Opinion
No. 99-CV-5998
September 12, 2002
AMENDED ORDER
Plaintiff Rosalina Serrano ("Serrano") brings this action against defendant Terence Cardinal Cooke Health Care Center ("TCC") pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., alleging employment discrimination on the basis of her age and alleged disability. Her complaint also contained allegations that she was sexually harassed at work and that her employer retaliated against her for reporting the behavior. At a pre-motion conference, plaintiff agreed to drop all but her ADA claim; TCC now moves for summary judgment on that claim.
FACTS
Unless otherwise indicated, the following facts are undisputed.
TCC is a health care facility with several specialized departments, including a skilled nursing division for geriatric patients, an inpatient division for people with AIDS, an inpatient and outpatient division that treats children born with severe birth defects and handicaps, and a department of dentistry, which exclusively serves the TCC patient population. About 25% of the patients served by TCC's dentistry department are geriatric, 25% are AIDS patients, 25% are handicapped or mentally retarded, and 25% have other medical problems.
Serrano was hired as a dental assistant in the dentistry department in 1980. The dentistry department has a total of three full-time dental assistants and one part-time dental assistant. It is also staffed by a pool of ten to twelve consulting dentists, three or four of whom work at TCC per day. Each day, one dental assistant is assigned to work with each of the dentists at TCC that day. The dentistry department also has an administrative supervisor, a full-time clerical employee, and a director, Dr. Jean Perri.
The work of a dental assistant at TCC is primarily clinical. Before each dental procedure, an assistant must escort the patient to the examining room, prepare the patient for the procedure, and ensure that the dentist has all the necessary equipment and supplies. During the procedure, the assistant must provide chair-side assistance to the dentist and take x-rays. After the procedure, the assistant must escort the patient out of the examining room and prepare the room for the next patient.
Chair-side assistance is an important part of a dental assistant's duties. The assistant is responsible for handing the dentist numerous supplies and pieces of equipment at a moment's notice, providing the patient with nitrous oxide and suction as needed, and helping the dentist to restrain difficult or uncooperative patients — often at the same time. With a difficult or uncooperative patient, an assistant may have to help place the patient into a restraining harness, known as a "papoose," and may have to use a dental device known as a "ratchet" to force a patient's mouth open.
On Friday, June 26, 1998, Serrano injured her wrist while helping a dentist treat a physically handicapped and mentally retarded child who had to be medicated and placed in a restraining harness during a dental procedure. During the procedure, the patient jerked away from Serrano rapidly, catching her right hand and causing an injury to her right wrist. Shortly after the incident, Serrano visited TCC's in-house medical services unit, where she was advised to wrap her wrist in an Ace bandage. Serrano continued to work for the rest of the day, and returned to work the following Monday. She worked Tuesday and Wednesday as well, then left TCC for a previously scheduled vacation. On July 7, during her vacation, Serrano visited an orthopedist, Dr. Adler, for treatment to her wrist. Dr. Adler advised her to wear a splint on her wrist instead of the Ace bandage, and she proceeded to do so.
Serrano returned to work on July 13, 1998, immediately following her vacation, wearing the wrist splint. She was advised by a supervisor that she could not wear the splint without a doctor's note stating that it was necessary, so she removed the splint; with permission, she resumed wearing the Ace bandage that the TCC medical unit had originally prescribed. Subsequently, Serrano provided the director of the dentistry department, Dr. Perri, with a July 20, 1998 note from Dr. Adler stating that Serrano had a "wrist sprain" and "must wear brace." Serrano was then permitted to wear the splint.
For about two weeks, TCC allowed Serrano to continue working with the wrist splint, although she was unable to perform some of her duties, which were temporarily reassigned to other dental assistants. In early August, Dr. Perri asked Serrano how long she would need to continue wearing the splint and be excused from certain duties. Shortly thereafter, Serrano provided Dr. Perri with another note from Dr. Adler, which was dated August 4, 1998, and stated that Serrano should "continue to wear wrist splint" and that "Patient is capable of light duty only until 8/14 at which time she will be re-evaluated."
On receiving Dr. Adler's August 4 note, Dr. Perri told Serrano that, because she could not perform her full duties as a dental assistant, she should stop coming to work and instead seek disability and/or workers' compensation benefits. Serrano did so; while she was unsuccessful in obtaining disability benefits, she did receive workers' compensation benefits until April 2000. After Serrano left TCC, she was diagnosed with carpal tunnel syndrome in her injured arm.
Serrano never contacted TCC to say that she was able to resume her duties. Instead, she exhausted her administrative remedies, then filed this suit against TCC in September 1999, claiming, in pertinent part, that TCC had violated the ADA by failing to provide her a reasonable accommodation for her wrist injury and by asking her to leave work because of the injury.
In a letter dated June 8, 2000, TCC's Human Resources Administrator advised Serrano that her employment would be terminated unless she provided TCC with a physician's certificate stating she was able to return to work, and did return to work, by June 24, 2000. In a letter dated June 27, 2000, the administrator again wrote Serrano, informing her that her employment with TCC was terminated because she had not provided a physician's certificate and had not returned to work by June 24, 2000.
DISCUSSION Summary Judgment Standard
Motions for summary judgment are granted if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995). The moving party must demonstrate the absence of any material factual issue genuinely in dispute. See id. The court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Howley v. Town of Stratford, 217 F.3d 141, 150-51 (2d Cir. 2000). However, the non-moving party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932 (1987). The party must produce specific facts sufficient to establish that there is a genuine factual issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
In a discrimination action such as this, it is important to note that
[a] victim of discrimination is . . . seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence. . . . Consequently . . . where a defendant's intent and state of mind are placed at issue, summary judgment is ordinarily inappropriate.Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991) (citations omitted). On the other hand, "[t]he summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829 (1985).
ADA Claims
To establish a prima facie claim for discriminatory treatment, including discharge, under the ADA, a plaintiff must show that: (1) her employer is subject to the ADA; (2) she suffers from a disability within the meaning of the ADA; (3) she could perform the essential functions of her job with or without reasonable accommodation; and (4) she suffered adverse employment action, including being fired, because of her disability. Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001).
Serrano cannot prevail on her discrimination claim because she does not have a disability within the meaning of the ADA. The ADA defines a disability as:
a physical or mental impairment that substantially limits one or more of the major life activities ;
a record of such an impairment; or
being regarded as having such an impairment.
42 U.S.C. § 12102(2). The Supreme Court has articulated a three-step process for evaluating a claim of disability under subsection (A) of Section 12102(2). Bragdon v. Abbott, 524 U.S. 624, 631 (1998). First, the court determines whether the plaintiff suffered from a physical or mental impairment. Id. Second, the court identifies the life activity indicated by the plaintiff and considers whether it qualifies as a "major" life activity under the ADA. Id. Finally, the court determines whether the claimed impairment limited the major life activity to a substantial extent. Id.
Defendant does not contest that Serrano's wrist problem constitutes an "impairment" under the ADA. As for the second Bragdon inquiry, the only life activity Serrano identifies as affected by her wrist problem is working. The Supreme Court has questioned whether work is a major life activity. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, ___, 122 S.Ct. 681, 692-93 (2002) ("Because of the conceptual difficulties inherent in the argument that working could be a major life activity, we have been hesitant to hold as much, and we need not decide this difficult question today."); Sutton v. United Air Lines, Inc., 527 U.S. 471, 491-92 (1999) (same). Nonetheless, in several post- Sutton decisions, the Second Circuit has continued to treat work as a major life activity. See Giordano, 274 F.3d at 747-48; Heyman v. Queens Village Committee for Mental Health, 198 F.3d 68, 72-73 (2d Cir. 1999); Muller v. Costello, 187 F.3d 298, 312-13 n. 5 (2d Cir. 1999). I therefore assume, without deciding, that work constitutes a major life activity for ADA purposes.
For cases where the major life activity allegedly limited is working, the ADA regulations state:
The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.29 C.F.R. § 1630.2(j)(3)(i). The Supreme Court has therefore noted that "[t]o be substantially limited in the major life activity of working . . . one must be precluded from more than one type of job, a specialized job, or a particular job of choice." Sutton, 527 U.S. at 492.
Plaintiff does not contend that she was entirely unable to work as a dental assistant at the time Dr. Perri asked her to take medical leave. All she sought was to be placed on "light duty," which she defined at her deposition as "not working on the severely handicapped children in the papoose." Indeed, Serrano now states, "My injury complicated my ability to perform daily functions for myself, but did not prevent me from performing a majority of my tasks at work." Plaintiff's wrist condition does not rise to the level of a substantial limitation, since at most it precludes her from a single type of job: a dental assistantship requiring work with patients needing restraint.
Serrano does not argue that she has a "record" of a substantially limiting impairment, but she does claim that TCC "regarded [her] as having such an impairment." Plaintiff acknowledges that, to meet the "regarded as" test, she must demonstrate that TCC regarded her as disabled within the meaning of the ADA — in other words, believed that her wrist injury substantially limited her from the major life activity of working. Giordano, 274 F.3d at 748-49. She bases her argument that TCC held this view on the fact that Dr. Perri asked her to stop working and seek disability or workers' compensation benefits. This request, plaintiff argues, "shows that [Dr. Perri] considered plaintiff's injury to be an impairment [that] substantially limit[ed] one or more of plaintiff's life activities."
However, Dr. Perri's request that Serrano take medical leave and suggestion that she seek benefits while on leave is not sufficient evidence that TCC regarded her as having a substantially limiting impairment. At most, it establishes that TCC believed that Serrano's wrist injury prevented her from adequately performing one particular job: her position as a dental assistant at TCC, where working with severely handicapped children in a restraining harness is necessary. Serrano has produced no evidence that TCC believed her unable to perform "a class of jobs or a broad range of jobs in various classes," as required by the ADA regulations. 29 C.F.R. § 1630.2(j)(3)(i). TCC's preference for dental assistants physically capable of helping to restrain difficult patients is permissible; "an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment . . . are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job." Sutton, 527 U.S. at 490-91.
In addition, as defendant points out, an employee can be "disabled" within the meaning of New York workers' compensation law even if she is not "disabled" within the meaning of the ADA. The ADA's definition of disability centers on an impairment that substantially limits one or more major life activities. 42 U.S.C. § 12102(2). Thus, an expectation that Serrano might be eligible for workers' compensation, or for disability insurance benefits through her union membership, is insufficient to show that Dr. Perri believed that Serrano was disabled for ADA purposes.
That Serrano was diagnosed with carpal tunnel syndrome after she left TCC does not change the disability equation. Carpal tunnel syndrome does not per se constitute a disability within the meaning of the ADA; whether the ailment substantially limits one or more of a particular individual's major life activities can be determined only on a case-by-case basis. Toyota Motor Manufacturing, 534 U.S. at ___, 122 S.Ct. at 692. In Serrano's case, she does not argue that her carpal tunnel syndrome diagnosis reflected any reduction in her ability, before the diagnosis, to perform her dental assistant duties; therefore, the mere addition of a name to her wrist problem does not make her any more substantially limited in working than before.
Even if Serrano were disabled within the meaning of the ADA, she has failed to draw genuinely into question her inability to perform the essential functions of her job with or without a reasonable accommodation. TCC contends that the ability to work with severely handicapped patients, who often need to be restrained, is an essential function of the dental assistant job at TCC, and Serrano does not dispute that her wrist injury rendered her unable to assist in restraining patients. Instead, she disputes that working with severely handicapped children is an essential function of her job. In particular, she disputes Dr. Perri's contention that at least 25% of dental assistant work at TCC requires working with patients typically needing restraint; instead, she claims that only 4% to 5% of the patients are handicapped. However, at her deposition she also testified that the percentage of handicapped patients at TCC was 25%, the same figure given by Dr. Perri. Moreover, the ADA regulations specifically state that evidence of whether a function is essential includes not only the "amount of time spent on the job performing the function," 29 C.F.R. § 1630.2(n)(3)(iii), but also the "consequences of not requiring the incumbent to perform the function," 29 C.F.R. § 1630.2(n)(3)(iv). Plaintiff does not dispute Dr. Perri's assertion that relieving her of working with severely handicapped patients would require imposing that responsibility on the other dental assistants and would reduce the flexibility of scheduling patient appointments by removing all of Serrano's time-slots from availability for severely handicapped patients. Finally, the ADA explicitly mandates deference to employers in the essential functions determination, stating that "consideration shall be given to the employer's judgment as to what functions of a job are essential," 42 U.S.C. § 12111(8). Similarly, the regulations provide that the evidence to be considered in determining whether a particular function is essential includes the "employer's judgment as to which functions are essential," 29 C.F.R. § 1630.2(n)(3)(i). Under these circumstances, no reasonable jury could conclude other than that working with severely handicapped patients, often requiring restraint, is an essential function of a TCC dental assistant's job. And the ADA does not require an employer to eliminate any of the essential functions of a position in order to accommodate an employee's disability; such an accommodation would not be "reasonable." Wernick v. Federal Reserve Bank, 91 F.3d 379, 384 (2d Cir. 1996).
Serrano nonetheless argues that relief from working with severely handicapped patients was a reasonable accommodation because TCC had offered such relief in the past. Specifically, she contends that TCC had a policy of relieving pregnant dental assistants from work with more aggressive patients and that it had offered light duty to a dental assistant diagnosed with carpal tunnel syndrome a year earlier. She also notes that TCC had already permitted her to work light duty for the first two weeks she worked after her injury and asserts that this accommodation caused TCC no undue hardship.
Defendant provides unchallenged evidence, however, that TCC treated the other dental assistant, Jessica Montanez, exactly as it treated Serrano. Montanez, who informed TCC that she had carpal tunnel syndrome, at first told TCC that her condition was not serious and would only impinge on her ability to work for a short time. TCC therefore permitted Montanez to continue working but excused her from treating handicapped patients, just as it excused Serrano for the first two weeks after she returned from vacation. When it became clear after several weeks that Montanez' condition had not resolved itself and that she would not be able to resume her full duties for the foreseeable future, TCC placed her on leave and advised her to seek workers' compensation or disability benefits until she could return to work — again, just as it did in Serrano's case. In both cases, TCC permitted its dental assistants to work reduced duty when it believed their physical conditions were temporary, and placed them on leave only when it learned that each assistant would not be able to return to her full duties any time soon. That TCC excused Serrano from working with handicapped patients temporarily, until it became clear that she would not imminently be able to resume full duties, does not demonstrate that such work was not essential or long-term relief from it reasonable; it simply indicates that TCC was giving her the benefit of the doubt that she would recover shortly.
Similarly, TCC's policy toward pregnant dental assistants does not support Serrano's argument that relief from treating severely handicapped patients is a reasonable accommodation. TCC asserts, without challenge, that its policy is grounded in two factors: (1) severely handicapped patients may occasionally become violent; and (2) the ingestion of nitrous oxide, which is used to sedate extremely handicapped patients, may cause spontaneous abortion. TCC therefore puts pregnant dental assistants on light duty to reduce its exposure to legal liability. This policy is consistent with TCC's policy of placing temporarily disabled dental assistants on light duty, since pregnancy, too, is a temporary condition, and pregnant dental assistants are returned to full duties once they give birth.
CONCLUSION
For the foregoing reasons, defendant TCC's motion for summary judgment is granted. The Clerk of Court is directed to enter judgment for defendant.
SO ORDERED.