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Klaper v. Cemetery

United States District Court, E.D. New York

March 31, 2014

JOZEF KLAPER, Plaintiff,



Before the court are Plaintiff JozefKlaper's ("Plaintiff' or "Klaper") and Defendant Cypress Hills Cemetery's ("Defendant" or "CHC") timely filed objections to Magistrate Judge Lois Bloom's Report and Recommendation ("R&R"), dated February 7, 2014, which recommended granting Defendant's motion for summary judgment in part and declining to exercise jurisdiction over Plaintiffs remaining state law claims. For the reasons set forth below, the R&R is ADOPTED in part and REJECTED in part.[1]


On April 20, 2010, Plaintiff commenced this action pro se against CHC and his former labor union, the United Service Workers Union Local 74 ("Local 74"), alleging that both CHC and the union discriminated against him on the basis of age, national origin, and disability by terminating his employment on October 9, 2008. Plaintiff subsequently retained counsel in this matter. Except where specifically objected to, the court incorporates by reference the careful and detailed recitation of facts relevant to the instant motion contained in the R&R. (R&R at 2-5.)

In brief, Plaintiff-a sixty-six-year-old man of Polish descent-was employed by CHC as a groundskeeper and maintenance worker from May 9, 2005, to October 9, 2008, when his employment was terminated. (Id. at 2, 5.) Plaintiff was supervised in his work by John Nicastro, among other CHC foremen, who he alleges mocked and otherwise verbally abused him, at least in part on the basis of his Polish heritage. (Id.) On Thursday, June 26 and Friday, June 27, 2008, Plaintiff was issued two employee warning slips: the first for allegedly poor job performance following an incident between Plaintiff and Nicastro that appears to have involved the latter's "yelling" and "bad mouthing" Plaintiff, and the second after Plaintiff allegedly made threats of physical violence concerning Nicastro, threatened to "kill him, " and was seen by a CHC employee carrying a gun near the cemetery saying "it was [f]or or John Nicastro." (Id. at 2-3.) After suffering a "breakdown" over the weekend during which he "drank a little, " Plaintiff failed to report for work on three consecutive days and was terminated by CHC on July 2, 2008, for job abandonment. (Id.) However, there is a dispute between the parties as to whether or not Plaintiff appropriately informed CHC of his anticipated absence on those days. (Id.)

A week later, Plaintiff's union representative contacted CHC to request that Klaper be given a second chance, informing CHC that he suffered from a "substance abuse problem." (Id. at 3.) Defendant assented to the request, and on July 8, 2008, Plaintiff signed a "last chance stipulation"[2] (the "Stipulation") that suspended him for three months and required him to seek and complete treatment for his alcoholism during the suspension.[3] (Id.) The Stipulation also set Plaintiff's "return to work date" as October 1, 2008. (Id.) Klaper received treatment for his alcoholism in August 2008, but suffered a relapse on or about September 1, 2008, and was admitted to an in-patient treatment program on September 4, 2008. (Id. at 4.)

Though released from that program on October 1, 2008, the date on which he was required to return to work under the Stipulation, Plaintiff did not report to work at CHC until October 6, 2008. On October 1, 2, and 3, 2008, Plaintiff's psychotherapist, George Wawrzonek, repeatedly contacted CHC to inform it that Plaintiff was too anxious to return to work, but received no response. (Id.) Defendant disputes that any messages were received. (Id.) Plaintiff reported for work on October 6, 2008, but was told to go home. (Id.) Upon learning that Plaintiff had been turned away, Dr. Roman Pabis, the director of the clinic at which Wawrzonek worked, sent a fax to CHC urging it to reconsider its decision and proposing that Klaper could take certain medications to control his alcoholism. (Id. at 4-5.) Plaintiff was ultimately terminated by CHC on October 9, 2008. (Id.)

Prior to initiating this action, Plaintiff filed a similar complaint with the New York State Division of Human Rights ("NYSDHR") on November 3, 2008, which issued a formal determination in February 2010 finding no probable cause to support the complaint. (R&R at 5.) On March 21, 2012, the court dismissed Plaintiff's claims against the Local 74, but granted him leave to amend the complaint against CHC. (Mem. and Order, Mar. 21, 2012 ("Klaper I") (Dkt. 57).) Two days later, on March 23, 2012, and with the assistance of counsel, Plaintiff filed an Amended Complaint alleging violations of: the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA") (Claim 1); Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (Claim 2); the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (Claim 3); 42 U.S.C. § 1985 (Claim 4); the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL") (Claim 5); the New York City Human Rights Law § 8-107 et seq. ("NYCHRL") (Claim 6); and several state common law causes of action (Claims 7, 8, and 9).[4] (Am Compl. (Dkt. 58).)

On May 3, 2013, having concluded discovery in this case, Defendant filed a motion for summary judgment on all causes of action pursuant to Federal Rule of Civil Procedure 56. (Mot. for Summ. J. ("Def. Mot.") (Dkts. 82, 83).) Plaintiff did not oppose entry of summary judgment on Claims 2, 3, 4, 7, 8, and 9, but opposed the motion on the ADA, NYSHRL, and NYCHRL claims (Claims 1, 5, and 6). (Mem. of Law in Opp'n to Def. Mot. for Summ J. ("Pl. Opp'n") (Dkts. 84, 85) at 1-2.) The court referred Defendant's motion to Magistrate Judge Lois Bloom for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1). (Order, Oct. 25, 2013 (Dkt. 87).)

On February 7, 2014, Judge Bloom issued an R&R recommending that CHC's motion for summary judgment be granted as to the ADA claims and that the court should decline to exercise supplemental jurisdiction over Plaintiff's remaining NYSHRL and NYCHRL claims. (R&R at 1.) Specifically, with regard to the ADA claims, Judge Bloom concluded that Plaintiff was terminated for violating his last chance stipulation by not reporting for work on October 1, rather than because of his alcoholism, and that by affording Klaper a second chance CHC had already afforded him reasonable accommodation. (R&R 9-19.) The R&R also recommends that the court decline to exercise supplemental jurisdiction over the remaining state law claims pursuant to 28 U.S.C. § 1367(c)(4), as such a decision would not result in prejudice or require additional discovery. (R&R at 19-22.) On February 28, 2014, within the period designated by the court (Order, Feb. 18, 2014), counsel for both parties timely filed various objections to the R&R (Def.'s Obj. to Magistrate Judge's R&R ("CHC Obj.") (Dkt. 90); Pl.'s Obj. to the Magistrate Judge's R&R ("Pl. Obj") (Dkt. 91). Responses were filed on March 7, 2014. (Pl.'s Opp'n to CHC Obj. ("Pl. Resp.") (Dkt. 92); Def.'s Opp'n to Pl. Obj. ("CHC Resp.") (Dkt. 93).)


When a magistrate judge issues an R&R and it has been served on the parties, the parties generally have fourteen days in which to file an objection to the R&R. Fed.R.Civ.P. 72(b)(2). If the district court receives timely objections to the R&R, the court makes "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. [The district court] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). However, to obtain this de novo review, an objecting party "must point out the specific portions of the report and recommendation to which [he] object[s]." U.S. Flour Corp. v. Certified Bakery, Inc., No. 10-CV-2522 (JS), 2012 WL 728227, at *2 (E.D.N.Y. Mar. 6, 2012); see also Fed.R.Civ.P. 72(b)(2) ("[A] party may serve and file specific written objections to the [R&R].").

If a party "makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Pall Corp. v. Entergris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008); see also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (holding that plaintiff's objection to an R&R was "not specific enough" to "constitute an adequate objection under [] Fed.R.Civ.P. 72(b)"). Portions of the R&R to which a party makes no objection are also reviewed for clear error. U.S. Flour, 2012 WL 728227, at *2.


A. Standard of Review

To the extent de novo review is required, under Federal Rule of Civil Procedure 56(a) summary judgment is proper if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is material if its existence or non-existence "might affect the outcome of the suit under the governing law, " and an issue of fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden of making this showing rests upon the party moving for summary judgment. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he court must draw all reasonable inferences in favor of the nonmoving party." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000).

Once the moving party has met its initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party, in order to defeat the motion, "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party "must set forth specific facts showing that there is a genuine issue for trial" in order to avoid summary judgment. Anderson, 477 U.S. at 250. Only "specific facts" grounded in testimony or other admissible evidence create a genuine issue. Id . "[M]ere allegations or denials" of the adverse party's pleadings, id., and "the presentation of assertions that are conclusory, " Patterson v. Cnty. ...

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