The opinion of the court was delivered by: THOMAS J. MCAVOY
MEMORANDUM-DECISION and ORDER
Plaintiff-Robert Henchey ("plaintiff" or "Henchey") alleges that defendants (1) demoted him from his position as shop foreman for the Town of North Greenbush Highway Department ("Highway Department") on the basis of his political affiliation as a Democrat (Compl. P 37); and (2) subsequently terminated plaintiff's position as a laborer based on his alleged handicap (Compl. P 57). Plaintiff asserts three causes of action, suing (1) under 42 U.S.C. § 1983 for deprivation of his First and Fourteenth Amendment rights; (2) for violation of his rights under Article I, § 8 of the New York Constitution; and (3) under the Rehabilitation Act of 1973 which prohibits, inter alia, discrimination against handicapped individuals by any program or activity receiving Federal financial assistance. Plaintiff seeks declaratory and injunctive relief, back pay, and other damages.
Defendants brought the instant motion for summary judgment pursuant to Fed.R.Civ.P. 56, seeking to dismiss plaintiff's third cause of action only. The court heard oral argument on August 9, 1993 in Albany, New York.
Plaintiff was hired as a laborer by the Highway Department in February, 1984 (Def. 10J P 1; Pltf. 10J P 1). At the time of plaintiff's hiring, Frank Guiliano ("Guiliano"), a Democrat, was Superintendent of the Highway Department and had established written requirements for the laborer position (Compl. P 19; Answer P 2; see also Def. Exh. "G"). According to the terms of that job description, the laborer position calls for "routine manual work requiring physical endurance and a willingness to perform arduous tasks," as well as the "ability to lift heavy objects." (Def. Exh. "G"). In accordance therewith, Highway Department laborers typically perform a variety of tasks requiring moderate physical strength and stamina including shoveling, digging ditches, installing culvert pipe, and collecting leaves (Guiliano Dep. 19-20).
Plaintiff alleges that approximately two weeks after he commenced employment, he was injured when he fell in the course of his duties (Compl. P 20; Henchey Dep. 19-20). Although he did not seek medical attention at the time of his fall (Henchey Dep. 20-21; Guiliano Dep. 80-81), he asserts that the accident aggravated his pre-existing back condition known as degenerative disc disease (Compl. P 22; Henchey Dep 23-24). Thus, plaintiff missed three (3) months of work due to the fall (Compl. P 20).
Plaintiff also claims that four (4) months after his return to work he was reassigned by Guiliano to work as a "dispatcher," although that was not a formal job title (Compl. P 21; Henchey Dep. 25-26). Significantly, plaintiff claims (and the record presently before the court seems to bear this out) that this reassignment was intended as an accommodation because his injuries prevented him from performing some of his duties as a laborer (Compl. PP 21-22; Guiliano Dep. 35; Guiliano Aff. 07/ 93 P 7). Plaintiff held this "dispatcher" position from Fall 1984 until sometime in 1986, at which time he was promoted to shop foreman (Def. 10J P 4; Pltf. 10J P 4).
As shop foreman, then-Superintendent Guiliano continued to accommodate plaintiff's alleged disability by not assigning him "heavy duty" work (Guiliano Aff. 07/ 93 P 4). Moreover, plaintiff offers evidence to suggest that the Highway Department, under the direction of Guiliano, had a long-standing policy of accommodating other employees by assigning them duties which accommodated their alleged disabilities or injuries (Guiliano Aff. 07/93 PP 2-4).
Plaintiff held the shop foreman position for approximately five (5) years (Compl. PP 23-25; Henchey Dep. 31).
In November 1991, defendant Richard Roberts ("Roberts"), a Republican, won the election for superintendent of the Highway Department (Def. 10J P 6; Pltf. 10J P 6). Roberts contends (and plaintiff disputes) that as part of his election platform, he "pledged to do away with the foreman position at the Highway Department to save the taxpayers money." (Roberts Dep. 29; Def. 10J P 6; Pltf. 10J P 6).
Shortly after the election, on December 13, 16 and 18, 1991, Roberts allegedly told plaintiff that he could no longer remain in the shop foreman position because he was a Democrat and "it wouldn't look good." (Compl. P 27-30). Defendants, of course, dispute this allegation (Answer P 9; Roberts Dep. 43). Although there is no dispute that Roberts removed plaintiff as shop foreman on January 2, 1992, and returned him to the position of laborer, plaintiff contends that Roberts merely redesignated the foreman position as Deputy Superintendent and appointed a political ally, Bruce Arnold ("Arnold"), to the position (Def. 10J P 7; Pltf. 10J P 7). Roberts thereafter assigned plaintiff duties similar to those he had performed after his alleged injury (i.e. maintenance and sweeping work in the garage) (Answer P 11; Arnold Dep. 29, 49-50; Roberts Dep. 44-45, 50-51).
On January 7, 1992, a few days after plaintiff's reassignment from shop foreman to laborer, Roberts told plaintiff to have his medical status updated to determine if he could perform heavy duty jobs (Compl. P 32; Answer P 2). Plaintiff was examined that afternoon by his doctor who instructed that plaintiff could "work light duty only . . . No heavy lifting." (Def. 10J P 10; Pltf. 10J P 10; Pltf. Exh. "K").
On January 8, 1992, Roberts terminated plaintiff from his position, stating in writing that "I have no light duty work for laborers." (Pltf. Exh. "I"). Plaintiff was earning $ 23,000.00 at that time (Compl. P 8-9).
The Rehabilitation Act of 1973 (the "Act")
prohibits employers from discriminating against handicapped individuals solely by reason of their handicap. See generally School Bd. of Nassau County v. Arline, 480 U.S. 273, 277-79, 107 S. Ct. 1123, 1125-27, 94 L. Ed. 2d 307 (1987), reh. denied, 481 U.S. 1024 (1988) ("Arline"). Section 504 of the Act provides in pertinent part that:
No otherwise qualified individual with a disability . . . as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any ...