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Fasan v. McRoberts Protective Agency Inc.

United States District Court, E.D. New York

March 20, 2015



ROSLYNN R. MAUSKOPF, District Judge.

Plaintiff pro se Raphael Fasan was employed by the defendant, McRoberts Protective Agency, Inc. ("McRoberts") as a security officer, and assigned to work at a Consolidated Edison ("Con Ed") facility. Fasan alleges that McRoberts violated the Americans with Disabilities Act of 1990 ("ADA") by prohibiting him from using the bathroom between 3:00 and 6:00 p.m., thereby failing to accommodate his disability - frequent urination related to diabetes.

McRoberts has moved for summary judgment. Because Fasan's medical condition does not substantially limit any of his major life activities, it does not qualify as a disability under the ADA, and McRoberts has no duty to accommodate his medical needs. Moreover, there is no evidence that McRoberts prevented Fasan from using the bathroom after it was notified of his medical condition; in fact, the only evidence in the record demonstrates that Fasan was allowed to use the bathroom as necessary. For these reasons, McRoberts' motion for summary judgment is granted.


Fasan was hired as a security officer by McRoberts on August 3, 2010. He claims that he told McRoberts and "every security guard and supervisor[] [he] worked with" that he was diabetic. Fasan worked at a handful of client locations before being assigned to a Con Ed facility in Brooklyn, where he remained until his termination. His primary responsibilities there were to monitor the Third Street gate (to which he was the sole security officer assigned) and control access to the facility. Fasan was required to note in the log book every time he left and returned to the guard booth, and to close and lock the gate any time he left his post to go to the bathroom. According to the Specific Post Orders for Fasan's assigned location, he was required to remain at his post until another security officer arrived to relieve him. McRoberts permitted him to use the restroom as necessary, consistent with these directives.

McRoberts notes that Fasan repeatedly failed to abide by these policies, and sets forth 23 separate instances between July 20, 2012 and September 30, 2012 when he failed to properly account for his personal breaks.[2] About halfway through this stretch, the Field Supervisor noted in the logbook that Fasan needed to be counseled on his log entries for personal breaks. A more general reminder was issued on September 20, 2012, when the Shift Supervisor wrote in the logbook that all guards needed to record when they left and returned to their post after personal breaks. In addition, Fasan was issued written Notices of Failing or Unacceptable Performance on six separate occasions. His performance failures included: arriving late for scheduled shifts; failing to follow proper access control procedures; not following patrol procedures; screaming at a fellow security officer and supervisor; leaving his post on a personal break without waiting for face-to-face relief; and improperly recording a personal break in the logbook. The last Notice stated that when his supervisor spoke to him about the error, Fasan was "rude" in response, and it was recommended that Fasan be removed from this post. Fasan disputes that these Notices were ever presented to him, or that McRoberts or Con Ed informed him that his performance was subpar. He states that "from the time I was hired, to the day my employment was terminated on 10/2/12, I was never told I did a bad job."

The instant lawsuit arises out of a notification to all security guards in a logbook entry of September 24, 2012 that Fasan claims prohibited him from using the bathroom between 3:00 and 6:00 p.m. That entry, written by McRoberts' Shift Supervisor, Michelle Reid, states:

"All guards on the 3pm-11am tour First street guard will lock 1st gate at 1745 to relief 3rd street guard for their first personal guard should return back to post before 1800. Starting today Monday 9/24/12."

The day after this entry appeared, Fasan claims that he confronted Reid about it, asking if she was discriminating against him because of his disability.[3] Reid responded that McRoberts instructed her to write the note, and that he should take up any complaints with the Vice President of McRoberts' New York branch, John Kalle. McRoberts claims that even if this entry did purport to prohibit him from using the restroom as necessary, Fasan was not actually prevented from doing so, and notes that Fasan recorded personal breaks on six different occasions after the logbook entry appeared without being disciplined or reprimanded at all.

Fasan was removed from all Con Ed locations shortly after the last Notice was issued. McRoberts claims that it then scheduled a meeting with Fasan to determine whether he could be placed with a different client. Fasan contends that he scheduled a meeting with Kalle and McRoberts to discuss the note - either way, after meetings on October 2 and October 3, Fasan was fired on October 4, 2012.

Fasan filed this complaint on August 14, 2013. (Doc. No. 1.) McRoberts filed its Answer on October 21, 2013 (Doc. No. 10), and after discovery, McRoberts filed its fully briefed motion for summary judgment, together with Fasan's opposition and its reply, on August 6, 2014. (Doc. Nos. 24-26.)


Summary judgment may be granted when the pleadings, depositions, interrogatories, admissions, and affidavits demonstrate that there are no genuine issues of material fact in dispute and that one party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006). A genuine issue of material fact exists "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); Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003). And in deciding whether a genuine issue of material fact exists as to an essential element, "all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994).

Summary judgment may also be appropriate "if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to [his or her] case, " on which "the nonmoving party bears the burden of proof at trial." Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (quoting Celotex, 477 U.S. at 322) (internal quotation marks omitted); Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002). To defeat the defendants' motion for summary judgment, the plaintiff must offer "concrete evidence from which a reasonable juror could return a verdict in his [or her] favor, " ...

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