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Joseph D. Mcdonald v. City of New York and New York City

April 6, 2011

JOSEPH D. MCDONALD,
PLAINTIFF,
v.
CITY OF NEW YORK AND NEW YORK CITY
DEPARTMENT OF TRANSPORTAION,
DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM & ORDER

Plaintiff Joseph D. McDonald ("plaintiff" or "McDonald") brings this action*fn1 against the City of New York and the New York City Department of Transportation ("DOT") (together, "defendants") alleging employment discrimination and retaliation on the basis of his disability in violation of the Americans with Disabilities Act, as amended, 42 U.S.C. §§ 1201 et seq. ("ADA" or "the Act").*fn2 (See generally, ECF No. 1, Complaint ("Complaint" or "Compl.") at 1.)*fn3 In addition, for the first time in his opposition to defendants‟ motion for summary judgment, plaintiff asserts that he intended to raise claims specifically under the New York State Executive Law Section 296 ("NYSHRL") and the New York City Human Rights Law ("NYCHRL"). (See id. at 2 (asserting "any related claims under New York law"); see also ECF Nos. 41-27, 41-28, Memorandum of Law in Opposition to Defendants‟ Motion for Summary Judgment dated 5/31/2010 ("Pl. Mem.") at 19.) Plaintiff alleges that DOT discriminated against him because of his disability, namely his herniated disc in his cervical-lumbar areas, failed to promote him, failed to provide a reasonable accommodation, and retaliated against him for registering a discrimination charge with the New York State Division of Human Rights. (See id. ¶¶ 4, 7, 8E, 9.)

After completing discovery, defendants move for summary judgment and seek dismissal of plaintiff‟s action pursuant to Federal Rule of Civil Procedure 56.*fn4 For the reasons set forth below, defendants‟ motion is granted and plaintiff‟s Complaint is dismissed in its entirety.

FACTUAL BACKGROUND

The facts pertinent to this motion, either undisputed or, where disputed and supported by competent evidence, taken in a manner most favorable to plaintiff, are as follows.

A.Plaintiff's Employment with DOT

Plaintiff commenced employment with DOT on October 27, 1997 as a civil service Traffic Device Maintainer ("TDM"). (Defendants‟ Rule 56.1 Statement ("Def. 56.1 Stmt.") ¶ 5.) TDMs generally perform a variety of duties depending on their assignments.*fn5 (Declaration of Michael Greco in Support of Defendants‟ Motion for Summary Judgment ("Greco Decl.") ¶ 5.)

Plaintiff‟s assignment as a TDM was to the Facilities Management Unit of the Parking Division,*fn6 where his primary, but not exclusive, duty was painting. (Plaintiff‟s Rule 56.1 Statement ("Pl. 56.1 Stmt.") ¶ 10.) The assignment of TDMs is handled pursuant to contractual rules established through a memorandum of agreement signed between the City of New York and the plaintiff‟s union, District Council 37, AFSCME, AFL-CIO ("union pick contract"). (Def. 56.1 Stmt. ¶ 8.) The union pick contract provides that TDMs with a satisfactory job evaluation desiring a reassignment to a specific unit or job skill can submit a transfer request form in which the TDM may bid for up to three positions.*fn7 (Id.; Ozgu Decl., Ex. C ¶ 2.)

Prior to sustaining the injuries pertinent to the present litigation, throughout his career at DOT plaintiff had always remained in good standing and received satisfactory employment evaluations. (Pl. 56.1 Stmt. ¶ 12.) Moreover, plaintiff had never had any charges filed against him by his employer, nor was he ever reprimanded for any reason. (Id. ¶ 11.)

B.Plaintiff's Accident and Injury

On July 12, 2004, shortly after leaving work and pulling out of the DOT parking lot, plaintiff was involved in an automobile accident in which he sustained injuries to his neck and back. (Def. 56.1 Stmt. ¶ 9; Pl. 56.1 Stmt. ¶¶ 13-14.)

Specifically, plaintiff suffered a herniated disc in the cervical and lumbar areas, which has caused him constant pain in varying degrees and limited his dexterity, his abilities to operate heavy machinery and drive an automobile. (Pl. 56.1 Stmt. ¶¶ 14-21.) As a result, immediately following the accident plaintiff was placed on medical leave until he returned to work on October 17, 2005 on a so-called "limited duty assignment." (Id. ¶ 26; Def. 56.1 Stmt. ¶ 25.)

Plaintiff has testified that his injury limited his ability to bend "as much as what somebody else may be able to do," (Ozgu Decl., Ex. F, Deposition of Joseph D. McDonald ("Pl. Dep.") at 83:16-21.), and that while he can bend somewhat at the waist, he cannot "touch [his] toes or bend down to like a 90-degree angle." (Id. at 83:25-84:3.) Plaintiff has described how "sometimes [he] ha[s] very bad days and sometimes the days aren‟t as bad." (Id. at 78:22-23.) As a result of plaintiff‟s chronic pain, plaintiff is on a daily regimen of pain medication, which "hinders his dexterity, as well as his ability to operate heavy machinery and drive." (Pl. 56.1 Stmt. ¶ 21.) Plaintiff‟s injuries have also affected his ability to sleep and plaintiff has had to adjust his method of sleeping, placing pillows under his neck and back, and on his side, in order to alleviate the pain. (Id. ¶ 24.) Moreover, plaintiff‟s injuries have "resulted in sciatica, which leaves his right leg and left foot numb." (Id. ¶ 22.) The pain he associates with the sciatica problem is "constant and medication does not help." (Id.) As a result of the injuries plaintiff sustained in July 2004, plaintiff has reported undergoing "extensive physical therapy, heat treatments, epidural injections" and acupuncture treatments. (Id. ¶¶ 17, 19.)

C.Limited Duty Assignment Procedures

Prior to 2010,*fn8 when a qualified DOT employee was unable to perform the full duties of his or her position, DOT policy allowed that employee to request "a work assignment for a specified period of time to perform duties which an ill or injured employee is capable of performing," known as a "Limited Duty Assignment.‟ (Ozgu Decl., Ex. J, Department of Transportation Limited Duty Policy ("DOT Limited Duty Pol.") at SDHR 00096; see also Ozgu Decl. Ex. K, Department of Transportation Limited Duty/Extended Sick Leave Grant Policy ("DOT Limited Duty/Sick Leave Pol.") at 1; Def. 56.1 Stmt. ¶ 12.) Such assignments were considered temporary and thus "used as a transition between the time when an employee is unable to perform his or her full duties as a result of illness or injury and the time an employee can return to full duty." (DOT Limited Duty Pol. at SDHR 00096; Def. 56.1 Stmt. ¶ 12.) Accordingly, except in limited circumstances, the assignment was not to exceed one year‟s duration. (DOT Limited Duty Pol. at SDHR 00096; DOT Limited Duty/Sick Leave Pol. at 1.)

Such Limited Duty Assignments were subject to DOT discretion and "the availability of suitable limited duty positions." (DOT Limited Duty/Sick Leave Pol. at 1.) Further, DOT policies and procedures in connection with such assignments provided that "limited duty assignments may necessitate a change of work location or a change of shift for the employee." (Id.) Moreover, prior to any Limited Duty Assignment, a physician‟s authorization was required. (Def. 56.1 Stmt. ¶ 17.) Specifically, a requesting employee was required to complete and submit a Limited Duty Assignment request and physician certification indicating those tasks that the employee would be capable of performing in light of the employee‟s physical limitations, along with a Tasks and Standards Sheet completed by the employee‟s physician. (See Def. 56.1 Stmt. ¶ 14; DOT Limited Duty Pol. at SDHR 00097; see also DOT Limited Duty/Sick Leave Pol. at 1-2.)

In order for an employee to request a Limited Duty Assignment, the employee had to first obtain a limited duty request application form, a physician certification form, and a current Task and Standards Sheet corresponding to their position from their supervisor. (Def. 56.1 Stmt. ¶ 14; DOT Limited Duty Pol. at SDHR 00097; see also DOT Limited Duty/Sick Leave Pol. at 1-2.) The employee‟s physician would then need to review the Task and Standards Sheet and indicate in the physician certification which of the tasks and standards the employee was and was not capable of performing. (Def. 56.1 Stmt. ¶ 14; DOT Limited Duty Pol. at SDHR 00097.) Attaching all completed forms, the employee would then submit the request for a Limited Duty Assignment to his/her supervisor who would in turn review the application and forward it to the unit‟s personnel liaison. (Def. 56.1 Stmt. ¶ 14; DOT Limited Duty Pol. at SDHR 00097.)

Several DOT offices would then review the completed application. (Def. 56.1 Stmt. ¶ 14.) First, after reviewing the request for completeness, the personnel liaison would forward the application to the Personnel Coordinator. (Id.) According to Valerie Coleman ("Coleman"), who served as DOT Personnel Coordinator from June 1998 through May 2007, the Personnel Coordinator would then review the request, and generally attempt "to ascertain if a suitable assignment" existed in the unit where there employee had served "in full duty capacity." (Coleman Decl. ¶ 7.) If no such assignment in the employee‟s full duty unit was available, then the Personnel Coordinator would contact "other divisions and/or units within Traffic Operations to ascertain if an appropriate limited duty assignment for the injured employee was available." (Id.; Def. 56.1 Stmt. ¶¶ 14, 17.)

Upon completing this review, the Personnel Coordinator would then forward the request to the Safety and Health Division, which would set up an appointment with the DOT‟s Limited Duty Review Board (the "Review Board"), the body tasked with "reviewing, approving, and granting limited duty assignments." (Coleman Decl. ¶ 5; see also Def. 56.1 Stmt. ¶ 14.) This Review Board was comprised of employees from the Division of Human Resources and the EEO office, as well as a representative from the requester‟s DOT division. (Def. 56.1 Stmt. ¶ 13.) At the meeting, the Review Board would review the available Limited Duty Assignments with the employee and his union representative. (Id. at ¶ 14.) Further, once assignments had been made, DOT policy required submission of "progress reports by the employee‟s physician or other health care provider every 60 days," and the Review Board‟s review of Limited Duty Assignments "on a bi-monthly basis." (Id. ¶¶ 13, 15.)

A new Tasks and Standards sheet would then be prepared indicating the employee‟s duties for the Limited Duty Assignment. (See DOT Limited Duty Pol.) Employees serving in a Limited Duty Assignment "were expected to perform the essential functions of their temporary positions, subject to their physical limitations." (Def. 56.1 Stmt. ¶ 17.) The supervisors of employees on limited duty assignments were "required to notify their respective Personnel Coordinators of any employees on a Limited Duty Assignment who [were] not performing their Limited Duty Assignments in a satisfactory manner," and if an such "employee on a Limited Duty Assignment [was] excessively late or excessively absent from his/her Limited Duty Assignment." (DOT Limited Duty/Sick Leave Pol. at 3.) Once a Limited Duty Assignment reached the one-year mark, the employee was required to "either return to full duty or leave City service, except under the most unusual circumstances." (Id.) If the employee was unable to return to full duty, he or she could "take full advantage of whatever benefits he or she [was] entitled to through disability or retirement." (Id.)

D.Plaintiff's Initial Requests for Limited Duty Assignment in the Facilities Management Unit of the Parking Division

While out on medical leave, plaintiff submitted a number of Limited Duty Assignment requests to the DOT. (Def. 56.1 Stmt. ¶ 18.) First, on April 14, 2005, plaintiff submitted a request for a Limited Duty Assignment. (Id.; Pl. 56.1 Stmt. ¶ 27.) Plaintiff‟s request was accompanied by a certification completed by his physician, Dr. Pinckney, dated April 14, 2005, and a Tasks and Standards Sheet for TDMs, which indicated the TDM tasks plaintiff‟s physician determined that plaintiff could and could not perform. (Def. 56.1 Stmt. ¶ 18; Pl. 56.1 Stmt. ¶ 27.) Specifically, of the 23 tasks listed for TDMs, Dr. Pinckney indicated that plaintiff was able to perform 13, and unable to perform 10. (Pl. 56.1 Stmt. ¶ 27; Ozgu Decl., Ex. L, Certification of Physician or other Health Care Provider Request For Limited Duty Assignment dated April 14, 2005 ("Pinckney Certification 4/14/05").)

Defendants assert that the Tasks and Standards Sheet evaluated by plaintiff‟s physician and submitted by plaintiff in support of plaintiff‟s first Limited Duty Assignment request was inapplicable to plaintiff‟s requested assignment. Namely, defendants state that the Tasks and Standards Sheet submitted by plaintiff did not reflect the particular tasks and standards specifically applicable to plaintiff‟s requested position at the Facilities Management Unit of the Parking Division, but instead, reflected an exhaustive list of the duties potentially applicable to all TDM positions depending on the assigned division. (Def. 56.1 Stmt. ¶ 19.) According to defendants, this discrepancy prompted Coleman to send a letter to plaintiff on April 27, 2005 informing plaintiff "that the tasks and standards used by his physician were not the applicable standards for plaintiff‟s current job," and requesting that plaintiff have his physician reevaluate plaintiff‟s capabilities based on the enclosed Tasks and Standards Sheet which pertained to plaintiff‟s current position in the Parking Division.*fn9 (Def. 56.1 Stmt. ¶ 19; Coleman Decl. ¶ 12.)

Plaintiff notes, however, that the amended Tasks and Standards Sheet provided by Coleman appears to be "simply the same Tasks and Standards Sheet provided to [plaintiff] previously which his physician completed on April 14, 2005 with pages 2, 5, 6, and 7 removed." (Pl. 56.1 Stmt. ¶ 32 (emphasis in original) (internal citations omitted); compare Pinckney Certification 4/14/05 with Roche Decl., Ex. 6, Certification of Physician or other Health Care Provider Request For Limited Duty Assignment dated May 18, 2005 ("Pinckney Certification 5/18/05").) Yet although the amended Tasks and Standards Sheet did not include any tasks that did not appear in the original list on which Dr. Pinckney based his initial evaluation, all but one of the tasks that Dr. Pinckney indicated that plaintiff could perform in the April 14, 2005 Certification were omitted from the amended Tasks and Standards Sheet. (See Pl. 56.1 Stmt. ¶¶ 32, 33.)

Plaintiff submitted revised limited duty requests accompanied by new Certifications from his physician dated May18, 2005 and July 28, 2005 indicating that, based upon the amended physician‟s evaluation of the revised Tasks and Standards Sheet, plaintiff could only perform task 13: "Take traffic counts by means of an automatic traffic recorder." (Pl. 56.1 Stmt. ¶¶ 34, 35; Ozgu Decl., Exs. N-O; Roch Decl., Exs. 6-7.) On September 9, 2005, the Review Board determined that because plaintiff "cannot perform any of the primary functions of [his] title," no Limited Duty Assignment was available for plaintiff. (Def. 56.1 Stmt. ¶ 23; Pl. 56.1 Stmt. ¶ 36; Ozgu Decl., Ex. P, Limited Duty Review Board Determination dated September 9, 2005.) The Review Board therefore denied plaintiff‟s April 14, May 18, and July 28, 2005 requests for a Limited Duty Assignment in the Facilities Management Unit of the Parking Division. (Id.)

E.Plaintiff's Fourth Request for a Limited Duty Assignment and Subsequent Assignment at the Counter Shop*fn10

On August 20, 2005, plaintiff submitted a second request for a Limited Duty Assignment, this time for a position at the Counter Shop. (Def. 56.1 Stmt. ¶ 24; Ozgu Decl., Ex. Q, Limited Duty Assignment Request dated August 20, 2005.) Plaintiff included with his request a Certification from his physician indicating that, based upon the physician‟s review of the "Count[er] Shop Standards and Operations Procedure," plaintiff was capable of performing "all duties in the "counter shop.‟" (Def. 56.1 Stmt. ¶ 24; Ozgu Decl., Ex. Q.) Based upon these submissions, the Review Board approved plaintiff‟s request for a Limited Duty Assignment to the Counter Shop on October 14, 2005, and plaintiff was placed in the Counter Shop effective October 17, 2005 for an "undetermined" period of time. (Def. 56.1 Stmt. ¶¶ 25, 27; Ozgu Decl., Ex. R, Limited Duty Review Board Determination dated October 14, 2005.)

Less than three months into plaintiff‟s assignment at the Counter Shop, Robert Butler ("Butler"), plaintiff‟s supervisor at the Counter Shop, sent an e-mail on January 11, 2006*fn11 to various members of the Review Board.*fn12 (Def. 56.1 Stmt. ¶ 28; Ozgu Decl., Ex. S, E-mail dated January 11, 2006 ("Butler e-mail").) Butler reported in the e-mail that plaintiff had "stated to [Butler] that [plaintiff] has a debilitation which both interferes with and limits [plaintiff‟s] overall physical performance." (Def. 56.1 Stmt. ¶ 28; Butler e-mail.) Butler also stated in the e-mail that in his capacity as supervisor, he "personally observed either [plaintiff‟s] inability, or [plaintiff‟s] reluctance, in carrying out certain critical tasks while [plaintiff] was a member of several highway operational work crews." (Id.) Butler explained that he had been accommodating plaintiff by assigning plaintiff to "less than physically taxing assignments," but that in Butler‟s opinion, "while [plaintiff is] experiencing his current physical and subsequent emotional conditions, both the Department and this Work Unit would best be served by having [plaintiff] reassigned to another Work Unit." (Def. 56.1 Stmt. ¶ 28; Butler e-mail.)

On February 23, 2006, the Review Board determined that plaintiff‟s failure to "perform the tasks required of [his] limited duty assignment" required plaintiff‟s Limited Duty Assignment in the Counter Shop to terminate effective March 3, 2006. (Def. 56.1 Stmt. ¶ 29; Ozgu Decl., Ex. T, Limited Duty Review Board Determination dated February 23, 2006.) At that time, the Review Board noted that no other Limited Duty Assignments were available for plaintiff, and therefore, the Review Board determined that, effective March 3, 2006, plaintiff would be placed on unpaid leave pending his assignment to another limited duty position. (Ozgu Decl., Ex. T; Pl. 56.1 Stmt. ¶ 52; Coleman Decl. ¶ 22.)

F.Plaintiff's Temporary Assignment in the Interior Meter Repair Section of the Meter Maintenance Unit*fn13 and Additional Limited Duty Assignment Requests

According to defendants, in search of an appropriate assignment for plaintiff, Coleman contacted various divisions to determine whether another Limited Duty Assignment might be available for plaintiff in light of his "physical limitations." (Def. 56.1 Stmt. ¶ 30; Coleman Decl. ¶ 23.) Despite the DOT policy requiring that, prior to the Review Board‟s approval of a Limited Duty Assignment request, the employee obtain Certification from the employee‟s physician indicating that the employee is capable of performing the tasks specific to the requested position, without clearance from his physician plaintiff was permitted to return to a temporary position in the Interior Meter Repair Section of the Meter Maintenance Unit on March 23, 2006, where plaintiff was responsible for repairing meter mechanisms. (Def. 56.1 Stmt. ¶¶ 33, 34; Greco Decl. ¶ 8; Coleman Decl. ¶ 25.) According to plaintiff, the temporary position in the Interior Meter Repair Section was "an indoor assignment and did not require [plaintiff] to walk or lift heavy weights." (Pl. 56.1 Stmt. ¶ 62.) Moreover, plaintiff "found [the Interior Meter Repair Section] position to be well suited to his particular needs and in line with the recommendations of his physician." (Id. ¶ 63.)

Meanwhile, in response to Coleman‟s inquiries, on March 10, 2006, Michael Greco ("Greco"), Assistant Chief of the Meter Route Section in the Parking Division, submitted to Coleman a Tasks and Standards Sheet reflecting the tasks performed by TDMs in the Meter Route Section. (Def. 56.1 Stmt. ¶ 31; Ozgu Decl., Ex. U, Greco Memorandum to Valerie Coleman dated March 10, 2006.) Coleman forwarded the Tasks and Standards Sheet to plaintiff on March 14, 2006, along with a request that plaintiff‟s physician indicate which of the tasks, if any, plaintiff was capable of performing. (Def. 56.1 Stmt. ¶ 32; Ozgu Decl., Ex. V, Letter from Valerie Coleman to Plaintiff dated March 14, 2006.)

Before plaintiff had responded to Coleman‟s most recent request, on March 27, 2006, Greco submitted to Coleman an amended Tasks and Standards Sheet for TDMs in the Meter Route Section, which Coleman forwarded to plaintiff‟s physician the following day, March 28, 2006. (Def. 56.1 Stmt. ¶¶ 35, 36; Ozgu Decl., Ex. W, Memorandum from Michael Greco to Valerie Coleman dated March 27, 2006; Ozgu Decl., Ex. X, Letter from Valerie Coleman to Dr. Isaiah Pinckney dated March 28, 2006.) Plaintiff‟s physician, upon receiving the amended Tasks and Standards Sheet, indicated that plaintiff could not perform four of the tasks listed.*fn14 (Def. 56.1 Stmt. ¶ 37; Ozgu Decl., Ex. X, Coleman Letter to Plaintiff Regarding Amended Tasks/Limited Duty Assignment dated March 28, 2006.)

In a letter dated April 3, 2006, however, plaintiff‟s physician amended his earlier response and indicated that, with some modifications, plaintiff could perform all of the tasks required of TDMs within the Meter Route Section. (Def. 56.1 Stmt. ¶ 38; Ozgu Decl., Ex. Y, Dr. Pinckney‟s Letter dated April 3, 2006 ("Pinckney Ltr.").) Specifically, Dr. Pinckney noted that plaintiff could fully perform seven of the eleven tasks, and that plaintiff could perform an additional three tasks if adjustments to these task requirements were made. (Def. 56.1 Stmt. ¶ 38; Pinckney Ltr.) According to Dr. Pinckney, the necessary adjustments included (1) changing the requirement that plaintiff be able to lift 50 pounds of equipment to a requirement that plaintiff be able to lift 20 pounds; (2) changing the requirement that plaintiff be able to walk 5 milesdaily to a requirement that plaintiff be able to walk 3 miles daily; and (3) removing the requirement that plaintiff be able to use a hand shovel to remove snow in municipal lots. (Def. 56.1 Stmt. ¶ 38; Pinckney Ltr.)

Despite plaintiff‟s satisfaction with his temporary

position in the Interior Meter Repair Section, in a letter dated May 2, 2006, Coleman stated that "[t]he Limited Duty assignment you were assigned, in Meter Maintenance, requires performance that exceeds the limitations stated by your Doctor." (Ozgu Decl., Ex. Z, Limited Duty Review Board Evaluation of Limited Duty Assignment dated May 2, 2006; Roche Decl., Ex. 18.) The letter further stated that, as a result, plaintiff was "temporarily assigned to work on the "Mech‟ Shop." (Ozgu Decl., Ex. Z; Roche Decl., Ex. 18.) (emphasis in original). Plaintiff was advised by the May 2, 2006 letter to again request a new assignment in the Facilities Management Unit in the Division of Parking and submit a Certification from his physician indicating which tasks plaintiff could and could not perform. (Def. 56.1 Stmt. ¶ 39; Ozgu Decl., Ex. Z; Roche Decl., Ex. 18.)

Dr. Pinckney informed DOT by letter dated May 8, 2006, that plaintiff was able to perform all but two of the tasks required for a Limited Duty Assignment in the Facilities Management Unit in the Division of Parking. (Def. 56.1 Stmt. ¶ 41; Ozgu Decl., Ex. AA, Dr. Pinckney Letter dated May 8, 2006.)

On May 10, 2006, Dr. Pinckney submitted a certification referring DOT to the May 8, 2006 letter in order to ascertain those tasks that plaintiff could and could not perform in the Facilities Management Unit. (Def. 56.1 Stmt. ΒΆ 42; Ozgu ...


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