United States District Court, E.D. New York
August 8, 2005.
NICHOLAS SANZO, Plaintiff,
UNIONDALE UNION FREE SCHOOL DISTRICT, GRAND AVENUE SCHOOL, Defendants.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
On February 26, 2002, Nicholas Sanzo ("Sanzo" or the
"plaintiff") filed a complaint against his former employer,
Uniondale Union Free School District ("District") and Grand
Avenue School ("School") (collectively the "defendants") alleging
that the defendants terminated his employment at the School
because of his disability, in violation of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12117 (2005), and
the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law §§ 290-301 (2005). Presently before the Court is the
defendants' motion for summary judgment to dismiss the amended
complaint pursuant to Rule 56 of the Federal Rules of Civil
The following facts are not in dispute, except where otherwise
indicated. On August 19, 1998, the defendants hired Sanzo as head
custodian of the Grand Avenue School. His main responsibilities
included the maintenance, safety, and cleanliness of the entire
building and the direct supervision of four custodians. During
his six month probationary period, the plaintiff was disciplined
in writing by the School's Principal for falling asleep on the
job. In February 1999 his probationary period concluded, at which
time the Principal recommended that the plaintiff be given a permanent
appointment as head custodian. That recommendation was accepted, and on
February 5, 1999, the plaintiff was appointed head custodian.
On August 3, 2000, the plaintiff's physician, Dr. Frank J.
Amico, provided a letter to the School stating that "[Sanzo] is
currently under treatment for narcolepsy. He is also being worked
up for sleep apnea." On August 11, 2000, the School's Assistant
Superintendant, Gene Levenstein responded to Dr. Amico's letter
by inquiring about "the full extent of his problem as it is
imperative that I have a record of how his illness may affect his
job performance." On August 17, 2000, Dr. Amico responded that
Sanzo would need to be evaluated by a sleep disorders clinic
before the full extent of his illness could be known. On September 13, 2000,
Mr. Levenstein again wrote to further inquire about Sanzo's
condition and his ability "to perform the essential functions of
his job as a head custodian (i.e., lifting and moving various
equipment), with or without reasonable accommodation." On October
3, 2000, Dr. Amico responded and stated that Sanzo could perform
his duties as head custodian.
On December 12, 2000, the District's Superintendent of Schools,
Dr. Mary Cannie, initiated disciplinary charges against the
plaintiff pursuant to Section 75 of the Civil Service Law. The
disciplinary charges included nineteen specifications of poor
performance and misconduct, none of which stated that the
plaintiff slept on the job. According to the defendants, Dr.
Cannie was not aware that the plaintiff fell asleep on the job or
was otherwise being treated for a sleeping disorder.
In February 2001, an independent hearing officer, Valerie
Marvin, Esq., held a hearing with regard to the disciplinary
charges preferred against the plaintiff. At the hearing, the
plaintiff was represented by a union attorney. During the
four-day hearing a transcript of 495 pages was recorded; twelve
witnesses testified; the District introduced twenty-two exhibits;
and the plaintiff introduced ten exhibits. After the hearing, the
plaintiff submitted a forty-three page post-hearing brief and the
District submitted a forty-nine page post-hearing brief.
On March 28, 2001, Hearing Officer Marvin issued a twenty-seven
page report (the "Marvin Report") in which she found the
plaintiff guilty of fifteen of the nineteen specifications. In particular, specification one related to an
incident on October 8, 1999 where Sanzo failed to properly
respond to and address sparks flying from an outlet that caused a
plug to melt down and char the wall. Other specifications related
to incidents of misconduct and incompetence. As a penalty the
Hearing Officer recommended that Sanzo be terminated from his
employment at the School. On April 2, 2001, the District's Board
of Education accepted the recommendation and terminated the
plaintiff's employment effective April 4, 2001.
On or about July 9, 2001, Sanzo filed a Charge of
Discrimination with the Equal Employment Opportunity Commission
("EEOC"). After an investigation, on December 19, 2001, the EEOC
found no probable cause of discrimination.
At or about the time of the disciplinary hearings, Sanzo
attended a sleep disorder clinic. In August 2001, the plaintiff
claims he was formally diagnosed with narcolepsy, a disorder
characterized by sudden and uncontrollable attacks of deep sleep.
The parties dispute the actual date of the formal diagnosis.
A. The Summary Judgment Standard
Summary judgment is appropriate if the record "shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." Fed.R. Civ.
P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S. Ct. 2548, 2550 (1986); Wilkinson v. Russell,
182 F.3d 89 (2d Cir. 1999); Turner v. General Motors Acceptance Corp., 180 F.3d 451 (2d
Cir. 1999); In Re Blackwood Associates, L.P., 153 F.3d 61, 67
(2d Cir. 1998) (citing Fed.R.Civ.P. 56(c). In deciding a
summary judgment motion, the district court must resolve all
ambiguities and draw all reasonable inferences in the light most
favorable to the opposing party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 155, 106 S. Ct. 2505, 2513-14 (1986);
Amato v. City of Saratoga Springs, 170 F.3d 311, 322 (2d Cir.
1999) (citing Skubel v. Fuoroli, 113 F. 3d 330, 334 (2d Cir.
1997)); Castle Rock Entm't, Inc. v. Carol Pub. Group, Inc.,
150 F.3d 132, 137 (2d Cir. 1998) (citing Garza v. Marine Transp.
Lines, Inc., 861 F.2d 23, 26 (2d Cir. 1988)). Disputed facts
that are not material to the issue at hand will not defeat
summary judgment. See Anderson, 477 U.S. at 248,
106 S. Ct. at 2610. "Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the
entry of judgment." Id. A dispute about a material fact is
genuine "if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Id. If there is
evidence in the record, including affidavits, exhibits,
interrogatory answers, and depositions, as to any material fact
from which an inference could be drawn in favor of the
non-movant, summary judgment is unavailable. See Lane v. New
York State Electric & Gas Corp., 18 F.3d 172, 176 (2d Cir.
Notably, "the trial court's task at the summary judgment motion
state of litigation is carefully limited to discerning whether
there are genuine issues of material fact to be tried, not to decide them. Its duty, in short, is
confined at this point to issue-finding, it does not extend to
issue resolution." Gallo v. Prudential Residential Servs. Ltd.,
22 F.3d 1219, 1224 (2d Cir. 1994); see Donohue v. Windsor
Locks Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir.
1987) (holding that on a motion for summary judgment, the court
"cannot try issues of fact; it can only determine whether there
are issues to be tried").
B. The Americans with Disabilities Act and the New York Human
The ADA prohibits an employer from discriminating against an
employee "because of the disability of such individual in regard
to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment."
42 U.S.C. § 12112(a)(2005). The ADA's threshold test is also applied to
disability discrimination claims under the NYHRL. See Parisi
v. Coca-Cola Bottling Co., 995 F. Supp. 298, 301 (E.D.N.Y.
1998); Mohamed v. Marriott Int'l, Inc., 905 F. Supp. 141,
156-57 (S.D.N.Y. 1995); Fitzgerald v. Alleghany Corp.,
904 F. Supp. 223, 229-30 (S.D.N.Y. 1995).
A plaintiff alleging employment discrimination under the ADA
bears the initial burden of establishing a prima facie case of
discriminatory discharge. In order to establish a prima facie
case, a plaintiff must show that: (1) his employer is subject to the ADA; (2) he has a disability under the meaning of the ADA;
(3) he could perform the essential functions of his job, with or
without reasonable accommodation; and (4) his disability was a
factor that led to his termination. Ryan v. Grae & Rybicki,
P.C., 135 F.3d 867, 869 (2d Cir. 1998) (citing Heilweil v.
Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994) and Bates v.
Long Island R.R. Co., 997 F.2d 1028, 1035 (2d Cir. 1993)). "The
burden that such a plaintiff must meet in order to defeat summary
judgment at the prima facie stage is `not onerous,' and has been
described as `de minimus.'" Howley v. Town of Stratford,
217 F.3d 141, 150 (2d Cir. 2000) (quoting Texas Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089,
67 L.Ed. 2d 207 (1981) and Chambers v. TRM Copy Ctrs. Corp.,
43 F.2d 29, 37 (2d Cir. 1994)).
Once the plaintiff alleges a prima facie case, the burden
shifts to the employer to rebut the presumption of discrimination
by articulating a legitimate nondiscriminatory reason for the
termination or adverse employment action. Bickerstaff v. Vassar
Coll., 196 F.3d 435, 446 (2d. Cir. 1999) (citations omitted).
The employer merely needs to "explain what he has done."
Burdine, 450 U.S. at 256 (citations omitted). Should the
employer carry this burden, the question then turns to whether
the plaintiff can prove that the employer's proffered reason was
not the true reason or the only reason for the termination and
was rather a pretext, masking discriminatory intent. See
Bickerstaff, 196 F.3d at 446. "Although intermediate evidentiary burdens shift back and forth
under this framework, `[t]he ultimate burden of persuading the
trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all time with the plaintiff.'"
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142,
120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000) (quoting
Burdine, 450 U.S. at 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207).
If the plaintiff cannot prove intentional discrimination
motivated by his disability, then the defendants are entitled to
Similarly, New York courts use the same McDonnell Douglas
framework to analyze cases of employment discrimination under the
NYHRL. See North Shore Univ. Hosp. v. Rosa, 86 N.Y. 2d 413,
633 N.Y.S.2d 462, 464, 657 N.E.2d 483 (N.Y. 1993) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792,
36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)) (additional citations omitted);
Reeves v. Johnson Controls World Servs., 140 F.3d 144, 156 n. 9
(2d Cir. 1998).
C. Analysis of the Plaintiff's Claim
Taking the facts in light most favorable to the plaintiff, the
Court finds that the plaintiff is able to meet the minimal
threshold to establish a prima facie case of discrimination.
Nevertheless, even if the plaintiff is able to establish a prima
facie case for employment discrimination, the defendants have
articulated compelling legitimate and nondiscriminatory reasons
for the plaintiff's termination. In this regard, the Court finds
that the determinations of the Marvin Report were sufficient
legitimate non-discriminatory grounds to terminate the plaintiff's
employment. See, e.g., Collins v. New York City Transit
Auth., 305 F.3d 113, 119 (2d Cir. 2002) (finding that the
arbitral decision by an "undisputedly independent, neutral, and
unbiased adjudicator that had the power to prevent the
termination" was "highly probative of the absence of
discriminatory intent in that termination."); see also
Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 n. 21,
39 L.Ed. 2d 147, 94 S. Ct. 1011 (1974) (noting that the probative
weight of a arbitral decision is determined by the court's
discretion on a case-by-case basis).
As head custodian, Sanzo's failure to properly respond to and
address sparks flying from a school outlet that caused a plug to
melt down causing the wall to be charred, is, by itself,
justification for his termination and is a legitimate and
nondiscriminatory reason for termination. The other established
specifications related to incidents of misconduct and
incompetence only further provide legitimate nondiscriminatory
reasons for his termination. Though the plaintiff characterizes
some of the incidents described in the specifications as minor
infractions, this court finds that the employer was fully
justified in terminating the plaintiff. Courts have found even
less convincing reasons than the ignoring of a potential fire
hazard in an elementary school to be legitimate and
nondiscriminatory reasons for termination. See e.g., Bogdan v.
New York City Transit Auth., No. 02 Civ. 09587, 2005 U.S. Dist.
LEXIS 9317, at *24 (S.D.N.Y. May 13, 2005) (multiple complaints
of poor job performance as legitimate, nonretaliatory reasons for employee's
termination); Costello v. St. Francis Hosp.,
258 F. Supp. 2d 144, 155 (E.D.N.Y. 2003) (falsification of a time sheet
constitutes legitimate, nondiscriminatory reason for termination
employee); Myrick v. New York City Employees Ret. Sys., No. 99
Civ. 4308, 2002 U.S. Dist. LEXIS 8032 (S.D.N.Y. May 2, 2002)
(incompetence and misconduct in the form of failure to meet a
deadline in modifying an automated system; failure to submit
update reports; and failure to produce project working document
are legitimate, nondiscriminatory reasons for termination).
On the other hand, the plaintiff, did not provide sufficient
proof of a pretext to discriminate. See Reeves v. Sanderson
Plumbing Prods., 530 U.S. 133, 148-49, 120 S. Ct. 2097,
147 L.Ed. 2d 105 (2000). The plaintiff relies on Collins v. New York
City Transit Authority to argue that the Marvin Report was
"wrong as a matter of fact" because it did not consider "new
evidence not before the tribunal" the plaintiff's sleeping
disorder as the reason behind the incidents of misconduct and
incompetence. See Collins v. New York City Transit Auth.,
305 F.3d 113, 119 (2d Cir. 2002). According to Collins, to survive
a motion for summary judgment where a decision follows an
evidentiary hearing and is based on substantial evidence, the
Title VII plaintiff must present strong evidence that the
decision was wrong as a matter of fact, for example new evidence
not before the tribunal, or that the impartiality of the
proceeding was somehow compromised. Id. at 119. However, here the plaintiff does not proffer "strong evidence"
that the decision was "wrong as a matter of fact." The plaintiff
contends that the decision was wrong because the Hearing Officer
did not consider the plaintiff's sleeping disorder and claims
that the Hearing Officer was not impartial. None of the
specifications for which he was found guilty have anything to do
with his sleeping disorder. Moreover, consideration of the
plaintiff's sleeping disorder does not constitute "new evidence"
because the Hearing Officer was aware of the sleeping disorder
and even took note that the plaintiff failed to raise the
sleeping disorder as a defense.
As stated above, the plaintiff failed to establish that the
reasons proffered by the defendants are untrue or a pretext for
discriminatory intent. Also, the plaintiff offers no evidence
that would give rise or support an inference of discrimination
other than his own conclusory allegations. See Vanhorne v.
N.Y. City Transit Auth., 273 F. Supp. 2d 209, 214 (E.D.N.Y.
2003) ("[a] plaintiff's personal conclusory assumptions as to the
reasoning behind a disciplinary decision are insufficient to
support such an inference."). He contends that the Section 75
process of a four day hearing where he was defended by a union
attorney; where thirty-two exhibits were offered and twelve
witnesses testified, was all a pretext for discrimination. His
reasoning is particularly unconvincing given that the plaintiff
had passed his probationary period despite his sleeping on the
job. Accordingly, the defendants' motion for summary judgment, with
regard to both the ADA and NYHRL claims, is granted.
Based on the foregoing, it is hereby
ORDERED, that the defendants' motion for summary judgment
under Rule 56 of the Fed.R.Civ.P. is GRANTED dismissing the
complaint in its entirety; and it is further
ORDERED, that the Clerk of the Court is directed to close
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