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ROBERTS v. NEW YORK STATE DEPT. CORRECTIONAL SERV.
June 2, 1999
MICHAEL ROBERTS, PLAINTIFF,
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, DEFENDANT. AND UNITED STATES OF AMERICA, INTERVENOR.
The opinion of the court was delivered by: Curtin, District Judge.
On March 16, 1999, United States Magistrate Judge Leslie G.
Foschio filed his report and recommendation on plaintiff's motion
for summary judgment and defendant's motion to dismiss and for
summary judgment. Magistrate Judge Foschio recommended that
plaintiff's motion be denied and that defendant's motion be
granted (Item 37).
On March 31, 1999, the plaintiff filed objections to the report
and recommendation; and on May 25, 1999, defendant filed a
response urging approval of the report of the Magistrate Judge.
The court has considered all of the papers and the
circumstances in this file and finds that the report and
recommendation should be approved. Therefore, the plaintiff's
motion for summary judgment is denied, and defendant's motion for
summary judgment is granted. This case is dismissed, and judgment
shall enter for defendant.
REPORT AND RECOMMENDATION
This matter was referred to the undersigned by the Honorable
John T. Curtin on July 8, 1996 for report and recommendation on
all dispositive motions. The matter is currently before the court
on the Plaintiff's motion for summary judgment, filed February
27, 1998 (Docket Item No. 19), and Defendant New York State
Department of Correctional Services' motions to dismiss and for
summary judgment, filed April 9, 1998 (Docket Item No. 26).
Plaintiff Michael Roberts ("Plaintiff") filed this action
pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12111-12117
("ADA") and New York Human Rights Law, N.Y. EXEC. LAW
§ 296. Plaintiff, who is a recovering alcoholic, claims that his
employer, the New York Department of Correctional Services
("Defendant") ("DOCS"), discriminated against him on the basis of
a disability, alcoholism, by failing to provide him a position at
a DOCS facility located near Buffalo, New York, where he is
undergoing continuing treatment for his alcoholism. Plaintiff
also claims that Defendant, by refusing to grant his requests for
transfer to a facility closer to the Buffalo area or an
alternative work schedule, violated the ADA by failing to provide
reasonable accommodations for his disability. Plaintiff also
claims that Defendant retaliated against him for his filing of a
charge with the Equal Employment Opportunity Commission ("EEOC")
alleging discrimination by Defendant.
Plaintiff commenced employment with Defendant as a Corrections
Officer Trainee on January 2, 1985. Plaintiff was arrested in
August 1990 for Driving While Intoxicated, and received a warning
letter from Defendant relating to the incident on November 3,
1990. Plaintiff's Rule 56 Statement in Support of Summary
Judgment, filed February 27, 1998 (Docket Item No.
21) ("Plaintiff's Rule 56 Statement"), ¶ 3. Plaintiff was
diagnosed with alcoholism in November 1990 and entered an
inpatient treatment program, which he completed on December 3,
1990. See Exhibit A to Plaintiff's Certified Exhibits in
Support of Motion for Summary Judgment, filed February 27, 1998
(Docket Item No. 22) ("Plaintiff's Certified Exhibits").
Plaintiff then entered an outpatient treatment program for
alcoholism, which he completed in June 1991. Plaintiff continues
to be treated for alcoholism in the Buffalo area.
By March 1988, Plaintiff had advanced to the position of
Temporary Release Supervisor, Grade 18 at Defendant's Wende
Correctional Facility in Alden, New York ("Wende"). This position
was terminated on March 6, 1991, and Plaintiff was rehired on
March 7, 1991 as Alcohol and Substance Abuse Program Assistant,
Grade 14 at Wende on March 6, 1991. Plaintiff was appointed
Temporary Counselor, Grade 19 at Defendant's Wyoming Correctional
Facility in Wyoming, New York in December 1991.
Beginning in 1992, Plaintiff applied for several vacant
positions, seeking employment at a facility closer to Buffalo.
Plaintiff interviewed for such positions on several occasions,
including interviews in March and October of 1992, May, June, and
November of 1993, and January 1994. Plaintiff claims that on each
of these occasions, the Defendant's interviewer was aware of his
status as a recovering alcoholic. Additionally, Plaintiff asserts
that on each occasion, a less qualified and less experienced
individual was selected for the position.
Specifically, during the course of an interview for the
Corrections Counselor position at Defendant's Albion Correctional
Facility in October 1992, Plaintiff claims that the interviewer,
Senior Corrections Counselor Lawrence Weingartner, mentioned
Plaintiff's lack of sick accruals and referred to a "major
illness" of the Plaintiff. Complaint, ¶ 15. Weingartner submitted
an affidavit in which he stated that, although he did not
specifically recall an interview with Plaintiff, Weingartner did
not ask about medical problems, and would not inquire about
alcoholism. Affidavit of Lawrence Weingartner ("Weingartner
Affidavit"), Exhibit E to Defendant's Declaration in Support of
Motion for Dismissal and Summary Judgment, filed April 9, 1998
(Docket Item No. 28) ("Defendant's Declaration"), ¶ 4. John Roach
was ultimately selected for the position. Plaintiff's Rule 56
Statement, ¶ 15.
Plaintiff then interviewed in May 1993 for the position of
Correction Counselor at Defendant's Buffalo Work Release
Facility. Plaintiff claims that the interviewer, Maria
Tirone-Curtiss, had actual knowledge of his status as a
recovering alcoholic based on a March 1993 conversation with
Plaintiff. Tirone-Curtiss submitted an affidavit in which she
denied any knowledge of Plaintiff's status as a recovering
alcoholic. Affidavit of Maria Tirone-Curtiss ("Tirone-Curtiss
Affidavit"), Exhibit D to Defendant's Declaration, ¶ 13.
Although, according to Plaintiff, he was more qualified for the
position and had specific work experience in the facility given
his former position as Supervisor of the Work Release Program at
Wende Correctional Facility, Laura Wild was selected for the
position. Complaint, ¶ 17.
Plaintiff interviewed for the position of Corrections Counselor
at Defendant's Wende Correctional Facility on June 6, 1993. His
interviewer, Lawrence Friot, submitted an affidavit denying that
he was aware of Plaintiff's alcoholism during the selection
process. Affidavit of Lawrence Friot ("Friot Affidavit"), Exhibit
B to Defendant's Declaration, ¶ 13. Kathleen Herrmann was
ultimately selected for the position. Plaintiff's Rule 56
Statement, at 8.
On June 14, 1993, Plaintiff requested a reasonable
accommodation for his disability, seeking a transfer to Wende or
to the Buffalo Correctional Facility to allow him to continue
treatment for alcoholism. Plaintiff's physician, Dr. Donald P.
Bartlett, recommended a job transfer to a facility closer to the
Buffalo area, where Plaintiff's support and treatment was based,
to decrease Plaintiff' stress and increase his chances of healthy
recovery in a June 29, 1993 letter to Berthlynn J. Terry,
Assistant Commissioner of Defendant DOCS. Exhibit M to
Plaintiff's Certified Exhibits. Defendant denied this request on
January 20, 1994, Exhibit N to Plaintiff's Certified Exhibits,
stating that Plaintiff had not demonstrated that his disability
substantially impaired a major life activity, and he was
therefore not entitled to a reasonable accommodation pursuant to
the ADA. In this correspondence, Defendant advised
Plaintiff of the availability of treatment centers in the
Jamestown, Dunkirk, and Cassadaga areas, and also suggested that
Plaintiff speak with his supervisor regarding an alternate work
schedule to enable him to attend treatment in Buffalo. Exhibit N
to Plaintiff's Certified Exhibits.
Plaintiff filed a charge with the EEOC on August 20, 1993,
alleging discrimination on the basis of his disability arising
from Defendant's refusal to select him for the positions to which
he applied, and its failure to grant his transfer request.
Exhibit A to Complaint. In addition to his claims alleging
intentional discrimination and refusal to provide reasonable
accommodations, Plaintiff claims that Defendant retaliated
against him on several occasions for the filing of the EEOC
Specifically, in November 1993, John McGregor, a Corrections
Counselor Trainee, was hired to fill a vacant Corrections
Counselor position at Defendant's Wende Correctional Facility,
although Plaintiff claims he was "clearly better qualified for
the position." Complaint, ¶ 23.
While Plaintiff claims to have also requested an alternate work
schedule as a reasonable accommodation on May 18, 1994,
Plaintiff's Memorandum, ¶ 34, the parties dispute whether
Plaintiff made such a request. Richard Savage, the current Deputy
Superintendent of Programs at Defendant's Lakeview Correctional
Facility, stated that no records of such a request exist, and
conversations with Frank McCray the Deputy Superintendent of
Programs at Lakeview in 1994, and Plaintiff's supervisor since
1992, Richard Sapienza, both of whom stated that Plaintiff never
requested an alternate work schedule during 1994. Affidavit of
Richard A. Savage ("Savage Affidavit"), Exhibit C to Defendant's
Declaration, ¶ 6. According to Plaintiff, his request was denied
on May 18, 1994. Plaintiff's Memorandum, ¶ 35.
On May 24, 1994, Plaintiff sent a resume to the Defendant's
Rochester Correctional Facility in support of his application for
a Correction Counselor position at the Buffalo Day Reporting
Office. On June 2, 1994, the Head Account Clerk at this facility
returned Plaintiff's resume. Complaint, ¶ 26.
Plaintiff applied for position as Correction Counselor at Wende
Correctional Facility in September of 1994, but was notified on
October 4, 1994 that he had not been selected for this position.
Exhibit O to Plaintiff's Certified Exhibits.
Plaintiff filed the instant Complaint on March 20, 1995 (Docket
Item No. 1) ("Complaint"), claiming violations of the ADA and the
New York Human Rights Law. Plaintiff filed a motion for summary
judgment on February 27, 1998 (Docket Item No. 19), along with a
memorandum in support of the motion. Plaintiff's Memorandum in
Support of Motion for Summary Judgment, attached to Notice of
Motion ("Plaintiff's Memorandum"). In this motion, Plaintiff
argued that summary judgment is required, as (1) he is a disabled
person within the meaning of the ADA; (2) Defendant had knowledge
of his disability; (3) Defendant, having this knowledge, denied
him employment in positions for which he is qualified; and (4)
Defendant denied his requests for reasonable accommodations.
Plaintiff's Memorandum in Support of Motion for Summary Judgment
("Plaintiff's Memorandum"), attached to Plaintiff's Notice of
Motion, filed February 27, 1998 (Docket Item No. 20), at 11.
Specifically, Plaintiff argues that Defendant discriminated
against him by (1) failing to consider placing him in the vacant
Counselor positions at the Wende facility, (2) failing to
transfer him to the Buffalo facility, and (3) otherwise failing
to provide a reasonable accommodation. Complaint, ¶ 59. Plaintiff
argues that he is a qualified individual with a disability under
the ADA, as he is a person with a disability who has the skill,
experience and education for the Corrections Counselor position
and can perform the essential functions of this job with
reasonable accommodation to either
the Wende Correctional Facility or the Buffalo Corrections
Facility. Complaint, ¶ 49. According to Plaintiff, through
Defendant's actions, Defendant has denied him the opportunity to
work in a facility closer to his treatment and support network
located in the Buffalo area, which would decrease his stress and
increase his chances for overall recovery. Complaint, ¶ 60.
Plaintiff alleges that he has experienced emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of
life and other losses. Id. Plaintiff also argues that the
Defendant violated § 296 of the New York Executive Law.
Defendant moved, on April 9, 1998, for dismissal under
Fed.R.Civ.P. 12(b)(1), and cross-moved for summary judgment on
the merits. Defendant's Declaration in Support of Defendant's
Motion for Dismissal Pursuant to Fed.R.Civ.P. 12(b)(1) and for
Summary Judgment pursuant to Fed. R.Civ.P. 56, filed April 9,
1998 (Docket Item No. 28). In support of its motion for
dismissal, Defendant submitted the affidavits of Leslie Becker,
Lawrence Friot, Richard A. Savage, Maria B. Tirone-Curtiss, and
Lawrence Weingartner. Exhibits A-E to Defendant's Declaration in
Support of Motion to Dismiss and for Summary Judgment.
Defendant submitted a memorandum on April 9, 1998 (Docket Item
No. 27) ("Defendant's Memorandum") in support of its motions,
arguing (1) Plaintiff has failed to state a claim for which
relief can be granted, as he has failed to allege that he is a
disabled individual within the meaning of the ADA; (2)
Plaintiff's request for a transfer was not a request for
reasonable accommodation within the ADA; (3) the court lacks
jurisdiction because the ADA unconstitutionally seeks to abrogate
the Eleventh Amendment immunity of the Defendant as an arm of New
York State. Defendant's Memorandum at 5-13. In support of its
motion for summary judgment, Defendant submitted a Statement of
Uncontested Material Facts on April 9, 1998 (Docket Item No. 29).
Plaintiff responded to Defendant's motions on May 15, 1998,
arguing (1) the court has jurisdiction over this matter, as the
ADA effectively abrogates the Eleventh Amendment, and persons
with disabilities with disabilities are a suspect class for
purposes of the Fourteenth Amendment's equal protection clause.
Plaintiff's Response to Defendant's Motions for Dismissal and
Summary Judgment, filed May 15, 1998 (Docket Item No.
33) ("Plaintiff's Response") at 3-8. Plaintiff further argued
that he is disabled within the meaning of the ADA, and that his
request for transfer was a request for a reasonable
accommodation. Id. at 8-14.
The United States of America moved for leave to intervene on
September 23, 1998 (Docket Item No. 35), for the sole purpose of
defending the constitutionality of § 502 of the ADA. Motion to
Intervene at 2. The court granted the motion to intervene on
September 29, 1998 ...