; 5/21104 Memorandum セ@ 1. 213 214 See 6/9/04 Suspension Report. 47 that the following instances created a hostile work environment: (e) name calling and derogatory remarks;215 (t) the nature of her assignments at TD-11;216 (g) evaluating her employment performance negatively;217 and (h) negative attitudes towards her.218 Finally, De La Rosa alleges that other discrete instances created a hostile work environment: (i) threats of a Command Discipline;219 U) damage to chair, desk, and ID card;220 (k) use of a microphone to call her name while on a break;22 I (1) inability to eat lunch at her desks;222 (m) left out of a coworker's retirement party;223 and (n) dim lighting.224 Generally, Defendants argue that De La Rosa cannot establish that the workplace was hostile or abusive because the 215 See De La Rosa Dep. at 129:2-130:20, 146:19-22. See id. at 138:10-24; 4/22/04 Memorandum from Ramona De La Rosa to Administrative Lieutenant re Work Assignment and Accommodations, Ex. P-68 to De La Rosa Decl., セ@ 1. 216 See De La Rosa Dep. at 148:18-20; 4/22/04 Memorandum セ@ 7. 218 See De La Rosa Dep. at 172: 14-173 :22. 219 See id. at 144:7-20. 220 セ@ 217 See id. at 145:4-146:18, 148:2-12, 192:15-16; 4122/04 Memorandum 221 See Compl. 222 See De La Rosa Dep. at 170: 16-172: 11; 4/22/04 Memorandum セ@ 3. 223 See De La Rosa Dep. at 169:20-170:15. 224 See id. at 173:23-174:10. 2. セ@ 58-59. 48 instances she points to are not severe or pervasive. 225 De La Rosa's hostile work environment claim cannot be sustained because she has not shown a pattern of severe harassment, such that the conditions of her employment were effectively altered. De La Rosa cites fourteen separate examples of behavior she asserts made TD-ll a hostile work environment. Even viewed cumulatively, these examples are not "offensive, pervasive, or continuous enough to amount to a constructive discharge."226 Indeed, many of the examples are discrete instances. For example, Defendants removed De La Rosa from Flextime once, disciplined her for being AWOL once, denied her a sick day once, suspended her once, and reviewed her performance negatively twice. The other discrete examples, (f) and (h)-(n), are vague and not objectively hostile viewed under a reasonable person standard. Regarding her allegation of name calling and derogatory remarks, there is no evidence that TD-ll was permeated with "frequent, severe and offensive disability-related comments" to meet the demanding standard of a hostile work environment claim. 227 V. CONCLUSION 225 See De£ Mem. at 22-23. 226 Scott, 190 F. Supp. 2d at 599. 227 Monterroso, 591 F. Supp. 2d at 585. 49 F or the foregoing reasons, Defendants' motion is granted. The Clerk of the Court is directed to close this motion (docket #34) and this case. Dated: New York, New York October 22,2010 50 - Appearances - Plaintiff (Pro Se): Ramona De La Rosa 1065 University #7A Bronx, New York 10452 (718) 293-8278 Counsel For Defendants: Devor Deland Perry Assistant Corporation Counsel Corporation Counsel of the City of New York 100 Church Street, Room 2-188 New York, New Yorkl0007 (212) 788-0917 51