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Krasner v. The City of New York

United States District Court, Second Circuit

September 23, 2013



PAUL G. GARDEPHE, District Judge.

Plaintiff Glenn Krasner alleges that Defendants the City of New York and the Fire Department of the City of New York ("FDNY") discriminated against him because he suffers from Asperger's syndrome, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the New York State Human Rights Law ("NYSHRL"), Executive Law § 296 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107 et seq. The Complaint also alleges that Defendants retaliated against him after he filed a complaint with the FDNY Office of Equal Employment Opportunity and because he sought a reasonable accommodation.

Krasner moved for summary judgment on September 12, 2012, and Defendants cross-moved for summary judgment on September 24, 2012. For the reasons stated below, Krasner's motion will be denied and Defendants' motion will be granted.



A. The Parties

On June 29, 1992, Krasner was provisionally appointed a Fire Protection Inspector ("FPI") with of the FDNY. (Def. R. 56.1 Stmt. ¶ 3)[1] Plaintiff received a permanent appointment as an FPI on December 9, 1996, after passing the civil service examination. (Def. R. 56.1 Stmt. ¶¶ 2, 4) FPI's inspect premises and businesses to ensure that they are in compliance with FDNY codes and regulations. (Def. R. 56.1 Stmt. ¶ 5) Plaintiff received six weeks of training, during which he was instructed on the relevant codes and regulations, how to perform inspections, and how to properly complete required paperwork. (Def. R. 56.1 Stmt. ¶¶ 6-7) Plaintiff was assigned to work at District Office 1, located at 9 Metrotech Center, Brooklyn, New York - the same building that houses the FDNY executive offices. (Def. R. 56.1 Stmt. ¶ 12) In 2006, Plaintiff was honored as Fire Inspector of the Year by the FDNY. (Pltf. R. 56.1 Stmt. ¶ 10)

B. Krasner's Disciplinary History

On April 4, 1997, Plaintiff was served with a disciplinary charge alleging that he had been disrespectful to a co-worker on January 2, 1997. (Def. R. 56.1 Stmt. ¶13) Plaintiff had said to a co-worker, "[c]an I fuck you in the ass?" (Def. R. 56.1 Stmt. ¶ 14) As a result of this incident, Plaintiff agreed to accept a formal letter of reprimand, in lieu of a formal evidentiary hearing before an Administrative Law Judge (ALJ) of the City's Office of Administrative Trials and Hearings ("OATH").[2] (Def. R. 56.1 Stmt. ¶ 15)

In 2003, Plaintiff was again disciplined for using inappropriate language to a coworker. (Def. R. 56.1 Stmt. ¶ 16) Plaintiff told a co-worker, "[s]uck my dick." (Def. R. 56.1 Stmt. ¶17) On May 5, 2003, Plaintiff signed a Stipulation and Agreement accepting a formal reprimand. (Def. R. 56.1 Stmt. ¶ 18)

On August 12, 2004, during a meeting of the District Office, Plaintiff was disorderly and disruptive. (Def. R. 56.1 Stmt. ¶ 19) According to Plaintiff, at this meeting he "screamed at the top of [his] voice with profanity and total disrespect so loud that it was almost deafening." (Def. R. 56.1 Stmt. ¶ 20) He was issued a disciplinary memorandum in connection with this incident. (Collyer Decl., Ex. I)

On February 14, 2006, Plaintiff was charged with violating the FDNY's Civilian Code of Conduct. (Def. R. 56.1 Stmt. ¶ 21) The charge alleged that Plaintiff "was given a verbal instruction... by two different supervisors to serve an outstanding repeat violation and Mr. Krasner refused to do [so]. In refusing to do as instructed, Mr. Krasner stated in a very loud voice that he would not serve the violation and used profane language." (Def. R. 56.1 Stmt. ¶ 21; Collyer Decl., Ex. J at BITS0007-BITS0010)

On February 16, 2006, Plaintiff was again charged with violating the Code of Conduct. (Def. R. 56.1 Stmt. ¶ 21) The charging documents state: "[Plaintiff] stated aloud in sum and substance: That son of a bitch was trying to get me to serve a violation. When Mr. Krasner was instructed by a supervisor to cease from yelling and using profanity, he then loudly stated in sum and substance to said supervisor: I'm going to get the birdshot and get you. You're both getting up my ass." (Def. R. 56.1 Stmt. ¶ 21; Collyer Decl., Ex. J at BITS0011-BITS0013) (emphasis in original). The charging documents also state that on the same day, "after [Krasner] was instructed by his supervisor to make a revision on a document[, ] he struck said supervisor's chest three time[s] with his own chest while yelling in sum and substance: I'll fuck you up; I'll fuck you up. When another supervisor attempted to intervene and instructed Mr. Krasner to cease his conduct, Mr. Krasner then proceeded to yell in sum and substance: I'm going to fuck you both up; I'm going to kill you both." (Def. R. 56.1 Stmt. ¶21; Collyer Decl., Ex. J. at BITS0014-BITS0016) (emphasis in original).

On April 17, 2007, Cho Seung-Hui shot and killed 32 people and wounded others on the campus of Virgina Tech. (Def. R. 56.1 Stmt. ¶ 22; Collyer Decl., Ex. K) One week later, on April 24, 2007, Plaintiff chanted "Metrotech equals Virginia Tech" to his colleagues at District Office 1 and referred to himself as "Cho, " the shooter at Virginia Tech.[3] (Def. R. 56.1 Stmt. ¶ 23; Collyer Decl., Exs. J at BITS0017-BITS0018 and L) Plaintiff's supervisor at the time, John Tuah, instructed him to stop his chanting, but Plaintiff refused. (Def. R. 56.1 Stmt. ¶ 24) Tuah then reported Krasner's behavior to his supervisor. (Def. R. 56.1 Stmt. ¶ 25; Collyer Decl., Ex. L) Fire marshals responded to the floor and revoked Plaintiff's security credentials, requiring him to pass through metal detectors each morning. (Def. R. 56.1 Stmt. ¶ 26)

Following this incident, Plaintiff was ordered to seek treatment from the FDNY Counseling Services Unit. (Pltf. R. 56.1 Stmt. ¶ 16) Plaintiff saw FDNY counselor Michael Goldman and attended sessions with FDNY psychiatrist Dr. Sarah Gleacher. (Pltf. R. 56.1 Stmt. ¶ 17) There is no evidence that the FDNY Counseling Services Unit reported any aspect of Krasner's diagnosis and treatment to his supervisors. There is likewise no evidence that Krasner engaged in additional acts of misconduct between April 24, 2007, and his termination on November 23, 2009.

C. Krasner's Disciplinary Proceedings

On April 30, 2007, Plaintiff was informally served with twelve disciplinary charges alleging disorderly or disruptive conduct, and conduct prejudicial to the good order and discipline of the FDNY. (Def. R. 56.1 Stmt. ¶ 27; Collyer Decl., Ex. J) The disciplinary charges relate to the February 14, 2006, February 16, 2006, and April 24, 2007 incidents discussed above. (Collyer Decl., Ex. J) Plaintiff acknowledged receipt of the charges on May 4, 2007. (Id.)

1. The "Step I" Disciplinary Hearing

On February 25, 2009 - 22 months after Krasner had been given notice of informal disciplinary charges against him - he was presented with proposed formal disciplinary charges at a "Step I Disciplinary Hearing." (Pltf. R. 56.1 Stmt. ¶ 21; Krasner Decl., ¶ 18) The hearing appears to have been conducted by an FDNY "conference leader" or hearing officer. (Krasner Decl., Ex. E) There is no explanation in the record for the delay between the initial presentation of charges and the Step I disciplinary hearing.[4] Krasner had a union representative and was represented by counsel at the hearing. (Krasner Decl., Ex. E) In connection with the hearing, Krasner's attorney submitted a January 20, 2009 report from Dr. Gleacher. (Id.; see also Krasner Decl., Ex. A) The report states that Krasner has been under the care of Dr. Gleacher since August 2007, and that he suffers from Asperger's Disorder, and consequently exhibits severely impaired social skills. This leads to awkward incidents at work and results in his inability to develop and maintain relationships. However, his ability to function at a high level as an inspector is not affected....

(Krasner Decl., Ex. A at 1, 4-5)

In her findings, the hearing officer states that she is "very sympathetic to the fact that Mr. Krasner suffers from a disorder that, by definition, means he will have difficulty navigating any workplace that requires social interaction.... Nevertheless, using profanity and being insubordinate and disruptive in the workplace is not acceptable. His colleagues and supervisors have been subjected to uncomfortable situations that cannot have been pleasant." (Krasner Decl., Ex. E at BITS0066) The FDNY's disciplinary counsel recommended a penalty consisting of the loss of ten days' pay, the loss of ten days of annual leave, and a 24-month probationary period. If Krasner committed similar misconduct, he would "be sanctioned with an automatic 30 day pay penalty." (Id. at BITS0067) The hearing officer states that she does "not oppose that recommendation." (Id.)

The FDNY sought Krasner's removal, however, and on June 25, 2009, Krasner was informed that a disciplinary proceeding would be conducted on July 21 and 22, 2009, before an Administrative Law Judge of New York City's Office of Administrative Trials and Hearings. (Krasner Decl., Ex. F)

2. The Trial Before the ALJ

A trial before ALJ Ingrid Addison took place on July 21 and 22, 2009[5] (Def. R. 56.1 Stmt. ¶ 28; Collyer Decl. Ex. F) At the hearing, Plaintiff was represented by counsel, testified on his own behalf, was able to call and examine witnesses, cross-examine FDNY witnesses, and offer documentary evidence. (Def. R. 56.1 Stmt. ¶ 29) In addition to Krasner, Judge Addison heard testimony from William Dease and John Tuah, deputy chief inspectors, both of whom supervised Krasner at District Office 1. (Collyer Decl., Ex. F, at 4-6)

Dease and Tuah testified to the February 14 and 16, 2006 incidents discussed above and Krasner's work performance in general. (Collyer Decl., Ex. F, at 4-5) Both men testified that Krasner is "very bright, excels at his job, is very productive... can be relied on because his work is extremely thorough[, ] and... is extremely knowledgeable about fire safety codes." (Id. at 3) Both Dease and Tuah noted that in recognition of his superior performance, Krasner had received the "Inspector of the Year" award in 2006. (Id.) While Krasner had "long demonstrated idiosyncratic behavior, such as singing, or yelling in his work area, with periodic boisterous outbursts if he opposed a decision or an instruction, " Dease and Tuah testified that Krasner's behavior had "recently become threatening." (Id.)

The ALJ concluded that "the evidence that [Krasner] refused [on February 14, 2006] to obey an order [to issue a repeat violation] is uncontroverted, " noted that the Civilian Code of Conduct "prohibits employees from refusing to perform duties, " and concluded that Krasner's "refusal to comply with [his supervisor's] order to issue a repeat violation... constitutes misconduct." (Id. at 7-9) The ALJ further noted that Krasner did not dispute having addressed his supervisors with profanities on February 16. (Id. at 9) Judge Addison further ruled that an employee who uses profanity, or is otherwise disrespectful and disruptive to his supervisors, has committed misconduct violative of the Code of Conduct. (Id. at 9-10)

As to the February 14 incident, Judge Addison concluded that Krasner "resorted to expletives [that day], as Mr. Dease testified." (Id. at 9) Judge Addison found Dease and Tuah more credible than Krasner, and concluded that on February 16, 2006, Krasner had in fact threatened to shoot Dease and fellow supervisor Holbert Murray with "bird shot, " threatened to kill Dease and Murray, and "initiated some kind of physical contact with Mr. Murray, " and "engaged in a physical altercation with [him]."[6] (Id. at 9-10) Judge Addison ruled that Krasner's "words and actions [on February 16, 2006] were impermissible misconduct" that violated the Code of Conduct. (Id. at 11)

The ALJ also concluded that the FDNY had proved that on April 24, 2007, Krasner "repeatedly chanted Metrotech equals Virginia Tech' and referred to himself as Cho, ' the gunman in the Virginia Tech. shootings." (Id.) In connection with this incident, Tuah testified that while Krasner frequently engaged in inappropriate behavior and made inappropriate statements - including maintaining a sign on his desk that read "going postal" - Tuah "had never before felt threatened" by Krasner until the April 24, 2007 incident. (Id.)

When Tuah heard Krasner's chanting, he instructed him to stop, telling Krasner, "I don't see how you could be joking about somebody gunning down 32 people.'" (Id. at 12) Krasner refused to stop the chanting, however, stating that "My own mother calls me Cho.'" (Id. at 12) At trial, Krasner did not dispute Mr. Tuah's testimony concerning the events on April 24, 2007, but explained that he was upset by his supervisor's insistence that he obtain a businessman's signature on an inspection survey form. (Id. at 12-13) Judge Addison found that Krasner intended the chanting about Virginia Tech to be "a threat to his supervisor, or at least a reminder of what could happen if he became enraged, " and concluded that Krasner had committed misconduct violative of the Code of Conduct in threatening his supervisor with violence. (Id. at 14)

In her "Findings and Conclusion, " Judge Addison ruled that the FDNY had

1. established that [Krasner] used profane language and loudly refused to issue a repeat violation as directed by two supervisors on February 14, 2006, in violation of Chp. 1(3), (4), (5) & (6) of its Civilian Code of Conduct.
2. established that on February 16, 2006, [Krasner] yelled at and directed profanity at two supervisors, verbally threatened the supervisors, and engaged in a physical confrontation with one of those supervisors by bumping his chest against the supervisor's, in violation of Chp. 1(3), (4), & (5) of its Civilian Code of Conduct.
3. established that, on April 24, 2007, [Krasner] loudly repeated the words "Metrotech equals Virginia Tech, " and referred to himself as the perpetrator of the massacre to intimidate his supervisors, in violation of Chp. 1(3) & (5) of its Civilian Code of Conduct.

(Collyer Decl., Ex. F. at 14-15)

Judge Addison recommended that Krasner's employment be terminated, noting that the FDNY had "tried progressive discipline with [Krasner]." (Collyer Decl., Ex. F. at 18) Plaintiff had received disciplinary reprimands in 1996, 1997 and 2003, and received a disciplinary memorandum in 2004. (Def. R. 56.1 Stmt. ¶ 33; Collyer Decl., Ex. F at 18-19) "Despite repeated warnings, [Krasner's] misconduct not only persisted but escalated":

[Krasner's] refusal to comply with his supervisor's order, his use of profanities to his supervisors, and his engagement in a physical altercation with his supervisor were compounded by his threatening language....[Krasner's] Virginia Tech remarks were not isolated. Nor were they uttered to achieve a particular goal....Viewed in this light, and mindful of the serious threat to human lives suggested by [Krasner's] analogizing Virginia Tech to his workplace, I find termination to be appropriate.

(Collyer Decl., Ex. F at 18) On November 20, 2009, the Commissioner adopted the ALJ's findings and conclusions, and Plaintiff's employment as a Fire Protection Inspector was terminated, effective November 23, 2009. (Def. R. 56.1 Stmt. ¶ 34; Collyer Decl., Ex. M)

D. Krasner's Equal Employment Opportunity Complaint

On January 12, 2009, prior to the Step I disciplinary hearing, Plaintiff complained to the FDNY Office of Equal Employment Opportunity ("OEEO") that his supervisor, Holbert Murray, was discriminating against him because he was not of a West Indian/Caribbean background. (Def. R. 56.1 Stmt. ¶¶ 35-36) The OEEO conducted an investigation and found Plaintiff's complaints unsubstantiated. (Def. R. 56.1 Stmt. ¶ 37; Collyer Decl., Ex. N)

On February 25, 2009, Plaintiff submitted a written request for a reasonable accommodation, in which he asked that either he or Murray be transferred to a different office. (Def. R. 56.1 Stmt. ¶ 38; Collyer Decl., Ex. O) Plaintiff stated that he suffers from "Adult Asperger's Disease/Syndrome, " that the condition does not affect his ability to perform his duties, but that his condition leads to "awkward moments" with his supervisor Holbert Murray, "who possesses an abusive personality." (Collyer Decl., Ex. O at RA0006)[7] This was the first time Plaintiff ...

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