The opinion of the court was delivered by: Platt, District Judge
MEMORANDUM AND ORDER SECRETARY OF TRANSPORTATION, UNITED STATES DEPARTMENT OF TRANSPORTATION,
Before the Court is a motion by Defendant for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant's sole contention on the motion is that Plaintiff has failed to state a prima facie case of disability discrimination under the Rehabilitation Act of 1973, 29 U.S.C. §§ 791(b) and 794(a).*fn1 For the following reasons, Defendant's motion is DENIED.
On or about August 13, 2000, Plaintiff, Jon R. Duffett ("Duffett" or "Plaintiff"), began working for the Federal Aviation Administration ("FAA"), an agency of the United States Department of Transportation ("USDOT"), as an Air Traffic Control Specialist ("ATCS"). (Duffett Aff. ¶¶ 5, 7). Defendant, Norman Y. Mineta ("Defendant"), is the current Secretary of Transportation, for the USDOT. Defendant does not dispute that this Court properly has jurisdiction, as Plaintiff's complaint asserts a claim under the Rehabilitation Act of 1973, 29 U.S.C. § 791(b) (the "RHA"), and a related State law claim for emotional distress.
There are two types of ATCS: (i) Terminal and Center facility ATCS and (ii) Flight Service Station ("FSS") ATCS. (Def.'s 56.1 Stmt. ¶ 4). Both positions require that the ATCS be either medically qualified or qualified with special consideration. (Def.'s 56.1 Stmt. ¶ 9). Terminal and Center facility ATCS control air traffic and are responsible for the safe and efficient movement of aircraft within the facility's airspace, which includes providing aircraft with clearances and instructions to enable aircraft to takeoff, travel and land, and ensuring that standard separation is maintained between aircraft, terrain, and other obstacles. (Def.'s 56.1 Stmt. ¶¶ 6-8). FSS ATCS do not separate aircraft, but rather receive flight plans from pilots and provide pilots with pre-flight briefings and general assistance while in the air, such as updating weather conditions or identifying locations for lost pilots. (Def.'s 56.1 Stmt. ¶¶ 10-12). According to Plaintiff's Notification of Personnel Action form, Plaintiff was appointed as a Center ATCS. (McCarthy Aff., Ex. 1).
At the end of October of 2001, Plaintiff was diagnosed with a brain tumor. (Duffett Aff. ¶ 7). On November 6, 2001, Plaintiff underwent surgery at New York University Medical Center, and the tumor was removed. (Duffett Aff. ¶ 7). Plaintiff reports that there were no complications during or after the surgery, and he was released from the hospital approximately one week later. (Duffett Aff. ¶ 8). Subsequent to the surgery, Plaintiff underwent testing of some minor muscle twitches. (Duffett Aff. ¶ 9). The final results of this testing indicated that Plaintiff had a normal EEG and showed no markers for epileptic activity, and that the muscle twitches were nothing more than benign and common fasciculations. (Duffett Aff. ¶ 9).
Plaintiff returned to work in February of 2002 and despite the absence of seizures, continued to take standard post-operative seizure medication. (Duffett Aff. ¶ 10). By memorandum dated February 22, 2002, the FAA advised Plaintiff that he was "medically incapacitated from ATCS safety-related duties." (McCarthy Aff., Ex. 3). In March of 2002, Plaintiff discontinued all medications, was doing well, and hoped to return to work as a Center ATCS. (Duffett Aff. ¶ 10). In his efforts to return to his former position, Plaintiff underwent several EEGs, all of which were normal, and submitted his medical records as directed on or about March 4, 2002. (Duffett Aff. ¶¶ 11-12). Plaintiff's medical records were then forwarded for a review to Dr. Harriet Lester ("Dr. Lester"), the Regional Flight Surgeon, on or about April 26, 2002, at the request of the New York Center's Medical Officer, Dr. Michael J. Jordan. (Def.'s 56.1 Stmt. ¶ 29).
On October 28, 2002, Plaintiff was permanently disqualified by Dr. Lester for a return to his ATCS position. (Duffett Aff. ¶ 12; McCarthy Aff., Ex. 6). Dr. Lester informed Plaintiff that because he was treated for an oligodendroglioma (brain tumor), he was determined to have a neurological disorder constituting a hazard to safety in the Air Traffic Control System and he did not meet the FAA's applicable medical standard. (McCarthy Aff., Ex. 6). Plaintiff appealed Dr. Lester's decision, and his medical records were then forwarded to the FAA office in Oklahoma City, Oklahoma for a further review and also reviewed by an independent doctor. (Duffett Aff. ¶¶ 13-14; McCarthy Aff., Ex. 7). After nearly ten months and several FAA doctors concurring in the disqualification decision based upon concerns of tumor recurrence or complications, on August 8, 2003, Plaintiff was notified that the FAA had reconsidered and determined that Plaintiff was eligible for special consideration. (Duffett Aff. ¶ 15; McCarthy Aff., Exs. 8, 9, 10). Plaintiff's medical qualification was changed to a permanent limitation to the FSS option, with the opportunity to submit updated clinical records for reconsideration in 2007 or subsequent years. (Duffett Aff. ¶ 15; McCarthy Aff., Ex. 10).
Thereafter, sometime in August of 2003, Plaintiff sought EEO counseling with Ann Brennan ("Brennan"), an EEO Counselor with the USDOT. (Brennan Aff. ¶ 2). Brennan advised Plaintiff that he may have a claim for discrimination based upon his employer's perception that he has a disability, even though he claimed that he did not have a disability. (Brennan Aff. ¶ 2). Plaintiff informed Brennan that he preferred to delay filing an EEO complaint at that time, as he had an appointment scheduled with a Dr. Cherese M. LaPorta ("Dr. LaPorta"), an independent FAA Certified Flight Surgeon, that he hoped would resolve the situation. (Brennan Aff. ¶ 2).
Plaintiff was examined by Dr. LaPorta, who in a September 15, 2003 letter stated that she could not "find any medical reason to disqualify him," as his medical condition was stable. (Duffett Aff., Ex. B). Plaintiff forwarded Dr. LaPorta's letter, along with five other letters from his treating physicians to the FAA with the hope that his medical clearance status would be changed. (Duffett Aff. ¶¶ 17-19, Exs. B-F). These letters indicated in substance that Plaintiff had no disability related to his surgery, had never had any seizures, had no known neurologic disability, was not taking seizure medication, and showed no evidence of tumor recurrence. (Duffett Aff. ¶¶ 17-19, Exs. B-F). Nonetheless, Plaintiff asserts that he has never been returned to his former duties, and instead serves as a staff support specialist, at a lower rate of pay and with minimal chances of advancement. (Duffett Aff. ¶ 20). Defendant asserts that Plaintiff is still employed as an ATCS but does not dispute that the nature of Plaintiff's employment has changed. (McCarthy Aff. ¶ 41).
On or about December 19, 2003, Plaintiff filed an EEO complaint against Defendant alleging discrimination based on handicap. (McCarthy Aff., Ex. 13). This complaint was dismissed for failure to timely seek EEO counseling. (McCarthy Aff., Ex. 14). Thereafter, on May 14, 2004, Plaintiff timely commenced the instant action.
I. Summary Judgment Standard
A motion for summary judgment may not be granted unless the court determines that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must resolve all ambiguities and draw all inferences in favor of the non-moving party. Id. at 255; Castle Rock Entm't, Inc. v. Carol Publ'g Group, 150 F.3d 132, 137 (2d Cir. 1998). "A party opposing a properly brought motion for summary judgment bears the burden of going beyond the [specific] pleadings, and 'designating specific facts showing that there is a genuine issue for trial.'" Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). If there is any evidence in the ...