United States District Court, E.D. New York
Plaintiff is represented by Damon Andrew Hagan, Mayer, Ross & Hagan, Patchogue, NY.
Defendant is represented by Ernest Stolzer, Jessica Moller, Lauren Darienzo, and Richard Finkel, Bond Schoeneck & King, PLLC, Garden City, NY.
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge.
Plaintiff Andrew Morris ("Morris" or "plaintiff') brings this action against defendant Town of Islip ("defendant" or "the Town"), alleging employment discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"). Specifically, plaintiff alleges that defendant (1) discriminated against plaintiff on account of his disability by failing to accommodate plaintiff's requests for reasonable accommodation, assigning him elevated or overhead work, denying his request for an emergency personal day, and directing him to come to work to be evaluated for light duty and discharging him without proper notice after a second injury in July 2009; and (2) retaliated against plaintiff through similar conduct for filing a disability discrimination complaint with the New York State Division of Human Rights ("NYSDHR") in April 2009.
The Town moves for summary judgment pursuant to Federal Rule of Civil Procedure 56, arguing: (1) the discrimination claims must be dismissed because plaintiff cannot establish an ADA-qualifying disability for certain claims, or that he was an otherwise "qualified individual" for purposes of the ADA, (2) the discrimination claims fail on their merits because the uncontroverted evidence demonstrates that the Town provided reasonable accommodations, plaintiff did not suffer adverse employment actions, and the Town lawfully terminated plaintiff's employment pursuant to New York Civil Service Law § 71; and (3) plaintiff cannot establish a retaliation claim because he cannot set forth a prima facie case of retaliation or show that any decisions were pretextual. For the following reasons, the Court grants the motion for summary judgment in its entirety.
The first six causes of action-which relate to the period from early June 2009 to July 23, 2009-cannot survive summary judgment for several reasons. First, it is uncontroverted that Morris, upon returning to work in June 2009, provided documentation from his treating orthopedist that indicated that plaintiff could return to work on June 8, 2009. The documentation did not list any physical restrictions or limitations. Moreover, prior to July 23, 2009, plaintiff never provided any medical documentation to indicate he was restricted in his ability to perform his job functions. In fact, plaintiff testified that he tried to get such documentation from his doctor, and his doctor refused to provide it. Thus, given these uncontroverted facts, no rational jury could conclude that plaintiff suffered from a disability under the ADA during this period. Second, even assuming arguendo that a disability could be established, there is uncontroverted evidence that overhead work is an essential function of plaintiff's job and, thus, the employer was not required to eliminate that function to accommodate an individual with a disability. Third, even assuming arguendo that the Town had to provide a reasonable accommodation, there is uncontroverted evidence that it did namely, plaintiff acknowledged that his supervisors provided him with a helper unless there was a "freak thing" where one was unavailable. It is uncontroverted that plaintiff had a helper on twenty of the twenty-nine days he worked, including the date of his injury (i.e., July 23, 2009). Finally, to the extent plaintiff asserts a claim based upon a temporary denial of a personal day (which was later restored to plaintiff), no rational jury could conclude that such an act is an adverse employment action either under the standard for a disability discrimination claim, or under the more liberal standard for adverse action under a retaliation claim. In short, plaintiff has failed to submit any evidence that raises a genuine issue of disputed fact as to any of these claims for disability discrimination or retaliation.
With respect to the seventh cause of action, an ADA discrimination and retaliation claim relating to the period after July 23, 2009, the Court concludes that this cause of action also cannot survive summary judgment. First, there can be no disability discrimination claim for that period because it is uncontroverted that, as a result of the July 23, 2009 injury, plaintiff was totally disabled and, thus, not otherwise qualified to perform the essential functions of his job, with or without a reasonable accommodation. Second, it is undisputed that plaintiff was separated from service for more than one year by reason of disability resulting from occupational therapy, and plaintiff provides no evidence or legal argument to raise a genuine issue of fact as to defendant's decision to terminate plaintiff under Section 71 of the New York Civil Service Law. In fact, plaintiff's counsel did not even argue in his opposition papers that plaintiff's termination was unlawful or discriminatory. Finally, to the extent plaintiff asserts that the constant light duty evaluation requests were discriminatory or retaliatory, the Town has submitted uncontroverted evidence that such evaluations were requested pursuant to a provision in the collective bargaining agreement with plaintiff's union. Moreover, plaintiff has submitted no evidence of any negative consequence that resulted. In short, plaintiff has submitted no evidence that would allow a rational juror to find that such requests for evaluations under that provision were discriminatory or retaliatory.
A. Factual Background
The Court takes the following facts from the parties' affidavits, depositions, exhibits, and defendant's Rule 56.1 Statement of Facts. Contrary to Local Rule 56.1(b), plaintiff did not file a Rule 56.1 Statement of Facts in response to defendant's submission. In fact, plaintiff submitted no evidence in connection with his opposition, only a memorandum of law. Accordingly, the Court could deem every fact in defendant's submission admitted for purposes of this motion. L.R. 56.1(c); see also Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) (Where "the opposing party  fails to controvert a fact so set forth in the  Rule 56.1 statement, that fact will be deemed admitted."); Litchhult v. USTRIVE2, Inc., No. 10-CV-3311 (JFB)(ARL), 2013 WL 3491076, at *2 n.1 (E.D.N.Y. July 10, 2013) (detailing standard). However, in an abundance of caution, the Court has examined the record carefully and concludes that the facts in defendant's Rule 56.1 Statement are supported by admissible evidence, and plaintiff has not pointed to any evidence in the record to controvert such facts. In addition, the Court's own independent review of the record has not uncovered any evidence to controvert the facts contained in defendant's Rule 56.1 Statement. The Court construes the facts in the light most favorable to plaintiff, the nonmoving party. See Capohianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2005).
1. Plaintiff's Employment
Plaintiff began working for the Town in May 1995, starting as a Custodial Worker I based at Islip MacArthur Airport. (Def. 56.1 ¶¶ 1-2.) In March 1997, he became a Maintenance Mechanic I ("MMI"). ( Id. ¶ 3.) As part of his job responsibilities, plaintiff carried heavy light fixtures, which sometimes weighed as much as one to two hundred pounds. ( Id. ¶ 5.) He also had to drive, carry ladders, and perform overhead and elevated work. ( Id. ¶ 6.) Other responsibilities included replacing broken lights, changing light fixtures, repairing electrical outlets, and working on ceiling and exhaust fans. ( Id. ¶ 7.) In July 1998, Morris transferred from MacArthur Airport to the Town's Department of Public Works Maintenance Bureau ("the Bureau"). ( Id. ¶ 8.) After his transfer, Morris continued to perform the heavy lifting, driving, and overhead work required of the MMI position. ( Id. ¶ 9.)
Roughly fifteen maintenance mechanics were assigned to the Bureau, spread fairly evenly across three job classifications-I, II, and III. ( Id. ¶10.) Approximately four held the MMI title. ( Id. ¶ 11.) MMIs generally serve as helpers for the MMIIs and MMIIIs; they are assigned according to the magnitude of the work to be undertaken, and might not be assigned to mechanics that are performing work of a less intensive nature. ( Id. ¶¶ 12-13.)
In August 2001, plaintiff was promoted to MMIII, a title that requires that the employee be in a "physical condition commensurate with the demands of the position." ( Id. ¶¶ 14-15.) The work Morris performed as an MMI, i.e., heavy lifting, overhead work, and elevated work, also was required of the MMIII title. ( Id. ¶¶ 16-17.) According to Morris, "sometimes" the MMIII was provided with a helper. ( Id. ¶ 18.) As of January 2, 2007, plaintiff performed whatever "electrical work within the Town of Islip [that] needed to be done." ( Id. ¶ 19.) His electrical responsibilities included overhead work, elevated work, and lifting of heavy objects weighing between one-hundred and two-hundred pounds. ( Id. ¶ 20.) Plaintiff also performed "a lot more ballast and overhead lighting" work after his promotion. ( Id. ¶ 21.)
2. Plaintiff's Alleged Disability and Return to Work
On January 2, 2007, plaintiff injured his shoulder slipping off a truck and was out of work until January 22, 2007. ( Id. ¶¶ 22-23.) Two years later, on January 30, 2009, plaintiff had surgery on the injured shoulder. ( Id. ¶ 24.) For a time after his surgery, plaintiff was "one hundred percent disabled." ( Id. ¶ 25.) He was unable to perform the "normal" and "everyday" functions of his job title, with or without a reasonable accommodation. ( Id. ¶ 26.)
In April 2009, while out work because of the surgery and on workers' compensation, plaintiff filed a complaint with the NYSDHR. ( Id. ¶ 27; see NYSDHR Complaint, Finkel Aff. Ex. E.) Morris alleged that the Town's requests for him to come in for a light duty evaluation, and its decision to subject plaintiff to additional scrutiny, were discriminatory. (Def. 56.1 ¶ 28.) NYSDHR conducted an investigation and found that the Town's attempt to monitor and evaluate plaintiff's physical condition and capacity to perform light duty work was in accordance with the "policy and procedure set forth in the Collective Bargaining Agreement and rules governing Worker's Compensation, " which was a "legitimate, non-discriminatory reason" for the Town's actions. ( Id. ¶ 29; see NYSDHR Finding, Finkel Aff. Ex. F.) Accordingly, NYSDHR found no probable cause and dismissed the complaint. (Def. 56.1 ¶ 30.)
Plaintiff returned to work on or about June 9, 2009. ( Id. ¶ 31.) Upon his return, he provided the Town with medical documentation from his treating orthopedist, Dr. Joshua Dines. ( Id. ¶ 32.) Dr. Dines stated that plaintiff "may return to work on 6-8-09." ( Id. ¶ 33; see Dines Letter, Abbate Affidavit Ex. I.) Dr. Dines did not list any physical restrictions or limitations. ( See generally Dines Letter.) Between his return in June 2009 and subsequent injury on July 23, 2009, plaintiff never provided the Town with any medical documentation to indicate that he was restricted or limited in his ability to perform his job functions. (Def. 56.1 ¶ 35.) According to Morris, he tried to get a letter from Dr. Dines to indicate what plaintiff's restrictions were before July 23, 2009, but Dr. Dines "would not give it to me saying anything else." ( Id. ¶ 36; Morris Dep. at 136:14-22, Finkel Aff. Ex. C.)
After he returned to work, Morris claims that he was "for the most part" able to perform the essential functions of his job title. (Def. 56.1 ¶ 37.) He described "lifting and reaching" as his "biggest problem, " but he performed overhead work to the best of his ability. ( Id. ¶¶ 38-39.) According to plaintiff, he spoke with his supervisors and asked them to let him have "at least one or two helpers" if there was a "big" job coming up. ( Id. ¶ 40.) By plaintiff's own account, until his injury in July 2009, he was provided with helpers "[for the most part, " though "[n]ot every day." (Morris Dep. at 145:4-10.) His supervisors provided a requested helper if it was "feasible"-unless "there were some freak thing where a lot of people were out or something like that, but for the most part it wasn't a problem getting me a helper." ( Id. at 145:13.) A helper was assigned to Morris twenty of the twenty-nine days that he worked before his injury on July 23, 2009. (Def. 56.1 ¶ 44.) During this time, Bobby Powers was the only other MMIII who performed electrical work. ( Id. ¶ 45.) Powers handled the "bigger jobs" and was only assigned helpers on nine of the thirty-one days that he worked during the same time period. ( Id. ¶¶ 45-47.)
3. Emergency Personal Leave Day
On or about April 29, 2009, the Acting Commissioner of Public Works issued a memorandum to employees advising them that, in accordance with the Collective Bargaining Agreement, "Emergency Absences (PV or Personal Leave Day) with less than three (3) days notice will require an explanation and/or documentation, " and the failure to provide an explanation "may result in the denial of the paid leave." ( Id. ¶ 50; Emergency Absences Notice, Abbate Aff. Ex. M.) During 2009, the Commissioner requested explanations from other employees twenty-nine times, twelve of those coming before July 9, 2009. (Def. 56.1 ¶ 53.) Employees provided various reasons for their requests (which were approved), including child care issues, car trouble, or home maintenance concerns. ( Id. ¶ 54; see Leave Requests, Abbate Aff. Ex. N.)
On July 9, 2009, plaintiff took a day off, requesting that it be considered a paid emergency personal day. (Def. 56.1 ¶ 51.) The Town asked plaintiff to explain his request. ( Id. ¶ 52.) He stated, "I took an emergency personal day." ( Id. ¶ 55; Morris Leave Request, Abbate Aff. Ex. 0.) The Town then denied plaintiff's request for leave. (Def. 56. 1 ¶ 56.) On July 21, 2009, plaintiff filed a grievance relating to that denial. ( Id. ¶ 57.) He wrote, "I feel I am being singled out due to my shop steward duties and past grievance. I would like the 8 hours I was docked [pay] returned." ( Id. ¶ 58; Leave Request Grievance, Abbate Aff. Ex. P.) The grievance did not allege disability discrimination. The Town held a hearing on the grievance in late 2009 or early 2010. ( See Def. 56.1 ¶ 60.) At the hearing, Morris explained why he used the paid emergency personal day. ( Id. ¶ 61.) The Town then rescinded the denial, granted plaintiff's request, and restored the eight hours of pay that had been docked for using the day without explanation. ( Id. ¶ 62.)
4. July 2009 Injury and Discharge
On July 23, 2009, Morris suffered another shoulder injury while working at the marina. ( Id. ¶ 63.) He had been assigned a helper on that day. ( Id. ¶ 64.) Since then, by his own account, Morris has been "totally disabled" and not been physically capable of performing the job duties of an MMIII, even with a helper. ( Id. ¶ 65.) Plaintiff's orthopedist corroborated this physical condition. ( Id. ¶ 66; see Physician's Notes, Abbate Aff. Exs. S, T, U, V, W, X, Y, Z, AA (stating that plaintiff is totally disabled and may not return to work).) In November 2009, plaintiff applied to New York State for a permanent disability retirement pension. (Def. 56.1 ¶ 67.) At that time, plaintiff had no intention of ever returning to work. ( Id. ¶ 68.) He represented to the State's examining physician that he was unable to perform his job duties. ( Id. ¶ 69.)
As of August 24, 2010, plaintiff had not returned to work. ( Id. ¶ 71.) By then, he had been absent from work for more than one continuous year. ( Id. ¶ 72.) As a result of that continued absence, the Town separated plaintiff from his employment, sending him a letter stating, "In accordance with the agreement between the Town of Islip and International Brotherhood of Teamsters, Local #237, and pursuant to Section 71 of the Civil Service Law, you will be removed from the payroll as of August 31, 2010." ( Id. ¶ 73; see Separation Notice, Abbate Aff. Ex. BB.) New York granted plaintiff's permanent disability retirement pension in May 2011, finding him "permanently incapacitated from the performance of his duties." (Def. 56.1 ¶ 70; see Disability Services Letter, Abbate Aff. Ex. CC.)
B. Procedural Background
Plaintiff filed the complaint on June 14, 2012. Defendant moved to dismiss the New York State Human Rights Law claims on September 19, 2012. The Court granted the motion during a telephone conference on November 26, 2012. Defendant filed its answer on January 7, 2013. Defendant moved for summary judgment on February 4, 2014. Plaintiff opposed on March 19, 2014. Defendant replied on April 2, 2014. The ...