Summary
stating that case law suggests that working at home "is an extraordinary accommodation, and is warranted in only exceptional cases"
Summary of this case from Konspore v. Friends of Animals, Inc.Opinion
00 CIV. 6260 (HB)
April 30, 2001
OPINION ORDER
Donato Lalla ("Lalla") asserted claims under the Americans With Disabilities Act ("ADA") and the Age Discrimination in Employment Act ("ADEA"), as well as their New York State analogues, in connection with his termination of employment from Con Ed following the expiration of his medical benefits. Defendant Con Ed ("Con Ed") moved for summary judgment of all claims.
BACKGROUND
At the time of his termination in November 1998, 25 years after he starting working for Con Ed and after a career of mechanical and technical job assignments, Lalla held the title "Senior Engineering Technician." Now disabled, Lalla claims that Con Ed should have granted his request to continue his work from home on a computer database system that Lalla both developed and managed. Con Ed agreed that Lalla is disabled and is incapable of working outside of the home, but refused the request on the grounds that (1) the computer-based duties to which he had been assigned since developing health problems did not change the essential functions of Lalla's job as a Senior Engineering Technician, and (2) a work at home program does not constitute a "reasonable accommodation."
Lalla began his employment with Con Ed in 1973 as a "General Utility Man." Over the years, Lalla was assigned to various positions, including "helper" in the Yonkers Electric Underground Department, outplant mechanic, lead mechanic, equipment operator, fleet truck operator, and cable pulling and hauling operator. All of Lalla's jobs required considerable physical exertion and were performed outside of an office environment. In 1989 or 1990, while working for the Quality Assurance Group of the Electric Department in Westchester County, Lalla and his partner were assigned to work in a Con Ed van equipped with an aerial lift device popularly known as a "cherry picker" which they would use to inspect overhead electric lines. Soon after beginning this assignment, Lalla began to feel ill and complained to Con Ed, apparently to no immediate effect, that there was something wrong with the vehicle. In September 1994 Con Ed tested the van and discovered that significant quantities of carbon monoxide were leaking into the cab. Lalla, who suffers from multiple chemical sensitivities and chronic toxic encephalopaty, experienced serious health problems as a result of the carbon monoxide exposure.
Whether the carbon monoxide exposure caused or exacerbated Lalla's chemical sensitivities is not clear to the Court.
After removing the van from service, and in response to Lalla's chemical sensitivities, Con Ed increased Lalla's office work assignments and decreased Lalla's field work responsibilities. While Con Ed did not reassign Lalla and his partner to a new vehicle, he continued to spend a significant percentage of his time working on electric lines in "the field." Lalla also spent increasing time working with and upgrading a computer database that he had initially developed to capture data on electric cable maintenance and failures. During the same time period, roughly the beginning of 1995 until the middle of 1997, Lalla's chronic toxic encephalopaty worsened progressively.
For the final three months prior to Lalla's going out on sick leave, Lalla was assigned to the Westchester Electric Control Center, where his assignment was to integrate the control center into the database system. On November 17, 1997, Lalla was reassigned to the Eastview Service Center, but instead went out sick until November 7, 1997, during which time he received sick pay under Con Ed's benefit plan. Lalla never returned to work or notified Con Ed that he was able to return to his former position. When Lalla's benefits expired on October 28, 1998, Con Ed terminated Lalla's employment.
Lalla testified in his deposition that much of his work was creating "entry points" for his database system in different departments and training personnel in those department how to input data into the program, known as "mothership."
DISCUSSION
Summary Judgment Standard
In a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Fed.R.Civ.P. 56(c). A dispute regarding a material fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'"Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.) (quoting Anderson, 477 U.S. at 248), cert. denied, 506 U.S. 965 (1992). The court resolves all ambiguities and draws all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide. Aldrich, 963 F.2d at 523.
Disability Claims
1. Legal standards in Disability Cases
Under the Americans with Disabilities Act ("ADA"), a "disabled" plaintiff must demonstrate that an accommodation exists which (1) will effectively allow him to perform the essential functions of his job and (2) is reasonable. See Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 135-136 (2d Cir. 1995). Lalla bears the burden of proof with regard to the first prong, effectiveness. Id. at 137. The EEOC defines "essential functions" as "the fundamental job duties of the employment position the individual with a disability holds or desires." 29 C.F.R. § 1630.2. The disability discrimination standards of New York State Human Rights Law, Executive Law section 290 et seq are substantively the same as those of the ADA, and the Court will not independently analyze the federal and state claims.
2. "Essential Functions"
The principal legal question in this case is, can Lalla perform the "essential functions" of his job from home? Answering that question, however, raises the more difficult question of, what is Lalla's job? Since Lalla concededly cannot perform field work, Lalla cannot perform the "essential functions" of a Senior Engineering Technician. See Guliano v. Town of North Greenbush, 1997 U.S. Dist. LEXIS 573, at *9 (NDNY 1997) ("[p]laintiffs vague accommodation proposal is essentially a request to take the labor out of the laborer position"). It is clear from the Lalla's own testimony about the nature of his job prior to his illness, and from an audit conducted in 1995 to determine Lalla's eligibility for a title upgrade to Senior Engineering Technician, (1995 Audit, Exh. D, Rimicci Aff.), that inspecting and working on electric lines is the essential function of the Senior Engineering Technician position. See 42 U.S.C. § 12111 (8) (in determining the essential functions of a position, consideration shall be given to the employer's judgment as to what functions of a job are essential").
Nonetheless, Lalla claims that the ADA obliged Con Ed to permit Lalla to work from home on the database system he developed. Thus, for Lalla to prevail, he must show either that (1) Con Ed had an obligation to transfer him to a new computer-based job, or (2) his actual duties at Con Ed were other than those of a Senior Engineering Technician, whatever his title may have been. See generally Wenner v. City of New York Dept. of Sanitation, 1996 U.S. Dist. LEXIS 648, at *8 (S.D.N.Y. 1996) ("job description setting forth `required' tasks is not necessarily controlling of the question of whether certain tasks are truly essential functions of a job").
Lalla cannot succeed on the first point. An employer is not required to create a new position for a disabled employee see Gilbert v. Frank, 949 F.2d 637 (2nd Cir. 1991), and while in some cases a "reasonable accommodation" may include "job restructuring or reassignment to a vacant position," Lalla has not identified a vacant job that he is qualified to perform. See Needle v. Alling Cory, Inc., 88 F. Supp.2d 100 (WDNY 2000) ("[t]here is simply no general duty to transfer a disabled employee unable to perform one job to another available position, absent some showing — not made here — of a contractual right to transfer or an established policy of such transfers").
Needle v. Alling Cory. Inc., 88 F. Supp.2d 100 (WDNY 2000) ("Finally, while under the ADA, an employer may reassign an employee to a vacant position, the employer is required neither to create a new position for the employee nor to move another employee from a previously held position in order to accommodate the disabled employee. . . . [D]efendant has no obligation to retrain plaintiff for a position for which he is not qualified.").
The second possibility — that Lalla's duties, and in effect his job, had changed from Senior Engineering Technician to something else regardless of Lalla's job title and former duties — is not so easily resolved. It is uncontested that Lalla developed a Lotus database to centralize and manage data about electric lines and that the database was of value to Con Ed. In fact, in 1997 Con Ed presented Lalla with an award in recognition of his database efforts. Further, Con Ed has not rebutted Lalla's testimony that numerous Con Ed departments adopted the database system.
On the other hand, Lalla does not rebut Con Ed's assertion that, with the exception Lalla's last three month stint at the Westchester Electric Control Center, Con Ed never gave Lalla an assignment that did not require field work. (Trans. 76-78.) Con Ed conducted an audit in 1995 to determine if Lalla was eligible for the Senior Engineering Position. Although the audit acknowledged Lalla's database work, it approved the title upgrade only after determining that Lalla continued to satisfy the Senior Engineering Technician field duty and exertional requirements. Con Ed never budgeted for a position defined by Lalla's database duties, nor in any way administratively recognized a change in responsibilities, and Lalla did not identify any other Con Ed Senior Engineering Technician whose duties did not include field work. Thus, the facts support Con Ed's argument that fieldwork remained an essential, if diminishing, function of Lalla's job.
Con Ed is not precluded from taking the position that Lalla's job required field work because of Lalla's temporary assignment. See Keck v. New York State Office of Alcoholism Substance Abuse, 10 F. Supp.2d 194, 202 (N.D.N.Y. 1998), ("[t]he Court agrees that an organization should not be considered to have waived the right to supervise an employee forever by virtue of having done so in the past"); Parish v. Con Ed, 1997 U.S. Dist. LEXIS 15879 (ND. Ca. 1997) ("Parish presents no evidence that there existed a vacant "materials tester" position which entailed no field work, rather her argument is that CEL could have created such a permanent position because it had in the past temporarily exempted her from field work."). Further, to hold that an employer who makes temporary accommodations for a sick employee whose medical status is not yet known has in some way conceded that the temporary accommodation is a "reasonable accommodation" for ADA purposes would have perverse consequences, since employers would be hesitant to ever respond to employee medical needs for fear of later litigation. See Keck 10 F. Supp.2d at 202 ("[s]uch a rule would only convince employers never to make such accommodations").
Although Lalla stated in his affidavit that by February 16, 1995, "my fieldwork had practically stopped," the deposition pages indicated above directly contradict this representation and constitute more persuasive evidence. In fact, the sentence that directly follows the affidavit representation concedes that "Mr. Hayes and I would use other available trucks in the fieldwork."
The May 23, 1995 audit (Exh. D, Rimicci Aff.) stated that
"This section provides field inspection and evaluation for Engineering of contractor paving work and overhead pole treatments as well as scanning and identification of potential faults in transformers, switches and aerial distribution cable
All employees in this section will perform as both lead and second on the crew as needed, depending on the type of work assigned and priority determined by system operating conditions."
Additionally, to avoid summary judgment, Lalla must show that working from home would enable him to perform the essential functions of his job — i.e., would be an effective accommodation. See Borkowski 63 F.3d at 135-136. Even if this Court had concluded that Lalla's job for ADA purposes was working on the database system, Lalla has not shown that working from home would be an effective accommodation, for several reasons. First, although he expresses an interest in continuing his database system work, Lalla has not defined the essential functions" of such a job and this Court has no basis to evaluate Lalla's proposed accommodation. Second, Lalla's proposal, that "[a]ll that would be needed was a computer with a modem, two telephone lines and one fax line, to connect to the company system" (Lalla Aff., Exh. 3), does not sufficiently explain how he could continue to expand the program to other Con Ed departments in the absence of interpersonal interaction. At his deposition, Lalla testified that much of his database work involved creating "entry points" for other departments, and that in connection with such efforts he had to participate in numerous meetings and to conduct computer training. (Lalla Aff., Exh. 3 ("I alone was responsible for the training of the departments")); (Trans. at 115.) Third, given Lalla's testimony that Con Ed discontinued the database program (Trans. at 84 ("[t]hey killed the project when I left")), there simply was no job for Lalla to do from home. Lalla's failure to satisfy the effectiveness prong of the ADA tests constitutes an additional and independent reason to grant summary judgment on Lalla's disability claims.
Q. So is it correct to say that work that you were doing involved a lot of meetings with people?
A. Yes, I had a lot of meetings. And new input, and trying to develop new forms and entry points for these other groups. (Trans. at 115).
Lalla stated that as far as he knows, he was not replaced after he went out on sick leave. (Trans. at 91.) Lalla's deposition testimony that the discontinued database system is capable of revival, and that Con Ed might redeploy the system if Lalla were around to promote it, maintain it, and remind management of its advantages, is of no moment whatsoever, as the decision to use or scrap the system never belonged to Lalla. (Trans. at 85-87.)
3. Reasonable Accommodation
Lalla makes no attempt to show that working from home is a "reasonable accommodation," beyond alleging the existence of a work at home program, an allegation that Con Ed denies. Lalla has not identified a single Con Ed employee who has been permitted to work from home, and has done no more than allude at oral argument to two un-named Con Ed employees with cancer who were permitted to work from home on certain unspecified terms. See Keck v. New York State Office of Alcoholism Substance Abuse, 10 F. Supp.2d 194 (NDNY 1998), ("Plaintiff does not point to any current incumbents in her position who are allowed to work under an unsupervised arrangement."). Although the Second Circuit has not spoken definitively on this issue, the case law supports the view that work at home is an extraordinary accommodation, and is warranted in only exceptional cases. See Misek-Falkolf v. IBM Corp., 854 F. Supp. 215 (SDNY 1994); Parker v. Sony Pictures Entertainment, Inc., 19 F. Supp.2d 141, 150 (SDNY 1998) ("Parker has offered no support for the proposition that a reasonable accommodation includes working from one's home. Indeed, a number of courts to consider the issue have reached the contrary conclusion."). In Keck v. New York State Office of Alcoholism Substance Abuse, 10 F. Supp.2d 194 (NDNY 1998), a computer programmer — effectively the job Lalla now requests — requested the "reasonable accommodation" that he be able to work from home because of his chemical sensitivities. The Court ruled in favor of the employer, in part because of the difficulty of supervising an employee who works from home. Id. at 201.
Age Discrimination Claims
Lalla's age discrimination claims under the AEDA and New York State Human Rights Law, Executive Law section 290 et seq. suffer the same fate as his disability claims. Lalla's age discrimination claims go no further than the conclusory allegation that Con Ed terminated Lalla because, as a long-term employee, Lalla would collect a higher pension for any additional services performed for Con Ed. Unsupported allegations do not create an inference of age discrimination, and thus the Court must grant Con Ed summary judgment on the age discrimination claims. See Dugan v. Martin Marietta Aerospace, 760 F.2d 397 (2nd Cir. 1995).
"The district court granted Martin Marietta's motion under Rule 12 (b)(6) to dismiss this complaint for failure to state a claim on the grounds that it contained no factual allegations whatsoever, apart from Mr. Dugan's age, that supported his assertion of age discrimination. This ruling was correct." Dugan v. Martin Marietta Aerospace, 760 F.2d 397 (2nd Cir. 1995).
CONCLUSION
For the foregoing reasons, the First, Second and Third Claims are dismissed. This case is closed and the Clerk of the Court is directed to remove it from