The opinion of the court was delivered by: Dearie, Chief Judge.
Plaintiff James Darcy, a lieutenant with the New York City Police Department, brings this action pursuant to the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 12101 et seq., and New York State Executive Law § 290. Before the Court is defendants' motion for summary judgment. For the reasons set forth below, the motion is denied except to the extent of dismissing the NYPD as a non-suable entity.
Plaintiff was appointed to the NYPD on January 20, 1987. On or about October 10, 1997, he was elevated to the level of lieutenant, the rank at which he continues to serve. On February 20, 1999, he was first assigned to the Narcotics Division. Following assignments in the Bronx and Brooklyn Narcotics, plaintiff was assigned on August 23, 2001 to Queens Narcotics, which plaintiff describes as a "very prestigious assignment." Defendants do not dispute this characterization. Plaintiff continued to serve in Queens Narcotics from August 2001 until he was transferred, in late 2004, to the NYPD Transit Division, District #11, in the Bronx, where he now serves as platoon commander. According to plaintiff, the assignment in Transit is less prestigious than Queens Narcotics, and offers him considerably fewer overtime hours than his former position and thus adversely impacts his eventual retirement benefits.
It was when plaintiff first arrived at the 112th precinct in Queens in October of 1997 that he first met Police Officer John Doe, who was also assigned there. It is undisputed that Doe and plaintiff socialize as friends. The parties' papers occasionally withhold Officer Doe's true name to protect his privacy, but they also discuss openly the fact that Doe is the brother of Three-Star Deputy Chief Hall and the son of retired Two-Star Chief Francis Hall.
On or about June 3, 2004, according to plaintiff, he was called into Deputy Chief Hall's office. The two had a conversation during which Hall said to plaintiff, "You are a lowly lieutenant and you suffer from the same disease as my brother." Plaintiff's papers refer to this disease as "alcoholism" and "alcohol dependence" while defendants employ the term "alcoholic." Plaintiff's complaint alleges that, upon information and belief, Officer Doe has undergone rehabilitative treatment for his disease in conjunction with programs under the auspices of the NYPD but that Doe still struggles with his disease. Defendants are unable to confirm or deny Doe's participation in any programs concerning alleged alcohol use or rehabilitation due to applicable regulations concerning privacy.
According to plaintiff, during the June 3 conversation Hall also expressed disapproval of plaintiff's friendship with Doe, threatened to ruin plaintiff if he ever went near Doe again, and reminded plaintiff that Hall's father also disapproved of plaintiff's friendship with Doe. The record contains no affidavit from Deputy Chief Hall or any other evidence purporting to contradict plaintiff's account of the conversation.
Plaintiff promptly reported Hall's remarks to both Deputy Director John Essig, the Commanding Officer of Queens Narcotics (and also Doe's commanding officer), and Captain Matthew Hyland.
Approximately five months later, by Memorandum dated November 7, 2004, Captain Hyland formally requested that Darcy be transferred from the Queens Narcotics Bureau "to a less sensitive position within the Patrol Services Bureau." Hyland's memorandum states that for "the past several months," Darcy "has engaged in a pattern of contemptuous and questionable behavior that has impaired his ability, integrity and judgment to supervise a narcotics module in a safe and effective manner." The memorandum outlines the incidents of alleged misconduct and, for most of the incidents, the explanations offered by Darcy that Hyland or others found to be unsatisfactory. In addition to the explanations summarized in Hyland's memo, plaintiff also addressed the particulars of Hyland's memorandum in his deposition. With one exception, the alleged performance deficiencies involve incidents or reviews occurring after the June 3, 2004 incident with Deputy Chief Hall; the one exception is the noting of deficiencies, during a review conducted on May 28, 2004, with respect to plaintiff's attitude toward case management.
The result of Hyland's memorandum was plaintiff's transfer from Queens Narcotics to Bronx Transit in December of 2004. Prior to and other than the accusations in Hyland's memorandum, no formal discipline was imposed on plaintiff during his time in Queens Narcotics. For the years 2001 and 2002 plaintiff received a "highly competent" 4.0 rating. Defendants were unable to produce plaintiff's 2003 performance evaluation, and no evaluation appears to have been completed for 2004.
Plaintiff claims that he was discriminated against by being transferred out of Queens Narcotics because he was regarded as suffering from alcoholism (i.e, the "same disease as" Doe) and because he was known to have associated with Doe. The record of misconduct chronicled in Hyland's memorandum, he further claims, is pretext, assembled in order to justify the transfer but not the real reason for it. In their motion, defendants quarrel principally not with the facts but instead with plaintiff's legal theory: they claim that plaintiff cannot, as a matter of law, invoke the ADA solely on a "perceived as" or associational theory without an accompanying actual or perceived impairment in a major life activity and that, as a matter of policy, when the disability in question is alcoholism, the protections of the ADA extend only to recovering alcoholics.
The parties' familiarity with the well-established summary judgment standards is assumed. See generally Fed. R. Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009) (record to be construed in the light most favorable to the non-moving party, all reasonable inferences must be drawn in his favor, and all ambiguities resolved his way); Gallo v. Prudential Residential Services, L.P., 22 F.3d 1219 (2d Cir.1994) (admonishes district courts in this Circuit for granting summary judgment too often; urges "cautio[n]" in employment discrimination cases because "direct" evidence of the discriminatory intent often difficult to procure).
A. Plaintiff's "Regarded As" Claim
"In order to establish a prima facie case of discrimination under the ADA, a plaintiff must show (a) that his employer is subject to the ADA; (b) that he is disabled within the meaning of the ADA or perceived to be so by his employer; (c) that he was otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (d) that he suffered an adverse employment action because of the disability." Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008) (emphasis added).
The "perceived as" language derives from the statute itself. The ADA prohibits discrimination "against a qualified individual on the basis of disability" in the "terms, conditions and privileges of employment," 42 ...