The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Currently before the Court in this employment discrimination action filed pro se by Rick E. Skinner ("Plaintiff") is a motion for summary judgment filed by the City of Amsterdam ("Defendant"). (Dkt. No. 35.) For the reasons set forth below, Defendant's motion is granted, and Plaintiff's Complaint is dismissed in its entirety.
A. Plaintiff's Claims in his Complaint
Generally, liberally construed, Plaintiff's Complaint alleges that Defendant, his former employer, violated the Americans with Disabilities Act, 42 U.S.C. §12101, et seq. ("ADA") by, inter alia, (1) permitting him to be subject to a hostile work environment, (2) retaliating against him for filing a complaint with the United States Department of Transportation Federal Motor Carrier (hereinafter "DOT") in November 2004, (3) subjecting him to adverse employment action, (4) subjecting him to drug tests, and (5) improperly disclosing confidential information. (Dkt. No. 1.) Familiarity with the factual allegations supporting these claims in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for the review of the parties. (Id.)
B. Undisputed Material Facts
The following are undisputed statements of material fact. (Dkt. No. 35, Attach. 2 [Defs.' Rule 7.1 Statement].)*fn1
Plaintiff was employed by the Defendant City of Amsterdam from 1987 until 2005. In 1990, Plaintiff hurt his back and was prescribed "pain killers." After years of taking pain killers, Plaintiff became addicted to them. In 2000, Plaintiff became Foreman in the Water Department of the Department of Public Works of the City of Amsterdam. As a Foreman, or Crew Chief, Plaintiff's job duties included, but were not limited to, the oversight of a crew of four to five individuals, operating City-owned vehicles, operating construction and/or demolition equipment, overseeing safety measures utilized by the crew, and investigating reported water problems.
In or about 2001, Plaintiff had his personal snow blower repaired and had those repairs billed to Defendant's account rather than pay for such repairs from his personal funds. As a result of Plaintiff's attempt to repair his personal machinery at Defendant's expense, Plaintiff's job description was changed by his then-Supervisor, Michael Palmer. More specifically, Plaintiff was no longer responsible for scheduling or ordering materials.
In 2003, while addicted to "pain killers," Plaintiff started doing illegal drugs such as cocaine and heroin. In August 2003, Plaintiff entered Conifer Park Rehabilitation Center. After undergoing two weeks of treatment, Plaintiff left the Rehabilitation Center.
In November 2003, Plaintiff sold scrap metal materials, which were the property of Defendant, and converted the proceeds to his own personal use. Around this same time period, Plaintiff's City-issued DPW truck was observed at his home during work hours.
On April 19, 2004, Plaintiff submitted to a drug and alcohol urinalysis test administered by the City as part of its ongoing efforts to comply with the Omnibus Transportation Employee Testing Act of 1991. In May 2004, then-Mayor Joseph Emanuele was informed that Plaintiff failed a drug test on April 19, 2004.*fn2
Prior to failing the April 2004 drug test, Plaintiff kept his drug use a secret from his Supervisors, discussing his drug use only with certain co-workers, with/from whom Plaintiff alleges he used and/or purchased drugs. Before failing this drug test, Plaintiff had previously taken, and passed, at least six to ten drug and alcohol tests.
As a result of Plaintiff's failure of the drug and alcohol urinalysis in April 2004, Plaintiff was served with a Notice of Discipline and suspended from his position with the City for six months without pay.*fn3 As a condition to Plaintiff's return to work after his six month suspension, he was required to submit to at least six random alcohol and illegal drug tests within the first twelve months following his return to duty. As a further condition to Plaintiff's return to work, he was required to seek, and complete, professional counseling for his drug use.*fn4
In November 2004, at or around the time that Plaintiff returned to work, he reported to Mayor Emanuele and Attorney Going that he had entered and completed a rehabilitation program through McPike Addiction Treatment Center in June 2004.*fn5 Several weeks subsequent to Plaintiff's return to work, Mike Palmer, the City Engineer, received complaints from Plaintiff's crew that he was leaving job sites without advising his crew, leaving job sites with needed tools in the City truck, and failing to keep them informed of his whereabouts. Palmer also received complaints that Plaintiff's crew was unable to communicate with him when he was off a job site.
On or about December 4, 2004, Plaintiff was informed that he was no longer allowed to be alone during work hours. On December 6, 2004, Plaintiff was involved in a minor car accident. Although two other City drivers were also involved in accidents on that same day, only Plaintiff was required to submit to a drug test. On or about December 7, 2004, Plaintiff informed Ray Halgas, the general foreman, that certain co-workers were harassing him about his drug problem, and that they had "taped pills to his time card and left a fake 'joint' on his desk." However, Plaintiff never advised Ray Halgas that he was disabled, or suffering from a disability.
In addition, despite orally submitting his complaints to Mr. Halgas, Plaintiff never submitted any written complaints of unlawful harassment to Attorney Going, Mayor Emanuele, or the City's Director of Employee Relations.*fn6 As a result, neither Attorney Going nor Mayor Emanuele were aware of any alleged unlawful disability-based harassment of Plaintiff until Plaintiff filed his Verified Complaint with the DHR in May 2005.*fn7
In February 2005, Plaintiff was issued a Disciplinary Oral Warning as a result of being observed leaving a job site without permission.*fn8 On April 21, 2005, as part of his conditional return to work, Plaintiff was required by the City to submit to an alcohol and illegal drug test. Plaintiff refused to submit to the drug test. Plaintiff was advised by then-Corporation Counsel Going, his Supervisor and his union representatives that his refusal to submit to this drug test would violate his conditional "return to work" and result in his immediate termination. Despite being provided with this information, Plaintiff still refused to submit to the test. As a result, Plaintiff was terminated from his employment with Defendant.*fn9
On or around April 26, 2005, Plaintiff was served with a Notice of Discipline (dated April 26, 2005), which advised him that he was being terminated due to misconduct. On this same date, Plaintiff, through his union, filed a formal grievance claiming that his April 2005 termination violated his Collective Bargaining Agreement.
On April 28, 2005 Plaintiff's grievance was denied. Following this denial, Plaintiff submitted his grievance to arbitration through the New York State Public Employees Relations Board ("PERB"). In May 2005, while awaiting his arbitration hearing, Plaintiff filed a Verified Complaint with the New York State Division of Human Rights, and dual filing with the U.S. Equal Employment Opportunity Commission, advancing the same allegations and claims as those contained in his Complaint in this action.
In July 2005, the New York State Department of Labor disqualified Plaintiff from receiving unemployment benefits after determining that his employment had been terminated due to misconduct. As of July 8, 2005, Plaintiff was using pain medications, including Vicodin, which he purchased from a source other than a pharmacist, as well as heroin and crack cocaine.
On September 29, 2005, Plaintiff's arbitration hearing was held. At the arbitration hearing, Plaintiff was represented by attorney Kenneth J. Larkin, Union Representative of Council 66, AFSCME. On October 5, 2005, after a full hearing before an impartial Arbitrator where both sides were permitted to present evidence and testimony, the Arbitrator found Plaintiff guilty of the disciplinary charges of misconduct leveled against him and upheld the legitimacy of Defendant's termination of Plaintiff's employment. Plaintiff did not appeal the Arbitrator's Decision.
In November 2006, the DHR issued a determination of "no probable cause" subsequent to its investigation into the allegations of Plaintiff's Verified Complaint. In December 2006, the EEOC adopted the findings of the DHR dismissing Plaintiff's Complaint and issued a "right to sue" letter.
After his termination, Plaintiff continued to use drugs. However, throughout his employment with Defendant, Plaintiff was able to successfully perform his job without drugs impacting upon his work.Moreover, Plaintiff's drug use did not cause him to miss work.
C. Defendant's Motion for Summary Judgment
Generally, in support of its motion for summary judgment, Defendant argues as follows:
(1) Plaintiff's claims are barred, in whole or in part, by the doctrine of collateral estoppel; (2) Plaintiff was not "disabled" prior to his termination, as that term is defined under the ADA, because he continued to use/abuse drugs while employed by Defendant; (3) the harassment alleged by Plaintiff was not trait-based or sufficiently severe to alter any term, condition, or privilege of his employment; (4) requiring Plaintiff to submit proof of successful completion of a treatment program, and proof of continued sobriety, does not violate the ADA; and (5) modest changes to Plaintiff's job duties after his return to work from rehabilitation do not violate the ADA. (See generally Dkt. No. 35, Attach. 1 [Def.'s Memo. of Law].)
In Plaintiff's response to Defendant's motion for summary judgment, he argues as follows: (1) as a person addicted to drugs, he was a disabled person during his employment with Defendant; and (2) he was subjected to harassment, and ultimately terminated as a result of his disability. (See generally Dkt. No. 37 [Plf.'s Response Memo. of Law].)
In its reply, Defendant argues as follows: (1) as a result of Plaintiff's failure to comply with the procedural requirements set forth in the Local Rules of Practice for this Court, Plaintiff has conceded facts that make summary judgment appropriate as a matter of law; (2) Plaintiff has "consented" to the entry of summary judgment as a result of his failure to address Defendant's argument regarding timeliness, and under the doctrine of collateral estoppel; and (3) Defendant's substantive arguments warrant the entry of summary judgment. (See generally Dkt. No. 47, Attach. 3 [Def.'s Reply Memo. of Law].)*fn10
II. RELEVANT LEGAL STANDARDS
A. Legal Standard Governing Motions for Summary Judgment
Under Fed. R. Civ. P. 56, summary judgment is warranted if "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). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. In addition, "[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the moving party has met this initial responsibility, the nonmoving party must come forward with "specific facts showing a genuine issue [of material fact] for trial." Fed. R. Civ. P. 56(e)(2).
As for the materiality requirement, a dispute of fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248 [citation omitted].
As for the genuineness requirement, a dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the novmoving party." Id. As a result, "[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation omitted; emphasis added]; see also Fed. R. Civ. P. 56(e)(2).*fn11 Similarly, inadmissible hearsay is insufficient to create a genuine issue of fact, "absent a showing that admissible evidence will be available at trial." Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985) [citations omitted]. Moreover, "an affidavit . . . that, by omission or addition, contradicts the affiant's previous deposition testimony" is insufficient to create a genuine issue of fact. Hayes v. New York City Dept. of Corr., 84 F.3d 614, 619 (2d Cir. 1996) [citations omitted].
B. Legal Standard Governing Motions to Dismiss for Failure to State a Claim
To the extent that a defendant's motion for summary judgment under Fed. R. Civ. P. 56 is based entirely on the plaintiff's complaint, such a motion is functionally the same as a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Wade v. Tiffin Motorhomes, Inc., 05-CV-1458, 2009 WL 3629674, at *3 (N.D.N.Y. Oct. 27, 2009) (Suddaby, J.). In such cases, a trial judge deciding a motion for summary judgment may, where appropriate, dismiss for failure to state a claim. Wade, 2009 WL 3629674, at *3 (citations omitted). For the sake of brevity, the Court will not recite, in this Decision and Order, the well-known legal standard governing ...