The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff Michael Wegner brought this action against defendant Upstate Niagara Cooperative, Inc. ("Upstate Niagara")*fn1 alleging discrimination in employment based on his disability, in violation of the Americans With Disabilities Act of 1990 ("ADA"), as amended, 42 U.S.C. § 12101 et seq., and New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq. Defendant moves for summary judgment dismissing the action, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, defendant's motion is granted.
The following facts, adapted from the parties' respective Local Rule 56 Statements, declarations, and exhibits attached thereto (see Items 49, 57-60), are not in dispute.
Upstate Niagara is a dairy cooperative owned by dairy farmers in the Western New York area. Upstate Niagara markets and distributes a wide variety of dairy products including milk, yogurt, cottage cheese, ice cream mix, dip, and flavored milk-based beverages. Plaintiff began working for Upstate Niagara in 1985, and held the position of Wholesale Driver since 1990. From 2003 until February of 2006, plaintiff worked as a "Wegman's Relief Driver," delivering Upstate Niagara products to Wegman's Markets. Item 49-36, ¶ 7; Item 60, ¶ 1, 7.
In February 2006, plaintiff was diagnosed with a non-work related, two-level cervical disc herniation causing spinal stenosis which resulted in an episode of temporary paralysis. See Item 60-6, p. 2.*fn2 On February 20, 2006, plaintiff underwent C5-6 and C6-7 anterior cervical discectomy and fusion ("ACDF") surgery (id. at 6-8), requiring him to take New York State short-term disability leave until he received medical clearance to return to work. Item 49-2 (Keller Decl.), ¶ 12.
Progress notes from medical providers at University at Buffalo Neurosurgery indicate that on May 24, 2006, plaintiff was examined by Elad Levy, MD, who reported in a letter to plaintiff's primary care physician, Darren Caparaso, MD, as follows:
[Mr. Wegner] is doing well, but continues to have low back pain. As far as cervical pain, it is improved since his cervical surgery. He has been doing physical therapy and physical strengthening. He has to get to a point where he can lift 55 pounds with his arms extending. We do not feel that that requirement may ever be met, given the fact that he had a two-level discectomy and lifting that weight with arms extending may injure his cervical spine.
Dr. Levy saw plaintiff again on July 10, 2006, and reported to Dr. Caparaso that plaintiff "has recovered nicely, but still has a considerable amount of neck discomfort at times. In his job for Upstate Milk, he has to lift heavy containers above his head and he cannot do that." According to Dr. Levy, plaintiff was ready to return to work, but could not work at his old job. Dr. Levy authorized plaintiff's return to work as of July 31, 2006, with a weight restriction of 20 pounds, no overhead lifting, and no significant neck extension. Id. at 11; see also Item 49-21, p. 3.
On July 12, 2006, plaintiff met with Richard Lipsitz, the Business Agent for Teamsters Local 264 (the "Union"), and Edward Porter, Upstate Niagara's Director of Transportation, to discuss plaintiff's options for returning to work under the medical restrictions recommended by Dr. Levy.*fn3 Among the options discussed was the possibility that an Upstate Niagara Wholesale Driver working a route which required minimal lifting might consent to switch positions with plaintiff. Employee consent was necessary because neither defendant nor the Union had the authority to remove an employee from a position which had been awarded pursuant to the seniority bidding procedures set forth in the Collective Bargaining Agreement ("CBA") between Upstate Niagara and the Union (see Item 49-17). Plaintiff contacted the four drivers identified as holding positions which might fall within his medical restrictions, but all four declined to switch positions with plaintiff. See Item 49-36, ¶¶ 34-36; Item 60, ¶¶ 15-20; Item 59 (Wegner Decl.), ¶¶ 16-17.
As reflected in defendant's interoffice emails (Item 49-22), in early August 2006 Mr. Porter and Mr. Lipsitz discussed a proposal to offer plaintiff a temporary position as a "Cooler Checker" to provide quality control for distribution of products from the coolers at defendant's facility on Dale Road in Cheektowaga. However, as the result of discussions at a series of meetings between Upstate Niagara and the Union, it was determined that the Cooler Checker position would require lifting and moving pallets and cases weighing up to 43 pounds, which was inconsistent with the weight restrictions imposed by plaintiff's physicians. On August 15, 2006, plaintiff and Mr. Lipsitz met with Mr. Porter, Colleen Keller (defendant's Human Resources Manager), and Thomas Walker (manager of defendant's Dale Road facility) to further discuss plaintiff's employment status. As a result of this meeting, it was agreed that (among other things) plaintiff would retain his seniority rights for two years from the date of his disability (February 2006) and, if plaintiff's medical restrictions were revised during that time, defendant would review the revisions and consider them accordingly. Item 49-22, p. 1.
In early November 2006, plaintiff's Wholesale Driver job was re-bid and awarded to another employee, in accordance with the terms of the CBA.*fn4 Plaintiff retained his seniority bidding rights for another 15 months (i.e., until February 2008). Item 49-36, ¶ 43.
On November 7, 2006, Dr. Levy signed an updated medical restriction note indicating that plaintiff could return to work as of November 27, 2006, with a weight lifting limitation of 45 pounds and no repetitive lifting. See Item 49-21, p. 4. Upon receiving notice of this information, Patty Cookfair (Upstate Niagara's Corporate Safety Coordinator) contacted plaintiff to schedule a medical examination with HealthWorks-WNY, defendant's provider for Department of Transportation ("DOT") and company physicals. The medical exam was conducted on November 16, 2006, by Dr. Stuart Dorfman. Dr. Dorfman reported on a DOT Commercial Driver Fitness Determination form that plaintiff met the federal regulatory standards to qualify for a 2-year certificate to operate a commercial vehicle, while noting "mildly limiting [range of motion] to back" and "limited lifting to 45 [pounds]." Item 49-23, p. 3. Dr. Dorfman also completed an Upstate Niagara "Physical Evaluation" form, noting plaintiff's "permanent" restrictions on lifting more than 45 pounds, and repetitive bending and lifting. Item 49-24, p. 3. These restrictions placed plaintiff below Upstate Niagara's physical demand requirements set forth in both the Job Description for the position of Wholesale Driver, dated March 4, 1996 ("employee must regularly stack or unstack cases weighing 25 to 50 pounds to or from floor level to above shoulder height") (Item 49-19, p. 3; the "1996 Job Description"), and the "Essential Function" ratings for the Wholesale Driver and Cooler Worker positions, dated October 1997 ("Lifting -- (Frequently above shoulder level) 25 - 55 lbs.") (Item 49-20, pp. 1-2).
On November 20, 2006, plaintiff contacted Upstate Niagara to inquire about the status of his return to work, leaving messages for Mr. Porter and Ms. Keller. See Item 59, ¶ 26. Mr. Porter called plaintiff the next day (November 21, 2006) and informed him that he would not be cleared to return to work on November 27, 2006 due to the company's concerns about his health. Id. at ¶ 27. Mr. Porter indicated that he would get back to plaintiff after further discussions with supervision. Id.
On November 22, 2006, Mr. Porter met with Ms. Cookfair and Glenn Orser, an ergonomics advisor, to review the functional elements of the Wholesale Driver position. As a result of the meeting, the job description for the position was revised to reflect duties that had long been performed by drivers but had not been included in the 1996 Job Description (see Item 49-25, pp. 6-7; the "2006 Job Description"), and Mr. Orser was engaged to measure the forces necessary to perform some of those additional duties -- including opening and closing the hood, turning the crank to raise and lower the trailer, and opening and closing the trailer doors. See id. at 8. On November 24, 2006, Mr. Orser met with Mr. Porter at the Upstate Niagara garage to conduct the measurements, and his report (along with supporting documentation and photographs) was transmitted to Ms. Cookfair by email dated November 26, 2006. Id. Ms. Cookfair then transmitted this updated information to Dr. Dorfman, who reviewed the material and advised Ms. Cookfair in a telephone call on November 28, 2006 that he "stands firm" on his assessment of plaintiff's medical restrictions based on the DOT physical. Id. at 14.
On December 26, 2006, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC"), pro se, claiming discrimination based on his disability in violation of the ADA. Item 49-5. Defendant responded by letter from Ms. Keller, dated January 17, 2007, stating as follows:
After receiving Mr. Wegner's treating physician's statement increasing his lifting capability from 20 to 45 pounds, and after a discussion with the Union, Upstate sent Mr. Wegner for a DOT Physical Examination, and hired an Ergonomics expert (ERGO Works) to evaluate the duties Mr. Wegner would need to perform in the light duty job we had available. We would offer him a 90 day temporary light duty job, as is our policy, if he could perform the light duties available within the capabilities assigned by his treating physician. The ergonomic evaluation showed that Mr. Wegner's physical capabilities (as assigned by his treating physician) were less than what was required to perform the light duty job available. Therefore, Upstate could not offer Mr. Wegner the temporary light duty job.
On January 18, 2007 (the day after defendant submitted its response to the EEOC Charge), plaintiff met with Mr. Porter and Ms. Keller from Upstate Niagara, along with Mr. Lipsitz and a Union steward (Joe Nowak), to discuss the availability of any light duty positions within plaintiff's medical restrictions. Mr. Porter memorialized the matters discussed at this meeting in a letter to plaintiff dated February 28, 2008, confirming that plaintiff continued to maintain his original seniority date through February 4, 2008, along with his bidding rights, and that the company's delivery routes would be re-bid between March 15 and March 31, 2007. See Item 49-27, p. 2. Also discussed at the meeting was the agreement to have ErgoWorks evaluate the lifting components of a "Yard Jockey" position which plaintiff had expressed an interest in bidding on. Id. Mr. Porter further stated in the letter that:
Upstate will require you to provide your most current medical capabilities prior to the bid being awarded to determine whether you will be able to perform the job you have bid on. If your current capabilities prevent you from performing the duties of the job you have bid on, you will continue to be out on ...