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Granger v. New York City Transit Authority

United States District Court, E.D. New York

March 21, 2017



          COGAN, District Judge.

         The issue in this employment discrimination action is whether plaintiff, who stipulated to a demotion to resolve a grievance hearing over his employer's attempt to terminate him, nevertheless obtained the right under the terms of his stipulation to be considered for a door-opening position upgrade. Defendant, his employer, contends that plaintiff surrendered any right to promotion by entering into the stipulation in lieu of a grievance hearing that would have led to his termination. Plaintiff contends that the employer's construction of the stipulation is a pretext for discrimination against him in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (the “ADA”), because of a perceived disability. There is, however, no evidence to support that. His employer has a firmly established policy denying upgrades to anyone in plaintiff's demoted position subject to exceptions not applicable here, and plaintiff's own admission shows that he understood when he signed the stipulation that his position did not allow for promotion. I therefore hold that plaintiff has failed to demonstrate a prima facie case, and grant defendants' motion for summary judgment.


         This is the second litigation between these parties. The first occurred when plaintiff brought a disability discrimination action seeking abrogation of a stipulation settling a grievance in which he agreed to a demotion because he had failed two drug tests (the “Stipulation”). Granger v. Manhattan and Bronx Surface Transit Operating Authority, No. 13-cv-3569, 2014 WL 4054256 (S.D.N.Y. Aug. 15, 2014) (“Granger I”).[1] The Hon. Jesse M. Furman granted summary judgment to defendants, holding that plaintiff had failed to demonstrate that the Stipulation was the product of disability discrimination or that there were any grounds to avoid it. The undisputed facts in that action are equally undisputed in the present action and are best presented here by quoting Judge Furman's concise rendition:

Defendant is a public authority in the State of New York. In 2003, Defendant hired Plaintiff as a Bus Maintainer Chassis, a safety-sensitive mechanic position. Public employees working in safety-sensitive jobs may be subject to random drug testing, see 49 C.F.R. § 655.1, procedures for which are extensively regulated by the Department of Transportation, see id. § 40 et seq. Among other things, employees are given up to three hours to provide a sufficient urine sample. See Id. § 40.193(b)(2)-(4). If an employee fails to provide a sample in that time, and there is no adequate medical explanation for the failure, an employee is deemed to have refused to test - which, in turn, is treated as a positive test. See id. § 40.191(a)(5); see also id. § 40.193(e) (defining acceptable medical explanations for a failure to provide a sample).
In August 2010, Plaintiff tested positive for marijuana and cocaine. Because he was a first-time offender and submitted to three months of rehabilitation, no disciplinary penalty was imposed. After returning to his job as a Bus Maintainer Chassis, Plaintiff was required to submit to - and passed - more than twenty random drug tests between November 2010 and March 2012. On March 5, 2012, however, Plaintiff was subjected to another drug test, and failed to provide a sample within the permitted three hours. The next day, a physician selected by Defendant examined Plaintiff, and concluded that Plaintiff had “[no] medical condition limiting the ability to urinate.” On March 8, 2012, Plaintiff was examined by a urologist of his own choosing, who stated that Plaintiff did not have “any preexisting urologic history or any real voiding disturbance except for the fact that [he] often repress[es] the urge to void and suppress urination when it conflicts with [Plaintiff's] day-to-day activities.” Defendant's Medical Review Officer accepted those assessments, and therefore deemed Plaintiff's inability to produce an adequate sample a “refusal” to take the drug test.
On or about March 21, 2012, Plaintiff was served with a “Disciplinary Action Notification” for “refusal to take a Drug/Alcohol Test” - the first step in the disciplinary process prescribed by the collective bargaining agreement (“CBA”) between Defendant and Plaintiff's union, the Transport Workers of America, Local 100 (the “Union”). After conferring with his Union representative, Plaintiff chose not to accept the charges and recommended penalty of dismissal, and demanded an arbitration hearing pursuant to the provisions of the CBA. Prior to the arbitration hearing, a Union representative advised Plaintiff that Defendant had offered to settle the disciplinary action and presented him with a proposed stipulation to that effect. Plaintiff claims that he was told (by whom he does not say, but presumably the Union representative) that Defendant “had a room full of doctors” prepared to testify if he rejected the stipulation and chose to proceed with arbitration. He further alleges that the Union representative stated that if he did not accept the stipulation, he would be “permanently dismissed” from his employment and would have difficulty finding new employment.
On May 17, 2012, after consulting with the Union representative, Plaintiff signed the Stipulation and Agreement settling the matter. Pursuant to the Stipulation, the charges against Plaintiff were modified from refusal to test to “Second Time Positive for a Controlled Substance, ” and the penalty of dismissal was “sustained and modified” to require Plaintiff to complete a rehabilitation program, after which he would “be eligible for restoration to an available, budgeted non-safety-sensitive Cleaner position.” In exchange, and most relevant for present purposes, Plaintiff and the Union jointly and severally released Defendant “from any and all claims, whether at law, in equity or arising by virtue of contract which they may have or which they may have had heretofore in connection with the underlying disputes” in this case. In or about September 2012, Plaintiff completed the required rehabilitation program and - consistent with the Stipulation - was reemployed by Defendant as a Cleaner.

Id. at *1-2 (record citations omitted). Judge Furman rejected plaintiff's attack on the Stipulation because, among other reasons, “it is undisputed that Plaintiff avoided the arbitration hearing, which might well have resulted in his dismissal, and that he was able to - and did - remain employed by Defendant, albeit in a different position, following rehabilitation.” Id. at *5.

         The instant action picks up where Granger I left off. There are three principal employment positions in defendants' organizational chart that need to be considered: Cleaner, a janitorial position, which was the position to which plaintiff was demoted from Bus Maintainer Chassis pursuant to the Stipulation, and which involves no safety-related tasks; Cleaner/Helper, which, like Cleaner, is a janitorial position but which also allows for some safety-related assignments; and Helper, which involves safety-related tasks.[2]

         Plaintiff returned to work as a Cleaner in September 2012 (following successful completion of a drug rehabilitation program, as the Stipulation required). In October, 2014, he applied for an upgrade from Cleaner to Helper. He filed a grievance when defendants denied his request. The grievance went to a neutral arbitrator.

         During the arbitration hearing, plaintiff pointed out that despite his position as Cleaner from 2012, he nevertheless was assigned, from time to time, some safety-related tasks - working on a fuel line, working with a forklift, changing tires on vehicles, and connecting chains on vehicles. When defendants' senior management found out about this, it took immediate steps to end the assignment of safety-related tasks to plaintiff. In this action, defendants assert that to the extent plaintiff's shop steward had allowed plaintiff to sign up for safety-related tasks, and plaintiff's lower or mid-level supervisors had not prevented this, the managers had violated defendants' policy prohibiting Cleaners from undertaking such tasks.

         In the arbitration hearing, relying on the Stipulation, defendants maintained that they had sought to terminate plaintiff for his second drug violation, but had settled plaintiff's grievance by assigning him to the Cleaner position, which permits no safety-related work. In fact, defendants maintained that the sole purpose of the Cleaner position was to place employees with performance problems there, which had no safety-related tasks and no opportunity for advancement, and that there were no Cleaners who did not have a disciplinary or medical history.

         Just prior to the arbitrator's decision, plaintiff filed another grievance claiming that since he had essentially performed the functions of a Cleaner/Helper since his return in 2012 by taking assignments for safety-related tasks, even though he was still designated a Cleaner, he was entitled to the additional pay for a Cleaner/Helper. Defendants' upper management not only denied the grievance, but responded by instructing all supervisors that

Under No Circumstances is anyone or HS To Upgrade Cleaner Granger M33005 From Cleaner to Helper. Cleaner Granger has been Reclassified as a Cleaner and is Banned from performing Helper Duties. To ALL Supervisors The next Time Cleaner Granger is upgraded it will be a Violation To The Terms of his Stip and Supervisor will be Disciplined.

         The arbitrator ruled in favor of defendants on May 15, 2015. He found that defendants had acted properly pursuant to the Stipulation in keeping plaintiff in the Cleaner position, stating:

[A]fter reviewing the record, I find it was reasonable for the [Defendants] to deny Granger the promotion he sought. There is no doubt he engaged in substantial misconduct which led to his dismissal and his reinstatement as a Cleaner in a non-safety sensitive position. . . . [H]is prior infraction(s) were very serious and the ...

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