The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Juvondi R. Pender, plaintiff pro se, brought the instant case, alleging employment discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. Specifically, plaintiff alleges that defendants discriminated against him based on his race in their failure to promote him and their decision to terminate him, and also alleges that defendants failed to reasonably accommodate his disabilities, which plaintiff alleges he had during his employment. Defendants move for summary judgment, pursuant to Fed. R. Civ. P. 56, on both claims. For the reasons stated below, the Court grants defendant's motion for summary judgment.
The following facts are undisputed, unless otherwise indicated.*fn1 Plaintiff, an African- American male, was employed as a Motor Vehicle Operator ("MVO") by defendant Brooklyn Developmental Disabilities Services Office ("BDC") from 1995 to 2002. (See Defs.' Rule 56.1 Statement ("56.1 Statement") ¶ 1.) In that capacity, plaintiff testified that he transported staff and clients. (See Deposition of Juvondi R. Pender ("Pender Dep.") at 55.) According to the written job requirements promulgated by the New York State Department of Civil Service, an MVO is required, inter alia, to be able to operate motor vehicles as required, and also to have the "[a]bility to lift and carry crates, cartons, boxes and other cargo onto and off of transport vehicles." (See Declaration of Marc A. Konowitz ("Konowitz Decl."), Ex. F.)
Plaintiff was injured by two separate work-related accidents. First, on September 21, 1999, he fell from the back of a vehicle while unloading food carts because another MVO began to move the truck while plaintiff was still standing on the back of it. (Id. ¶ 28.) After the accident, the BDC offered plaintiff a light-duty schedule as an MVO so that he could continue working. (See id. ¶ 30; see also Declaration of Judith McGourty-Graham ("McGourty-Graham Decl.") ¶ 7.) Plaintiff did not return to work on his doctor's advice, and filed a Worker's Compensation Claim. (See McGourty-Graham Decl. ¶ 8; see also 56.1 Statement ¶ 31.) He returned to work on September 18, 2000, but was injured in an unwitnessed accident within days of his return, while trying to lift a wheelchair-bound client into a van. (See 56.1 Statement ¶ 32.) Plaintiff left work and again filed for Worker's Compensation benefits. (See McGourty-Graham Decl. ¶ 8.)
From these accidents, plaintiff claims that he sustained injuries to his head, neck, back, shoulders and lower extremities, and claims that he is now suffering from hearing and dental problems. (See 56.1 Statement ¶ 33.) Plaintiff never requested any accommodation for his disability during the time that he was employed at BDC. (See McGourty-Graham Decl. ¶ 9.)*fn2 Although plaintiff was offered an MVO light-duty schedule as an accommodation, he maintained that he could not perform the duties required of an MVO. (See 56.1 Statement ¶ 37.)
In November 2000, the BDC received a letter from Dr. Kenneth Falvo, an independent consultant working with the State Insurance Fund. (See McGourty-Graham Decl., Ex. F. at 3.) Dr. Falvo opined that plaintiff was not disabled, and could return to work in "a fulltime capacity as a motor vehicle operator." (See id.) By letter dated November 30, 2000, the BDC ordered plaintiff to return to work, or to produce a private physician's statement that he was unable to perform his duties for medical reasons. (See id.) Plaintiff submitted such a letter, dated December 4, 2000, which provided an opinion from a chiropractor that he could not return to work until further notice. (See id; see also Pender Dep. at 184- 85.)
Because of the conflicting opinions, BDC sought to schedule plaintiff for a medical examination with Employee Health Service in Albany, New York, pursuant to civil service rules and the parties' collective bargaining agreement. (See McGourty Graham Decl., Ex. F. at 3.) The examination was intended to serve as a "tie-breaker" to determine whether plaintiff was able to return to work. (See id.) Plaintiff failed to report for five separate scheduled appointments.*fn3 (See id. at 3-5.)
As a result of plaintiff's repeated failure to report for the appointments with Employee Health Service in Albany, the BDC sought termination of plaintiff. The BDC brought charges of insubordination before an arbitrator, pursuant to the parties' collective bargaining agreement. (See id. at 2.) As part of its petition, the BDC noted the fact that Pender had previously been found guilty of threatening a co-worker. Plaintiff, represented by his union, the Civil Service Employees Association, argued that he was unable to report to the appointments because he did not have sufficient funds to travel to Albany and it was difficult for him to drive for long periods of time. (See id. at 6.) Plaintiff argued that the BDC should have either arranged for his travel, or scheduled an appointment at a more convenient location. (See id.) The arbitrator rejected this argument, highlighting the fact that plaintiff never communicated an excuse to the BDC regarding his failure to appear for the appointments. (See id.) The arbitrator concluded that plaintiff was guilty of multiple counts of insubordination, and recommended termination, by opinion dated September 20, 2002. (See id. at 7.) Plaintiff was subsequently terminated by the BDC.
As a result of his termination from BDC, plaintiff filed formal administrative complaints with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination based on race and disability. The EEOC subsequently issued right-to-sue letters, which authorized plaintiff to file the instant lawsuit, alleging, inter alia, violations of Title VII and the ADA.
By Order dated July 16, 2002, the Honorable Raymond J. Dearie dismissed plaintiff's Amended Complaint, finding, inter alia, that: (1) plaintiff failed to exhaust his administrative remedies on his Title VII claim; and (2) plaintiff was barred from seeking monetary damages under the ADA against the defendants because they are state entities, and such liability is barred by the Eleventh Amendment. By Order dated May 18, 2003, the United States Court of Appeals for the Second Circuit vacated the judgment, finding that: (1) plaintiff did, in fact, exhaust his administrative remedies on his Title VII claim; and (2) plaintiff has a viable claim against the defendants under the ADA, insofar as the Amended Complaint seeks injunctive relief. Accordingly, the Second Circuit remanded the Title VII claim, and the ADA claim, insofar as it is limited to injunctive relief, for further proceedings.
On July 30, 2003, this case was reassigned to the Honorable Nicholas G. Garaufis. It was subsequently reassigned to ...