The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge
Plaintiff Joel Brown ("Brown") brings this employment discrimination action against his former employer, Parkchester South Condominiums, Inc. ("Parkchester"), alleging that he was subjected to a hostile work environment and improperly terminated on the basis of his race, age, sex, and disability, in violation of federal law. Following the close of discovery, Parkchester has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket No. 56). For the reasons set forth below, Parkchester's motion for summary judgment is granted.
Although Parkchester has submitted the statement of undisputed facts required by Local Civil Rule 56.1, Brown has neither served nor filed the counter-statement contemplated by the rule. He has however, submitted extensive opposition papers, including sworn statements and affidavits, which address many of the facts Parkchester relies upon in support of its motion. (Docket No. 59 (Pl.'s Defense Against Summary Judgment ("Pl.'s Opp'n")). I have treated Brown's papers as his Rule 56.1 counter-statement, but to the extent that those papers do not create factual issues or rely on inadmissible evidence, the facts set forth in Parkchester's Rule 56.1 Statement must be deemed admitted. See, e.g., Loucar v. Boston Market Corp., 294 F. Supp. 2d 472, 478 (S.D.N.Y. 2003) (plaintiff's "unsupported, conclusory statements and denials" cannot refute defendant's "properly-supported statements of material fact in its Rule 56.1 Statement"); Gadsen v. Jones Lang Lasalle Americas, Inc., 210 F. Supp. 2d 430, 438 (S.D.N.Y. 2002) ("Courts in this circuit have not hesitated to deem admitted the facts in a movant's Local Civil Rule 56.1 Statement that have not been controverted by a Local Civil Rule 56.1 statement from the nonmoving party."). The Court also must disregard allegations which are purely conclusory and devoid of concrete particulars. Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 2003).
Viewing the parties' submissions in this manner, I find that the following facts, unless otherwise indicated, are undisputed:
A. Brown's Employment at Parkchester
Brown is a 71-year old African American male. (See Pl.'s Opp'n Attach.
(Resume for the Position of Locksmith)). He began his employment with
Parkchester in 1976 or 1977 as a security guard and became a Special
Patrol Officer ("SPO") between 1990 and 1992. (See Def.'s R. 56.1
Stmt. ¶ 2; Affirm. of Margaret M. Shalley, Esq.,
dated Feb. 14, 2005 ("Shalley Affirm."), Ex. A (Dep. of Joel Brown,
taken on Oct. 15, 2004 ("Brown Dep.")), at 7-8). SPOs are licensed by
the City of New York Police Department. (Def.'s R. 56.1 Stmt.
¶ 1). At Parkchester, the duties of an SPO include "vertical" tours of
the building, i.e., "walking floor by floor down the stairs from the
top floor;" patrolling the grounds; investigating criminal matters;
chasing and subduing suspects; and making and aiding in arrests. (Aff.
of Dennis Cowan ("Cowan"), sworn to on Jan. 26, 2005 ("Cowan Aff."),
¶ 6; Brown Dep. 8-9). During the course of his employment as a
Parkchester SPO, Brown received several commendations for his
performance. (Brown Dep. 11-12; Pl.'s Surreply Attachs.).*fn1
Nevertheless, Parkchester terminated Brown's employment on or
about December 23, 1997. (Def.'s R. 56.1 Stmt. ¶ 3; Brown Dep. 65;
Shalley Affirm. Ex.
B). Parkchester contends that this dismissal was necessary because
Brown failed to establish that he could perform his job despite his
knee problems. (Cowan Aff. ¶ 5).
B. Brown's Injuries and Medical Leaves
Brown first injured his knees in or around 1978 while he was making an arrest. At that time, his doctor predicted that he would eventually develop arthritis, which, in fact, did occur some ten years later. (Brown. Dep. 12). In 1995, Brown underwent bilateral total knee replacements and was on medical leave for approximately six months before resuming his work on December 4, 2005. (Id. at 13-14). When he returned, Brown submitted a letter from his physician stating that he was undergoing extensive physical therapy and could perform only "limited foot patrol and limited stairclimbing." (Id.; Shalley Affirm. Ex. C (Letter from Walter A. Besser, M.D., F.A.C.S. ("Dr. Besser"), dated Nov. 17, 1995)). Brown therefore was assigned to a "stationary post" which required that he patrol only the area surrounding his booth and the immediate parking area. (Brown Dep. 16).
In February 1996, Brown was called away from his fixed post to respond to a burglary in progress. (Id.). The prosthesis in Brown's right knee broke and was displaced when the suspect struck it with his elbow in the course of his arrest. (Id. at 21-22, 24). Despite this injury, Brown returned to work for some time. (Id. at 26).
On or about July 22, 1996, Brown underwent surgery to repair his right total knee replacement and expected to be out of work for six months. (Id. at 27-28; Cowan Aff. ¶ 9; Shalley Affirm. Ex. D (Letter from Dr. Besser dated June 25, 1996)). Thereafter, in December 1996, Brown requested that his medical leave be extended for an additional six months for therapy and rehabilitation. (Id. at 29-30; Shalley Affirm. Ex. E (Memo from Brown to Director of Security Cowan, dated Dec. 18, 1996)). In connection with that request, Dr. Arturo Pena ("Dr. Pena"), one of Brown's physicians, wrote a letter, which was submitted to Parkchester, stating that Brown was "totally disabled until further notice." (Def.'s R. 56.1 Stmt. ¶ 9; Shalley Affirm. Ex. I (Letter from Dr. Pena dated Dec. 17, 1996)). Brown's request for an extension was granted, extending his leave to June of 1997.*fn2 (Brown Dep. 30).
The Collective Bargaining Agreement ("CBA") between Parkchester and Local 39, International Guards Union of America ("Local 39"), of which Brown was a member, required an employee wishing to return to work from a medical leave of absence to submit proof of his physical and mental ability to do so. (Brown Dep. 33; Shalley Affirm. Ex. F (CBA), Article XXVIII). In June 1997, Brown submitted to Parkchester a letter from Dr. Besser which stated that Brown would be able to return to work on July 8, 1997, but would be able to perform only "light/limited duties." (Brown Dep. 32-33, 35; Shalley Affirm. Ex. G (Letter from Dr. Besser dated June 5, 1997)). By memorandum dated June 19, 1997, Cowan informed Brown that, given the nature of his duties as an SPO, he "must return able to perform full duty." (Shalley Affirm. Ex. H (Mem. from Cowan to Brown dated June 19, 1997)). Contrary to Parkchester's contention however, the Cowan memorandum did not request further clarification of the duties Brown was physically able to perform. (See id.; Def.'s R. 56.1 Stmt. ¶ 13). As a consequence, Brown may have been unaware that he was not medically cleared to return to work until he went to pick up his uniforms and was told that they were not ready.*fn3 (Brown Dep. 36-38).
After learning that he was not being permitted to return to work, Brown filed a grievance through his Union, which alleged that Parkchester's conduct constituted "a clear case of discrimination" on the basis of age, sex, and disability. (Def.'s R. 56.1 Stmt. ¶ 14; Brown Dep. 39; Shalley Affirm. Ex. L (Notice: Step #1 Grievance Charge)). In that filing, the Union further alleged that Parkchester had in the past made accommodations for other officers who wished to return to work after being injured on the job. (Id.). The Union completed the first three steps of the grievance process, which included several meetings between Union and management representatives, but then informed Brown that it lacked the funds needed to hire an attorney to arbitrate his claim. (Brown Dep. 40-41, 57).
During the grievance process, Parkchester also offered Brown a dispatcher position at the lower dispatcher rate of pay. (Cowan Aff. ¶ 13). However, the Union never relayed the details of that offer to Brown, telling him merely that Parkchester had refused to offer him a dispatcher position at his SPO salary. (Brown Dep. 60-62).
D. Rationale for Brown's Termination
In October 1997, while the grievance process was underway, Brown was advised that Parkchester wanted a note from his physician explaining specifically what the "light/limited duties" that he was requesting entailed. (Id. at 51, 62-63; Cowan Aff. ¶ 11). Brown never obtained such clarification because he did not have an appointment with Dr. Besser until January 1997. (Brown Dep. 63; Cowan Aff. ¶ 11). Nevertheless, on October 2, 1997, Dr. Besser wrote a "[t]o whom it may concern" letter, in which he stated that Brown had "a permanent disability of the right knee" and was "unable to climb stairs or walk more than one block." (Shalley Affirm. Ex. J). The letter further stated that Brown was "not able to work as a Special Policeman indefinitely" and that his condition constituted a "permanent disability" which was "progressive."*fn4 (Id.).
Ultimately, on December 23, 1997, Parkchester terminated Brown. Parkchester claims that Brown was terminated because he had not submitted the requested documentation showing that he could perform the duties of his job. (Cowan Aff. ¶ 12). The memorandum notifying the Union of Brown's termination also noted that he had been "out more than one year on compensation." (Shalley Affirm. Ex. K). The author of the memorandum was Cowan, himself a 66-year old African American. (Id.; Cowan Decl. ¶ 3).
In November 1997, Brown filed a complaint with the federal Equal Employment Opportunity Commission ("EEOC") in which he advanced claims of age, race, and disability discrimination. (See Shalley Affirm. Ex. M). The EEOC subsequently issued Brown a right-to-sue letter on June 1, 2000. (Def.'s R. 56.1 Stmt. ¶ 19; Cert. of James F. Berg, Esq., in Supp't of Mot. to Dismiss, dated Apr. 17, 2001 (Docket No. 4), Ex. A)).
1. Disability Discrimination
In this suit, Brown alleges that Parkchester improperly refused to accommodate his disability by offering him a post similar to one that previously had been assigned to Salvatore Cuccinella ("Cuccinella"), an older, Caucasian SPO, who was unable to climb stairs or stand for very long. (See Pl.'s Opp'n Preface (2) ¶ 6). The post that Cuccinella was assigned was a permanent fixed post, which allowed him to sit in a booth and required only limited patrolling. (Brown Dep. 43-46; Pl.'s Opp'n Attach. (Stmt. of Leon Heyward, sworn to on Feb. 2, 2005)). Cuccinella was an SPO who had worked as a dispatcher for ten years on a weekday 8 a.m to 4 p.m. shift. (Aff. of John Bellamy, sworn to on Mar. 14, 2005 ("Bellamy Aff."), ¶ 6). As part of its effort to substitute lower-paid "civilians" for SPOs to work as dispatchers, Parkchester agreed with the Union to keep Cuccinella's weekday schedule and assign him to the Metropolitan Oval Post when it relieved him of dispatcher duties. (Id. ¶ 7). Rather than retiring soon thereafter, as Parkchester evidently anticipated, Cuccinella apparently kept that fixed post for at least several years. (Pl.'s Opp'n Preface (2) ¶ 20).
Brown also cites the assignment of SPO Cuccinella to a fixed post as evidence of disparate treatment on the basis of race. (Pl.'s Opp'n Material Fact Sheet 1 (Racial Discrimination) ¶ 1). He further alleges that another Caucasian SPO was given a light duty position in the Parkchester training school as a reward for surreptitiously taping his fellow employees. (Id. ¶ 2). Finally, he alleges that he applied for a position as a locksmith which, instead, was given to another Caucasian relative of Parkchester's general manager, Vincent Occhipinti ("Occhipinti"). (Id. ¶ 3). That individual was hired as a locksmith in 1994. (See Aff. of Andre Butler, sworn to on Mar. 28, 2005 ("Butler Aff."), ¶ 6).
In his papers, Brown also alleges that Parkchester condoned a racially hostile work environment, citing an incident in which Occhipinti called another AfricanAmerican SPO a "nigger." (Pl.'s Opp'n Preface (2) ¶ 17). Brown did not personally witness the alleged incident, but learned of it later.*fn5 (Brown Dep. 71, 73-74). Brown also claims that Occhipinti referred to minority employees as "motherfuckers" "whenever he was angry about something." (Id. at 74-75). Brown was unable to supply the dates when Occhipinti used either of these two pejorative terms, however. (Id.).
In support of his age discrimination claim, Brown alleges that an unnamed younger SPO was given a position in the training school without regard to seniority. (Pl.'s Surreply (Age Discrimination) ¶ 6). Brown further alleges that Occhipinti would call him "useless" every time he walked by him, which was "many times" over the course of a month or month and one-half. (Id. ¶ 1; Brown Dep. 77-78). Brown also states that Cowan often would say at roll calls that he was going to hire "young bucks." (Pl.'s Opp'n Material Fact Sheet 2 (Age Discrimination) ¶ 4, Preface (2) ¶ 14). Brown also has submitted evidence indicating that Occhipinti referred to older workers as "useless" at meetings between the Union and Parkchester's management, and that the Union wrote to Parkchester's ...