The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
Plaintiff Elmer Santiago ("Santiago") commenced this lawsuit pro se alleging that when his former employer, the New York City Police Department ("NYPD"),*fn1 placed him on restricted duty (thereby removing his ability to carry a firearm) and had him evaluated by the NYPD's Psychological Evaluation Unit, the NYPD should have given him medical leave or treated him as disabled. Its failure to do either violated the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Both parties moved for summary judgment. Magistrate Judge Dolinger wrote a 41-page thorough and comprehensive Report and Recommendation in which he found, inter alia, that Santiago had neither a serious health condition, nor an impairment which limited his performance of a major life activity. Accordingly, the Magistrate Judge recommended that Plaintiff's motion be denied and Defendant's summary judgment be granted.
In light of Santiago's objections, the Court has reviewed the matter de novo, but comes to the same conclusion as Magistrate Judge Dolinger.
The facts set forth in the Report and Recommendation are not in substantial dispute (although the legal consequences flowing from them are). Briefly summarized, the facts are:
Santiago commenced working for the NYPD in 1997. During the period of time at issue, his assignment was to deliver computers and related equipment for the NYPD's Management Systems Information Division. He resigned voluntarily on November 8, 2004, and sought reinstatement less than a month later on December 5, 2004. The NYPD denied reinstatement on April 4, 2005; Santiago sued thereafter.
Santiago alleged that he had a serious health condition; but he claimed the NYPD failed to provide him adequate notice of his rights under the FMLA and denied him leave under the FMLA. Further, he had an impairment under the ADA that substantially limited his performance of a major life activity; but the NYPD failed to provide him a reasonable accommodation for his disability. The NYPD's refusal to rehire him was a further violation of the ADA since it was due to an animus against him on account of his alleged psychological problems.
In the two years prior to the voluntary resignation of November 8, 2004, Santiago encountered a number of personal problems stemming from his private life. While on extended military service leave in July 2003, he had a fight with his wife, another NYPD officer, but the fight was serious enough that the Yonkers police were called to intervene. Further investigation revealed prior domestic altercations in November 2002 and February 2003, which also required police involvement. As a result of the July 2003 incident, the NYPD placed him on restricted duty,*fn2 which withdrew Santiago's authorization to carry a weapon; and referred him for a psychological evaluation at the NYPD's Psychological Evaluation Unit. On July 29, 2003, the evaluation found that there were no psychological reasons preventing Santiago from carrying a firearm.
Approximately one year later, on July 22, 2004, another domestic altercation occurred (Santiago's wife alleged he was stalking her). The next day, the NYPD again removed Santiago's firearm, and immediately referred Santiago to the NYPD's Psychological Evaluation Unit for determination as to fitness to carry firearms. The evaluator recommended, in the exercise of caution, placing him on restricted duty effective July 26, 2004. On July 31, 2004, Santiago advised the Department that he was feeling suicidal. The Department directed that he be taken to Columbia Presbyterian Hospital for emergency evaluation. The record does not reveal what happened at the hospital, except that Santiago left and was not admitted. There is no evidence that any treatment was rendered.
He returned to the Psychological Evaluation Unit in August 2004 and claimed that he was feeling better and was adjusting positively to the stress brought on by his domestic difficulties. The evaluator recommended the continuation of restricted duty.
On November 3, 2004, Santiago's wife and his 13-year-old stepdaughter alleged that Santiago had sexually abused the stepchild. The NYPD determined that a further investigation into the sexual abuse charge was warranted, and placed Santiago on modified duty. Santiago was interviewed by the Psychological Evaluation Unit on November 4, 2004. Santiago claimed to be under considerable stress and contrasted those feelings with how he felt immediately prior to the allegations of sexual abuse of his stepchild.
The NYPD provides for unlimited sick leave. In discussing his situation in early November, 2004 with his colleagues, Santiago was advised not to resign, but rather to go on sick leave. Santiago called the NYPD's Military Extended Leave Desk, but the clerks who answered were not helpful. In the event, he did not take further steps to pursue sick leave. Instead, on November 8, 2004, Santiago resigned from the NYPD. One month later, he applied for reinstatement.
His application was denied on April 8, 2005. The denial was based on a review of the entire record over his seven year employment with the NYPD, including the following factors:
(1) being disciplined for a substantiated charge before the CCRB;
(2) on August 19, 2004, being charged with missing from military duty while on extended military leave from the Department;
(3) being designated a chronic absentee based on excessive absences from August, 2001 -- October, 2004;
(4) being involved in four domestic relations disputes in a one year period;
(5) the entry of a protective order against him in November, 2004; and
(6) placement on modified duty in connection with his stepdaughter's accusation of sexual misconduct.
Santiago alleges the true reason was an animus against him.
SUMMARY JUDGMENT STANDARD
Magistrate Judge Dolinger correctly stated and applied the standard for deciding summary judgment motions, pursuant to Rule 56 Fed. R. Civ. P. A motion for summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment is appropriate where "the nonmoving party 'has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof'." Berger v. United States, 87 F.3d 60, 65 (2d Cir. 1996) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). In ruling on a motion for summary judgment, the Court must "resolve all ambiguities and draw all factual inferences in favor of the nonmoving party." McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (citation omitted). Since Santiago is proceeding pro se, the Court must read his pleadings and other memoranda liberally and construe them in a manner most favorable to him. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Summary judgment should not be granted where issues of fact are "genuine," and "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
RECOMMENDATION ON FMLA CLAIM
Magistrate Judge Dolinger found that there was no violation of the FMLA for three reasons:
(1) Santiago did not have a serious health condition and certainly there was no evidence that Santiago was unable ...