The opinion of the court was delivered by: Dora L. Irizarry, District Judge
Plaintiff Darryl Godfrey brings this action against defendant, the New York City Transit Authority ("TA"), under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 et seq. ; Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. ; and the New York State Executive Law § 296 ("New York State Human Rights Law"), alleging that defendant discriminated against him on the basis of his hearing disability when it placed his application to be a revenue collecting agent on medical hold. Defendant moves for summary judgment, asking the court to dismiss the action in its entirety. For the reasons set forth below, the motion is granted. Although there is a triable issue as to whether plaintiff is disabled under the ADA, the court finds that he did not suffer an adverse employment action and that defendant's efforts to evaluate plaintiff's hearing ability were job related and consistent with a necessary business interest of the TA. Thus, plaintiff does not have a claim under the ADA. The Title VII claim is dismissed because Title VII does not recognize discrimination claims based on disability. Without the federal claims, the court declines to exercise supplemental jurisdiction over plaintiff's claim under the New York State Human Rights Law.
Defendant first served its summary judgment papers on plaintiff in mid-August 2005. After plaintiff failed to submit a timely opposition or request an extension, the court deemed the motion unopposed on October 13, 2005. On November 10, 2005, and again on June 6 and August 10, 2006, plaintiff moved for reconsideration of the court's decision to deem the motion unopposed.*fn1 The court denied all three requests, noting that it had repeatedly warned plaintiff about the potential consequences of failing to comply with the court's orders, including sanctions and dismissal.
After reviewing the unopposed summary judgment papers in a light favorable to the non-moving party and finding that defendant had met its burden of demonstrating that no genuine issue of material fact remained for trial, the court dismissed the action in its entirety. See Godfrey v. New York Transit Auth. , No. 02-CV-2101, 2006 WL 2505233 (E.D.N.Y. Aug. 28, 2006). The court found that: (1) plaintiff was not disabled under the ADA; (2) he did not suffer an adverse employment action; and (3) defendant's efforts to evaluate plaintiff's hearing ability were job related and consistent with a business necessity. See id . at *3-6. The court dismissed the Title VII claim as that statute does not recognize discrimination claims based on disability. See id . at *8. Having dismissed all of the federal claims, the court declined to exercise supplemental jurisdiction over the state-law claim. See id .
Plaintiff appealed the court's denials of the reconsideration motions and its decision to grant summary judgment. The Second Circuit vacated and remanded the case for further explanation as to why the court denied plaintiff's second and third requests for reconsideration. See Godfrey v. New York Transit Auth. , 258 F. App'x. 353, 355 (2d Cir. 2007). The Second Circuit did not, however, address the court's decision on the motion for summary judgment. See id . The court then permitted plaintiff to file opposition papers, which he did. Plaintiff did not challenge the court's decision to dismiss the Title VII claim, but did challenge the court's decision to dismiss the claims under the ADA and New York State Human Rights Law.
In 2000, plaintiff applied for a provisional appointment as a revenue collecting agent with the TA. (56.1 Statements at ¶ 1.) Revenue collecting agents protect, collect, and transport revenue and revenue-related items (such as MetroCards) from various points on the subway. (56.1 Statements at ¶ 2; see also Schoolman Decl. Ex. 2; D'Amato Dep. at 12:11-22; Levy Decl. Ex. O.) They also drive armored cars transporting the revenue and provide security for TA workers as they repair MetroCard vending machines. (56.1 Statements at ¶ 2; see also Schoolman Decl. Ex. 2; D'Amato Dep. at 12:11-22; Levy Decl. Ex. O.) Revenue collecting agents must carry a gun. (56.1 Statements at ¶ 2; see also Schoolman Decl. Ex. 2; D'Amato Dep. at 12:11-22; Levy Decl. Ex. O.)
When plaintiff applied for the position, he wore a hearing aid to improve the hearing in his right ear. (Pl.'s 56.1 Statement at ¶ 3.) He has no hearing in his left ear. (Id .) Plaintiff had previously worked as a security guard for the Port Authority of New York and New Jersey, and as an armed courier, an air courier, and a driver.
(56.1 Statements at ¶ 4.) Plaintiff claims that wearing a hearing aid has never interfered with his ability to do any of these jobs and that he can perform all of the essential functions of a revenue collecting agent while wearing his hearing aid. (Id .)
Several months after plaintiff first applied for the position, defendant requested an in-person interview. (56.1 Statements at ¶ 8.) Henry D'Amato, who was the Senior Director for the Revenue Collecting Department, conducted the interview and found plaintiff qualified to proceed to the next phases of the application process. (56.1 Statements at ¶¶ 9-10.) At the time of the interview, D'Amato knew that plaintiff wore a hearing aid. (56.1 Statements at ¶ 11.)
After D'Amato interviewed plaintiff, Valerie Blakes, a TA Supervisor, helped plaintiff apply for a New York City pistol license. (56.1 Statements at ¶ 12.) Plaintiff submitted his pistol application and then contacted Blakes two months later when he had not received an update on his application. (56.1 Statements at ¶ 13.) Blakes explained that there was a problem with his application. (Id .) Plaintiff, in the attachments to his application, had alluded to being terminated from a prior job because of an accusation that he had engaged in employee theft. (Id .) According to plaintiff, he was fired because he inadvertently mixed up the orders of two customers by providing one customer with the stereo that the other customer had purchased. (Pl.'s 56.1 Statement at ¶ 58.) Both D'Amato and Blakes met with plaintiff for a second interview and asked him to submit a letter explaining the circumstances of this termination, which he did. (56.1 Statements at ¶¶ 14-15.)
In early 2001, plaintiff received his New York City pistol license, which he submitted to defendant. (56.1 Statements at ¶ 15.) Approximately one month later, plaintiff received a letter from defendant instructing him to report to the TA Medical Department on February 26, 2001 to undergo a drug test. (56.1 Statements at ¶ 16.) Plaintiff complied and passed the drug test. (56.1 Statements at ¶ 17.) Defendant then asked him to return on March 1, 2001 to complete the remainder of his medical examination. (Id .)
On March 1, 2001, plaintiff underwent a variety of physical exams, including an unaided hearing exam. (56.1 Statements at ¶ 18, 21.) Defendant was not, however, able to evaluate plaintiff's hearing ability while using a hearing aid because it did not have the necessary equipment. (56.1 Statements at ¶ 19, 21.) Therefore, it asked plaintiff to take an aided hearing exam with his own physician and provide the results. (56.1 Statements at ¶ 19, 21.) Defendant then placed plaintiff on medical hold until it could evaluate the results of his aided hearing test and determine whether he met the medical standards for a revenue collecting agent.
(56.1 Statements at ¶ 21.) Plaintiff claims that, during the March 1, 2001 exam, a physician for the TA informed him that there was no hearing requirement for revenue collecting agents. (Godfrey Aff. at ¶ 18.)
Plaintiff took an aided hearing test, and on March 5, 2001, provided the results to defendant. (Godfrey Aff. at ¶ 20; Godfrey Dep. at 98:23-99:3.) The results showed that his aided hearing was at 76 decibels. (Id .) Plaintiff had taken this test with his older hearing aid (Godfrey Dep. at 98:23-99:3) even though he had a newer "bidirectional" hearing aid, which allow[ed] [him] to work in noisy places and understand a person, cut off the volume of the noise around [him] and direct the microphone straight to the person that [he is] talking to, or the person behind [him], so it allows [him] to do a lot more work, the hearing aid allows [him] to do more in noisier places than the conventional hearing aid that just have [sic] a microphone and just picks up everything. . . . So in general it was a better hearing aid [than the old one.] (Godfrey Dep. at 97:4-20.)
According to plaintiff, the TA physician informed him that the results were unacceptable because the TA was "looking for 80 [decibels]." (Godfrey Dep. at 100:11-15.) The physician did not, however, disqualify plaintiff, but rather asked him to get his hearing aid readjusted to help improve his hearing to 80 decibels. (Id .) That same day, plaintiff retook the hearing test with his newer hearing aid and achieved a rating of 92 decibels. (Levy Decl. Ex. B at ¶ 7; Godfrey Dep. at 102:5-11, 106:4-10; Godfrey Aff. at ¶ 20; 56.1 Statements at ¶ 30.) He immediately returned to the TA physician with the results. (Levy Decl. Ex. B at ¶ 7; Godfrey Dep. at 102:5-11, 106:4-10; Godfrey Aff. at ¶ 20; 56.1 Statements at ¶ 30.) Plaintiff alleges that, during this meeting, while in the presence of other applicants, the physician told him that he "could not carry a gun and wear a hearing aid at the same time." (Godfrey Aff. at ¶ 21.) The physician then told plaintiff that the TA would contact him once they decided what to do with his application. (Godfrey Aff. at ¶ 23.)
According to defendant, it kept plaintiff on medical hold even after receiving the updated hearing test results so that it could determine if it needed to administer a practical field test to determine whether plaintiff's hearing impairment may create a danger to himself or the public, or would adversely affect his ability to do the job. (Clarke-Belgrave Dep. at 27:8-29:9; Clarke-Belgrave Aff. at ¶ 9; 56.1 Statements at ¶ 32.) During her deposition, Dr. Cassandra Clarke-Belgrave, who was the Medical Director of the TA, explained that, even when an individual with a hearing aid meets or exceeds the minimum hearing requirements under a controlled testing condition, the TA may still require the individual to undergo a practical field test. (Clarke-Belgrave Dep. at 27:15-28:4.) The TA uses the test to determine how well that person hears in environments with background noises that the applicant would likely encounter. (Id .) Dr. Clarke-Belgrave also explained that "in the case of the collecting agent, even today it probably could take time because we don't have a practical field test set up for collecting agents." (Clarke-Belgrave Dep. at 29:6-9.)
At the time plaintiff applied, defendant was developing a specific job profile for the position of revenue collecting agent, which would list the work conditions and physical requirements for the job. (56.1 Statements at ¶ 22; Clarke-Belgrave Dep. at 14:7-12.) Although defendant had expected to implement the profile and use it as a basis for a practical field test soon after plaintiff applied, defendant did not fully implement the profile until early 2002. (56.1 Statements at ¶ 23; Clarke-Belgrave Aff. at ¶ 9.) Until then, defendant used something called a "broad-banded" job profile to assess candidates applying to become revenue collecting agents. A broad-banded job profile is a job profile for a position that the Occupational Industrial Orthopedic Center ("OIOC"), an outside vendor hired by defendant, deems to be sufficiently similar with the physical requirements and work conditions of another position. (Clarke-Belgrave Dep. at 14:25-15:5.)*fn2 In this case, the OIOC deemed the broad-banded job profile of a station agent, also referred to as a railroad clerk (see Clarke-Belgrave Dep. at 19:11-13; 43:21-44:6), to be fully compatible with the position of a revenue collecting agent. (Clarke-Belgrave Dep. at 15:9-18.)
By May 2001, defendant concluded that it most likely would not have an approved job profile for a revenue collecting agent anytime soon, and under the broad-banded job profile for railroad clerk/station agent, a practical field test was not required. (56.1 Statements at ¶ 34; Clarke-Belgrave Aff. at ¶ 10.) The parties differ on what happened to plaintiff's application in May and June 2001.
According to defendant, it deemed plaintiff medically qualified and lifted the medical hold on May 24, 2001. (Def.'s 56.1 Statement at ¶ 35.) Defendant then asked him to take another drug test because the test was only valid for 30 days and his last drug test was on February 26, 2001. (Def.'s 56.1 Statement at ¶ 36.) Defendant left plaintiff telephone messages in late May and early June asking him to return to the TA Medical Center for a drug test. (Def.'s 56.1 Statement at ¶ 37; Levy Decl. Ex. F.) Defendant also sent plaintiff a letter on June 12, 2001, requesting that he report for a medical examination on Tuesday, June 25, 2001. (Def.'s 56.1 Statement at ¶ 40.) Plaintiff did not respond to either the messages or the letter.
Plaintiff denies that defendant removed the medical hold. (Pl.'s 56.1 Statement at ¶ 35.) As such, he denies that it was necessary for him to take another drug test. (Pl.'s 56.1 Statement at ¶ 36.) Plaintiff acknowledges, however, that he did receive the letter asking him to report for a medical examination, and that, sometime between April 26, 2001 and June 22, 2001, he also received phone messages from defendant asking him to provide a urine sample for a drug test. (Godfrey Dep. at 115:6-117:16 (explaining that sometime after "the 50-h hearing," which was conducted on or about April 26, 2001 (Compl. at ¶¶ 24-25) and before receiving defendant's June 12, 2001 letter on June 22, 2001 (56.1 Statements at ¶ 40) he received "maybe two or three . . . phone messages" asking him to "[c]ome down and take a urine test").) Plaintiff admits that he did not respond to either the calls or the letter. (Godfrey Dep. at 117:20-118:4; 56.1 Statements at ¶¶ 40-41.)
Plaintiff explained that he did not return the messages because they did not provide a contact number nor did they ask him to call. (Godfrey Dep. at 116:15- 117:5.) Furthermore, plaintiff claimed that the number he had for the TA at the time "was only answering machine messages[,] [a]nd [he] refused to leave a message on the answering machine." (Godfrey Dep. at 116:23-24.) Plaintiff explained that he did not respond to the letter because: (1) it asked him to report for a medical examination on Tuesday, June 25, 2001, and June 25, 2001 was a Monday, not a Tuesday; (2) the letter did not notify him that he was taken off of medical hold; (3) he did not understand why defendant wanted ...