The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Siragusa, J. This Americans with Disabilities Act ("ADA") and New York Human Rights Law ("NYHRL") case is before the Court on Defendant's motion for summary judgment, Apr. 3, 2012, ECF No. 18. For the reasons stated below, Defendant's application is granted and the case is dismissed.
The following facts are taken from the parties' Local Rule 56 statements. The Monroe County Water Authority ("MCWA") is a public benefit corporation under the New York State Public Authorities Law and provides drinking water for households and businesses in Monroe, Genesee, Wayne, Orleans and Livingston Counties in New York. Plaintiff was employed by the MCWA's Facilities, Fleet Maintenance, and Operations Department as a Laborer from June 20, 2005, until his termination on September 23, 2009. Hendrickson Decl. ¶ 12. By way of background, within each of the MCWA's operations center are four basic types of assignments: (1) valve repair; (2) hydrant repair; (3) four-man crew; and (4) serviceman. As a Laborer, Plaintiff worked in an entry-level, unskilled position involving "a variety of routine heavy and light manual labor tasks" that requires "physical endurance." Benshoff Decl. ¶ 5. Plaintiff's position required him to have the "ability to do heavy manual labor, including lifting." Id. Moreover, a Laborer is expected to rotate through each of the four of assignments so that he gains the experience necessary to properly perform the duties at any of the assignments, allowing the MCWA to make adjustments to changes in staffing levels as well as meeting the needs of its customers. Id. ¶ 12.
When an employee, following a medical leave, is cleared to return to work, by his health care provider with restrictions, the MCWA contends that it uses its best efforts to find available light duty work that can accommodate the employee's work restrictions. Benshoff Decl. ¶ 13; Hendrickson Decl. ¶ 29. However, according to the MCWA, a Laborer who is cleared to return to work with restrictions, such as a restriction on repetitive bending and twisting, or restrictions on lifting no more than 15 pounds, may not return to work as a Laborer in any of the four assignments in the Operations Division. In that regard, the MCWA maintains that the job assignments for a Laborer are too physically demanding to qualify as light duty work. Benshoff Decl. ¶ 14.
Plaintiff, though, contests this assertion, and contends that within the job description of Laborer are a variety of heavy and light manual labor tasks, including the valve crew. Rose Dep. 17:11-14, 18-20; Amerose Aff. ¶¶ 3 & 4; Amerose Dep. 18:2-9, 19-23. The MCWA counters that assignment as a Laborer on the valve crew is not considered to be a light duty position. Benshoff Decl. ¶ 18, since the valve crew is charged with the operation, maintenance and repair of water main valves and its work often requires the crew to locate valves that are four to ten feet below ground. Gaining access to those valves frequently includes removal of manhole covers and using a variety of tools to gain access to the valves in the confined space. Once the workers have access to the valves, turning them is often physically demanding because of the age or condition of the valves.
Many of MCWA's the employees, including Plaintiff, are represented by the Civil Service Employees Association and are entitled to certain rights and procedures established under New York Civil Service Law. Hendrickson Decl. ¶ 4. The MCWA prohibits all unlawful discrimination in the workplace, including discrimination on the basis of disability, and notices regarding its non-discrimination policies are posted in the workplace and provided to employees as part of orientation and further training sessions. Hendrickson Decl. ¶ 6. MCWA's Policy Manual states that "MCWA will work with each individual to define their [sic] job-related needs and try to accommodate those needs." Hendrickson Decl. ¶ 8 & Ex. B. Policy Manual section 2.06 states that the "employees should make MCWA aware of his or her [sic] need for an accommodation by notifying their Department Head and the Director of Human Resources." Hendrickson Decl. ¶ 119 & Ex. B. The MCWA provides written guidelines for its supervisory employees when discussing an employee's request for an accommodation. Hendrickson Decl. ¶ 10 & Ex. C. Additionally, all supervisors receive periodic training regarding the MCWA's employment policies and procedures. Id. ¶ 11.
On October 27, 2005, Plaintiff claimed to have suffered a work-related back injury while using a needle bar to break up dirt. He was placed on a medical leave of absence and received workers' compensation benefits. During his leave, Plaintiff continued to receive his regular wages and benefits under the collective bargaining agreement, and regularly visited a doctor for evaluation. Hendrickson Decl. ¶ 13; Amerose Dep. at 21:1-23:3. Plaintiff returned to his position as a Laborer on November 14, 2005, with no restrictions. Hendrickson Decl. ¶ 14; Amerose Dep. 23:7-24:9. Approximately three years later, on October 8, 2008, Plaintiff aggravated his October 27, 2005, injury while working as a Laborer on the valve crew. He was again placed on a medical leave of absence and received workers' compensation benefits. Hendrickson Decl. ¶ 15; Amerose Dep. 24:10-20, 28:6-9. After initially receiving physical therapy and cortisone shots to treat his back injury, Plaintiff had disk fusion surgery in March 2009. Amerose Dep. at 28:10-30:3.
Diane Hendrickson, Defendant's Director of Human Resources ("Hendrickson") sent Plaintiff a letter dated July 30, 2009, informing him that he would be terminated if he could not return to work by September 20, 2009, as that date marked the end of Plaintiff's one-year workers' compensation leave of absence. Hendrickson Decl. ¶ 16 & Ex. D.; Amerose Dep. 30:22-32:5. Shortly after July 30, 2009, Plaintiff and Hendrickson spoke by telephone confirming Plaintiff received the letter and discussing the possibility of his return to work. Hendrickson Decl. ¶ 19; Amerose Dep. 32:14-22, 34:11-35:16. Defendant contends that Hendrickson informed Plaintiff that the MCWA would work with him to find a job assignment, if possible, that fit within any restrictions suggested by his doctor. Hendrickson Decl. ¶ 19. Plaintiff, in contrast, maintains that Hendrickson informed him that his return to work must be without restrictions. On September 11, 2009, Hendrickson spoke to Plaintiff again about his anticipated return to work on Monday, September 14, 2009. Plaintiff informed Hendrickson that his doctor had given him a note stating he could return to work without restrictions. Hendrickson Decl. ¶ 20. Although Plaintiff contests this assertion of fact, as more fully discussed below, he provides no evidentiary proof in admissible form to support his contention that his doctor listed no restrictions only because Hendrickson assured Plaintiff that she would find him work that would accommodate his disability. In fact, Plaintiff's doctor's treatment notes, dated September 8, 2009, submitted by the MCWA, contains this sentence: "[Plaintiff] is totally temporarily disabled but as of 09/14/09 he will have no degree of disability." Brown Reply Decl. Ex. A. During a telephone conversation on September 11, 2009, Plaintiff asked Hendrickson if he was going to be assigned to the valve crew. She informed him that there was no position available on the valve crew at that time and that he would instead be assigned to a four-man crew. Hendrickson Decl. ¶ 21; Amerose Dep. 43:18-45:10. Moreover, at his deposition, Plaintiff was asked the following questions and made the following responses:
Q. [Y]ou didn't mention any of the specific restrictions-
Q. -that you had discussed with your doctor?
Q. As far as you know, the only medical documentation that Ms. Hendrickson had was Exhibit 3 which said no restriction?
Q. Did you expect Ms. Hendrickson to guess as to what restrictions you needed?
Q. Did you want her to take a guess?
Q. Isn't that the reason you go to a doctor, to find out what restrictions you need, so that can be communicated to the employer?
Amerose Dep. at 47:3-21. In response to this section of Plaintiff's deposition testimony, Plaintiff refers to the following section, also from his deposition:
Q. Did you tell Ms. Hendrickson that Dr. Whitbeck had suggested some restrictions of any sort?
Q. And which ones did you tell her about?
A. I believe I explained to her that they wanted me just to come back with restrictions, and I had told them that I needed my job. And I wanted to come back-I needed to come back without restrictions, or I would lose my job.
Q. Did you-you didn't mention any of the specific ...