The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge
Timothy McCormack brings this employment discrimination action against the Long Island Rail Road Company (the "LIRR"), alleging that the LIRR discriminated against him in violation of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 12101 et seq. The parties consented to my exercise of authority for all purposes including determination of dispositive motions under 28 U.S.C. § 636(c). The LIRR has now moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons explained below, the motion is granted in part and denied in part.
The plaintiff alleges that he suffers from chronic alcoholism and epilepsy. He developed chronic alcoholism in the late 1980's or early 1990's and began experiencing seizures in the early 1990's. (Letter of Lawrence W. Shields, M.D., dated Feb. 26, 2002 ("Shields Letter"), attached as Exh. XII to Affirmation of Fredric N. Gold dated Sept. 16, 2005 ("Gold Aff.")). It is undetermined the extent to which the seizures are alcohol-related or caused by a neurological condition. (Deposition of Timothy McCormack dated May 25, 2005 ("Pl. Dep."), attached as Exh. A to Affirmation of Priscilla Lundin dated July 15, 2005 ("Lundin Aff."), at 23, 91, 104; Gold Aff., Exh. II (alcohol-related seizures); Gold Aff., Exh. V (diagnosis of chronic alcoholism after seizure); Shields Letter (cause of seizures unclear); Letter of Dr. James M. Tremaroli dated Nov. 29, 2001 ("Tremaroli Letter"), attached as Exh. E to Lundin Aff. ("mixed seizure disorder[,] ethanol related and unspecified mechanism")). Although the plaintiff is generally able to care for himself (Pl. Dep. at 6, 7), he and his 14-year-old daughter reside with his parents. (Pl. Dep. at 6).
The plaintiff currently takes medications including Dilantin, Effexor, and Remeron. (Pl. Dep. at 23-24.) There is conflicting evidence regarding his compliance with his doctor's instructions (Statement of Material Facts Not in Dispute ("Def. 56.1 Statement"), ¶ 5), and how frequently, if at all, the seizures occur when he does takes his medication as directed. (Compare Lundin Aff., Exh. O (describing seizure at work on September 19, 2003) with Pl. Dep. at 23 (plaintiff does not experience seizures if he avoids alcohol, and there is "nothing wrong with [him]" when he is medicated); Pl. Dep. at 30, 32 (no seizures since October 2001; seizures are well-controlled with medication); Reasonable Accommodation Request Form dated July 9, 2002, attached as Exh. VII to Gold. Aff. ("Epilepsy - 100% in control with non-narcotic medications since 10/29/01."); and Tremaroli Letter (seizure caused by discontinuation of medication)).
The LIRR employed the plaintiff as a Track Worker from 1985 to approximately 2001. (Def. 56.1 Statement, ¶¶ 1-2). The Track Worker job description provides in part:
Working conditions: Working in the Vicinity of the third rail, 700 VCD and train traffic. Position requires duties to be performed outdoors, in all weather conditions. Varying work environments and potential hazardous conditions, including, but not limited, to the following conditions: dirty, dusty, noisy, adequate lighting and ventilation, vibration, mechanical hazards, moving objects, transporters, elevated places, exposure to electrical hazards, toxic conditions. Employees may be required to work alone or with others.
(Def. 56.1 Statement, ¶ 3) (emphasis omitted).
At approximately 11:40 p.m. on October 29, 2001, the plaintiff lost consciousness while at work. (Def. 56.1 Statement, ¶ 6). The defendant alleges that the plaintiff experienced a seizure at that time, a characterization denied by the plaintiff but accepted by his attorney. (Def. 56.1 Statement, ¶¶ 6-7; Pl. Dep. at 77-78, 104-05; Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl. Memo.") at 3; Gold Aff., ¶ 6; Lundin Aff., Exh. O). After Mr. McCormack regained consciousness, the Track Foreman, Gerry Lynaugh, instructed him to cease working and go home, which Mr. McCormack did. (Pl. Dep. at 77, 78). On October 30, 2001, the plaintiff reported to the LIRR Medical Facility to discuss the events of the previous evening. (Deposition of Sal Maieli dated June 14, 2005 ("Maieli 6/14/05 Dep."), attached as Exh. C to Lundin Aff., at 11-12).
On January 11, 2002, Sal Maieli, the LIRR's Occupational Health Services Manager, informed Mr. McCormack by letter that the LIRR considered him "permanently unable to perform the duties of [his] craft" and "medically disqualified [from his position] as Trackworker." (Letter of Sal Maieli dated Jan. 11, 2002 ("Maieli 1/11/02 Letter"), attached as Exh. VI to Gold Aff.). The letter stated that Mr. Maieli informed Sharon Falloon, the LIRR's Manager-Employment, of Mr. McCormack's situation, and suggested that Mr. McCormack contact Ms. Falloon to discuss "possible future employment opportunities with the LIRR." (Maieli 1/11/02 Letter). The defendant alleges that the LIRR subsequently attempted to locate a vacant position to which it could reassign Mr. McCormack, given his medical limitations. (Def. 56.1 Statement, ¶ 11; Maieli 6/14/05 Dep. at 18-29; Letter of Sal Maieli dated April 24, 2002 ("Maieli 4/24/02 Letter"), attached as Exh. XVI to Gold Aff.).
Approximately six months later, Mr. McCormack had not been assigned to a vacant position, and on July 9, 2002, he submitted to the LIRR a Reasonable Accommodation Request Form ("Reasonable Accommodation Request"). (Gold Aff., Exh. VII at 1).*fn1 He described his disability as "epilepsy - 100% in control with non-narcotic medication since 10/29/01," adding that under New York State law he would be recognized as free from disability starting on October 30, 2002. (Gold Aff., Exh. VII at 2). With respect to the "accommodation requested," he requested a track department position, a position in a department with similar requirements, or any other position. (Gold Aff., Exh. VII at 2).
On September 6, 2002, the LIRR formally denied the plaintiff's Reasonable Accommodation Request. (Def. 56.1 Statement, ¶ 16). On September 27, the plaintiff filed charges with the United States Equal Employment Opportunity Commission (the "EEOC"), and on June 10, 2003, the EEOC issued a "right to sue" letter. (Def. 56.1 Statement, ¶¶ 17, 24).
Mr. McCormack did not occupy a position with, nor was he compensated by, the LIRR from January 11, 2002, until June 2, 2003 (Def. 56.1 Statement, ¶¶ 10-11, 20; Maieli 6/14/05 Dep. at 26-29; Pl. Dep. at 98), although both parties describe his employment as continuous from 1985 through the present (Def. 56.1 Statement, ¶ 1; but see Compl., ¶ 18 (employment terminated and plaintiff later reinstated)). On May 20, 2003, the LIRR offered Mr. McCormack a position as an Oiler/Laborer, with restrictions. (Gold Aff., Exh. IX). The plaintiff asserts that the offer was later rescinded, but no evidence supports this allegation. (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl. Memo.") at 5).
On June 2, 2003, the LIRR offered Mr. McCormack a position as a Car Appearance Maintainer ("CAM"), with restrictions, which he accepted, and he has continued to be employed in that capacity to date. (Def. 56.1 Statement, ¶¶ 20-21; Gold Aff., Exh. X). Mr. McCormack's employment as a CAM is subject to the following restrictions: no work around tracks or live ...