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Bogner v. Wackenhut Corp.

January 7, 2008


The opinion of the court was delivered by: Michael A. Telesca United States District Judge



Plaintiff Michael J. Bogner ("plaintiff" or "Bogner"), brings this action pursuant to the American with Disabilities Act of 1990, (codified at 29 U.S.C. § 12112 et. seq.) ("ADA"), and the New York State Human Rights Law, (codified at N.Y. Exec. Law. § 296, et seq.) ("NYSHRL"), alleging two causes of action. The first cause of action claims that plaintiff's former employer, The Wackenhut Corporation ("defendant" or "Wackenhut"), discriminated against him in the terms and conditions of his employment based on his disability. Specifically, plaintiff, who was employed by Wackenhut as a security guard, alleges that he is disabled under the ADA as a result of his epilepsy; that defendant failed to accommodate his injury; and that he was unlawfully terminated from his employment because of his condition. In his second cause of action, Bogner alleges that defendant violated NYSHRL by unlawfully discriminating against plaintiff in the workplace due to his disability.

Defendant denies plaintiff's claims, and contends that Bogner was asked to work evenings in addition to his morning and afternoon shifts and that he refused to work the additional hours. Defendant moves for summary judgment on grounds that plaintiff has failed to state a cause of action for employment discrimination. Plaintiff opposes defendant's motion asserting that there are material issues of fact preventing summary judgment and, in the alternative, plaintiff also has cross-moved for summary judgment asserting that he was discriminated against on the basis of a disability as a matter of law in violation of the ADA. For the reasons set forth below, defendant's motion for summary judgment is granted and plaintiff's summary judgment motion is denied.


Plaintiff initially worked for Wackenhut as an Armed Security Officer in April 2002.*fn1 Plaintiff worked at Wackenhut for two periods from April 2002 to October 2002 and then during August 2004. During plaintiff's interview in April 2002, he informed representatives of Wackenhut that he had epilepsy and they told him it was not a problem as long as he passed the physical.*fn2 Wackenhut subsequently offered plaintiff the job, and after having passed the required medical examination began working at the facility. Plaintiff was on medication and was seizure-free from the time he was employed by Wackenhut until he was involved in a second car accident in October 2002 following which he had recurrent seizures and went on medical leave. He received a notice from defendant in February 2003 advising him that his employment was terminated because he had exceeded his allowed leave time.*fn3

In April 2004, plaintiff reapplied to Wackenhut and disclosed his seizure disorder on the application. Wackenhut rehired plaintiff and he began training in August 2004. While still in training, plaintiff learned that he and other trainees would be required to work all three shifts. Bogner informed his training officer, the captain and the project manager that he did not believe he could work the required schedule. Wackenhut told plaintiff to review the schedule with his doctor. Plaintiff's doctor wrote a note indicating that plaintiff "should work only days so that he gets into the best routine to minimize the risk of recurrent seizures." See Bogner Tr. 58:2-21. Bogner showed the note to his employer who then gave plaintiff an actual schedule for the doctor's review and comment. The doctor responded with a note, which advised that Bogner could not work between 10:30 p.m. and 6:30 a.m. Upon further discussion, on August 24, 2004, plaintiff was terminated because of his inability to work the night shift (10:30 p.m. to 6:30 a.m.) In addition, plaintiff could not work "early-in" overtime on the day shift, which requires that he report before the beginning of the shift at 6:30 a.m. or "hold-overs" after the evening shift, which extends beyond 10:30 p.m.*fn4

According to defendant, being available for overtime is an essential job function as well as being available working different shifts as needed. Defendant explains that an important requirement of the job is that "you be able to work when you are called. No matter what time of day or night, due to staffing requirements...." See Tr. Palmer 33:18-20. Anybody could be called at any time and everybody is required to be able to respond to an emergency or to fill required staffing. Wackenhut determined that if Bogner could not be available for work from 10:30 p.m. until 6:30 a.m., then as a practical matter, retaining him as an employee could represent a substantial hardship to Wackenhut. If plaintiff was the only security officer available to fill a minimum staffing requirement during the hours he was advised to work, his absence would put Wackenhut in violation of federal standards. Further, if an emergency occurred during the night shift, Bogner could not come in or hold over to fulfill commitments after 10:30 p.m. to 6:30 a.m.

Plaintiff argues that the reason given for his termination was inconsistent with the treatment given to other security guards who requested and obtained permission from Wackenhut to work only certain shifts. Plaintiff contends that there is testimony showing that a female security guard was hired back to work notwithstanding the fact that she announced that she refused to work the night shift. According to plaintiff, this was the same shift that his doctor did not want him to work and was the stated reason for his termination by defendant. In fact, plaintiff argues there is testimony that shows that security guards were permitted to choose their own shifts. In addition, plaintiff states that there was never a time that Wackenhut had to call each and every security guard to come into work on a particular shift for emergency or any other reason.

With respect to plaintiff's physical condition, there is no dispute that he has epilepsy and that he had not had a seizure since May 5, 2003. Plaintiff continues to take medication for his condition and as a result, his epilepsy has been controlled and he has not suffered any seizures for several years. Plaintiff currently operates his own business, Bogner Contracting, which provides backhoe service and equipment.


I. Motion for Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure prescribes summary judgment where the evidence demonstrates that there is no genuine issue of fact and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. Proc. 56(c).

Summary judgment dismissing an employment discrimination case is warranted only where a plaintiff cannot provide evidence to support an essential element of her claim. See Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000); Quinn v. ...

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