The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this consolidated case, including entry of final judgment. Dkt. #14 & Dkt. #20.
Currently before the Court is defendants' motion for summary judgment. Dkt. #67. For the following reasons, defendants' motion is granted in part and denied in part.
Upon the recommendation of Chief of Police Birnir, plaintiff was sworn in as a Transit Police Officer for the Niagara Frontier Transportation Authority ("NFTA"), on November 13, 1996. Dkt. #69, ¶ ¶ 1 & 30; Dkt. #78, ¶ ¶ 1 & 30. The NFTA is a public benefit corporation organized and existing pursuant to New York's Public Authorities Law § 1299 et seq. Dkt. #69, ¶ 2; Dkt. #78, ¶ 2. Pursuant to the Collective Bargaining Agreement ("CBA"), between the Police Benevolent Association ("PBA"), and the NFTA, all new police officers were subject to a probationary period of eighteen months. Dkt. #67, Exh. I; Dkt. #70, ¶ 5. Probationary employees cannot grieve discipline pursuant to the CBA. Dkt. #70, ¶ 5.
On June 2, 1997, plaintiff received his six month evaluation which indicated an unsatisfactory attendance and on-time record, but otherwise satisfactory performance. Dkt. #67, Exh. J. On July 18, 1997, plaintiff received a one day suspension and referral to the Employee Assistance Program as discipline for repeated attendance/tardiness violations. Dkt. #67, Exh. J. On September 5, 1997, plaintiff sent Chief Birner the following correspondence:
Sir, Hopefully these reports will give you a brief if not better idea as to what has been going on w/ my situation regarding my sons. I am taking care of business w/ the best resources I can think of but would appreciate any positive input you can spare or other people you may think can help.
Dkt. #67, Exh. K. Plaintiff attached a copy of his petition for modification of custody of his son to his care because of the mother's substance abuse and endangerment of the child, including physical abuse of the child. Dkt. #67, Exh. K.
By memorandum dated September 26, 1997, plaintiff requested that Chief Birner and Lt. Martha schedule his class for pepper spray training and for his Hepatitis B shots. Dkt. #77, Exh. G. Plaintiff advised his superiors that he believed he was "the only one without the shots and definitely the only officer not issued pepper spray." Dkt. #77, Exh. G.
By memorandum dated January 7, 1998, plaintiff requested that Chief Birner and Lt. Martha provide training for OCC/Radio because he was recently passed over for overtime due to his lack of training, despite the fact that less senior officers were recently sent for training. Dkt. #77, Exh. G. Plaintiff also advised his superiors that he was "still waiting" for his Hepatitis B shots and pepper spray training. Dkt. #77, Exh. G.
By memo dated January 13, 1998, plaintiff requested time off with or without pay to attend to the needs of his son. Dkt. #67, Exh. K. Plaintiff advised Chief Birner that I have been continuously informing you, as well as Lt.
Martha about my custody battle for my son and my concerns in reference to his health & safety (along w/ his 9 yr. old sister, Kentrel).
Last wk. I had to take another 3 hr. emergency [personal leave] to take him to the Dr's office to follow-up an Emergency Rm. visit for a dislocated elbow Dec 24, while I was working. I was never informed about this happening to him. Within the last 7 wks. I have used 7 hrs PL to take my son to emergency Dr. visits and within the last 10 wks., my son has been seriously hurt 5 of those wks. all of which required ER visits or Dr. office. All of which has been happening since having her arrested the last time the kids were left home alone 8/26/97.
My son's Dr. has now expressed her concerns about these incidents also advised that she has contacted C.P.S., which increases my concern. I gave you information in September about my situation asking you for help, but I haven't heard anything from you.
I know I have only been here 14 months today and I have on[ly] 9 hrs. PL. left, but I need time off from work, to take care of him now before something happens to him or his sister, as I'm willing to do this without pay! I have asked Lt. Martha since he does schedules, be he has refused saying "I can't be off without pay I can't be off because of schedules etc."
I really need to take care of this situation and feel I'm forced to chose between my job or my son. With all due respect . . . My son comes 1st. Please help A.S.A.P.
Dkt. #67, Exh. K. Despite these letters, Chief Birner denied that plaintiff ever asked him for FMLA leave. Dkt. #67, Exh. F, pp.30 & 38. Diane Ruszala, Director of Human Resources for the NFTA and William McGee, Manager of Human Resources for the NFTA during the relevant time period, also deny any knowledge of any request for FMLA leave by plaintiff, but note that plaintiff was allowed sick or personal leave on numerous dates throughout his employment. Dkt. #70, ¶¶ 22-23; Dkt. #72, ¶ 5.
Plaintiff affirms that he was never advised of his rights pursuant to the FMLA, and that if he had been afforded FMLA, he would not have been characterized as presenting "attendance problems." Dkt. #77, ¶ 11.
On March 29, 1998, plaintiff sustained a left ankle injury as he struggled to subdue a suspect resisting arrest. Dkt. #67, Exh. C, p. 8 & Exh. L. Plaintiff speculates that he would not have been injured had he been able to use pepper spray to subdue the suspect. Dkt. #77, ¶ 13. Plaintiff affirms that he had requested pepper spray training, orally and in writing, numerous times, and was the only officer who had not received the training. Dkt. #77, ¶ 13.
Plaintiff was treated and released from ECMC with instructions to follow up with his treating physician, Dr. Cange, who examined plaintiff on March 31, 1998 and diagnosed a severe ligament strain of his ankle. Dkt. #67, Exh. C2, p.3. She excused plaintiff from work pending further evaluation on April 7, 1998. Dkt. #67, Exh. C2, p.3. Dkt. #67, Exh. C, p.10 & Exh. D, pp.69-70 & Exh. L. When plaintiff delivered medical documentation to Lt. Martha on either April 2nd or 3rd, he testified that Lt. Martha instructed him to attend a mandatory Rail Familiarization Training Session on Sunday, April 5th. Dkt. #67, Exh. D, p. 73; Dkt. #77, ¶ 16. Lt. Martha testified that he wouldn't expect an officer on disability to show up for the training. Dkt. #67, Exh. C2, p.47 & Exh. E, p.66.
On Sunday, April 5, 1998, Lt. Martha observed plaintiff climbing stairs during the training exercise at the Delevan Station. Dkt. #67, Exh. C2, pp.39-40 & Exh. E, p.79. Lt. Martha also observed plaintiff arrive at the station on a motorcycle. Dkt. #67, Exh. C,2, p.41 & Exh. E, p.69. Plaintiff testified that he attended the training with his cane and denied riding a motorcycle. Dkt. #67, C2, p.59; Dkt. #77, ¶ 16. He also notes that no one else has confirmed Lt. Martha's observation of plaintiff riding a motorcycle. Dkt. #77, ¶ 16.
On April 7, 1998, Dr. Cange examined plaintiff and continued his disability status, noting "no work until re-evaluation in 2 weeks 4/21/98." Dkt. #67, Exh. C2, p.4 & Exh. M.
Following his observation of plaintiff at the training, Lt. Martha conferred with the Chief, who directed Lt. Martha to contact the doctor's office to see if plaintiff would be able to work light duty. Dkt. #67, Exh. C2, p.41. Lt. Martha spoke to the nurse, who conferred with the physician and faxed him a note permitting plaintiff to perform light duty. Dkt. #67, Exh. C2, p.42 & Exh. E, p.77. Dr. Cange confirms that on April 9, 1998, she consulted with her licensed practical nurse, Audrey Evans, and advised her that plaintiff could perform light duty work. Dkt. #67, Exh. C2, p.11. As a result, the nurse faxed the following document to Lt. Martha:
To: Lt. Martha RE: Tom Hamilton The above named pt has been seen for a work related accident. He will be re-evaluated in 2 weeks, but if a light duty position such as clerical, desk work sitting down is available he may be put on light duty until seen in the office again.
Dkt. #67, Exh. N. Dr. Cange's officer did not discuss this change in status with plaintiff because it was her understanding that "his employer was to contact him." Dkt. #67, Exh. C2, p.12; Dkt. #77, Exh. J. This is the only time that Lt. Martha has contacted a physician regarding an officer. Dkt. #67, Exh. E, p.79.
Lt. Martha conferred with the Chief, who agreed that plaintiff should be required to answer phones at the OCC. Dkt. #67, Exh. E, p.82. Lt. Martha distinguished answering phones from other dispatch duties which would require training. Dkt. #67, Exh. E, p.36. Lt. Martha testified that he left a message for plaintiff on his answering machine. Dkt. #67, Exh. C2, p.42.
On April 9, 1998, plaintiff received a partial telephone message on his answering machine from Lt. Martha. Dkt. #67, Exh. C, p.11. Plaintiff testified that he attempted to call the Department that day, but received no response, so he called Dispatch. Dkt. #67, Exh. C, p.11. Plaintiff spoke to Officer Bullock at Dispatch, who instructed him to contact Lt. Martha, because he was unaware of the reason for Lt. Martha's call. Dkt. #67, Exh. C, p.12. Officer Bulluck testified that he informed plaintiff that he had been put on the duty roster, or was about to be put on the duty roster for light duty and OCC [Officer Communication Center]. I believe Tommy, at that time, informed me that he was still on a medical status or Compensation, whatever; and I told him I didn't know. That was the rumor. The lieutenant was trying to get in contact with him. The best thing would be for him to call the lieutenant.
Dkt. #67, Exh. C2,*fn1 p.24. A tape recording of this conversation was played at the Workers' Compensation hearing. Dkt. #67, Exh. C2, p. 25. The transcript of the tape indicates that Officer Bullock informed plaintiff that "you got to talk to one of the Sergeants I think they are going to put you on light duty." Dkt. #67, Exh. O. When plaintiff indicated that "it was the Lieutenant that called," Officer Bullock informed plaintiff that "he won't be in until tomorrow morning . . . 7 to 3 so give him a call then." Dkt. #67, Exh. O. When plaintiff informed Officer Bulluck that his "doctor said no work,"
Officer Bulluck responded, "I guess they talked to your doctor." Dkt. #67, Exh. O. Officer Bulluck then informed plaintiff
This is what I've heard, the rumor, so don't go about what I am saying. Your best bet is to call the Lieutenant in the morning and talk to him and he will tell you exactly what he wants, you know it may not be that at all.
Plaintiff testified that he attempted to call Lt. Martha on April 10, 1998, but was not successful. Dkt. #67, Exh. C, p.12 & Exh. C2, p.67 & Exh. D, p.86. Plaintiff affirms that he tried to contact Lt. Martha three times on or about April 10, 1998, but was never able to reach him. Dkt. #77, ¶ 22. Chief Birner affirms that incoming calls to the NFTA at this point in time would "jump" to other lines if not picked up. Additionally, if someone did not answer their phone, police officers could and often would call the OCC, where a dispatcher was on duty 24 hours per day. Therefore, it would have been very difficult and extremely ...