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ROBERTS v. NEW YORK STATE DEPT. CORRECTIONAL SERV.

June 2, 1999

MICHAEL ROBERTS, PLAINTIFF,
v.
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.

    ORDER

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.

So ordered.

REPORT AND RECOMMENDATION

JURISDICTION

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).

BACKGROUND and FACTS*fn1

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 charge.

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 ยง 502 of the ADA. Motion to Intervene at 2. The court granted the motion to intervene on September 29, 1998 ...


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