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RIVERA v. APPLE INDUSTRIAL CORP.

March 30, 2001

ALFREDO RIVERA, PLAINTIFF,
V.
APPLE INDUSTRIAL CORP., AND EFFECTIVE SECURITY SYSTEMS, INC., DEFENDANTS.



The opinion of the court was delivered by: Amon, District Judge.

      MEMORANDUM AND ORDER

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.

Background

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 deposition testimony.*fn1

The Parties

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 his diabetes.

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 a.m. shift.

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 had previously 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 and Rivera.

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 ...


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