Plaintiff does not, however, fair as well with defendant's motion for summary judgment, which this court hereby grants.
V. Defendant's Motion for Summary Judgment
A court may grant summary judgment only "if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving parry is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Where, as in this case, the non moving party has the burden of proof at trial, the moving party need only demonstrate that there is a lack of evidence to support the non movant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323-325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the movant has established a prima facie case demonstrating the lack of a genuine issue of material fact, the non moving party must provide enough evidence to support a jury verdict in its favor. Anderson, 477 U.S. at 249. All of the facts must be read in the most favorable manner for the non moving party. Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994).
At that point, the court must determine whether the evidence presents a "genuine factual issue that properly can be resolved only by a finder of fact because it may reasonably be resolved in favor of either party." 477 U.S. at 250. The court may grant summary judgment only when "no rational jury could find in favor of the nonmoving party." Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir. 1994). The Supreme Court has explained that "one of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims...and we think it should be interpreted in a way that allows it to accomplish its purpose." Celotex, 477 U.S. at 323-24; see, Anderson, 477 U.S. at 249-50 (if the evidence submitted by the party opposing summary judgment is merely colorable...or is not significantly probative...summary judgment must be granted.).
In this case, defendant makes a motion for summary judgment of plaintiff's Human Rights Law claim on the grounds that plaintiff has failed to provide evidence to support his claim and to establish a genuine issue warranting trial. In order for a plaintiff to prevail under the Human Rights Law, a plaintiff must establish a prima facie case of illegal discrimination. The burden of proof then shifts to the employer who must show that the disability prevented the employee from performing his job in a reasonable manner or that the employee's termination was motivated by a legitimate nondiscriminatory purpose. see, Matter of Miller v. Ravitch, 60 N.Y.2d 527, 532, 470 N.Y.S.2d 558, 458 N.E.2d 1235 (1983); Matter of Maloff v. City Comm. on Human Rights, 46 N.Y.2d 908, 414 N.Y.S.2d 901, 387 N.E.2d 1217 (1979). The burden of proof then shifts back to the plaintiff who must establish that the reason provided by defendant for its actions was a "pre-text for discrimination." O'Keefe v. Niagara Mohawk Power Corp., 714 F. Supp. 622 (N.D.N.Y. 1989) (defendant's reason for its action held to be a pre-text of discrimination based on alcohol disability.).
In applying the summary judgment standard, this court finds that plaintiff has failed to meet his initial burden of establishing a prima facie case of discrimination under the Human Rights Law. The courts have ruled that a plaintiff could meet his burden of establishing a prima facie case by coming forth with evidence creating an inference of discrimination by defendants. Kremer v. Chemical Const. Corp., 456 U.S. 461, 479, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982) ("The elements of a successful employment discrimination claim [under New York and federal law] are virtually identical."); Watts v. New York City Transit Auth., 213 A.D.2d 253, 254, 624 N.Y.S.2d 124 (1st Dep't 1995) (evaluating sex discrimination claim under Human Rights Law by looking to federal standards); DeLaCruz v. New York City Human Resources Dept., 884 F. Supp. 112 (S.D.N.Y. 1995) (Motley, J.) ("Plaintiff must prove a prima facie case of illegal discrimination by a preponderance of the evidence."); Russo v. Trifari, Krussman & Fishel, Inc. 837 F.2d 40, 43 (2d Cir. 1988); Song v. Ives Lab., Inc., 957 F.2d 1041, 1048 (2d Cir. 1992).
However, plaintiff may not rely on 'the mere pleadings themselves,' Fed.R.Civ.P. Rule 56(e). Rule 56(e) requires "the nonmoving party to go beyond the pleadings and by [his] own affidavits,...designate 'specific facts showing that there is a genuine issue for trial'." Celotex, 477 U.S. at 324 (1986); Anderson, 477 U.S. at 257-258 (plaintiff may not rely on mere speculative allegations but must set forth affirmative evidence of the existence of a genuine issue warranting trial). In the present case, plaintiff submits no evidence, beyond the allegations in his complaint, from which a reasonable inference can be drawn that there was a discriminatory animus on the part of the defendant in firing plaintiff.
Despite plaintiff's failure, defendant, in its motion papers, satisfies his burden by arguing and establishing that its decision to terminate Lugo was based on nondiscriminatory and legitimate reasons, primarily Lugo's violation of company policy. Defendant argues that Lugo was fired for misconduct because, at the time of his discharge, Lugo violated the company policy of being under the influence of alcohol while on the job. Defendant contends that being 'on the job' while under the influence of alcohol is not limited to Lugo's actual shift time but includes being on the employer's premises under the influence. Defendant reasons that as a security guard, Lugo's violation of company policy jeopardized the security of the building and would have damaged its reputation and relationship with its tenants had any of them seen Lugo on the job while inebriated. Defendant contends that Lugo's termination had nothing to do with his disability and, as defendant rightly notes, plaintiff has offered no evidence on this motion establishing that it fired Lugo for any reason other than his violation of a company policy.
Moreover, this court finds that plaintiff has not even submitted evidence establishing that defendant knew plaintiff was suffering from a disability. The only evidence submitted, from which an inference of defendant's knowledge of plaintiff's disability could possibly be drawn, is the partial transcript of Lugo's hearing before the ALJ, submitted by defendant in support of its motion to dismiss. However, plaintiff has brought to the court's attention that the New York Unemployment Insurance Appeal Board has rescinded the ALJ's decision denying Lugo's request for unemployment insurance benefits and sustaining his termination due to 'misconduct,' and has ordered a new hearing before the ALJ.
This court agrees with the finding of the Appeal Board in that the parties were denied certain procedural due process rights since the transcript of the hearing was incomplete. Therefore, in reaching its decision, this court has excluded the partial transcript of the hearing and the ALJ's decision from the record.
Having done so and having reviewed the record in a light most favorable to the plaintiff, this court finds that plaintiff has failed to make out a prima facie case of illegal discrimination, firing because of a known disability, under the Human Rights Law or at least, to come forth with evidence which is adequate to raise a reasonable inference of discrimination. In addition, since plaintiff has failed to establish defendant's discrimination, based upon a known disability, an essential element of his claim, the court rejects his attempt to make a material issue out of 'when' he drank the vodka and was terminated as opposed to the fact that he drank and returned to his place of employment. The Supreme Court has ruled that;
Rule 56 (c) mandates the entry of summary judgment...against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial...In such a situation, there can be no genuine issues as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.
Celotex, 411 U.S. at 322-325.
As a final matter, this court notes that plaintiff's reliance on McEniry, 84 N.Y.2d 554, 620 N.Y.S.2d 328, 644 N.E.2d 1019 (1994), to oppose defendant's summary judgment motion is to no avail, since the facts and record of this case are not sufficiently similar to those in McEniry to warrant a ruling in plaintiff's favor. Plaintiff relies on McEniry to support its argument that the reasons provided by defendant for his termination are a pre-text for its discrimination against him based on his former alcohol dependency problems. In McEniry, McEniry worked for the Department of Environmental Facilities ("DEF") and began having attendance and lateness problems in 1989 due to his alcohol problems. In 1990, McEniry sought assistance from the Westchester County Employee Assistance Program ("EAP") and was admitted into a 28-day inpatient detoxification program. At EAP's request, DEF granted McEniry leave of absence to receive treatment. While participating in the rehabilitation program, McEniry was charged with 47 violations of misconduct relating to absenteeism. Id. After McEniry was discharged from the rehabilitation program, he returned to work. His work was later rated by DEF as satisfactory.
Nevertheless, at a hearing conducted pursuant to Civil Service Law, the hearing officer determined that McEniry was guilty of misconduct and recommended a 60 day suspension. Thereafter, DEF adopted the findings of the hearing officer and terminated McEniry instead of suspending him. McEniry brought an Article 78 proceeding seeking to annul defendant's decision. The Appellate Division dismissed the proceeding and McEniry appealed. The New York Court of Appeals reversed the decision and found that plaintiff established that defendant's had indeed relied on McEniry's past alcohol dependency as a basis of its decision to fire him because the record indicated that plaintiff had been performing his duties satisfactorily for at least three months after he completed the rehabilitation program.
The court held that DEF could not rely on plaintiff's pre-rehabilitation absences as a basis of establishing 'misconduct' or for firing McEniry, since McEniry was completely rehabilitated and had been performing the job satisfactorily for three months. The evidence in the record had established that DEF had given plaintiff a leave of absence to attend the rehabilitation program, that plaintiff had completed the rehabilitation program, had returned to work, and had received a satisfactory/above average job performance evaluation by DEF. The court found that the reason ('misconduct') given by defendant did not establish a non-discriminatory and legitimate purpose for its termination of plaintiff and was, therefore, a pre-text for discrimination.
In the case now before the court, the record is not as rich. There is no evidence that plaintiff was in fact rehabilitated, that his alleged 'post-rehabilitation' job performance was satisfactory, that defendant knew plaintiff was a rehabilitated alcoholic or that plaintiff was being punished for pre-rehabilitation conduct. As a matter of fact, in his reply papers and by affidavits, plaintiff admits to having drank a bottle of vodka on the day he was fired, shortly before his supervisor found him in the storage room of the building. Moreover, the court in McEniry acknowledged the limitations of its own ruling:
...our holding is not intended to create a safe haven for individuals who resort to recovery programs as a pretext for avoiding otherwise legitimate disciplinary action, nor do we imply that in every case where an alcoholic is purportedly rehabilitated all disciplinary action is prohibited... Thus, in the appropriate case, an alcoholic who is found not to be actually rehabilitated, or who is shown to have an established propensity to relapse may be found unable to perform the job in a reasonable manner.
Id. at 560. Therefore, it is clear that plaintiff, in this case, cannot rely on McEniry to survive defendant's summary judgment motion. Defendant's motions are granted and plaintiff's complaint is dismissed in its entirety.
New York, New York
February 18, 1997
CONSTANCE BAKER MOTLEY