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Shannon v. Verizon New York Inc.

May 29, 2009



Plaintiff Robert Shannon ("Plaintiff" or "Shannon") commenced the instant action pursuant to the American with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the New York Human Rights Law ("NYHRL"), N.Y. EXEC. LAW § 290 et seq., claiming that Defendant Verizon New York Inc. ("Defendant" or "Verizon") failed to provide him with reasonable accommodations, subjected him to a hostile work environment on account of his disability and retaliated against him for engaging in protected activity. See generally Second Am. Compl. (Dkt. No. 77). Currently before the Court is Defendant's Motion for partial summary judgment (Dkt. No. 94).


On May 9, 2005, Plaintiff commenced the underlying action. Compl. (Dkt. No. 1); Am. Compl. (Dkt. No. 14).*fn1 Both parties filed Motions for summary judgment on these claims. Dkt. Nos. 29, 35. On April 13, 2007, this Court denied Plaintiff's cross-Motion for summary judgment and granted Defendant's Motion for summary judgment as to Plaintiff's hostile work environment and retaliation claims and denied as to Plaintiff's accommodation claim, to the extent that the alleged discrimination is based on Defendant regarding Plaintiff as disabled. Dkt. No. 54. The Court denied both parties' Motions for reconsideration on November 5, 2007. Dkt No. 71.

On September 27, 2007, Plaintiff returned from vacation to Verizon's Construction Control unit in Menands, New York and learned from his co-worker, Liz Weis ("Weis"), that another Verizon employee had committed suicide. Pl. Aff. (Dkt. No. 106) ¶¶ 6, 7; Pl. Dep. (Dkt. 103) 7:23-25, 22:12-25:19. The parties dispute what Plaintiff said in response to this news. Plaintiff reports "I told Liz Weis that I thought his suicide was a waste of a life and you would think that if things were bothering him that much, he would find other ways to deal with it and eliminate the problem." Pl. Aff. ¶ 7; see also Pl. Dep. 25:25-26:2 ("If anything was bothering him, don't you think he would have gone postal?"). In contrast, Defendant reports that Plaintiff reportedly remarked to Weis: "What a waste of life. If someone was bothering me, I would go postal and that would solve the problem and I would laugh from my jail cell." McNicholas Aff. (Dkt. No. 96) ¶ 4 & Ex. B; Leonard Aff. (Dkt. No. 68) ¶ 3. According to Defendant, Plaintiff repeated these remarks to his supervisor and word of Plaintiff's comments spread through the workplace, creating concern amongst Plaintiff's co-workers. McNicholas Aff. ¶ 3 & Ex. A; Leonard Aff. ¶¶ 3, 4.

Both parties agree, however, that that afternoon Plaintiff was interviewed by members of Verizon's security department and told that his comments alarmed Weis and other co-workers. McNicholas Aff. Ex. B; Pl. Aff. ¶¶ 8-11; Pl. Dep. 30:24-41:5. Verizon placed Plaintiff on paid administrative leave and, as a condition of that leave, directed him to submit to a mental fitness-for-duty examination through its Employee Assistance Program ("EAP"), to determine whether he posed a risk to himself or others. Def. Aff. (Dkt. No. 98) ¶ 10; Pl. Dep. 64:3-9. Plaintiff refused to sign the release form provided by the EAP that would authorize the EAP to inform Plaintiff's supervisors that Plaintiff had participated in the EAP and was following the EAP's recommended course of treatment, if any. Pl. Dep. 78:3-79:2; Leonard Aff. ¶ 10. Instead, Plaintiff signed the form but crossed out the portion of the form authorizing the release of information to Verizon and returned the altered form to Verizon. Pl. Dep. 78:3-79:2, Bloom Aff. (Dkt. No. 95) Ex. C.

On October 18, 2007, Defendant transferred Plaintiff to unpaid leave status based on Plaintiff's refusal to complete the required paperwork and to comply with the terms and conditions of his paid administrative leave. Def. Aff. ¶¶ 13-14; Pl. Dep. 93:11-18; Leonard Aff. ¶ 11. Plaintiff retired from Verizon, effective December 15, 2007. Pl. Dep. 7:23-8:20; Bloom Aff. Ex. B. It is contested whether this retirement was voluntary. Id.

Following the events of September 2007, Plaintiff filed a Motion for a temporary restraining order and an order to show cause in the wake of his transfer to unpaid administrative leave. Dkt. No. 63. Plaintiff alleged that the events of September 2007 constituted retaliation for the ongoing suit against Defendant. A show cause hearing was held on November 7, 2007. Dkt. No. 73. In an Order dated November 14, 2007, this Court denied Plaintiff's Motion for preliminary relief without prejudice on the grounds that Plaintiff had not sought leave to amend his Complaint to reflect the new allegations. Dkt. No. 76. Subsequently, Plaintiff filed a Motion for leave to amend his Complaint for the second time and renewed his Motion for a preliminary injunction. Dkt. No. 79. This Court granted Plaintiff's Motion to amend the Complaint and denied Plaintiff preliminary relief. Dkt. No. 82.

On February 27, 2009, Defendant filed the Motion for partial summary judgment that is currently before this Court. Dkt. No. 94. Plaintiff filed its Memorandum of law in opposition to Defendant's Motion for partial summary judgment on April 1, 2009. Dkt. No. 104. Defendant subsequently filed it reply Memorandum of law in support of Defendant's Motion for partial summary judgment. Dkt. No. 109.


Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "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); Beard v. Banks, 548 U.S. 521, 529 (2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A court must "'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing the judgment.'" Brown v. Henderson, 257 F.2d 246, 251 (2d Cir. 2001) (quoting Cifra v. General Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

If the moving party meets its initial burden of demonstrating that no genuine issue of material fact exists for trial, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 586 (1986) (citations omitted). The non-movant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 251 (citation omitted). The nonmoving party "may not rely merely on allegations or denials in its own pleadings;" bald assertions unsupported by evidence are insufficient to overcome a motion for summary judgment. FED. R. CIV. P. 56(e)(2); see Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). "Factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiff's affidavit opposing summary judgment and that affidavit contradicts her own prior deposition testimony." Brown, 257 F.3d at 251 (citation omitted).


Plaintiff's second amended Complaint contains six claims for relief, four of which duplicate claims contained in the original Complaint and that were adjudicated by this Court's Order dated April 13, 2007. Second Am. Compl. (Dkt. No. 77). Specifically, Plaintiff's First, Second, Fifth and Sixth Claims for Relief, in the second amended Complaint are identical to the First, Third, Fifth and Sixth Claims for Relief, respectively, in the original Complaint. Compare Am. Compl. ¶¶ 26-27, 30-32, 34-37 with Second Am. Compl. ¶¶ 33-26, 41-44.

This Court previously granted summary judgment on each of these claims with the exception of Plaintiff's accommodation claims for the sole issue of whether Defendant failed to reasonably accommodate Plaintiff's perceived disability. For further detail, the Court makes reference to the Order dated April 13, 2007. Dkt. No. 54. Plaintiff alleges no new facts or legal theories in the second amended Complaint to revive these claims, each of which arise from events occurring prior to April 2007. Accordingly, Plaintiff's First, Second, Fifth and Sixth Claims for relief have already been adjudicated. See Dkt. No. 54. Summary judgment is, therefore, granted as to all of these claims with ...

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