Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
HUSKINS v. PEPSI COLA OF ODGENSBURG BOTTLERS
November 8, 2001
PHILIP P. HUSKINS, PLAINTIFF,
PEPSI COLA OF ODGENSBURG BOTTLERS, INC.
The opinion of the court was delivered by: Howard G. Munson, Senior United States District Judge.
MEMORANDUM DECISION AND ORDER
Plaintiff became a driver in December, 1993, operating the
Corporation's product delivery vehicles to commercial establishments
within St. Lawrence County, and unloading and arranging the
Corporation's merchandise at each delivery point. He continued in this
position until May, 1995, when he was unable work for a short period due
to a work associated injury to his right shoulder. When the injury
healed, plaintiff returned to work on his regular delivery route until
September 14, 1998, when he sustained a left shoulder injury. Prior to
receiving this injury, plaintiff had been promoted by the Corporation.
Plaintiff returned to work on September 22, 1998, but two days later,
he reinjured the shoulder and stayed out of work until October 19,
1998. Upon undertaking his position as a delivery driver on that date,
he was reinjured anew and again unable to work. On October 20, 1998, the
Corporation met with plaintiff to discuss his status. At the meeting,
the Corporation advised plaintiff that it would attempt to hold his
driver position open as long as it was reasonably possible, but, if he
was unable to work for a protracted time, it would become necessary to
fill the position permanently with another driver. Plaintiff remained
out of work after this meeting, except for a few hours on November 16,
1998, when he started but then was requested to stop because the
Corporation was uncertain if it had received notice of his medical
clearance. On December 2, 1998, the Corporation permanently filled
plaintiff's position because it was not able to ascertain when he would be
available to return to work. Over two months later on February 2, 1999,
plaintiff was medically cleared to return to work without restrictions.
His former position having been filled, he was assigned to an open
position as a Spare Driver/Preseller position. Plaintiff was further
advised that he would be eligible for consideration for other positions,
including his former position, as they opened up. Plaintiff agreed to
return to work knowing that he would not be restored to his former
Plaintiff's first day back on the job was February 8, 1999, and was
assigned, as he had been informed, to a Spare Driver/Preseller position.
On February 16, 1999, after being told by a co-worker that the
Corporation did not intend to return plaintiff to his former route,
plaintiff requested and received a meeting with the Sales Manager Richard
Wright. Corporate Controller Michael Looney was also present at the
meeting. Plaintiff stated that he wanted to return to his previous
position and asked when that would take place. Mr. Wright reminded
plaintiff that his position had been filled and he could not be returned
to this route. He also pointed out that they had previously discussed
this state of affairs, and had agreed that he would be employed as a
Spare Driver/Preseller until a vacancy in a Driver position took place.
Plaintiff became argumentative at this statement, and maintained that
Mr. Wright had promised to return him to his previous position when he
was physically recovered, and called him a liar more than once. Plaintiff
later admitted that Mr. Wright did not specifically promise him that he
would get his old route back, but implied that he would. (Huckins Dep.
55-56, 219). As the parties were in close proximity at this time, Mr.
Looney stepped between them, lightly touching plaintiff in
so doing, and unsuccessfully cautioned plaintiff to control his
insubordinate language. Plaintiff's untoward behavior toward Mr. Wright
resulted in his discharge from employment on February 16, 1999. This was
the second time the Corporation had taken disciplinary action against
plaintiff for an unreasonable exhibition of anger in the workplace. In
1997, plaintiff was given a written disciplinary notice and counseling
concerning an incident during which he had lost his temper, became upset,
and walked off the job.
Subsequent to his discharge, plaintiff filed a disability
discrimination charge with the Equal Employment Opportunity Commission
("EEOC"). The charge was investigated and dismissed on a finding of no
probable cause, and plaintiff was issued a Right to Sue Letter. This
action was commenced on March 2, 2000.
The amended complaint alleges violation of Subchapter I of the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA")
asserting that defendant terminated plaintiff's employment due to his
claimed disability. Plaintiff seeks compensatory and punitive damages,
costs, interest and attorney's fees. Currently before the court is
defendant's motion for summary judgment dismissing the complaint pursuant
to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has
entered opposition to this motion.
Rule 56 of the Federal Rules of Civil Procedure permits summary
judgment where the evidence demonstrates that "there is no genuine issue
of any material fact and the moving party is entitled to judgment as a
matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 1106
S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). Summary judgment is properly
regarded as an integral part of the Federal Rules as a whole, which are
designed "to secure the just, speedy and inexpensive determination of
every action." Celotex Corp. v. Catreet, 477 U.S. 317, 326, 106 S.Ct.
2548, 2554, 91 Ed.2d 265 (1991) (quoting Federal Rule of Civil Procedure
1). In determining whether there is a genuine issue of material fact a
court must resolve all ambiguities and draw inferences against the moving
party. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993. 994, 8
L.Ed.2d 176 (1962) (per curiam). An issue of credibility is insufficient
to preclude the granting of summary judgment. Neither side can rely on
conclusory allegations or statements in affidavits. The disputed issue
of fact must be supported by evidence that would allow a "rational trier
of fact to find for the non-moving party." Mashusita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986). Unsupported allegations will not suffice to create a
triable issue of fact. Goenga v. March of Dimes Birth Defects
Foundation, 51 F.3d 14, 18 (2d Cir. 1995). Nor will factual disputes
that are irrelevant to the disposition of the suit under governing law
preclude the entry of summary judgment. Anderson, 477 U.S. at 247, 106
S.Ct. at 2509.
Summary judgment is appropriate in discrimination cases for, "the
salutary purposes of summary judgment — avoiding protracted,
expensive and harassing trials — apply no less to discrimination
cases than to commercial or other areas of litigation. Meiri v. Dacon,
759 F.2d 989, 998 (2d Cir. 1985). The "impression that summary judgment
is unavailable in discrimination cases is unsupportable." McLee v.
Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994). The Supreme Court has also
recently reiterated that the trial courts should not "treat
discrimination differently from other ultimate questions of
fact." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
147, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000) (quoting St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 524, 113 S.Ct. 2742,
125 L.Ed.2d 407 (1993)).
The portion of the ADA applicable to the case at bar states that [n]o
covered entity shall discriminate against a qualified individual with a
disability because of the disability of such individual in regard to . . .
the discharge of employees . . .," 42 U.S.C. § 12112(a). When
considering a summary judgment motion in a discriminatory discharge
brought under the ADA, the court applies the burden shifting test found
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S.Ct.
1817, 1824-25, 36 L.Ed.2d 668 (1973). The test is composed of three
parts — (1) plaintiff must demonstrate a prima facie of
discrimination; 2) if the prima facie case is established, the burden of
production shifts to the defendant to articulate a legitimate
nondiscriminatory reason for its actions and, (3) if the defendant does
so, the presumption created by plaintiff's prima facie case is removed,
and the plaintiff then must prove the presence of intentional
discrimination by showing by a preponderance of the evidence that the
defendant's proffered reasons are only a pretext for the real motivation
of discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502,
510-11, 113 S.Ct. 2742, 2748-49, 125 L.Ed.2d 407 (1993).
In order to create a prima facie case of discriminatory discharge under
the ADA, a plaintiff must initially show that his employer is subject to
the ADA, (2) he suffers from a disability within the meaning of the ADA,
(3) he could perform the essential functions of his job with or without
accommodation, and (4) he was fired because of his disability. Reeves
v. Johnson Controls World Services, Inc., 140 F.3d 144, 149-150 (2d Cir.
1998). An employer is subject to the ADA if it is engaged in an industry
affecting commerce and has 15 or more employees for each working day in
each of 20 or more calendar weeks in the current or preceding calender
year, 42 U.S.C. § 121119(a) and (5)(A). Defendant Pepsi Cola of
Ogdensburg Bottlers, Inc., sells and distributes Pepsi products
throughout St. Lawrence County in northern New York state, it has
approximately 40 employees, and, therefore, is an employer subject to the
A disability within the meaning of the ADA is defined as "a physical
or mental impairment that substantially limits one or more of the major
life activities of [an] individual, 42 U.S.C. § 12102(2)(A). To
ascertain if a plaintiff is disabled for the purposes of ADA, three steps
are taken, (1) decide if the plaintiff is afflicted with a physical or
mental impairment, (2) name the life activity upon which plaintiff relies
and confirm whether it is a major life activity under the ADA and, (3)
determine if plaintiff's impairment substantially limits ...
Buy This Entire Record For