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RIVERA v. APPLE INDUSTRIAL CORP.
March 30, 2001
ALFREDO RIVERA, PLAINTIFF,
APPLE INDUSTRIAL CORP., AND EFFECTIVE SECURITY SYSTEMS, INC., DEFENDANTS.
The opinion of the court was delivered by: Amon, District Judge.
Plaintiff Aifredo Rivera, a security guard formerly employed
by defendants Apple Industrial Corporation ("Apple") and
Effective Security Systems, Inc. ("Effective"), brought this
action alleging violations of the American with Disabilities Act
("ADA"), 42 U.S.C. § 12101, et seq. Specifically, plaintiff
alleges that defendants discriminated against, and subsequently
discharged, him because he has diabetes and poor eyesight.
Before the Court is defendants' motion for summary judgment
pursuant to Fed.R.Civ.P. 56. Although plaintiff certainly
appears to have been subjected to crude and distasteful remarks
from certain of his supervisors, he fails to establish a
violation of the ADA. For the reasons set forth below, the Court
therefore grants defendants' motion.
The following facts, which are undisputed except where noted,
are taken from plaintiffs complaint, plaintiffs and defendants'
Rule 56.1 Statements, and relevant affidavits, exhibits, and
Effective, a New York corporation, has provided security guard
services at the BAT since 1995.
Rivera worked as a security guard for Apple from October 1992
until February 1995, and then was employed by Effective from
February 1995 until April 18, 1996.
Rivera, who is 47 years old, has diabetes. He is blind in his
left eye, but can see out of his right eye. During the time he
was employed as a security guard, Rivera began to lose some
vision in his right eye. He could, nevertheless, by his own
account see well enough to perform his job.
Rivera's Employment With. Apple and Effective
Rivera applied to work as a security guard for Apple in
October 1992. He had been recommended for the job by a former
co-worker of his, Carlito Bosques. Rivera had met Bosques in the
1980s because of their mutual interest in citizens band ("CB")
radios, and Bosques had given Rivera a reference for a job with
New York Rail Car, where the two worked together for several
years. Bosques left New York Rail Car to work for Apple.
On his application for employment with Apple, Rivera noted
that he had diabetes, and during his interview with Ismael Rios,
Apple's Chief of Security at the BAT, Rivera again mentioned
that he was diabetic and required insulin, and that he could not
see out of his left eye. Rios, who hired Rivera after the
interview, himself has diabetes and poor vision resulting from
Rivera never indicated to Apple that he desired or needed to
work any particular schedule because of his diabetes. After he
was hired, Rivera was assigned to the 12 a.m. to 8 a.m. shift
for approximately six months, and then worked the 4 p.m. to 12
In February 1995, Effective entered into a contract with Apple
to take over the provision of security services at the BAT.
Effective interviewed all of the guards employed by Apple, and
retained some of them, including Rivera. Both Rios and Carmen
Giordano, the manager of the BAT for Apple, recommended to
Effective that Rivera be retained.
Rivera did not note any limitations on his ability to perform
any tasks or to work certain shifts in his application for
employment with Effective, although he did inform Effective in
his interview that he had diabetes.
For some period of time after he was hired by Effective,
Rivera was not yet receiving medical benefits. On July 27, 1995,
Rios faxed a letter to Effective asking that Effective expedite
Rivera's request for medical benefits because Rivera was
diabetic and low on insulin. During the time before he began
receiving medical benefits from Effective, Giordano, who is also
diabetic, provided Rivera with syringes and insulin.
Rivera's Disciplinary Record
While employed at Apple and Effective, Rivera was written up
several times by his supervisors for unsatisfactory behavior.
On February 13, 1993, Bosques, one of Rivera's supervisors at
Apple, caught Rivera watching television while on duty. Bosques
prepared a report recounting the incident and stating that he
warned Rivera twice not to watch television.*fn2
On March 30, 1994, another supervisor, Charles Henriquez,
wrote up Rivera after Rivera failed to report that he had
physically restrained two children who had wandered onto the BAT
with a group of other children. Rivera initially held onto one
boy, who was able to slip away. Rivera then grabbed another
child, an eight- to ten-year-old boy, who hit Rivera in his eye.
Although Rivera reported the presence of the children over the
radio, he did not mention until later that he had any physical
contact with the boys, who were escorted off the property by two
other security guards.
In June 1994, Rivera was suspended by Rios for five days after
an incident involving another security officer, Rosa Ramos.
Rivera and Ramos were apparently fighting while on duty.*fn3
Rivera did not protest his suspension. He was warned that he
would be terminated if there was another incident between Ramos
On October 2, 1995, Bosques, now Rivera's supervisor at
Effective, reported that Rivera had failed to lock the doors to
the loading dock as instructed, and that Rivera had later been
found in the basement of the BAT and had refused to say what he
was doing in the basement. Rivera disputes this incident report,
contending instead that he had closed the bay doors and made
sure that they were secure, and that he was in the basement
because that was the only way for him to return to the main
lobby of the building.
On December 26, 1995, Bosques wrote another incident report on
Rivera, stating that Rivera had called from his post at 11:26
p.m. asking to be relieved at 11:50 p.m., and that Rivera had
threatened to leave at midnight if he was not relieved. Rivera
claims that he does not recall such event.
The next day, December 27, 1995, Rivera was found asleep at
his post. Bosques gave Rivera a written warning and recommended
that Rivera be reassigned to another shift. Four days later,
Rivera was reassigned to a rotating shift, the so-called "jump
tour." His new hours were Mondays and Tuesdays from 12 a.m. to 8
a.m., Thursdays from 4 p.m. until 12 a.m., and Saturdays and
Sundays from 8 a.m. to 4 p.m.
Rivera's new supervisor on the jump tour was Edward Colon.
Rivera did not complain to Colon about being placed on the jump
tour or tell Colon that the new hours might interfere with his
ability to properly administer his diabetes medication.
While he was employed by Apple and Effective, Rivera generally
had no problems with his supervisors. A number of them helped
Rivera out from time to time by providing him with food,
including Henriquez and Colon. Rios and Bosques would also
occasionally buy Rivera snacks.
Rivera's Departure From Effective
The parties offer very different versions of how Rivera came
to leave ...