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JONES v. ASSOCIATED UNIVS.

December 12, 1994

GREGORY P. JONES, Plaintiff, against ASSOCIATED UNIVERSITIES, INC. and RUSSEL J. REAVER, Defendants.


The opinion of the court was delivered by: JOANNA SEYBERT

 SEYBERT, District Judge:

 This is an employment-discrimination action brought by plaintiff Gregory P. Jones under the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701-796, against his former employer and one of his supervisors. Plaintiff alleges that he was discharged from his position as a lieutenant with the police group at Brookhaven National Laboratories, in Upton, New York, solely because he had Lyme disease. A jury trial was held in this action from April 7, 1994 through April 15, 1994 which resulted in a verdict in plaintiff's favor in the amount of $ 320,000. This award was comprised of damages (i) for lost wages in the amount of $ 100,000, (ii) for actual pecuniary losses in the amount of $ 20,000, and (iii) for emotional distress, on a supplemental claim under the New York State Human Rights Law, in the amount of $ 200,000.

 Pending before the Court are the parties' post-trial applications. First, the defendants renew their application at trial, pursuant to Rule 50 of the Federal Rules of Civil Procedure, for judgment as a matter of law. In the alternative, the defendants move for a new trial, pursuant to Fed. R. Civ. P. 59, on the grounds that the jury's verdict is against the weight of the evidence, and contrary to law, and on the basis that the damage award of $ 320,000 is unsupportable as a matter of law. The plaintiff, in turn, cross-moves for an order reinstating him to his former position as a lieutenant, and for attorney's fees in the amount of $ 98,039.60, pursuant to 29 U.S.C. § 794a.

 FACTUAL BACKGROUND

 Viewed in the light most favorable to the plaintiff, *fn1" evidence was introduced at trial to show that defendant Associated Universities, Inc. operates Brookhaven National Laboratory [alternatively, the "Laboratory," or the "Lab"], a nuclear research facility, pursuant to a contract with the United States Department of Energy [the "DOE"]. Tr. 567 (testimony of Dr. Breitenstein). The Laboratory is funded by the United States government. Because of the presence of nuclear materials on the Laboratory's premises, the DOE requires the Lab to maintain an armed security force, which the Lab provides through its police group [the "Police Group"]. Russel J. Reaver, a codefendant in this action, at all times relevant held the position of Manager of the Police Group. Tr. 231 (testimony of Reaver).

 Plaintiff Gregory P. Jones, at the time of his termination on May 4, 1992, was employed as a lieutenant and firearms range instructor in the Laboratory's Police Group. Plaintiff's Ex. 8. Plaintiff had commenced his employment with the Lab on December 29, 1986, initially holding the position of patrol officer. *fn2" Tr. 37 (testimony of Jones). Before working for the Lab, he had been employed as a police officer for the New York City Transit Authority until his resignation therefrom on October 7, 1986. Tr. 103 (testimony of Jones). *fn3"

 Jones greatly enjoyed working for the Laboratory's Police Group, Tr. 96 (testimony of Jones), and at all times prior to April 1992 had performed satisfactorily. Tr. 437 (testimony of Goode). Less than two years after Jones began working for the Lab as a patrol officer, he was promoted to the rank of lieutenant, and shortly thereafter was recommended for promotion to the position of captain. *fn4" Tr. 39, 56 (testimony of Jones), 436-37 (testimony of Goode). In addition, Jones received a number of commendations and letters of appreciation with respect to his police work. Tr. 43-47 (testimony of Jones), 439 (testimony of Goode), Plaintiff's Exs. 2a-d. Further, the last performance review of Lieutenant Jones, covering the period of June 1991 to December 1991, regarded plaintiff's performance to be substantially above average. Plaintiff's Ex. 3, Tr. 49-54 (testimony of Jones). This evaluation, which covered a period ending more than one year after Jones contracted Lyme disease, was signed and acknowledged by Inspector Berretta, and Captain Gwathney, Jones' direct supervisor. Plaintiff's Ex. 3, Tr. 627-29 (testimony of Berretta).

 In the summer of 1990, plaintiff began to experience a number of ailments including severe headaches, stiffness of the neck, joint pains in his knees and hips, and a generalized weakness in the grip of his hands. He moreover became easily fatigued. Tr. 60 (testimony of Jones). In September 1990, upon an annual physical-fitness examination conducted by the Laboratory's occupational medicine clinic, these ailments were diagnosed as symptoms of Lyme disease. Tr. 59 (testimony of Jones). Plaintiff first notified the Laboratory and Mr. Reaver that he had contracted this disease by submitting to Reaver a doctor's note, dated October 19, 1990, to this effect. Tr. 124, 208, 217-18 (testimony of Jones), 238 (testimony of Reaver), Plaintiff's Ex. 18. *fn5"

 At the time of this diagnosis, plaintiff was one of the first officers in the Police Group to test positive for Lyme disease. Tr. 591-92 (testimony of Dr. Breitenstein). By the time of Jones' termination in May 1992, approximately nineteen employees in the Laboratory's Police Group (including Mr. Jones) had tested positive for Lyme disease. Tr. 615 (testimony of Inspector Berretta). Further, Inspector Berretta, who held the third-highest position in the Police Group at the time of plaintiff's termination, and ultimately participated in the decision to terminate Jones, testified that he contracted Lyme disease in 1989 and that he never was discriminated against because of this disease. Tr. 616-17. Other than the plaintiff, no witness testified at trial as to any discrimination, in any form, against an employee of the Laboratory or the Police Group because of a handicap or illness.

 No evidence was presented to show that plaintiff's contraction of Lyme disease adversely affected his job performance. To the contrary, as earlier discussed, plaintiff's last evaluation before his termination, which covered a period ending more than one year after he contracted Lyme disease, regarded plaintiff's performance to be substantially above average. Plaintiff's Ex. 3, Tr. 49-54 (testimony of Jones). Further, plaintiff did not introduce any medical testimony, including any doctors' notes, to show that he was suffering from any symptoms related to Lyme disease at the time of his termination. Indeed, from July 1991 to the date of his termination in May 1992, there is no evidence that Jones told any of his supervisors or the Laboratory doctor that he was suffering from any physical symptoms of Lyme disease. Defendants' Exs. CCCC, EEEE, GGGG.

 While plaintiff's contraction of Lyme disease did not affect the performance of his substantive duties, it did affect his ability to fulfill timely the training requirements for his position pursuant to DOE regulations and Laboratory policy. In 1991-1992, 10 C.F.R. § 1046, and the Laboratory's written job description for lieutenants, respectively required all lieutenants annually to pass a physical-fitness test and to attend a tactical Special Response Team II training course ["SRT-II"]. Tr. 543-44 (testimony of Runge). *fn6" As earlier discussed, the physical-fitness test included a one-mile run which had to be completed in less than eight minutes and 30 seconds. Tr. 127 (testimony of Jones), see 10 C.F.R. § 1046 App. A, at (F)(1) (1992). Under DOE regulations, a maximum extension of six months was permitted to complete the run. See 10 C.F.R. §§ 1046.12(c), 1046 App. A., at (G)(2) (1992). No manager in the Police Group had the authority to override these regulations. Tr. 337 (testimony of Reaver), 541 (testimony of Runge).

 In October 1990, Jones was scheduled for his annual one-mile run, but was unable to participate because of the onset of Lyme disease. Thereafter, on October 23, 1990, Reaver sent Jones a letter warning him that he had to complete the SRT-II training and the annual run. *fn7" In this letter, Reaver noted that Jones now had failed to attend the SRT-II training courses on three different occasions--two of which preceded Jones' contraction of Lyme disease. *fn8" Reaver further informed Jones that the physical-fitness training program could be postponed only for six months, or until April 10, 1991. According to Reaver, failure to meet this DOE-mandated requirement would result in the termination of his employment. *fn9" Plaintiff's Ex. 5. *fn10"

 Jones asserts that the foregoing letter threatening termination initiated a pattern of abuse directed against him by Reaver solely because he had Lyme disease. According to Jones, in addition to this written warning of dismissal, Reaver orally threatened him with termination for his failure to complete the physical-fitness training exercises, and for his resisting, in April 1991, to lead a training drill. With respect to these matters, Jones testified at trial as follows:

 
Q. Why do you believe you were terminated on May 4, 1992?
 
A. I believe I was terminated because Russel Reaver didn't like the fact that he had a lieutenant under his command with a disability.
 
Q. What is the basis of your belief?
 
A. Shortly after being diagnosed with Lyme disease, I was initially--that's when I believe the harassment started from Mr. Reaver as far as attending SRT-II courses, the one-mile run.
 
It wasn't only just that. You are going. I would be threatened with a job loss, loss of pay if I did not attend. Not only attend, but successfully pass the course, and this went on for a period of two years.
 
Q. Did Mr. Reaver indicate to you his opinion as to your disease?
 
A. Yes, he did.
 
Q. What did he say to you?
 
A. He said it a few times, and there was one occasion when I was told that there would be a drill during the day and I would be assigned a team leader. I asked Inspector Berretta if I could get out of that due to my Lyme disease, and I didn't know I would be physically capable of staying in a containment, the position, for a number of hours it could be, I don't know if I was physically able at that time. There was a flare-up with the Lyme disease, and he says, I don't know, I don't know, he'd go up and talk with Mr. Reaver.
 
Mr. Reaver came into the office, shut the door in the lieutenant's office, and looked me in the face and said, I don't give a shit about your disease, your illness, your disability. You are a lieutenant under my command and you are required to do this, and I'm ordering you to do this drill.
 
I then asked if I could get out of this, I don't feel up to it. He said, I don't care. If you don't do it, you ultimately will be terminated.
 
Q. Did you perform the drill?
 
A. Yes, I did.
 
Q. Did Mr. Reaver say anything else with respect to your Lyme disease?
 
A. He didn't believe it was a bona fide disease.
 
Q. Did he actually say that to you?
 
A. Yes, he did.

 Tr. 64-66 (testimony of Jones).

 Jones ultimately performed his annual physical run on April 10, 1991. He did so upon receiving a doctor's certification that he was physically capable so to engage. Tr. 135 (testimony of Jones). With respect to this requirement, Jones admits that the Laboratory accommodated his physical illness by postponing his annual run for the maximum allowable period of six months. Tr. 136, 185 (testimony of Jones); see 10 C.F.R. §§ 1046.12(c), 1046 App. A, at (G)(2) (1991). Further, the uncontroverted evidence shows that on April 1, 1991, at approximately 3:00 P.M., Reaver called Dr. Breitenstein of the Laboratory's Occupational Medicine Division to inform him that Jones would be "processed for termination" if plaintiff was unable to complete his physical fitness test by April 10, 1991. In this phone call, Reaver asked Dr. Breitenstein to reevaluate Jones medically on April 10, 1991 at 9:00 A.M. Defendants' Ex. EEEE (log entry "1 APR 91--3 PM"); Tr. 576 (testimony of Dr. Breitenstein). Shortly thereafter, Dr. Breitenstein received a phone call from Mr. Jones, wherein the aforementioned appointment time was confirmed. In this phone call, Breitenstein advised Jones to check with the personnel department and the Laboratory's legal counsel regarding his employment status. Defendants' Ex. EEEE (log entry "1 APR 91--3:15 PM"); Tr. 576-77 (testimony of Dr. Breitenstein). There is no evidence that Jones made any such inquiry.

 Jones also successfully lead the training drill on April 22, 1991. With respect to this matter, it is undisputed that on the day of the drill, Jones was certified by the Laboratory's Occupational Medicine Clinic as medically fit for all routine duties. Defendants' Ex. SS, at D001056. This medical certification slip indicated that plaintiff only needed to avoid excessive use of his upper extremities. Id. No evidence was presented to show that Mr. Jones' duties with respect to the drill required any such use.

 In addition to the foregoing, on a number of occasions Reaver required Jones, without any advance notice, to stay over after Jones' 11:00 P.M. to 7:00 A.M. shift to meet with Reaver at 8:30 in the morning when Reaver arrived at work. Tr. 71-72, 143-44 (testimony of Jones), 441 (testimony of Goode). Jones complained to William Hempfling, the labor relations manager, about this treatment. Tr. 72 (testimony of Jones), 663 (testimony of Hempfling). Jones testified at trial that after working the "midnight shift," he found it difficult to stay over without prior notice because he would be fatigued, and often failed to bring medication to work. Tr. 71-72 (testimony of Jones). *fn11"

 Jones' assertion that he was singled out to stay over after his shift because he had Lyme disease is contradicted by his own testimony. Jones admits that the only time he formally complained about being asked to stay over was in May 1990, before he contracted Lyme disease, when he complained to Mr. Hempfling that his child-care arrangements rendered Reaver's requests problematic. Tr. 145-46 (testimony of Jones), 664 (testimony of Hempfling). Further, Jones made no claim that he mentioned his Lyme disease to Mr. Hempfling, see Tr. 146 (testimony of Jones), and Hempfling testified unequivocally that Mr. Jones never mentioned his Lyme disease to him. Tr. 664-65 (testimony of Hempfling).

 Plaintiff presented no evidence of any confrontation between himself and Reaver during the approximately nine-and-one-half-month period commencing in July 1991 and ending on April 20, 1992. *fn12" The only communication between the two during this period that was introduced into evidence consisted of Reaver's written notification to Jones, dated January 23, 1992, informing the plaintiff that he was "required" to attend the SRT-II training course given at Oak Ridge National Laboratory on May 11, 1992. *fn13" Jones did not indicate to anyone at the Laboratory that he would be unable to attend this course, on account of Lyme disease, or for any other reason. Plaintiff's Ex. 7; Tr. 70-71 (testimony of Jones). ...


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