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Paul Schumacher v. Granite Services

March 20, 2012




On September 30, 2008, Plaintiff Paul Schumacher ("Plaintiff" or "Schumacher") filed this action pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 ("ADEA"), having received a right to sue letter from the United States Equal Employment Opportunity Commission ("EEOC") dated June 30, 2008. Dkt. No. 1 ("Complaint"); Dkt. No. 1-2 at 2. Plaintiff also alleges violations of the Americans with Disabilities Act ("ADA") and the New York State Human Rights Law ("NYSHRL"). Compl. ¶ 1. Defendant Granite Services, Inc. ("Defendant" or "Granite Services") filed a Motion for summary judgment (Dkt. No. 33) ("Motion") on April 1, 2010, and Plaintiff responded with a Motion in opposition on April 20. Dkt. No. 37 ("Opposition"). Defendant filed its Reply to Plaintiff's Opposition on April 26. Dkt. No. 41 ("Reply"). For the following reasons, Defendant's Motion is denied in part and granted in part.


Plaintiff is a former employee of Granite Services, Inc., a Delaware corporation and wholly-owned subsidiary of General Electric Company ("G.E."),*fn1 with its principal place of business in Tampa, Florida.Defendant's Statement of undisputed material facts (Dkt. No. 33-43) ("DSMF") ¶¶ 2-4; Compl. ¶ 6. Granite supplies a contingent workforce to provide engineering and technical services to G.E., its primary customer. DSMF ¶ 5. Plaintiff was hired by a Granite subsidiary, ProTech Professional and Technical Services, in 1999 and worked for two more Granite subsidiaries before he became directly employed by Granite in 2007. Plaintiff's Response to Defendant's statement of undisputed material facts (Dkt. No. 36) ("PRSMF") ¶ 2.

A. Plaintiff's Employment Prior to January 23, 2007

As discussed below, the nature and requirements of Plaintiff's job is a source of significant dispute between the parties. Plaintiff's official job title was that of an "instrumentation specialist." Id. Defendant has introduced a number of "job descriptions" of that position into evidence, but Plaintiff claims that he never saw any of these job descriptions, that they must have been created after his termination, and that "they were not considered to be operative documents by Granite's own management." Plaintiff's Memorandum of law in opposition to Defendant's motion for summary judgment (Dkt. No. 37) ("PML") at 9.

In any event, the following is not disputed: In his work as an instrumentation specialist, Plaintiff conducted performance testing on gas and steam turbines manufactured and sold by G.E. PRSMF ¶ 7. These turbines are located at both domestic and international power generation facilities ("field sites"); Plaintiff was required to travel to the field sites to which he was assigned, and he estimates that he traveled for about twenty to fifty percent of the time during his employment. Id. ¶ 8; DSMF ¶ 7. According to Plaintiff's estimates, he would travel to the field sites alone about seventy percent of the time, but for about thirty percent of his trips he was accompanied by another instrumentation specialist "for large, complex jobs, and for training purposes," and Granite would only bill G.E. for the time of one instrumentation specialist. DSMF ¶¶ 10-12; PRSMF ¶¶ 10-12. When he was not assigned to a field site, Plaintiff was working at Granite's laboratory in Rotterdam, New York, primarily recalibrating the testing instruments for shipment to and use at other field sites. DSMF ¶ 7.

As part of a variable work force agreement ("VFW agreement") between Granite and G.E., all instrumentation specialists, including Plaintiff, became employed by Granite effective January 1, 2007. Id. ¶ 32. By recommendation of his direct supervisor, Kevin Lackner ("Lackner"), Plaintiff, who was seventy years old at the time, was offered and accepted an at-will contract of re-employment pursuant to the VFW agreement. Id. ¶ 37. Under this contract, Plaintiff was required to be on call for immediate departure on a travel assignment until he had reached 1,500 customer billable hours. Def. Ex. 4 (Dkt. No. 33-46) at 17. According to the contract, Plaintiff was permitted to decline future travel assignments once he had reached 1,500 billable hours. Id. The physical requirements and job responsibilities of an instrumentation specialist while on field sites remained the same. DSMF ¶ 43. Although Plaintiff was required to travel under the new contract, other instrumentation specialists were able to work primarily in the Rotterdam laboratory and were required to travel either very little or not at all. Id. ¶ 49. The instrumentation specialists in the laboratory usually worked forty hours per week with occasional overtime. Id. ¶ 50.

B. Plaintiff's Heart Attack and Subsequent Medical Issues

On January 23, 2007, Plaintiff suffered a massive heart attack in his home and nearly died. DSMF ¶¶ 52-53. He was taken to Albany Medical Center and required emergency medical interventions to save his life. Id. ¶ 54. He went into full cardiac arrest and respiratory failure, and his initial prognosis was extremely guarded. Id. As a result, one of Plaintiff's arteries remains completely blocked. Id. ¶ 56.

Plaintiff remained at Albany Medical Center until February 15, 2007, and was rehospitalized from March 2, 2007 until March 30, 2007, because of severe low blood pressure. Id. ¶ 57. During his second hospitalization, Plaintiff had an internal biventricular defibrillator ("IBD") implanted in his heart. Id. An IBD is more complex than an ordinary pacemaker and is implanted to save a patient from otherwise fatal cardiac arrhythmia. Id. Plaintiff's IBD can shock his heart back into a normal rhythm, but it does not work instantly; Plaintiff may still briefly lose consciousness before the IBD corrects any arrhythmia. Id. ¶ 71.

After Plaintiff's second discharge from the hospital, he participated in a cardiac rehabilitation program from April 2007 to August 2007. DSMF ¶ 59. A progress report from the program dated August 13, 2007, noted that too much exercise could cause Plaintiff's heart rate to spike and recommended that Plaintiff limit himself to "moderated" aerobic exercise and continue to participate in the rehabilitation program. Id. ¶¶ 60, 66-67.Plaintiff continues to experience occasional lightheadedness and fatigue due to a low "ejection fraction" (the rate at which the heart pumps blood). Id. ¶¶ 61-69. Although Plaintiff can perform daily chores and activities, his doctors have restricted him from lifting more than 20 pounds. Id. ¶¶ 73-74.

C. Plaintiff's Termination

In May 2007, Plaintiff reported to Lackner that he could return to work as soon as he completed his cardiac rehabilitation program, but that he would require work limitations, including "rest breaks, no heavy lifting and no travel." DSMF ¶ 75; Compl. ¶ 23. Plaintiff submitted his insurance company ("CIGNA")'s "medical request form," which had been completed by one of Plaintiff's health care providers, in support of his request. DSMF ¶ 66. In addition to listing the aforementioned necessary work restrictions for Plaintiff, the medical request form contains a box checked "Yes" in response to ...

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