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Whether police applicant with MS was otherwise qualified or posed direct threat is jury question

By Kathleen Kapusta, J.D.

Whether a New York City Police Cadet Corps applicant, who was disqualified from the program based on the brief period of time that had elapsed between his Multiple Sclerosis diagnosis and his application, was otherwise qualified for the position, or whether he constituted a direct threat to himself or others will be up to jury to decide, a federal district court in New York ruled, citing a myriad of disputed factual issues. Nor could the applicant, for many of those same reasons, establish that the direct threat defense did not apply, said the court, denying cross-motions for summary judgment on his ADA and NYCHRL claims (Umanzor v. New York City Police Department, February 12, 2018, Broderick, V.).

After experiencing weakness and numbness in his body beginning in January 2013, the plaintiff was diagnosed with Multiple Sclerosis in May. He soon began a prescribed steroid medication and other drugs but continued to experience symptoms such as tingling, numbness, and fatigue. In February 2014, he applied to NYPD’s Police Cadet Corps but was placed “on review” after disclosing his MS in required medical questionnaire. He did not indicate in the questionnaire that he had taken steroids or received Vitamin B12 injections.

Disqualified. He submitted requested medical records and a doctor’s note from his neurologist stating he was “medically stable for entry into the NYPD as a cadet” and that his neurological exam was “normal except for mild sensory loss in the first two fingers on the left hand.” He did not, however, submit all of his medical records, which he claimed was unintentional. Upon reviewing the records, NYPD’s deputy chief surgeon disqualified him based on the brief period of time that had elapsed between his diagnosis and his application.

Otherwise qualified? Moving for summary judgment on the applicant’s claims, the NYPD argued that he could not establish he was “otherwise qualified” for the position and, relatedly, that the direct threat defense applied. The parties did not contest that the essential functions of a police officer include running after fleeing suspects, climbing stairs, gripping persons to prevent escape, detecting odors caused by smoke or gas leaks, being physically active for prolonged periods of time, and intervening in ongoing criminal activity. Nor did NYPD dispute that individuals with MS are potentially qualified to perform these essential functions, acknowledging that the deputy chief surgeon had qualified individuals with MS for appointment to the NYPD in the past.

Likelihood of relapse. The applicant, according to the department, was not “otherwise qualified” for the position of a police cadet because he failed to provide all of the medical records requested during the screening process and failed to disclose certain information on the medical questionnaire. Further, it asserted, because he had been diagnosed with, and began treatment for, MS only the year before he applied to the NYPD, he had not been asymptomatic for a period long enough to determine his likelihood of relapse. It contended that the surgeon’s exam fulfilled the requirement of an individualized assessment and that the applicant failed to contest the reasonableness of the surgeon’s ultimate determination.

Fact questions. The court, however, found disputed facts regarding whether the applicant intended to omit the relevant medical information and whether that information ultimately would have impacted the surgeon’s decision. While the applicant claimed he did not review any of the records sent by his neurologist and that he lacked sufficient information to affirm or deny whether the submitted records represented a complete version of his file, the NYPD responded that he was lying or offering claims that were not believable. However, the question of his intent, said the court, as well as the sufficiency of the surgeon’s exam are fact questions better left to a jury to decide.

Similarly, while the NYPD argued that the applicant’s affidavit that he generally fit for service was self-serving and contradictory and that his neurologist’s affidavit was conclusory, this went to the weight of the evidence to be put before the jury, noting that the surgeon had qualified individuals with MS in the past and there was no evidence that the applicant would have been rejected had the information been produced.

Direct threat defense. Nor was summary judgment warranted on the department’s direct threat defense, said the court, finding fact issues concerning whether, at the time of the surgeon’s determination, the applicant posed “a significant risk to the health or safety of others” based on a “reasonable medical judgment.” That his neurologist sharply disagreed such an assessment was reasonable created a fact issue, and the department’s description of the documents she relied on in her affidavit as being of “questionable veracity and little relevance,” while going to the weight of the evidence, did not eliminate the dispute.

Indeed, said the court, the applicant raised disputes as to several facts surrounding the basis of the surgeon’s determination, including whether the neurologist’s letter, sent to the surgeon as part of the applicant’s application, was an assessment of his ability to perform the essential functions of a police officer; whether the letter reflected an accurate diagnosis; whether the surgeon considered that letter; and what his determination was ultimately based on, to list a few,

Applicant’s motion. For many of these same reasons, the applicant could not establish that the direct threat defense did not apply, said the court, noting that his own opposition to NYPD’s motion for summary judgment on this issue stated that “[t]here is a dispute of fact as to whether Plaintiff posed a high probability of substantial harm to himself and others.” Further, whether the surgeon’s reliance on the cited medical journals and other materials constituted an individualized assessment—leading to a reasonable medical judgment based on the most current medical knowledge and/or the best available objective evidence—was similarly disputed.