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Robert Timmel v. West Valley Nuclear Services Company

November 6, 2011


The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court



Plaintiff Robert Timmel commenced this employment discrimination action by filing a Complaint in the District Court for the Western District of New York. Therein, he alleges that Defendants West Valley Nuclear Services Company, LLC and West Valley Environmental Services, LLC (collectively "West Valley") discriminated against him on the basis of his disability. Plaintiff brings this action pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. and the New York State Human Rights Law ("NYHRL"), N.Y. Exec. L. § 290 et seq. Presently before this Court is Defendants' Motion for Summary Judgment seeking dismissal of Plaintiff's complaint in its entirety.*fn1 Plaintiff opposes the motion.*fn2 For the reasons stated below, Defendants' motion is granted.


A. Facts

Plaintiff, Robert Timmel, is a resident of the Town of Collins, Erie County, New York. (Complaint ("Comp."), Docket No. 1, ¶ 4.) At all times prior to September 1, 2007, Defendant West Valley Nuclear Services was a contractor to the United States Department of Energy, carrying out remediation efforts at the West Valley Nuclear Demonstration Site ("Demonstration Site"). (Local Rule 56.1 Statement of Undisputed Material Facts in Support of Defendants' Motion for Summary Judgment ("Defs.' Statement"), Docket No. 27, ¶ 1.) From September 1, 2007 and on, Defendant West Valley Environmental Services, also as contractor to the United States Department of Energy, assumed those responsibilities. (Id. ¶ 2.) Defendants were responsible, as part of their contracted duties, for disposing of solidified high-level radioactive and chemical waste, as well as disposing of decommissioned facilities used in the solidification process at the Demonstration Site. (Id. ¶ 3.)

Timmel began his employment with West Valley in March 1989 as a D&D Operator. (Id. ¶ 7; Comp. ¶ 10.) In that position, Timmel's duties included performing asbestos removal, handling, sorting, and shipping chemical, radioactive, and industrial waste, handling chemical spills, fork truck operations, snow removal, and computer entry. (Defs.' Statement ¶ 10.)

On November 10, 2003, Timmel was diagnosed with malignant lymphoma. (Comp. ¶ 11.) Timmel submitted a physician's statement to his supervisor and West Valley's medical department. (Comp. ¶ 12.) This letter stated that Timmel was to be excused from working, permanently, in radiological areas. (Defs.' Statement ¶ 15.) West Valley complied with this instruction. (Id.)

Timmel alleges that thereafter the conditions of his employment worsened. Specifically, in 2005 West Valley's Operations Manager, Joe Ebert, told Timmel he should "get a different job" and "should just quit" because of Timmel's inability to "suit up and do all the work." (Comp. ¶ 13.) On February 1, 2007, West Valley's Site Project manager, J.P. Curcio issued a memorandum that all personnel should be fully utilized to their medically assessed capabilities, and that those employees who were believed "not medically fit" should be assessed immediately. (Id. ¶ 15.) On February 21, 2007, Timmel was involved in an incident during which he and two co-workers were moving a container which fell and spilled non-hazardous equipment. (Id. ¶ 18.) Timmel and his co-workers determined that there was no risk of danger and positioned the box back on the fork truck and moved it to its designated staging area. (Id.) As a result of this incident, West Valley discharged Plaintiff and one of his co-workers, Harold Wonderly, for violation of West Valley's "Stop Work" policy, charging that Timmel took a deliberate action that had a detrimental effect on the safety of employees or the general public. (Id. ¶ 17.)

Pursuant to a collective bargaining agreement, Timmel's union, the International Association of Machinists and Aerospace Workers, District 65, Lodge No. 2401 ("Union") filed a grievance on behalf of Timmel and Wonderly. (Id. ¶ 21; Defs.' Statement ¶¶ 4, 19.) The Union and West Valley selected Dennis J. Campagna to arbitrate the dispute. (Defs.' Statement ¶ 20.) Arbitration took place on July 11 and October 2, 2007. (Id.) Both parties presented documentary evidence, offered testimony and cross-examined witnesses. (Id. ¶ 21.) On December 21, 2007, Arbitrator Campagna issued a Decision and Award finding that, although Timmel and Wonderly had violated West Valley's Stop Work Policy, their termination was "unwarranted and unnecessary" and instead imposed a sentence of one-month, unpaid suspension. (Id. ¶¶ 24, 25.) Timmel was compensated for all pay, benefits, and seniority due to him from April 2, 2007, marking the end of his suspension period, to January 2, 2008, the date on which he returned to work. (Id. ¶ 29.) On the same day as Arbitrator Campagna issued his decision, Timmel filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Comp. ¶ 23.) In that charge, Timmel alleged that West Valley had discriminated against him on the basis of an actual or perceived disability. (Id.)

Either before returning to work, on December 31, 2007, or in early February 2008, Timmel presented West Valley with one or more letters from his physician, stating he could continue working subject to certain restrictions. (Id. ¶ 25; Defs.' Statement ¶ 36.) These restrictions included no use of a negative pressure respirator, no bubble suit, no repetitive bending, lifting, twisting, no lifting over 40 pounds, and no work in excess of 40 hours per week. (Defs.' Statement ¶ 36.) These letters also stated that Timmel was prohibited from working in radiological areas of any kind. (Comp. ¶ 27; Defs.' Statement ¶¶ 33, 34, 35, 36.)

West Valley alleges that from January 2008 onwards, it had completed all demolition work on non-radiological areas of the Demonstration Site. (Defs.' Statement ¶ 39.) Consequently, the work of every D&D Operator included entering and working in radiological areas. (Id.) West Valley met with Timmel and the Union on March 18, 2008 to discuss whether there were any essential duties at the Demonstration Site that would permit Timmel to work within his medical restrictions. (Id. ¶ 42.) Timmel confirmed that any amount of radiation would prevent him from working in an area, regardless of any additional protective equipment. (Id. ¶ 44.) Timmel proposed that West Valley assign him to non-radiological duties. (Id. ¶ 45.) According to Timmel, such duties could include inspecting respirators, racking and sorting tools and equipment, laundering non-radiological clothing, and data entry. (Id. ¶¶ 47, 48, 49, 50.)

West Valley concluded that no vacant position encompassed a combination of these duties and no other position existed which could accommodate Timmel. Consequently, West Valley assigned him to a janitorial position at the wage rate of a janitor. (Id. ¶ 55.) Timmel filed a grievance and West Valley referred the matter to Arbitrator Campagna on April 8, 2008, to resolve whether West Valley's assignment conformed with his prior ruling. (Id. ¶ 57.) Timmel filed a complaint with OSHA on April 17, 2008, and an Amended Charge Affidavit with the EEOC on July 2, 2008. (Id. ¶¶ 64, 70.) The EEOC issued a Dismissal and Notice of Rights on October 6, 2008, finding that it was unable to conclude that the information Timmel provided established a statutory violation. (Id. ¶ 73.) The arbitrator issued a supplemental decision on November 22, 2008 in which he found that Timmel could no longer perform the duties of a D&D operator and that the janitorial position was the only position that fit his medical restrictions. (Id. ¶¶ 60, 61.) The following year, on November 2, 2009, Timmel's OSHA complaint was dismissed in its entirety. (Id. ¶ 66.)

Timmel resigned his position in October 2009. (Plaintiff's Memorandum of Law in Support of his Response to Defendants' Motion for Summary Judgment ("Pl's. Resp."), Docket No. 31, 1.)

B. Procedural History

Plaintiff filed his Complaint with the Clerk of this Court on January 5, 2009. West Valley filed an Answer thereto on March 3, 2009. West Valley filed the instant Motion for Summary Judgment on September 30, 2010.


A. Summary Judgment Standard

Federal Rule of Civil Procedure 56 provides that summary judgment is warranted where "the pleadings, the discovery and disclosure material on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. ...

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