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Granica v. Town of Hamburg

United States District Court, W.D. New York

February 17, 2017





         In this action, Plaintiff Michael A. Granica alleges that his employer, Defendant Town of Hamburg (“the Town”), discriminated and retaliated against him based on age and disability in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111, et seq.

         Pending before this Court is the Town's Motion for Summary Judgment. (Docket No. 27.) For the reasons discussed below, the motion is granted in part and denied in part.


         Granica is 62 years old, having been born on July 14, 1954. (Defendant's Local Rule 56 Statement of Undisputed Facts (“Defendant's Statement”), Docket No. 27-10, ¶ 1; Plaintiff's Local Rule 56 Statement of Undisputed Facts (“Plaintiff's Statement”), Docket No. 32-2, ¶ 1.[1]) The Town hired Granica on August 12, 1991, as a laborer in the Highway Department. (Defendant's Statement, ¶¶ 2, 19.) In 1998, Granica became a maintenance worker in the Town's Building and Grounds Department. (Defendant's Statement, ¶¶ 3, 20.) Ten years later, in 2008, Granica became a Heavy Equipment Operator in the Building and Grounds Department after a Town employee with more seniority bumped him out of his maintenance worker position. (Defendant's Statement, ¶¶ 3, 23; Deposition of Michael Granica (“Granica Dep.”), Miller Decl., Exh. 30, pp. 67-68.) He held this position until April 8, 2013, the date of his termination. (Defendant's Statement, ¶ 3.)

         A. Collective Bargaining Agreement Provisions

         Granica was a member of CSEA Local 100 AFSCME, AFL-CIO (“the Union”), while employed by the Town. (Defendant's Statement, ¶ 15; Affidavit of Thomas Best, Sr. (“Best Aff.”), Docket No. 27-5, ¶ 7.) Granica's position as a Heavy Equipment Operator was governed by the Collective Bargaining Agreement (“CBA”). (Best Aff., ¶ 7.)

         According to the Job Bid for Heavy Equipment Operator, the successful candidate must operate “one or more of specialized heavy equipment and perform[] a variety of operations with related work as required.” (Best Aff., Exh. B.) The distinguishing features and examples of duties for a Heavy Equipment Operator are as follows:

The work in this class involves responsibility for the effective operations [sic] of specialized heavy equipment used on construction projects. Greater skill is required than in the operation of other types of equipment and there is a greater responsibility for the safety of others. Supervision is received from Working Crew Chief or other designated superior who assigns tasks and inspects the work in progress and upon completion. Supervision of other employees may be exercised in the performance of their assigned tasks. When not performing duties of Heavy Equipment Operator, may be assigned duties of other classifications.
Operates one or more of the following: Hylift (2 yards and up); Bulldozers; Dump Truck over 18, 000 lb.; Dump Truck with 2 or more rear axles; Sewer Jet, backhoe when used for excavating. Performs minor adjustments and repairs on assigned equipment; cleans and services assigned equipment; and performs manual tasks in connection with the operations.

(Best Aff., Exh. B.)

         The CBA governs the assignment of different classifications of work. With respect to employees assigned a higher classification of work, the CBA provides that “employees required to perform work in a higher classification shall be selected by the Superintendent at his discretion.” (Best Aff., ¶ 8 and Exh. A.) With respect to employees assigned a lower classification of work, the CBA provides that “if any employee in a higher rated classification is assigned to work in a lower rated classification, wherever practicable, the least senior employee in the affected higher rated classification shall be reassigned first.” (Best Aff., ¶ 9 and Exh. A.)

         As for promotions, the CBA states, in pertinent part, that “the applicant who has the skill, ability, experience, and physical capacity to perform the work in question shall be given the promotion and assigned the rate of pay identified with such job title, but if these factors are relatively equal, seniority shall be the determining factor.” (Best Aff., ¶ 10 and Exh. A.) Concerning the availability of light duty, the CBA provides that “the Highway Superintendent and an individual to be designated by the Union shall administer all requests for light duty, which shall only be granted if both the Highway Superintendent and the Union designee approve such request. No employee may remain on light duty for a period in excess of three (3) consecutive months.” (Best Aff., ¶ 11 and Exhibit A.)

         B. Granica's 2009 Injury

         On October 7, 2009, Granica injured himself at work either lifting drywall or moving steel doors. (Defendant's Statement, ¶ 29; Granica Dep., p. 140.) He had neck surgery (cervical fusion of C6-C7) on February 18, 2010. (Declaration of Charles L. Miller, II, Esq. (“Miller Decl.”), Docket No. 32-1, Exh. 8; Granica Dep., p. 137.) He thereafter remained on workers' compensation leave for nearly one year. (Defendant's Statement, ¶ 29; Granica Dep., p. 137.)

         During this time, Granica applied to use the “sick bank, ” but Tom Best, the Highway Superintendent, denied his request, while allegedly allowing other younger individuals to use the “sick bank” during their disability-related absences.[2] (Affidavit of Michael Granica (“Granica Aff.”), Docket No. 32-13, Miller Decl., Exh. 35, ¶ 9; Best Aff., ¶ 1.) Best insists, however, that the denial of Granica's sick-bank request had nothing to do with his age. (Best Aff., ¶ 36.) Instead, he states that the sick-bank committee, consisting of himself and the union president, denied the request because Granica's absence was covered by workers' compensation, Granica had not contributed to the sick bank, and Granica had not provided medical substantiation in support of his request. (Best Aff., ¶ 38.)

         On September 1, 2010, Granica underwent a Functional Capacity Evaluation by Janet M. Craft, OTR. (Miller Decl., Exhibit 8.) That evaluation yielded, among others, the following results: (1) that Granica could perform only light physical demand level work; (2) that Granica should be referred for a work-conditioning program to assist him in regaining the ability to safely meet the physical demand levels required of a Heavy Motor Equipment Operator with the Town; and (3) that Granica's work-conditioning program focus on improving his overall strength and endurance, as well as education in proper stretching for improved flexibility, education in compensatory techniques, and appropriate use of ice to decrease pain levels. (Miller Decl., Exhibit 8.)

         On September 28, 2010, Stuart Dorfman, M.D., examined Granica to determine his ability to return to work as a Heavy Equipment Operator. (Best Aff., Exh. U.) Dorfman first noted that Granica did not participate in the work-conditioning program that Craft recommended in the previous Functional Capacity Evaluation, but rather, sought to increase his strength through physical therapy. (Best Aff., Exh. U.) After physically examining Granica, consulting with his physical therapist, and reviewing his records, Dorfman concluded that Granica could return to his regular job for the Town. (Best Aff., Exh. U.) He noted that Granica would always be at risk of neck injuries because of his history of neck surgeries, but opined that this risk could be reduced by Granica participating in a work-hardening program. (Best Aff., Exh. U.) Granica contends that he attempted to participate in such a program but could not do so because Best refused to release him during work hours and no such programs were available in the evenings. (Defendant's Statement, ¶¶ 30, 31; Plaintiff's Statement, ¶ 30; Granica Dep., p. 200.)

         C. Granica's Return to Work and Complaint Against Best

         On September 30 or October 1, 2010, Granica returned to his position and pay as a Heavy Equipment Operator. (Defendant's Statement, ¶¶ 29, 33; Granica Aff., ¶ 11.) In his deposition, Granica explained that although he was a Heavy Equipment Operator, he had been receiving a higher rate of pay comparable to maintenance worker pay. (Granica Dep., p. 64.) This was a save-pay measure after Granica and several other workers were involuntarily laid off from their higher-paying positions in the since disbanded Sanitation Department. (Granica Dep., pp. 64, 68.)

         Upon his return, Granica immediately met with Best and requested that he be assigned to a maintenance worker position in the Town Park, a position that was already filled. (Defendant's Statement, ¶¶ 5, 34; Best Aff., ¶ 24.) Granica maintains that he attempted to exercise his right of first recall, but Best denied the request; the Town maintains that the right of first recall did not apply. (Defendant's Statement, ¶¶ 34, 35; Plaintiff's Statement, ¶¶ 34, 35.) Best indicated that he denied Granica's request because the employee already in the position had been there for more than one year and was performing his duties very well. (Best Aff., ¶ 24.)

         Granica spoke out publicly against Best's refusal to assign him to the maintenance worker position. (Miller Decl., Exh. 10.) He complained at a Hamburg Town Board Meeting that Best had hired his own son-in-law, Michael Bennett, for the maintenance worker position, rather than post it as a vacancy. (Miller Decl., Exh. 10.) Best responded that Bennett had been trained for the maintenance worker position, and he reportedly noted that he did not believe in seniority-based hiring, but rather, in promotion by qualifications. (Miller Decl., Exh. 10.)

         Granica maintains that after his meeting with Best wherein he requested a maintenance position, Best directly began giving his supervisor, the Working Crew Chief, Granica's assignments for the day. (Granica Dep., pp. 77-80.) According to Granica, Working Crew Chiefs ordinarily doled out daily work assignments, but in his case, the work assignments came directly from Best. (Granica Dep., pp. 77-80.) Best disputes this, and maintains that all employee assignments, including Granica's, came from supervisors, not him. (Defendant's Statement, ¶ 27; Best Aff., ¶¶ 6, 32.)

         Granica alleges that Best knew about his physical limitations and need for accommodation but nonetheless assigned him work Best knew he could not do. (Granica Dep., pp. 80-81.) For example, Granica claims that Best assigned him tasks including moving benches, landscaping, lifting cement blocks, and moving and lifting picnic tables and trash cans. (Granica Aff., ¶ 13.) Granica was made to do this work while Heavy Equipment Operator tasks were assigned to younger employees. (Granica Aff., ¶ 14.) For example, Chris Sortisio, who was the other Heavy Equipment Operator, was younger than Granica and regularly assigned to operate the Hylift, while Granica was assigned to manually shovel snow. (Granica Aff., ¶ 16.)

         Best maintains that both Granica and Sortisio received the same pay, performed similar services, and performed work of other classifications (such as labor) when not performing Heavy Equipment Operator work. (Defendant's Statement, ¶¶ 24, 26; Best Aff., ¶ 28.) He attests that there generally was not enough Heavy Equipment Operator work to keep both Granica and Sortisio busy full-time, an assertion that Granica disputes. (Defendant's Statement, ¶ 25; Plaintiff's Statement, ¶ 25.) Best further maintains that because Sortisio was regarded as a more skilled heavy equipment operator than Granica, Sortisio generally received more Heavy Equipment Operator assignments. (Best Aff., ¶ 33.)

         Granica, in fact, had a history of performance issues over the course of his employment relating to his operation of heavy equipment, including (1) damaging a chipper by jackknifing the tailgate of a truck into it, (2) causing a piece of equipment to fall off a lift while using a forklift, (3) knocking down wires with a Hylift, (4) causing a Hylift to get stuck in Lake Erie while removing docks, (5) knocking down a light standard while plowing snow, and (6) tearing out bushes, pulling down power lines, and knocking over a light while plowing snow. (Defendant's Statement, ¶ 54; Best Aff., ¶ 34.) Granica disputes some of these facts and denies that these incidents constitute “performance issues” or were any more serious in nature than similar incidents by other employees that went undisciplined. (Plaintiff's Statement, ¶¶ 54, 55.)

         On November 18, 2010, Granica filed an internal complaint with the Town's Human Resources Department, alleging that Best had discriminated against him based on his age and disability status, citing Best's refusal to recognize his right of first recall and 32 incidents of alleged preferential treatment and favorable treatment of younger workers in daily work assignments. (Defendant's Statement, ¶¶ 37, 38, 39; Plaintiff's Statement, ¶ 37; Miller Decl., Exh. 11.)

         Granica also complained that he was denied access to certain buildings, which prevented him from working within the maintenance classification, and that warnings had been disseminated that any crew that he was on should be “watched.” (Defendant's Statement, ¶ 40; Miller Decl., Exh. 11.) He also complained that “[s]ince I have been back[, ] daily job assignments in my current HEO classification are not given out by seniority as it used to be . . . The junior HEO gets the equipment; I get the lifting of heavy material jobs in lower classification work . . . Even non HEO's get HEO jobs before me.” (Miller Decl., Exh. 11.) Granica also alleged that Best was retaliating against him for speaking out at the Hamburg Town Board meeting. (Miller Decl., Exh. 11.) Finally, Granica asserted that Best made the following statement to him in Best's office while he was off on workers' compensation leave in June or July 2010: “I have to get rid of you old disabled fucks and hire some young healthy people who can actually do some work.” (Miller Decl., Exh. 11; Granica Dep., p. 108; Granica Aff., ¶ 8.)

         Best categorically denies any animus toward age. (Best Aff., ¶ 45.) He contends that there is no merit to Granica's complaint and that he properly assigned work within his discretion under the CBA, which permits him to assign out-of-classification work without regard to seniority if that is most practicable. (Best Aff., ¶ 45.) Best denies that he ever made the comment Granica attributes to him concerning hiring young workers in place of older disabled workers.[3] (Best Aff., ¶ 46.)

         The Town's human resources consultants investigated Granica's internal complaint. (Defendant's Statement, ¶ 41.) As part of the investigation, the consultants met with Granica and his attorney and reviewed the 32 incidents that Granica referenced. (Defendant's Statement, ¶ 42.) Before the complaint was resolved, however, Granica filed a charge of discrimination with the New York State Division of Human Rights on January 5, 2011. (Defendant's Statement, ¶ 43; Granica Dep., p. 220; Granica Aff., ¶ 18.)

         D. Granica's Assignment to the Nike Base

         At some point after Granica filed his charge with the New York State Division of Human Rights, in January or February 2011, Best assigned Granica to work at the Nike Base, which is a sports park with baseball diamonds, lacrosse and soccer fields, and an ice rink. (Defendant's Statement, ¶¶ 44, 45; Granica Dep., pp. 135, 144; Granica Aff., ¶ 20.) He did so after Rick Nowak, the foreman at the Nike Base, requested additional employees. (Defendant's Statement, ¶¶ 6, 44; Affidavit of Rick Nowak (“Nowak Aff.”), Docket No. 27-9, ¶ 4.) According to Best, he thought an assignment to the Nike Base would be a good fit for Granica, because most of the work there was light cleaning and maintenance of the arena and athletic fields. (Defendant's Statement, ¶ 45; Nowak Aff., ¶ 5.) Best therefore assigned Granica to the Nike Base and Rick Nowak became his immediate supervisor. (Defendant's Statement, ¶¶ 6, 45.)

         Nowak maintains that he was aware of Granica's physical limitations and that he told Granica not to perform any work that he could not physically handle or to ask for assistance from other employees. (Defendant's Statement, ¶ 47; Nowak Aff., ¶¶ 5, 8, 9, 10, 11.) Patrick Sullivan, a union officer and Granica's co-worker, also indicated that Nowak warned Granica about staying within his limitations and directed him to ask for help, including help from Sullivan, to complete his tasks, if necessary. (Deposition of Patrick Sullivan (“Sullivan Dep.”), Miller Decl., Exhibit 31, p. 69.) Granica acknowledges that Nowak was aware of his limitations, but denies that Nowak ever told him not to perform work he was not able to do or to seek assistance. (Plaintiff's Statement, ¶ 47.) Nowak maintains that he assigned Granica mowing and maintenance tasks, as well as sweeping and mopping jobs. (Defendant's Statement, ¶¶ 48, 49; Nowak Aff., ¶ 10.)

         Granica contends that a meeting was held on February 24, 2011, at which union representatives instructed Best to assign Granica work that complied with the restrictions set forth in Granica's September 2010 Functional Capacity Evaluation. (Granica Aff., ¶ 19.) Sullivan was also at the meeting and recalled that Granica's restrictions and limitations were discussed. (Sullivan Dep., p. 42.) Nonetheless, according to Granica, Best continued to assign him laboring work, such as cutting grass, mopping floors, lifting landscape blocks, weed whacking, and lifting and emptying 55-gallon garbage cans. (Granica Dep., p. 159.) Sullivan, for one, thought that these assignments violated Granica's work limitations. (Sullivan Dep., pp. 43, 45.)

         Granica maintains that Best knew the restrictions set forth in his Functional Capacity Evaluation, yet nonetheless assigned him to the Nike Base to do laboring work as punishment for filing his charge of discrimination. (Plaintiff's Statement, ¶ 45; Granica Dep., p. 135; Granica Aff., ¶ 20.) Sullivan also viewed Granica's transfer as punishment considering that there is really no Heavy Equipment Operator work at the Nike Base. (Sullivan Dep., pp. 38, 63-64.) While doing labor work, in particular carrying and emptying mop buckets, Granica hurt his lower back and was out of work for two weeks. (Defendant's Statement, ¶ 51; Granica Dep., pp. 157-58; Granica Aff., ¶ 21; Nowak Aff., ¶ 12.) Nowak maintains that he ...

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