Photo: David Handschuh/NYLJ

A discrimination lawsuit brought against Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence Marks by a now-suspended city court justice from White Plains will be allowed to continue, a federal judge ruled Friday.

The decision will allow Justice Elizabeth Shollenberger to pursue damages after officials at the Office of Court Administration allegedly discriminated against her because of her several disabilities.

U.S. District Judge Vincent Briccetti said in the decision that Shollenberger had presented a case that could be argued in court and disagreed with the various reasons for which state court officials had said the litigation should be thrown out.

Anthony Consiglio, an associate at Cary Kane in Manhattan, said they were ready to press forward with the lawsuit.

“We appreciate Judge Briccetti's quick ruling on this motion, which now allows us to move forward with all discovery and depositions in the case without any delay,” Consiglio said.

A spokesman from the Office of Court Administration said they're ready for the challenge.

“We, too, look forward to discovery and depositions and presenting our case to the Court,” said Lucian Chalfen, a spokesman for OCA.

Shollenberger was twice-suspended from serving on the White Plains City Court in less than three years for various reasons, the first of which involved her using a courtroom trash can to relieve herself. But her claims go well beyond the trash can incident.

Her lawsuit alleged that the state court system failed to provide, at least temporarily, several accommodations for her disabilities, including handrails in courtrooms where she worked and the bathroom nearest to her chambers. She claimed she presided in the courtroom from a table set up on the floor.

Shollenberger has several disabilities that obstruct her movement, including chronic obstructive pulmonary disease, swelling in her legs, and obesity, among other issues. To treat her disabilities, Shollenberger has to take medications that put stress on her body, “requiring her to have quick access to the restroom,” according to the suit.

Those medical issues have taken a toll on her time at work. During the first four months she was on the bench, Shollenberger was hospitalized three times. She took sick leave for 36 days of that time.

The trash can incident happened five months after she started on the bench. She was suspended by Marks the next day. That was followed by a pattern of behavior from state court officials that blocked her from returning to work, Shollenberger claimed.

The suspension lasted more than a year, during which Shollenberger received full pay and benefits. But she also claimed she was asked to jump through hoops before she was allowed to return. State court officials allegedly asked for her medical records for the first eight months of 2017, for example.

Shollberger also claimed she was asked to undergo two medical exams, a visit with a pulmonary specialist, and two psychiatric exams. State court officials allegedly chose which doctors she went to for those exams. She cleared all of them.

That took longer than expected for a few reasons, Shollenberger claimed. One of the exams was rescheduled five months after it was originally supposed to happen, she said. The pulmonary specialist she was allegedly asked to go to was also in Nassau County, well away from Westchester.

She finally sat for a two-hour interview with the Office of the Inspector General, after which she was reinstated in July 2018. That didn't last long.

One month after her suspension ended, court employees had allegedly complained about “unpleasant and offensive odors,” according to the decision. Shollenberger said those smells could have come from discarded bandages used to cover up an infection on her leg, which was one of her disabilities.

She had claimed that court officials previously agreed to provide odor-free waste receptacles for her bandages, but said those never showed up. She was suspended again by Marks within hours of having a conversation with an administrative judge about the alleged odors.

She filed suit last October against DiFiore, Marks and the Unified Court System over what she claimed were violations of the federal Americans with Disabilities Act, the New York State Human Rights Law, and a section of the executive law.

The state had moved to dismiss those claims in a previous filing, but Briccetti rejected their arguments Friday.

DiFiore and Marks had argued that, because they did not personally violate Shollenberger's rights, the ADA claims against them should be dismissed. They weren't involved in decisions about hand railings and bathrooms in the court, for example. Briccetti disagreed with their argument.

“They argue plaintiff fails to allege Chief Judge DiFiore and Judge Marks violated plaintiff's rights under the ADA by personally discriminating, interfering, or retaliating against plaintiff,” Briccetti wrote. “However, they do not point to a single case—and the Court is aware of none—that requires a plaintiff to allege anything more than that a defendant sued in his or her official capacity for injunctive relief had the authority to control and correct the alleged violation.”

Shollenberger's claims that state court officials also violated parts of the state Human Rights Law were also allowed to stand. She had said she was retaliated against and forced to work in a hostile work environment. Her lawsuit claimed that she tried to address those concerns with Marks and other state court officials but was rebuffed.

“Moreover, plaintiff offers facts suggesting that despite knowing of the harassment, Judge Marks refused plaintiff's repeated requests to have a discussion and refused to restrain court employees from making public remarks about her,” Briccetti wrote.

Her claims that she was forced to undergo several exams before returning to work could be used to argue that she was the subject of retaliation, Briccetti wrote.

The litigation will now continue in federal court. State court officials are scheduled to file an answer to the lawsuit in July.

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