Opinion
No. 94 Civ. 3821 (TPG)
January 31, 2000
OPINION
This is an action under the Rehabilitation Act and a related state statute. Defendants have moved for summary judgment.
Plaintiff concedes that the claim under state law should be dismissed. However, plaintiff opposes summary judgment on the Rehabilitation Act claim.
Defendants contend that the present record shows conclusively that plaintiff did not have a disability within the meaning of the Act. There is indeed considerable evidence in support of defendants' position, including testimony by plaintiff herself at her deposition. Moreover, her claimed disability — depression — did not prevent her from carrying out her work for many years at the Department of Health ("DOH"), and it is only the alleged impairment of the ability to work which is said to constitute disability. Defendants contend that even at the time she left her employment, she was able to work and her difficulty related only to her alleged inability to adjust to certain changes in duties which defendant contends were of a minor nature. Thus, defendants take the position that her depression did not rise to the level of a disability under the statute. However, the court cannot say that there is no triable issue of fact as to the degree of seriousness of plaintiff's depression and its effect on her ability to work.
Defendants contend that, in any event, it was not the failure to provide a reasonable accommodation which caused plaintiff to leave her employment. Defendants point to the fact that a request made on plaintiff's behalf by a psychiatrist and a psychotherapist indicated that the only way plaintiff could function would be to rescind plaintiff's transfer to another position and to have her transferred back to her former position. Defendants also refer to a later psychiatric evaluation, conducted at the request of DOH, which indicated that if plaintiff could not return to her former position she was incapable of further employment by DOH. Defendants' argument is that plaintiff was not seeking an accommodation within the statute, but was laying down a flat condition of her employment that she must return to a particular position, and indeed to a position which had been phased out. Defendants argue that the statute does not require an employer to accede to this kind of a requirement. However, the evidence indicates some possibility that there might have been a reasonable accommodation, such as a gradual transition to plaintiff's new position. Moreover, defendants have provided no affidavit or deposition testimony from any of the people who would be able to explain what actually was considered or determined in response to the request of plaintiff's representatives, and the finding of the DOH psychiatrist. Thus defendants have not shown that the issue of accommodation is resolved on the present record beyond a triable issue of fact.
Defendants' motion for summary judgment is granted to the extent that the claim under state law is dismissed. The motion is denied as to the claim under the Rehabilitation Act.
SO ORDERED.