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September 27, 2004.


The opinion of the court was delivered by: DAVID TRAGER, District Judge


In this action, plaintiff Marc Greenberg ("Greenberg," "plaintiff") claims (i) that his termination as an employee of the New York City Transit Authority ("TA," "Transit Authority," "defendant") in August 1994 violated Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12111-12117 ("ADA"), because the TA intended to discriminate against him because he was either actually disabled or was perceived to be disabled, and (ii) that his reinstatement by the TA in June 1997 was delayed, in violation of the ADA, because the TA wished to retaliate against him for his having asserted ADA-related rights by filing an Equal Employment Opportunity Commission ("EEOC") charge following his termination. (Second Amended Complaint ("Am. Compl.") ¶ 1). Plaintiff also brought supplemental claims under the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. ("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq. ("NYCHRL"). (Am. Compl. ¶ 1).

The TA has moved for summary judgment in its favor, and also to dismiss the action for allegedly false material statements made by plaintiff during his deposition. Specifically, as to the first part of its motion, defendant argues that summary judgment in its favor is appropriate because "the undisputed material facts do not show that the employment of the plaintiff, Marc Greeneberg, was terminated . . . in mid-1994 because he was, or was perceived as being disabled, within the meaning of the ADA; nor do the facts show that his reinstatement (in June 1997) was delayed by any ADA-retaliatory motive, or for any other reason proscribed by the ADA" (Def. Mem. of Law in Support 8). As to the second part of its motion, defendant argues that this action should be dismissed "because the plaintiff lied in his deposition about what is effectively [his] sole remaining claim in this action, that is, his emotional distress claim arising from his termination" (Notice of Defendant's Motion to Dismiss; Def. Mem. of Law in Support 9).

  Plaintiff has cross-moved for partial summary judgment in his favor on the following matters: (1) defendant "discharged [p]laintiff from his employment in 1994 because it regarded him as disabled within the meaning of the [ADA]"; (2) "[d]efendant discharged [p]laintiff from his employment in 1994 because he was disabled within the meaning of the [NYSHRL] and the [NYCHRL]"; and (3) "[d]efendant had no valid reason to terminate [p]laintiff's employment." (Notice of Plaintiff's Motion for Partial Summary Judgment; Pl. Mem. of Law in Support 1).

  Prior to filing this action in federal court, plaintiff initiated several proceedings in response to his termination. Following is a brief overview of those proceedings. On August 31, 1994, plaintiff filed a grievance contesting his discharge (Greenberg Decl. Ex. F). The TA denied plaintiff's grievance and his appeal (id.).

  Plaintiff filed a charge of disability discrimination with the EEOC in September 1994, complaining of his termination by the TA in August 1994 (Greenberg Decl. ¶ 50). The EEOC eventually issued a right-to-sue letter and plaintiff commenced this action, pro se, on June 28, 1999. Subsequently, plaintiff obtained counsel and filed an Amended Complaint and a Second Amended Complaint. Discovery as to liability has been completed.

  In a separate action, on February 13, 1995, plaintiff filed a charge of discrimination with the New York State Workers' Compensation Board ("WCB") (Greenberg Decl. ¶ 50). After several hearings, a Workers' Compensation Law ("WCL") Judge in December 1995 determined that in discharging plaintiff in 1994, the TA had discriminated against him in violation of the Workers' Compensation Law and ordered the TA to reinstate him, subject to a satisfactory medical examination (Malloy Decl. Ex. V. at 30). The TA did not comply with that order, but instead, on January 3, 1996, submitted an application for WCB review of the decision (Malloy Decl. Ex. W). On February 3, 1997, a WCL Judge again ordered the TA to reinstate plaintiff to employment (Malloy Decl. Ex. X at 2). The TA did not comply with the order, but instead, on March 25, 1997, submitted an application for WCB review of the decision. In addition, the TA submitted an application for full WCB review on December 30, 1997 and June 17, 1998 (Malloy Decl. ¶ 4, Ex. W). The WCB issued a decision, which was subsequently amended two times, finding that the TA discriminated against plaintiff, including a finding that the TA "did not have a valid reason for terminating [plaintiff] on August 22, 1994" (Malloy Decl. Ex. W (May 17, 2001 Decision) at 3). The WCB rejected as a pretext the TA's assertion that it discharged Plaintiff pursuant to Civil Service Law § 71 (id.).

  The TA filed three notices of appeal with the New York State Supreme Court Appellate Division, Third Department, but failed to prosecute all three (Malloy Decl. ¶ 4). Pursuant to section 22 N.Y.C.R.R. § 800.12, all three of those appeals were deemed abandoned. On September 11, 2002, the Third Department dismissed the TA's third abandoned appeal, and the litigation of the TA's liability under the WCL has been concluded (Malloy Decl. ¶ 4 and Ex. W (3rd Dep't Sept. 11, 2002 Decision and Order on Motion)).

  Plaintiff received back pay by order of a WCB proceeding for the period from August 26, 1994 to June 9, 1997 (Schoolman Decl. ¶ 13; Defendant's Local Rule 56.1 Statement ("Def. Rule 56.1 Statement") ¶ 28; Plaintiff's Rule 56.1 Statement in Opposition to Defendant's Motion to Dismiss ("Pl. Rule 56.1 Opp.") ¶ 28).


  Plaintiff was hired by the TA in June 1978, and within a year became a Bus Maintainer, Group B (a civil service title) (Declaration of Marc Greenberg, Sept. 24, 2003 ("Greenberg Decl") ¶ 2; Defendant's Memorandum of Law in Support of its Motion to Dismiss ("Def. Mem.") at 2). In September 1987, plaintiff suffered an on-the-job injury to his left knee (Declaration of Richard Schoolman ("Schoolman Decl."), Ex. E; Greenberg Decl. ¶ 6).

  Plaintiff's orthopedist, Dr. Bennet Futterman, in a report dated March 15, 1988, reported to the TA that plaintiff suffered from a tear of the left medial meniscus and requested authorization to perform arthroscopic surgery of the left knee (Plaintiff's Rule 56.1 Statement in Support of Plaintiff's Motion for Partial Summary Judgment ("Pl. Rule 56.1 Statement") ¶ 4). Arthroscopic surgery was eventually performed on the left knee on August 18, 1988 (Malloy Decl. Ex. C at P58, P64).

  On April 12, 1988, the TA Medical Assessment Center ("MAC") concluded that plaintiff was able to perform "no work," which meant that plaintiff was considered unable to perform any work for the TA (id. ¶ 5). Plaintiff continued in a "no work" status until December 28, 1988, when the MAC determined that plaintiff could perform restricted work (id. ¶ 6). The restrictions that the TA imposed on plaintiff on December 28, 1988 included "limited use of left leg" and "limited bending, crawling, crouching, kneeling, stooping" (id. ¶ 6; Malloy Decl. Ex. C at P81).

  Plaintiff states that he was not permitted to return to work until June 1, 1989, at which time he returned to "restricted" work as a bus maintainer in a bench job working on small parts (Pl. Rule 56.1 Statement ¶ 8). Defendant explains that there was no work available for plaintiff until June 1, 1989 (Defendant's Counter Local Rule 56.1 Statement in Opposition to Plaintiff's Motion for Partial Summary Judgment ("Def. Counter Local Rule 56.1 Statement") ¶ 2). The record shows that on December 30, 1988, plaintiff was placed in the "No Work Available" category by the TA's Surface Department (Schoolman Decl. Ex. F).

  In April 1989, before returning to work, plaintiff submitted an application for disability retirement, which was denied (Greenberg Decl. ¶ 16).*fn1

  On November 30, 1989, it was determined by a physician at the TA Medical Services Department that plaintiff could "remain at bench job. No bending or crouching until re-evaluated" (Malloy Decl. Ex. C at P131-32, P124B). In February 1990, a TA doctor deemed plaintiff's continuing medical restrictions "permanent" (Greenberg Decl. ¶ 17; Malloy Decl. Ex. C at P131-32).*fn2

  In June 1990, plaintiff was examined by the MAC, and he was told that he was eligible for reclassification to work as a Transit Property Protection Agent ("TPPA")*fn3 or Railroad Clerk (Pl. Rule 56.1 Statement ¶ 12; Def. Counter Local Rule 56.1 Statement ¶ 6; Greenberg Decl. ¶ 18; Malloy Decl. Ex. G). Plaintiff was reclassified and began work as a TPPA on August 13, 1990 (Pl. Rule 56.1 Statement ¶ 12; Greenberg Decl. ¶ 18).

  Between 1989 and 1994, as indicated in Dr. Futterman's regular reports to the TA and in records of the MAC, plaintiff's medical problems expanded to include his right knee, back, and neck (Pl. Rule 56.1 Statement ¶ 15; Def. Counter Local Rule 56.1 Statement ¶ 7). Dr. Futterman submitted requests for the TA to authorize physical therapy for both plaintiff's knees and for surgery to his right knee and back (Pl. Rule 56.1 Statement ¶ 16).*fn4 Physiotherapy and right knee surgery were authorized by decisions of Workers' Compensation Law Judges (id.). Despite these ongoing medical problems, plaintiff continued to work for the TA without taking any additional work-related disability leaves from employment (Pl. Rule 56.1 Statement ¶ 17).

  Plaintiff worked as a TPPA until July 11, 1994, when he claims his right knee gave out while he was working (Greenberg Decl. ¶ 24; Pl. Rule 56.1 Statement ¶ 18; Def. Counter Lcaol Rule 56.1 Statement ¶ 9). That day, plaintiff was treated at St. Luke's Roosevelt Hospital, where he was instructed, among other things, to use a cane (Pl. Rule 56.1 Statement ¶ 19). In the accident report, which was also signed by plaintiff, plaintiff's supervisor noted that the accident was a "recurrence of old job-related knee injury" and that plaintiff's doctor had previously recommended surgery "to relieve problem in knee area" (Pl. Rule 56.1 Statement ¶ 20; Def. Counter Local Rule 56.1 Statement ¶ 10). The MAC concluded on July 12, 1994 that plaintiff could not perform any work for the TA for at least two weeks (Pl. Rule 56.1 Statement ¶ 21).

  On July 28, plaintiff was examined by the TA's medical consultant, Dr. Swearingen, who recommended that he undergo an MRI of his right knee (Malloy Decl. Ex. C at P223-27; Pl. Rule 56.1 Statement ¶ 34; Def. Counter Local Rule 56.1 Statement ¶ 20). Dr. Swearingen, in his report for the July 28 visit, noted that Greenberg "can work but can not be placed in position where he could be injured by a fall such as from high places." (Malloy Decl., Ex. C at P226). Plaintiff underwent an MRI on August 3, 1994. The MRI report that was sent to the TA stated that plaintiff had a "complex tear" to his "entire right medial meniscus with associated chondromalacia of articular cartilage in medial compartment" (Pl. Rule 56.1 Statement ¶ 35).

  Sometime between July 11 and July 21, 1994, Jill Johnsen, the Assistant Director of Workers' Compensation at the TA, met or spoke with Michael Thompson, plaintiff's supervisor from the property protection department, and Ms. Johnsen advised Thompson that his department should terminate plaintiff.*fn5 (Def. Local Rule 56.1 Statement ¶ 11; Johnsen Decl. ¶ 4 and Ex. B at 75). Thompson was directed to have his department send a letter to plaintiff indicating the Transit Authority's intent to terminate plaintiff's employment, and thereafter, his department was directed to send a termination letter ((Def. Local Rule 56.1 Statement ¶ 12; Johnsen Decl. ¶ 4 and Ex. B at 75; Malloy Decl. Ex. H at 29:10-14, 34:10-15; Malloy Decl. Ex.E at 52:13-13). Thompson was informed that plaintiff "wasn't able to perform his job, was unable to come to work and perform his duties" (Malloy Decl. Ex. H at 29-30).

  On July 25, 1994, plaintiff received a letter from TA Director of Labor Relations, Dennis Monsen, dated July 21, 1994, entitled "Intent to Terminate, Section 71, Tier 4, 30 Day Notice" (Greenberg Decl. ¶ 27), stating that:
The Transit Authority's records indicate that you have been unable to perform the duties of your title due to a disability resulting from a service connected (injury/illness) since 9/10/87.
You are hereby notifird [sic] that, pursuant to section 71 of the Civil Service Law, the Transit Authority intends to terminate your employment effective 8/21/94. You should be aware that as a tier 4 employee you may be eligible for disbability or service retirement benefits which may be affected by the termination.
(Malloy Decl. Ex. J.; Pl. Rule 56.1 Statement ¶ 27)

  On July 26, 1994, the MAC determined that plaintiff could work, but was restricted to "Bench/Sedentary work" and was to: avoid heights and ladder climbing, not operate any TA vehicle, stay off structures and tracks, not stand or walk more than four hours in an eight-hour period, and perform only limited bending, crawling, crouching, or kneeling. A revisit to the MAC was scheduled for August 26. (Pl. Rule 56.1 Statement ¶ 28.)

  Plaintiff claims that he attempted to return to work on July 26, but was told there was no restricted duty position available for him (Greenberg Decl. ¶ 29).*fn6 Sometime in July, plaintiff also contacted the TA Workers' Compensation unit to request that he be reclassified as a token booth clerk — a job he hoped he could do while on restricted duty. Plaintiff was told that the TA would not allow him to be reclassified, but that instead, his employment would be terminated (Pl. Rule 56.1 Statement ¶ 33; Greenberg Decl. ¶ 32).*fn7

  Although plaintiff had received the July 25th letter, notifying him that his employment would be terminated effective August 21, 1994, plaintiff claims that on Monday August 22, he called his department prior to his shift to clear himself for work, but was told that he could not report for work until he had the proper medical clearance from his doctor, the TA's medical consultant, and the MAC (Greenberg Decl. ¶ 34).*fn8 Plaintiff claims that he subsequently spoke to managers in the TA's restricted duty and Workers' Compensation units who informed him that he would not be permitted to return to work unless he could work full duty (id. ¶ 35).*fn9

  Plaintiff was examined by his doctor, Dr. Rodriguez, on August 23, 1994, who wrote a note clearing him to return to his regular work on August 24 (Pl. Rule 56.1 Statement ¶ 40; Malloy Decl. Ex. C at P238). Plaintiff again attempted to report for work, bringing the note from his doctor, but was not permitted to do so (Pl. Rule 56.1 Statement ¶ 41).

  Plaintiff was examined by the TA's medical consultant, Dr. Swearingen, on August 24. (Pl. Rule 56.1 Statement ¶ 43). In a report to the TA dated August 29, 1994, Dr. Swearingen noted that "claimant has been terminated as of 8/22/94." In that report, Swearingen explained that he reviewed the August 3 MRI and concluded that although "claimant has a note from his physician saying he may return to full duty without treatment[,] I can not counsel you that to send this man back to work with a complex tear of the medial meniscus will not cause him further damage to that [right] knee. Consequently my recommendation must be that arthroscopic surgery be done and the knee situation cleared as well as possible." (Malloy Decl. Ex. C at P239-44).

  On August 24, plaintiff sent two letters and his doctor's note to Dennis Monsen at the TA by overnight mail, return receipt request. The documents were delivered ...

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