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Evans v. Consumer Information & Dispute Resolution

May 5, 2006


The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge


Pro se plaintiff Anthony Evans brings this action against his former employer Consumer Information & Dispute Resolution ("CIDR"), pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12112 -12117. (Dkt. No. 2: Compl. at 1.) The parties have consented to disposition of this action by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 8.)

Presently before the Court is defendant CIDR's summary judgment motion. (Dkt. No. 13.) For the reasons set forth below, defendant CIDR's summary judgment motion is GRANTED.


Evans' Employment at CIDR

Evans began working at CIDR on July 15, 2003 as a full time security guard at CIDR's facility at 186 East 123rd Street, New York, New York (the "Step-Up Facility"). (Dkt. No. 13: 2/9/06 Howe Aff. Ex. E: Evans Dep. at 9-12; Dkt. No. 15: CIDR 56.1 Stmt. ¶ 7; Dkt. No. 13:

Cilento Aff. ¶ 7.) Evans was assigned an 11:00 p.m. to 7:00 a.m. shift. (Cilento Aff. ¶ 7; Evans Dep. at 12; CIDR 56.1 Stmt. ¶ 17.) His responsibilities there included the following:

* Operate and monitor alarm and closed-circuit television systems

* Receive visitors and give information

* Take action in emergency situations such as illness, safety hazards, or other unusual situations

* Observe and report from a distance while on a walking patrol and by closed-circuit television

* Check windows, doors, and keep aware of unauthorized individuals in an area

* Make sure that electrical and plumbing systems, alarms, and sprinkler systems are on or working properly

* Keep in radio contact with other Safety Coordinators on patrol

* Thoroughly search areas when anything unusual is noticed

* Report to the proper authority: program director, police, fire department, building office, etc. when anything unusual or any potential problem

* File written reports after action has been taken to correct the situation

* May use computers to store security information, including suspicious happenings and names of visitors

(Dkt. No. 16: Evans 2/22/06 Opp. Aff. Ex. at 000113; Cilento Aff. ¶ 8 & Ex. A; CIDR 56.1 Stmt. ¶ 12.) In January 2004, CIDR promoted Evans to security supervisor, which required him to perform his security guard duties as well as oversee the other security staff at the Step-Up Facility during his shift. (Cilento Aff. ¶ 11; Evans Dep. at 12-13; CIDR 56.1 Stmt. ¶¶ 18-19.)

"CIDR is a not-for-profit low income housing organization that houses approximately 400 homeless men and women in three facilities throughout New York City. Many of the clients that CIDR assists are chronically homeless and chemically dependent individuals who are unable to take care of themselves." (Cilento Aff. ¶ 4; see also CIDR 56.1 Stmt. ¶¶ 1-2.) CIDR is under contract with New York City's Department of Homeless Services to house and care for these individuals, which requires CIDR to maintain a safe and secure environment through a twenty-four hour security presence at its facilities. (Cilento Aff. ¶ 5; CIDR 56.1 Stmt. ¶¶ 3-4.) Security at the facilities is essential because it is not uncommon for some of CIDR's clients to occasionally become violent and attempt to do harm to themselves or others. (Cilento Aff. ¶ 6; CIDR 56.1 Stmt. ¶¶ 5-6.) Events Leading Up to Evans' Termination

Evans alleges that he is disabled because he has a "psychosis." (Dkt. No. 2: Compl. ¶ 7; Dkt. No. 16: Evans 2/22/06 Opp. Aff. ¶¶ 1-2.) However, this alleged disability never prevented Evans from working; Evans testified at his deposition that he has "always been able to work." (Dkt. No. 13: 2/9/06 Howe Aff. Ex. E: Evans Dep. at 10; see also id. at 43, 67, 70; Dkt. No. 15: CIDR 56.1 Stmt. ¶¶ 10-11; see also page 8 below concerning Evans' other job.) Evans claims that CIDR fired him because of this alleged disability. (Compl. ¶ 8.)

On September 13, 2003, the CIDR supervisor on duty completed a Staff Shift Report on Evans, stating that Evans was "nowhere to be found" during a 5:15 a.m. round of the facility. (Dkt. No. 13: Cilento Aff. ¶ 14 & Ex. B; CIDR 56.1 Stmt. ¶ 23.)*fn1 The supervisor noted that Evans possessed the house keys needed to unlock the front door at 6:00 a.m. (Cilento Aff. Ex. B.)

On November 29, 2003, Roger Patterson of CIDR completed a disciplinary report on Evans, stating that on November 28, 2003, Evans failed to report for duty as scheduled, that he had been warned multiple times about his tardiness, and that this was his "final warning." (Cilento Aff. ¶ 15 & Ex. C; CIDR 56.1 Stmt. ¶ 24.)

On April 12, 2004, Evans' supervisor, Tony Jones, wrote a memorandum stating that Evans was scheduled to work from 11:00 p.m. on April 9 until 7:00 a.m. on April 10, but that Evans abandoned his post at 3:30 a.m., taking the facility keys with him, and did not return until 7:05 a.m., appearing high or intoxicated. (Cilento Aff. ¶ 16 & Ex. D; CIDR 56.1 Stmt. ¶ 25.) According to Jones' memorandum, Evans admitted that he had used drugs, agreed that he needed treatment, and was referred to CIDR's human resources office for assistance in obtaining treatment. (Cilento Aff.

¶ 17 & Ex. D; CIDR 56.1 Stmt. ¶ 27.) Evans was suspended from work while he located a treatment program, and was informed that his supervisor position would be reconsidered. (Id.) Evans testified at his deposition that he signed the bottom of this memorandum. (Dkt. No. 20: 3/10/06 Howe Aff. Ex. B: Evans Dep. at 25; 3/10/06 Howe Aff. Ex. C.)*fn2

On May 15, 2004, Medical Arts Center Hospital sent a letter to CIDR stating that Evans was treated in its detoxification program from May 11, 2004 to May 15, 2004. (Cilento Aff.

¶ 18 & Ex. E; CIDR 56.1 Stmt. ¶ 28.) The letter noted that Evans could benefit by attending Alcoholics Anonymous/Narcotics Anonymous. (Cilento Aff. Ex. E.)

On July 2, 2004, Tony Jones e-mailed CIDR supervisors, stating: At 12:10 a.m. CCM Patterson was informed that Supervisor Anthony Evans did not return to facility nor did he call said writer concerning his whereabouts. CCM notified Program Dir. Via voicemail, and spoke with Dir. Of Security Tony Jones. CCM was informed by Dir. ...

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