United States District Court, W.D. New York
Ryan C. Woodworth, Esq., The Woodworth Law Firm. Rochester, New York, for Plaintiff.
Mary E. Shephard, Esq., James S. Wolford, Esq., The Wolford Law Firm LLP, Rochester, New York, for Defendant.
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
This is an action in which Todd Hinz ("Plaintiff"), who suffers from Chron's disease, alleges that his former employer, the Village of Perry, New York ("the Village" or "Defendant"), discriminated against him because of that condition, and retaliated against him, in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.. Now before the Court is Defendant's motion for summary judgment (Docket No. [#26]). Because Plaintiff has not come forward with any evidentiary proof in admissible form that the Village was aware of his medical condition, that it perceived him as having such a condition or that he engaged in protected activity, Defendant's application is granted and this action is dismissed.
Except as otherwise indicated the following are the facts of this case, viewed in the light most favorable to Plaintiff, and mostly taken from Plaintiff's sworn deposition testimony. Plaintiff worked for the Village as a wastewater treatment operator and temporary water operator between 1998 and 2002, before leaving to take a similar job with another municipality. In 2006, the Village's Superintendent, Edward Koziel ("Koziel"), asked Plaintiff to return to work for the Village as Chief Operator of the Water Treatment Plant, which Plaintiff did upon being appointed to that position by the Village Board. In February 2007, the Village promoted Plaintiff to the position of Chief Operator of the Water and Wastewater Treatment Plants. The Village gave Plaintiff annual pay raises and consistently favorable performance reviews during his term of employment.
Throughout the period relevant to this lawsuit, 2011-2012, Plaintiff was supervised by Koziel and by Koziel's supervisor, Village Administrator Terrence Murphy ("Murphy"). Plaintiff would usually see Koziel once a day, in the morning when Koziel would "stop in" at the water treatment plant for about a half hour to an hour. Plaintiff would meet with Murphy once per week, prior to Village Board Meetings.
Beginning in the early 1990s, Plaintiff was diagnosed with Chron's disease. Plaintiff had Chron's disease throughout both periods of his employment with the Village, but he never told anyone at the Village about his medical condition. Moreover, Plaintiff does not know whether anyone at the Village believed that he had some type of "problem." In any event, as a result of Chron's disease, Plaintiff sometimes used the bathroom three to four times per day. In that regard, when Plaintiff needed to use the bathroom he simply stopped what he was doing, used the bathroom, and then returned to work. Between 2006 and 2011, Plaintiff generally felt "okay" while working for the Village between 2006 and 2011, and was not taking medication. Plaintiff never requested any accommodation from the Village concerning his condition, and he took only approximately five sick days during the period between 2006 and 2012.
In the Spring of 2012 Plaintiff began to experience "extreme diarrhea" at work, though not every day. Koziel was usually not in a position to monitor the number of times that Plaintiff used the bathroom per day, since he was usually at the Water Treatment Plant only in the mornings, for about an hour. However, it appears that in the Spring of 2012 Plaintiff was often in the bathroom at times when Koziel would visit the Water Treatment Plant.
Plaintiff maintains that Koziel was a "bully" who was frequently angry at work and "often inappropriate" in his treatment of employees. Plaintiff contends that prior to the Fall of 2011, his own interactions with Koziel were not always "good, " because Koziel would "throw temper tantrums" when "he didn't get his way." Then, in the Fall of 2011, Plaintiff believes that Koziel became upset after Plaintiff was the winning bidder on a load of surplus wood that the Village was auctioning off. Plaintiff contends that after he won the bid for the wood, Koziel's "mood" changed, and he "wasn't happy, " because Koziel's father had unsuccessfully bid on the same load of wood. Plaintiff indicates, though, without explanation, that Koziel's father still took the wood, even though Plaintiff had been the high bidder. Similarly, Plaintiff indicates that Koziel became upset in 2011 after Plaintiff purchased a "trailer" that Koziel had also been interested in buying.
Plaintiff maintains that throughout the first half of 2012 Koziel made comments about him being in the bathroom. Because Koziel was only at the Village Water Plant for about an hour each day, he witnessed Plaintiff using the bathroom "maybe once" per day. Beginning in or about January 2012, on several occasions Koziel observed Plaintiff emerging from the bathroom in the morning and told Plaintiff, "You are full of shit." On one occasion in February 2012, when Plaintiff was in the bathroom, Koziel tied a piece of rope and a piece of wood to the bathroom door handle, to trap Plaintiff inside, and said, "If you are going to spend all day in the bathroom order a pizza and pass it through the window." About that incident, Plaintiff indicates that he "does not know" whether Koziel was playing a practical joke. Similarly, on or about June 18, 2012, Koziel told Plaintiff that he should move his office into the bathroom. Plaintiff indicates that Koziel made such comments at times Plaintiff either happened to be in the bathroom, or to be emerging from the bathroom, when Koziel stopped by the Water Plant, and that Koziel really had no way of knowing how many times per day he used the bathroom.
Plaintiff subjectively feels that such comments by Koziel pertained to his Chron's disease, even though he admits that Koziel had no information that he had Chron's disease or any other disability. On this point, Plaintiff does "not know" whether he believes that Koziel could have known that he had Chron's disease from observing him use the bathroom once per day. In any event, Plaintiff cannot cite any instance in which Koziel made a comment suggesting that he believed Plaintiff had "a disability" generally, or Chron's disease specifically.
Plaintiff complained to Murphy several times that Koziel was verbally "harassing" him and other employees. Plaintiff told Murphy that on one occasion Koziel had "locked [him] in the bathroom, " and that Koziel was "harassing [him] about being in the bathroom." Plaintiff also told Murphy that Koziel had asked him whether he was going to have sex in the bathroom with a girlfriend, as another Village employee had done. Further, in June 2012 Plaintiff complained to Murphy that Koziel had told him that "he won't have a job if Koziel says so, " because Koziel was angry that Plaintiff would not sell Koziel one of his shotguns. However, Plaintiff is "not sure" whether he told Murphy that any of Koziel's comments were related to the frequency of his bathroom usage. Furthermore, Plaintiff did not tell Murphy that he had a disability, and he does not think that Murphy interpreted his complaints to mean that he had Chron's disease or some other "problem."
Plaintiff maintains that his employment with the Village ended on June 28, 2012, when he was fired. In that regard, Plaintiff contends that he was taking a "personal day" and went to retrieve his boat from a marina operated by Koziel's parents, when Koziel and two police officers arrived at the marina and approached him. Plaintiff further contends that Village Police Chief Jim Case ("Case") told him, "I need your keys and your cell phone. You're being terminated."
However, the Village provides a much different version of events leading up to the termination of Plaintiff's employment, which Plaintiff does not refute because he claims that he cannot remember. More specifically, the Village contends that between Friday, June 22, 2012 and Thursday, June 28, 2012, Plaintiff, who was intoxicated at least part of that time, repeatedly stated that he was quitting his job, and then made a statement concerning the Village water supply, and another statement concerning the marina owned by Koziel's parents, that were interpreted as threats. More specifically, on June 22, 2012, Plaintiff called Koziel at home several times, after work hours, and repeatedly stated that he was quitting his job. Specifically, Plaintiff stated: "I can't take it any more. Fuck Bob Carter, Ray Bzduch, the Village. I quit." It is unclear whether Koziel was accustomed to receiving such calls from Plaintiff, but in any event it does not appear that he took any action in response to Plaintiff's calls, or paid much attention to them.
After that weekend, Plaintiff apparently reported for work for the first half of the day on Monday, June 25th, but then left work and never returned. Plaintiff contends that he requested, and was granted, permission to take the afternoon of June 25th through June 28th as personal days,  but the Village denies that he made such a request. In that regard, Plaintiff contends that his request was oral, but Koziel and Murphy deny that Plaintiff made any such request, and Koziel indicates that requests for leave had to be made in writing.
In any event, on Wednesday, June 27, 2012, a resident of the Village contacted Koziel and told him that Plaintiff had just made the following statement to him: "Enjoy the drinking water while you can and listen to the [police] scanner about 7:30 tomorrow morning. I will be at Koziel's so you can hear what happens." Plaintiff's reference to "Koziel's" was to the marina operated by Koziel's parents, where Plaintiff kept his boat.
Koziel interpreted Plaintiff's statement as threatening in two respects: First, that Plaintiff was threatening the Village's water supply; and second, that he was threatening Koziel's parents. Consequently, Koziel notified the police, who took a statement from the citizen who had reported Plaintiff's statement. Further, on the evening of June 27th, Koziel gathered Murphy and the Mayor at the Village Offices and placed a telephone call to Plaintiff. During the ensuing speaker-phone telephone conversation, Plaintiff told the Mayor, "Take your keys, union phone and water plant and shove them, " and/or, "You can take your village and your ...