The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Michael Baker, ("Baker"), brings this action pursuant to the Americans with Disabilities Act ("ADA") and the New York State Human Rights Law claiming that defendant CSX Transportation, Inc., ("CSX") unlawfully discriminated against him on the basis of a disability. Specifically, plaintiff alleges that he is disabled under the ADA as a result of a Hepatitis C infection; that CSX failed to accommodate his condition; and that he was unlawfully terminated from his employment because of his condition.
Defendant denies plaintiff's claims, and alleges that it accommodated Baker's needs, and that his termination of employment resulted from a company-wide downsizing--not because of any discriminatory animus. Defendant moves for summary judgment on grounds that plaintiff has failed to state a cause of action for employment discrimination. Specifically, defendant contends that Baker has failed to establish that he is disabled under the terms of the ADA; has failed to establish that CSX did not offer reasonable accommodations for his condition;, and has failed to establish that his employment was terminated as a result of his disability. Plaintiff opposes defendant's motion and asserts that there are questions of fact as to whether or not he was discriminated against on the basis of a disability.
For the reasons set forth below, I grant in-part and deny in-part defendant's motion for summary judgment. Defendant's motion to dismiss plaintiff's federal claim under the ADA is granted. Defendant's motion for summary judgment with respect to plaintiff's state law claim is denied as moot for lack of subject matter jurisdiction.
Plaintiff Michael Baker is a former employee of defendant CSX Transportation, Inc. CSX operates railroads in several area of the country, including the Northeastern United States. Baker began working in the railroad industry in 1976 for defendant's predecessor Conrail. In June, 1999, CSX took control of Conrail's operations in various geographical areas, and Baker became an employee of CSX. Baker was employed as a Supervisor of Signal Construction based in Lyons, New York at the time CSX took over that operation. Shortly after CSX took over, Baker was diagnosed with Hepatitis C. In December 2001, more than two years after he was diagnosed with Hepatitis C, Baker sought permission to take sick leave pursuant to the Family and Medical Leave Act of 1993 ("FMLA"). Although Baker had not missed any work as a result of his Hepatitis C, he anticipated that he would need to take sick leave to undergo treatment for the disease. According to Baker, the treatment, which consisted of, inter alia, chemo-therapy, had the potential for causing him to be run down, fatigued, nauseous, and exhausted. Despite Baker's request for FMLA leave having been granted by CSX in December of 2001, because the United States Food and Drug Administration had not yet approved the treatment that Baker had chosen, he did not undergo that treatment until January of 2003. Because he was not undergoing treatment in 2002, and because his Hepatitis C symptoms did not prevent him from working, Baker did not utilize any FMLA time in either 2001 or 2002.
In March, 2002, plaintiff applied for the position of Supervisor of Signal Maintenance based in Rochester, New York. According to Baker, he sought the position because he wanted to be closer to Rochester, New York. Baker was hired for this position, and reported to William Tarvin, the Assistant Regional Signal Engineer. According to Baker, the relationship between he and Tarvin was "acrimonious" "from the day I got there." See Deposition Transcript of Michael Baker at p. 89, lns. 13-17. (hereinafter the "Baker Transcript") Baker claims that the relationship between he and Tarvin was poor because, inter alia, Baker "exposed [Tarvin] for his lack of integrity on a somewhat regular basis." Baker Transcript at p. 89, lns. 14-16. Plaintiff contends that almost immediately upon taking his new position in March of 2002, he "exposed [Tarvin] for violating corporate policy" when he discovered that Tarvin had allegedly covered up an on-thejob injury of another employee. Baker Transcript at p. 86. Baker also claims that upon assuming his new role as maintenance supervisor, he "uncovered numerous maintenance problems in the Rochester Area, many of them life threatening that had been there for years" under Tarvin's supervision. Baker Transcript at p. 83, lines 17-19; p. 84, lns. 5-10. See also May 15, 2007 Affidavit of Michael Baker ("herein after the "Baker Affidavit") at ¶ 17 ("[Tarvin] became very acrimonious after my refusal to be part of the illegal injury cover up and my finding critical problems that he and my predecessor had overlooked for years.")
In December 2002, after plaintiff had been in his position for approximately 9 months, Tarvin prepared a performance evaluation critiquing Baker's employment performance. Baker was rated in 15 weighted categories on a scale of 1 to 4, with one being the lowest, and 4 being the highest. As part of the performance evaluation, Baker was required to perform a self evaluation. Baker rated his performance as a "4" in 11 categories, and as a "3" in 4 categories. Tarvin gave Baker a rating of "4" in 5 categories, a "3" in 6 categories, and a "2" in 4 categories.
Although the scores assigned by Baker and Tarvin were the same in 7 of the 14 categories (including the same scores being given in 2 of the 3 highest weighted categories), and only one level apart in 6 of the remaining 8 categories, and despite the fact that in 2001 Baker had not received a rating of "4" in any category; received a "3" in 8 out of 9 categories, and received a "2" in the remaining category, Baker contends that the 2002 evaluation was unfair and inadequate, and that Tarvin rated him poorly because of his "general acrimony" towards the plaintiff. Baker Deposition at p. 83, lns. 9-12, p. 84 lns. 20-24. Baker Affidavit at ¶ 20. Baker claims that he contacted Tarvin's supervisor William Emerson (whom Baker referred to as friend based on their working relationship of approximately 25 years (Baker Transcript at p. 36 lns. 7-8)) to complain about the evaluation, and that although Emerson (who also considered Baker to be a friend (Deposition Transcript of William Emerson at p. 17, lns 7-13) agreed to review the evaluation, Emerson was not able to do so in a timely fashion, and as a result, lost the opportunity to make any changes to the evaluation. Emerson does not recall being asked by Baker to review the evaluation. Deposition Transcript of William Emerson at p. 24, lns 13-25.
By the end of 2002, plaintiff's condition had not prevented him from working, and Baker had not missed any time from work as a result of his disease. Baker Transcript at p. 46 lns 5-7; p. 49 lns 5-7; p. 53 ln. 24 - p. 54. ln. 2. Nor had plaintiff requested any type of accommodation for his condition at work. Baker Transcript at p. 116, lns. 8-12. While Baker states that the symptoms of his condition caused flu-like symptoms fatigue, nausea, and headaches (Baker Transcript at p. 45 lns. 7-25) he further stated that the symptoms were erratic and followed no discernable pattern. Baker Transcript at p. 46, lns. 3-4. Prior to 2003, Baker treated his symptoms with over-the-counter pain relievers and medicines, and visited his doctor approximately every 6 months to have his condition monitored. Baker Transcript at p. 46 lns 8-17; p. 54 lns 16-18.
In early January, 2003, Baker began his treatments for Hepatitis C. The treatments involved a weekly shot of Interferon and oral doses of Ribovarin taken twice daily. Baker Transcript at p. 62 ln. 6 - p. 63 ln. 6. It was anticipated that the treatments would last for 48 weeks. Baker Transcript at p. 171, lns. 20-21.
According to Baker, side effects of the treatment included fatigue, nausea, flu-like symptoms, irritability, and potentially depression. Baker Transcript at p. 70 ln. 21 - p. 71 ln. 8.
On January 24, 2003, Baker requested, and was granted permission to take FMLA leave. As of this date, Baker had not missed any work due to his condition or treatments, and had not requested any accommodation for his condition. In February, however, Baker complained to his doctor that he was having trouble sleeping due to being "on call" at CSX on some nights and weekends, which was required of him as a supervisor in case a problem arose that required immediate attention. Baker's physician wrote a note to CSX explaining that it was imperative for the plaintiff to get uninterrupted sleep while in treatment, and upon receiving that note, Baker was no longer required to be on call. Baker Transcript at p. 67, lns 21-24.
On May 2, 2003, Tarvin e-mailed Baker accusing him of not being in the office for daily, mandatory 6:20 a.m. conference calls which were held between regional mangers and supervisors. See Exhibit "D" to Plaintiff's Opposition to Defendant's Motion for Summary Judgment. In response, Baker indicated that the treatment he was undergoing left him fatigued in the morning, and that although it took him a little longer to "get going" in the morning, he was capable of working a full day. Id. Although he did not ask for any specific accommodation, he asked for flexibility from Tarvin in light of his illness and the side effects of his treatment. See Exhibit "D" to Plaintiff's Opposition to Defendant's Motion for Summary Judgment. Tarvin responded to Baker's request by stating in relevant part that "[i]t is not acceptable to do your conference call from home and then hit the road at 7:30 or 8:00AM. If you do, then it must be charged against FMLA." Id. Less than one month after Tarvin's e-mail to Baker, Baker informed CSX in an e-mail to Tarvin, that as a result of side effects from his treatment, he would be unable to continue to work, and instead would be taking short-term disability.
In July, 2003, while Baker remained on short-term disability, CSX underwent a reorganization under which approximately 106 management positions were eliminated. Tarvin's position was eliminated, and he was allowed to take a lower level position as a Signal Supervisor. Because Baker had the lowest evaluation score of the Signal Supervisors in the New York region, he was displaced from his position, and was allowed to fill a Supervisor of Signals position in Nashville, Tennessee. While still on short-term disability, Baker accepted this position in July, 2003.
Upon the completion of his treatments for Hepatitis C., Baker ended his period of short-term disability, and, in January 2004, reported to his new position in Nashville. According to Baker, he was not given any work assignments upon reporting to Nashville. Moreover, although the Interferon and Ribovarin treatments Baker received allegedly cured him of Hepatitis C, they caused him to suffer the more debilitating condition of Chronic Fatigue Fibromyalgia. Baker Transcript p. 192 lns. 3-23. As a result of the symptoms from Chronic Fatigue Fibromyalgia, Baker discontinued his work, and went on long-term disability as of March 15, 2004.
In April, 2004, CSX undertook another reorganization which resulted in the Nashville, Tennessee and Louisville, Kentucky regions being combined, and supervisor positions being reduced from 11 to 7. Baker's job functions were absorbed by the Electronics Engineer in Nashville, and Baker's position was eliminated. Baker was offered enhanced pension benefits upon the elimination of his position, but he declined to sign a release and waiver, and therefore, did not accept the enhanced benefits upon the termination of his employment. On ...