United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS, District Judge.
Plaintiff Michael Dawson is an epileptic. Until 2004, he was a train operator in the New York subway system. After suffering from two seizures in 2004, he was permanently reassigned to a new position with the New York City Transit Authority ("NYCTA") in 2005. While he suffered from another seizure in 2007, Dawson asserts that his epilepsy is now controlled by medication. Dawson now sues the New York City Transit Authority for failure to respond to the requests that he has made for "reinstatement" to his prior position as a train operator. Dawson alleges that NYCTA's failure to act in response to his requests for reinstatement violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. This case raises the question of whether or not NYCTA's failure to respond to Dawson's requests for reinstatement to a job he last held in 2005 gives rise to a cause of action under the ADA. Because the Court finds that Dawson's request for reinstatement is, in effect, a collateral attack on an employment action that is otherwise time barred, and because Dawson has not plausibly pleaded a failure to hire claim, the Court dismisses Dawson's case.
NYCTA is a public authority of the State of New York. It operates public transportation in New York City, including the New York City subway system. Complaint ¶ 5, Dkt. 1 ("Compl."). Dawson was hired as a train conductor by NYCTA in March of 1998. Id. ¶ 6. Dawson was promoted to the position of train operator in 1999. Id. For the next five years, he operated subway trains throughout New York City. Id.
On April 10, 2004, Dawson suffered from a seizure in his sleep. Id. ¶ 8. Dawson immediately reported the event to NYCTA. As a result, NYCTA took Dawson "out of service completely." Id. ¶ 9. At that time, NYCTA also took Dawson off of the list for eligibility for a supervisory position. Id. Dawson was treated by a physician, who did not prescribe him medication. Id. ¶ 11. That physician cleared Dawson to return to work, but prohibited him from operating trains. Id. ¶ 12.
Unfortunately, just a few months later Dawson suffered another seizure. Id. ¶ 14. Dawson again immediately notified NYCTA of his seizure. Id. As a result, his work classification was changed from "temporarily restricted-no work available" to "permanently restricted pending reclassification." Id. Since he could not work as a train operator, for the next nine months, Dawson was forced to use all of his accrued time off, and to apply for temporary disability and unemployment benefits. Id. ¶ 15.
In the beginning of 2005, Dawson attended classes to become a station agent. Id. ¶ 18. He was then offered the position of station agent, "and was told that if he didn't take the position he would not have a job at all." Id. Dawson took the position. At the time that Dawson took the position as a station agent, the position had a lower hourly salary than the position of train operator; the same is true today. Id. Dawson has worked as a station agent since 2005; he is currently employed in that position.
While Dawson's medication has generally controlled his epilepsy, around September 14, 2007, Dawson suffered his third seizure. Id. ¶ 20. In the rush to prepare his children for school, Dawson forgot to take his prescribed anti-seizure medication, and suffered the seizure later that day. Id. Dawson has consistently taken his medication since that third seizure, and has been seizure-free since September of 2007. Id.
In September of 2009, Dawson received clearance from his new neurologist, Dr. Padmaja Kandula, to return to the position of train operator. Id. ¶ 23. In the Fall of 2009, Dawson "requested to be reinstated to his old position" and forwarded a letter from Dr. Kandula to the NYCTA. Id. ¶ 24. The letter stated that Dawson was under the care of Dr. Kandula, and that, in his medical opinion, there was "no neurological contraindication for Dawson to return to work as a NYCT Train Operator." Id. Exh. 1).
Dawson also contacted his union representative, Chris Litebourne, and Steven Larrymore, a liaison with the NYCTA's medical department. Id. ¶ 24. "Unfortunately, they were not able to gain any traction, and his request was ignored by NYCTA." Id. Approximately six months later, Dawson sent another letter from Dr. Kandula to the NYCTA. Id. ¶ 25. That letter, dated March 17, 2010, stated that Dawson was taking "the anticonvulsant medications Keppra and Carbatrol..." and that "Mr. Dawson is cleared neurologically to return to work as a NYCT Train Operator and I have received a copy of the NYCT medical standards for Train Operators code 650." Id. Exh. 2.
In June 2010, Dawson contacted an employee with the NYCTA's medical department about his "request for reinstatement" and was told that "NYCTA was aware of his request and that it was still pending." Id. ¶ 26. By October 2010, having heard nothing from NYCTA, Dawson submitted letters to two executives of the NYCTA. Id. ¶ 27. Each of the two letters is entitled "Title Restoration." In his October 8, 2010 letter to Chief Transportation Officer John Johnson, Dawson wrote
I am contacting you for your assistance in obtaining a G-46 medical form to see a T/A doctor at the MAC to get evaluated to get restored to a full service T/O I spoke with Ms. Lewis requesting a G-46. Her replay was T/A is aware of my case & it's still pending. On or about August 2010, I met with & spoke to union rep, Jose Lagoa. He said as far as T/A was concerned, the case was closed. I've hit brick wall after brick wall trying to find out TA's medical restoration policy to see if I can return to my former title of TO.
Id. Exh. 3. Dawson sent three other undated letters to executives of NYCTA, asking that they advise him regarding his options "to get to the medical department to get a G-46 for title restoration." Id. Dawson received no response to those letters. Id. ¶ 27.
Weill Cornell Medical College sent NYCTA three subsequent letters regarding Dawson. The first, dated September 17, 2010, was from Dr. Kandula. The letter states that Dawson is "well controlled on medication and has not had a seizure since September 16, 2007." Id. Exh. 4. The next letter from Dr. Kandula, dated April 11, 2011, stated that Dawson "is well controlled and seizure free on the anti-epileptic medications... and will need to remain on medications indefinitely In my medical opinion there is no neurological contraindication for Mr. Dawson to return to work as a NYCT Train Operator." Id. The third letter, dated May 30, 2012, was sent by Ms. Jovine, a clinical social worker at Weill Cornell. In it, Ms. Jovine stated that Dawson was seizure free and would need to remain on medications ...