United States District Court, W.D. New York
REPORT AND RECOMMENDATION
HUGH B. SCOTT, Magistrate Judge.
The Hon. Richard J. Arcara referred this case to this Court under 28 U.S.C. § 636(b). (Dkt. No. 8.) Pending before the Court is a motion for summary judgment by defendant NRG Energy, Inc. under Rule 56 of the Federal Rules of Civil Procedure ("FRCP"). (Dkt. No. 17.)
Plaintiff Mark Wischnewski claims that defendant discriminated against him on the basis of his bipolar disorder, in violation of Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111-12117; Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794; and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290-301. According to plaintiff, the discrimination took the form of workplace harassment, insistence on a "fitness for duty" examination, retaliation for complaining about workplace safety, and termination. Defendant responds that at least some of plaintiff's claims are untimely; that the Rehabilitation Act does not even apply; that any harassment that plaintiff experienced was no more than personality conflicts between coworkers; and that plaintiff lost his job because he walked off the job twice during disagreements with coworkers, in violation of company policies.
The Court his deemed the motions submitted on papers under FRCP 78(b). For the reasons below, the Court respectfully recommends granting the motion.
This case concerns allegations that defendant harassed plaintiff and brought about his termination because he was bipolar and because he complained about safety deficiencies. Defendant is a Delaware corporation with a principal place of business in New Jersey. Locally, among other operations, defendant operates the NRG Huntley Generation Station (the "Huntley Plant"), a coal-fired power plant in the Town of Tonawanda. Plaintiff began working at the Huntley Plant in 2004 as a temporary worker with the title of "Coal Handler A." Plaintiff accordingly joined the International Brotherhood of Electrical Workers, Local Union 97 (the "Union"), which represents at least some of the employees at the plant and has a collective bargaining agreement ("CBA") with defendant. Plaintiff's first two years at the Huntley Plant appear to have proceeded uneventfully. In 2006, plaintiff bid for and received a permanent, full-time position at the Huntley Plant with the title of "Coal Handler B." As a Coal Handler B, plaintiff helped clean and maintain the plant's coal handling area, which required shoveling coal and operating conveyors that moved coal. From the absence of any information to the contrary in the complaint, plaintiff's first few years as a Coal Handler B seem to have passed without incident.
The alleged incidents that gave rise to this litigation appear to have begun around late 2009. Although the record contains no medical records confirming a date of incident, plaintiff stated in his complaint that he suffered an unspecified shoulder injury on December 9, 2009. The injury limited plaintiff to lifting no more than 50 pounds over his shoulder. That same day, plaintiff asked his coworkers for assistance with his job duties. Rather than provide help, plaintiff's coworkers harassed him and took affirmative actions to make his job more difficult. Still on December 9, 2009, plaintiff had a meeting with his Union steward and defendant's representatives to complain that his foreman harassed him. Plaintiff also complained at the meeting that defendant was asking him to perform his job in an unsafe manner. When defendant ignored plaintiff's safety concerns and continued to harass him, still on December 9, 2009,  plaintiff walked off the job. On December 16, 2009, representatives of defendant and the Union met with plaintiff to discuss his walk-off. Plaintiff acknowledged that he knew the procedure for notifying defendant of a need to leave before the end of a shift. Nonetheless, plaintiff stated that he was upset and had a hard time keeping perspective. ( See also Dkt. No. 22-9 at 7 ("To be honest with you, I was hot headed when I spoke to you on the phone.").) Plaintiff also raised the issue of harassment at the December 16 meeting, the first time that he brought the issue to defendant's attention. ( Id. ("Today, I am notifying the company that I am being harassed.").) At the meeting, plaintiff said nothing about disabilities apart from his shoulder injury. Defendant warned plaintiff that he always needed to follow notification procedures before leaving the Huntley Plant for any reason. Defendant ultimately decided not to fire plaintiff. The parties dispute whether, at a meeting with human resources staff the next day, plaintiff withdrew the allegations of harassment that he made at the disciplinary meeting. ( But see Dkt. No. 21-1 at 44-45 ("We came to a solution. Now that-I can remember this. We came to a solution to get off his crew and go on another crew. And I said, let's do it. And I got on Jim Nosek's crew. And for the most part it was good. His crew was a lot easier to get along with. Jim Nosek was not a-he's not a person to aggravate me at all. I had no complaints. So, yes, that was a solution of what we had came down to, was going on that crew.").)
Plaintiff's narrative next moves forward seven months to the middle of July 2010. On July 21, 2010, plaintiff had an incident in the Huntley Plant parking lot with two coworkers who worked the shift after his own. According to plaintiff, these coworkers were unhappy with their own job duties and took that frustration out on plaintiff. The harassment in question took the form of a stare-down and then attempted physical intimidation. Plaintiff reported the incident to defendant, who investigated by interviewing the two coworkers in question. The coworkers admitted confronting plaintiff and claimed to confront him about the quality of his work but denied harassing him. Defendant reminded the coworkers of its policies against harassment. Over plaintiff's objection, defendant ultimately concluded that no harassment occurred and that the confrontation was simply a workplace disagreement. At no time during the investigation did plaintiff assert that any harassment occurred on the basis of actual or perceived bipolar disorder.
A few weeks later, on August 12, 2010, plaintiff walked off the job again. Plaintiff asserts that he walked off the job because his coworkers were harassing him again and because defendant was asking him to do his job in a way that was unsafe and harmful to chronic problems that he had with his elbow and carpal tunnel. Specifically, plaintiff and his crew chief disputed whether plaintiff should clean his assigned area for the next shift by hosing coal debris into a sump pump pit or by shoveling it for disposal with solid waste. Defendant wanted plaintiff to shovel away solid debris, but plaintiff protested that the shoveling would expose him to injury and would place him too close to moving conveyor belts. ( See Dkt. No. 21-1 at 50 ("Unsafe. STRIVE. Unsafe. It's right in there. I told him, you cannot go back there. It was a well-known fact that no one could shovel back there. You only got a foot and a half. How could you take that shovel and take that coal and put it into that? You tell me how.").) When the dispute escalated, plaintiff walked off. Plaintiff asserts that he followed proper procedure by trying to contact his supervisor before leaving. Two days later, on August 14, 2010, defendant held a disciplinary meeting with plaintiff and a Union representative. Plaintiff explained the harassment about his job performance that he had received. Plaintiff also explained why he considered shoveling near a moving conveyor belt unsafe. Plaintiff further explained his feelings of frustration about being ignored and his fear of retaliation if he complained too much about intimidating and harassing behavior. Over the course of the meeting, according to plaintiff, defendant's representatives made comments to the effect that plaintiff "got issues, " "needs help, " and "was frustrated and upset." Another comment that allegedly came up was a comment to the effect that plaintiff has 19 personalities and that talking to him sometimes is not easy. To the extent that the parties agree that some sort of comment was made, they dispute whether the phrase "19 personalities" referred to plaintiff only or all the employees in plaintiff's department. ( See Dkt. No. 21-1 at 14.) At the end of the meeting, defendant suspended plaintiff with pay pending further investigation. Defendant also asked plaintiff to undergo a "fitness for duty evaluation, " to determine whether any medical condition may have contributed to plaintiff's behavior and could mitigate any disciplinary action.
The fitness for duty examination was the first of several events that occurred while plaintiff was suspended with pay. Dr. Stuart Dorfman, M.D., performed the examination on September 14, 2010. (Dkt. No. 28-5 at 1.) Dr. Dorfman assessed some anxiety and depression and referred plaintiff for a psychological evaluation the following month. Meanwhile, on October 1, 2010, plaintiff called defendant's ethics hotline and complained that his suspension constituted harassment. The parties appear to disagree whether plaintiff, during this call, attributed any harassment to actual or perceived bipolar disorder. Plaintiff underwent the psychological evaluation with Jeffrey Lackner, Psy.D., on October 5, 2010. Dr. Lackner found as follows:
The clinical picture that emerges from psychological testing is of an individual who, while having a history of anxiety, depression, and frustration intolerance, does not have a psychological impairment that would interfere with his ability to return to work. By his own admission, he can perform the essential demands of his job.
(Dkt. No. 28-6 at 1.)
On November 9, 2010, in the presence of a Union representative, defendant met with ...