The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Plaintiff Arthur J. Weigand commenced this action on October 24, 2003, and filed an Amended Complaint on November 17, 2003. Therein, he alleges that he was discriminated against on the basis of a disability, and terminated from his position as a bus mechanic with the Niagara Frontier Transit Metro System, Inc. ("Metro"), in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§12112 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §791 et seq., the Civil Rights Act of 1991, 42 U.S.C. §1981(a), and the New York State Human Rights Law ("HRL"), N.Y. Exec. Law §§ 290 et seq. Plaintiff is suing Metro, the Niagara Frontier Transportation Authority ("NFTA"), and three Metro supervisory employees (collectively "Defendants"). Currently before the Court is Defendants' Motion for Summary Judgment. (Docket No. 17).*fn1 For the reasons stated herein, the motion is granted.
Plaintiff alleges in his Amended Complaint that, beginning on or about September 3, 1992, Defendants failed to accommodate his disability, discriminatorily denied him shift selection rights, job opportunities, overtime, and training, educational, and in-service opportunities offered to non-disabled employees in the same job title, and assigned him to degrading and menial tasks outside his classification. (Docket No. 3 ¶¶ 20-22, 27-28.) He further claims that Defendants effectively terminated him on June 4, 1994 because of his disability, and did not return him to work until March 26, 1996. (Id. ¶¶24-25, 29.)
The following facts are drawn from the record and, unless otherwise noted, are not disputed.
Defendant NFTA is a public authority and a public benefit corporation organized and existing under New York State Law. (¶ 1.)*fn2 Defendant Metro, a wholly-owned subsidiary of the NFTA, also is a public benefit corporation. (¶ 1.) Together, the NFTA and Metro own and operate various transportation services, including the public bus transportation system in Erie and Niagara counties in Western New York. (¶ 2.) Metro is responsible for the day-to-day operation of the bus system, and Metro buses operate from and are repaired at three garages: Frontier, Babcock, and Cold Spring. (¶ 3.)
Plaintiff Weigand, who holds an associate degree in automotive technology, commenced employment at Metro on June 7, 1982. During the time period relevant here, Weigand was employed as a Garage Mechanic A-Utility, at Frontier Garage. (¶¶ 10,12.) The position description for that title includes, inter alia, the following responsibilities: "[d]iscover and diagnose unserviceable or defective conditions, plan and make adequate repairs or adjustments to vehicle components[, m]ake routine mileage and periodic inspections and repairs[, t]est, remove, repair or replace and adjust all units, parts and components[, and p]erform any or all of the work assigned as duties for any jobs in subordinate or comparable classifications . . . ." (¶¶ 6, 12, Defs' Ex. M.) Mechanic positions are among several Metro job titles represented by the Amalgamated Transit Union Local 1342 ("ATU"). (¶¶ 4, 11.) The collective bargaining agreement between ATU and Metro governs, inter alia, shift selection, days off, and overtime. (¶ 11.)
On or about January 30, 1992, Weigand sustained an injury to his neck while at work (¶ 13), and was placed on a workers' compensation leave of absence (¶ 14). Approximately seven months later, Weigand sought to return to work and presented to NFTA/Metro a note from his physician, dated August 11, 1992, stating that he had a "Herniated Disc neck," and "May return to work 8-17-92" with a "Return to work restriction weight lifting 50 pounds." (¶ 15, Defs' Ex. N.) Prior to his injury, Weigand's job had required that he lift bus batteries, alternators, and tires, all weighing more than 50 pounds. (¶ 17.)
According to NFTA/Metro's Occupational Nurse, Mary Carol Saxe, mechanics generally can not be returned to work with a 50-pound lifting limitation, and Weigand testified that Saxe told him he could not return to his Mechanic position with that restriction. (¶ 20.) One of Weigand's former supervisors, Howard Scholl, Sr., testified that he could not use personnel on light-duty for regular mechanic's work because of the lifting required in Mechanic A and lower included classifications. (¶¶ 18-19.)
Nevertheless, around the time Weigand sought to return to work, NFTA and Metro were in the process of developing an Early Return to Work ("ERTW") Program for use by both entities, one purpose of which was to provide a work-hardening program to transition injured employees to full-duty status. (¶ 21.) Although the ERTW was still under development, Weigand was permitted to return to full-time work at Frontier Garage on or about September 3, 1992, at Mechanic A pay but with modified assignments. (¶¶ 22, 23, 30.)
On September 18, 1992, Plaintiff complained that he was asked to lift a bus battery with another employee. His supervisors weighed the battery, and after determining its weight exceeded 100 pounds, did not require Plaintiff to assist with the assigned task. Nevertheless, Plaintiff complained of disability discrimination to NFTA/Metro's EEO office, and also filed a grievance, which ATU did not take to arbitration. (¶ 30.)
In October 1992, Weigand participated in a quarterly work assignment "pick." He selected his pre-injury job, but his selection was rescinded due to Defendant Antholzner's conclusion that his former position required such heavy-duty tasks as prying, lifting, and removing bus chassis components. Instead, Weigand was assigned to fill a different Mechanic A position on his same shift. (Defs' Ex. Z at 4.) Weigand filed a grievance that the ATU did not take to arbitration. (¶ 31.)
Due to various collective bargaining issues raised over the ERTW, the ATU did demand, in October 1992, that Metro engage in impact negotiations. (¶¶ 24, 25.)
In or about December 1992, Weigand and other ERTW employees were directed to report to Metro's Rail Department to clean light-rail transit cars. After Weigand complained to his union, he was not required to perform that task. (¶ 33; Defs' Ex. A at 184-88.)
In January 1993, Metro offered maintenance training for buses fueled by natural gas. ERTW participants were permitted to enroll in company training courses if class size permitted and there was no overtime involved. (Defs' Ex. AA.) NFTA/Metro offered Weigand the opportunity to attend by switching shifts on the training days to avoid overtime, but he refused. His request to attend on overtime hours was denied. Weigand filed a grievance over the matter, which the ATU did not take to arbitration. (¶ 34.)
In April 1993, Weigand made a written request for a six-month change from his customary second shift to the first shift for "personal reasons." (¶ 36, Defs' Ex. BB.) Defendant Antholzer denied the request on operational grounds. (¶ 36.) Weigand's counsel attests that, though Weigand did not commit a specific reason to writing, Defendant Antholzner and Frontier Supervisor Komenda were aware that his request was prompted by his infant daughter's medical condition, thereby creating a question of fact as to Antholzner's motivation. (Docket No. 31 ¶ 13.) Weigand testified to the contrary during his deposition. While he believed the written request went to Antholzner, the only individuals he explained the "personal reasons" to were Pat O'Connell, his union steward, and Lothar Gmeinder, a foreman who was not involved in the decision to deny the request. (Defs' Ex. A at 55, 67, 142, 196-97.)
In July 1993, Weigand underwent an independent medical exam and it was determined he had a mild, partial disability. The examining physician, Dr. Cisek, recommended that the 50-pound lifting limitation remain in place, but opined that perhaps in another six months Weigand could return to unrestricted duty. (¶ 40, Defs' Ex. DD.)
In or before November of 1993, a draft set of rules for ERTW, developed with union input, was circulated. (¶¶ 25, 26.) The rules provided that an ERTW employee could bid on a position only if he or she could perform all functions of the position, and prohibited ERTW employees from working overtime without prior authorization. (¶ 26.) In other words, while ERTW employees were guaranteed full-time pay, certain collective bargaining rights extended to full-duty employees did not apply to them. (¶ 27.) In November 1993, Metro and ATU also agreed that ERTW status would be limited to one year, extended to fifteen months for employees, like Weigand, who had returned to work on limited duty prior to November 8, 1993. (Id.)
At his deposition, Weigand claimed that his name was removed from the mechanic's overtime list and also from the relief storeroom clerk list while he participated in ERTW. (¶ 39.) Weigand has not explained how the former is inconsistent with the ERTW rule that participants be approved in advance for overtime. And, in fact, Weigand testified and has submitted documentation confirming that he was approved for overtime hours after his return to work in 1992. (Defs' Ex. A at 112-114; Pl's Ex. B.) With regard to relief storeroom ...