The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
Plaintiff pro se James T. Owens ("Owens") alleges that his prior employer, Albany Housing Authority ("Albany Housing"), and Steve Longo ("Longo"), Executive Director of Albany Housing, discriminated against him based on his disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.*fn1 See Dkt. No. 1, 4. It is asserted that defendants demoted Owens from a janitorial position to a lower paying grounds crew position because of his bad knee. Pending is defendants' motion for summary judgment under FED. R. CIV. P. 56. See Dkt. No. 19. For the reasons that follow, the motion is granted.
Owens began his employment with Albany Housing in June of 1999 as a member of the temporary grounds crew, which engaged in seasonal maintenance labor on Albany Housing property. See Def. SMF ¶ 1, Dkt. No. 19. In August of 2000, Owens quit that position to attend college, but was rehired in October of 2002, again as a temporary employee of the grounds crew. Id. at ¶¶ 2,3. In the winter of 2002 Owens began experiencing occasional pain in his right knee, which would occasionally fill with fluid.*fn3 Id. at ¶ 5. Despite the pain, Owens continued performing his grounds keeping duties effectively. Id. at ¶ 6. Owens' supervisors allowed him to leave work for brief periods to go to medical appointments regarding his knee. Pl. SMF ¶ 5, Dkt. No. 22. See also Owens Dep. Tr. pg. 43-44, Dkt. No. 19.
In November of 2003, Albany Housing assigned Owens to fill a custodial position at 200 Green Street. See Def. SMF ¶ 7, Dkt. No. 19. Owens found his custodial duties to be less taxing on his knee than his prior grounds keeping duties, but apparently did not inform anyone at Albany Housing of this fact. Id. at ¶ 9.While Owens knew he was still a temporary employee, it was his understanding that, in due time, he would be given permanent status as a custodian. Id. at ¶ 8; Pl. SMF ¶ 8, Dkt. No. 22. See also Owens Dep. Tr. pg. 36, Dkt. No. 19.
At some point doctors determined that the pain in Owens' knee was caused by cartilage deterioration and, in March or April of 2004, he had arthroscopic surgery in an attempt to alleviate the problem. See Def. SMF ¶¶ 10, 11, Dkt. No. 19. Albany Housing was aware of the surgery and allowed Owens to take three weeks off. Id. at ¶ 12. Owens' doctors, allegedly informed only of Owens' janitorial duties, did not restrict the work activities he could perform. Id. at ¶ 14, Pl. SMF ¶ 14, Dkt. No. 22.
When Owens returned from the surgery he was placed back on the temporary grounds crew, ostensibly due to complaints about his janitorial skills. See Def. SMF ¶ 13, Dkt. No. 19. Owens denies that there were any complaints about his work performance while he was a janitor. Pl. SMF ¶ 13, Dkt. No. 22. See also Owens Dep. Tr. pg. 63, Dkt. No. 19. Owens continued to work on the temporary grounds crew for another nine months, though it would seem he did not notify anyone of the continuing pain in his knee. See Def. SMF ¶ 17, Dkt. No. 19.
Subsequently, the Department of Social Services informed Owens that he owed $18,000 for disability payments he had received while employed with Albany Housing. Id. at ¶ 21. Believing it to be in his financial interests, and because Albany Housing would not make him a permanent employee, Owens voluntarily left his employment in February of 2005. Id. at ¶¶ 22, 23; Pl. SMF ¶ 24, Dkt. No. 22. Owens then applied for unemployment, but the Unemployment Insurance Appeals Board held that he was not entitled to benefits because he had left Albany Housing of his own volition. See Def. SMF ¶¶ 25, 26, Dkt. No. 19. Owens also filed a complaint against Albany Housing with the New York Division of Human Rights ("DHR") in March of 2005, alleging that disability based discrimination by Albany Housing was the real reason for his return to the grounds crew from his janitorial position. Id. at ¶ 27. The DHR dismissed the complaint, finding that there was "no evidence that any of [Albany Housing's] actions were a pretext for a discriminatory motive related to [Owens'] disability." DHR Decision, Dkt. No. 19.
Owens filed the current action on March 3, 2006, seeking damages*fn4 on grounds that the decision to "demote" him from janitor to grounds crew was based on impermissible considerations of his disability. Dkt. No. 1.
Defendant Longo moves for summary judgment on the basis that individuals cannot be held liable for ADA violations. Dkt. No. 19. All defendants move for summary judgment on the basis that Owens does not have a protected interest in his employment under the due process clause of the Fourteenth Amendment and has failed to make out a prima facie case of discrimination under the ADA. Id.
A. Summary Judgment Standard
The standard for the grant of summary judgment is well-established, and will not be repeated here. For a full discussion of the standard, the court refers the parties to its previous opinion in Bain v. Town ...