United States District Court, W.D. New York
DECISION & ORDER
JONATHAN W. FELDMAN United States Magistrate Judge.
Richard Molina (hereinafter "plaintiff" or
"Molina"} filed this action alleging unlawful
discrimination and retaliation under the Americans with
Disabilities Act of 1990 ("ADA") and discrimination
under the New York Human Rights Law ("NYHRL"). See
Am. Compl. (Docket # 33) at ¶ 29, 35. Plaintiff moved
for summary judgment on January 15, 2015, and defendant
cross-moved to dismiss for failure to state a claim (Docket
## 23, 28}. The Court heard oral argument on both
motions on July 15, 2015, denying the motions on the record
and by brief Order the following day. Docket # 37. The
parties thereafter engaged in further discovery, and
plaintiff filed the instant motion, a second motion for
summary judgment, on June 14, 2016. See Pl's
Mot. (Docket # 43) . Defendant cross moved for Summary
judgment on June 25, 2016. See Def.'s Mot. (Docket # 45).
The Court heard oral argument on the motions on October 21,
2016 (Docket # 50), and both parties submitted post-hearing
briefs to address questions that arose during the hearing.
See Docket ## 49, 51. For the reasons stated below,
plaintiff's motion for summary judgment (Docket #43) is
denied, and defendant's motion for
summary judgment (Docket #45} is granted.
Molina was hired by the City of Rochester (hereinafter
"the City" or "defendant") in the
Department of Environmental Services as an ESO/Trainee in
September 2006. Ex. "C" attached to Def.'s Mot.
(Docket # 45-6) . He was appointed to the Solid Waste
Management Division as an ESO I on February 12, 2007.
See PI. ' s Mot. (Docket # 43-1) at 1. The
primary duty of this position is to collect refuse and
recycling along established routes within the City of
began having disciplinary issues soon after he began his
employment with the City. His employee performance history
notes that he (1) received a written reprimand for poor work
performance on July 9, 2007; (2) was fined fifty dollars for
poor work performance/violating work on December 13, 2007;
(3) received a written reprimand for poor work
performance/absence on April 8, 2008; (4) had a one day
suspension for poor work performance on July 7, 2008; (5)
received a written reprimand for excessive sick leave on
August 11, 2008 and another written reprimand on September 2,
2008 for "MVA-preventable"; (6) was suspended for
three days for poor work performance on January 5, 2009; and
(7} received a written reprimand for "MVA
preventable" on August 9, 2010. Ex. "C"
attached to Def.'s Mot. (Docket # 45-6). Notes from these
infractions describe that plaintiff, among other things, did
not service certain sections on his route/ did not clean his
truck, and did not drive safely. Id.
began to have medical issues related to his job beginning in
2009. Plaintiff injured his left shoulder while working and
was placed on a "light duty" assignment beginning
January 2, 2009. See Pl's Mot. (Docket # 43-1)
at 2. Plaintiff was out on Worker's Compensation from
June 17, 2009 to June 17, 2010, and had rotator cuff surgery
on his left shoulder in December 2009. Plaintiff returned in
June 2010 with no restrictions. See id.; see
also Def.'s Mot. (Docket # 45-2) at 2 (timeline of
plaintiff's employment history).
the job, plaintiff injured his other shoulder, his right
shoulder, on August 18, 2010 and was out oh Worker's
Compensation from August 19, 2010 to August 31, 2010.
See Ex. # 2 attached to Def.'s Post-Hearing
Submission (Docket # 49) at 1. He was then placed on light
duty or out oh Worker's Compensation for most of the rest
of 2010. Def.'s Mot. (Docket # 45-2) at 2. Plaintiff
underwent right shoulder surgery in January 2 011 and was out
on Worker's Compensation from January 20, 2011 to January
6, 2012. See Ex. # 2 attached to Def.'s
Post-Hearing Submission (Docket # 49) at 7. On November 28,
2011, while out on Worker's Compensation, plaintiff
received a letter from the City stating that his one year
leave of absence provided by his contract would be
exhausted on January 7, 2012, at which time he would be
removed from the payroll if he did not return to his regular
duty assignment. See Pl's First Mot. for Summ,
J. (Docket # 23) at 27.
returned to full-duty work on January 6, 2012 with a
disability status report from his doctor, P.K. Peartree, MD,
returning him to regular work with no restrictions.
See Ex. # 2 attached to Def.'s Post-Hearing
Submission (Docket # 49) at 9. A "physician's return
to work form" completed by Registered Nurse (RN) Samuel
Cappiello of Occupational Health Centers of New York, an
affiliate of Concentra Medical Centers -, on January
5, 2012, noted that plaintiff had restrictions of never
crawling and never lifting more than sixty pounds.
Id. at 10. However, a "return to work
evaluation" completed by a physician (signature
illegible} at Concentra Medical Center, also on January 5,
2012, stated that plaintiff had no present complaints, had
full range of motion and strength in the right shoulder, and
repeated that plaintiff had "no limitations."
Id. at 11. Plaintiff's physician, Dr. Peartree,
wrote a follow-up letter to Human Resources on February 14,
2012, stating that plaintiff "ha[d] requested to return
to work without restrictions, anticipating a transfer to
another department, but has continued pain in the
shoulders." Other than the recommendation for transfer,
the letter asked for no specific accommodations nor listed
specific work related restrictions. Ex. "B"
attached to Pl's Mot. (Docket #43) at 8.
was not transferred, however, and he continued to be employed
as an EOS I upon return from his Worker's Compensation
leave in January 2012. He continued to have disciplinary
problems and in July 2012 received a ten-day suspension for
"faulty work performance" and then was cited for
"misconduct" on November 19, 2012. Ex.
"C" attached to Def.'s Mot. (Docket # 45-6) . A
detailed letter from Paul Holahan, Commissioner of the
Department of Environmental Services, described
plaintiff's "faulty work performance" during
the prior three months, reciting incidences such as leaving
work without permission, exhibiting rudeness towards members
of the public, failing to service customers, working without
proper safety attire, and being involved in a motor vehicle
accident with a City truck. See Ex. "D" attached to
Def.'s Mot. (Docket # 45-7). On June 21, 2013, plaintiff
received a Notice of Termination from the City, outlining at
least six additional instances of. violations of standards of
conduct and procedure. See Ex. "B"
attached to Def.'s Mot. (Docket # 45-5).
lawsuit contends that the City's failure to provide
reasonable accommodations constituted discrimination and
retaliation on the basis of his disability, in violation of
the ADA, 42 U.S.C. 12112(b) (1), (3) (A) and (5), and the
NYHRL, New York Executive Law §§ 296, et. seq.
See Amended Complaint (Docket # 33).
before the Court are the parties' cross-motions for
summary judgment under Rule 56(c) of the Federal Rules of
Civil Procedure, each alleging that there is no genuine
dispute of material fact between the parties. Plaintiff
claims that the City's failure to engage in an
interactive process to accommodate plaintiff's disability
was a violation of the ADA, entitling him to summary
judgment. Defendant argues that plaintiff has failed to
establish a prima facie case of discrimination by
failing to show (1) a cognizable disability, (2) a request
for an accommodation, and (3) that he was otherwise qualified
to perform his job. Defendant also contends that, even if
this Court finds a prima facie case of
discrimination under the ADA, summary judgment should be
granted to defendant because plaintiff has failed to rebut
defendant's proffered legitimate and non-discriminatory
reasons for plaintiff's termination.
Judgment Standard: Summary judgment is appropriate where
"the movant shows that there is no genuine issue as to
any material fact and that the movant is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(c). "By its
very terms, the standard provides that the mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original) . A dispute of fact is
material "only if it has some effect on the outcome of
the suit." Eagley v. State Farm Ins. Co., No.
13-CV-66530, 2015 WL 5714402, at *6 (W.D.N.Y. Sept. 29, 2015)
(citation and quotation omitted). Moreover, a genuine issue
exists as to a material fact "if the evidence is such
that a -reasonable jury could return a verdict for the
nonmoving party." Anderson, 477 U.S. at 248.
When deciding a summary judgment motion, courts must resolve
all inferences and ambiguities in favor of the party against
whom summary judgment is sought. Thompson v.
Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990); Donahue
v. Windsor Locks Bd. Of Fire Comm' rs, 834 F.2d 54,
57 (2d Cir. 1987). The reasonableness of those inferences,
though, depends on "the record taken as a whole."
Matsushita Elec. Indus. Co.. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
burden of showing the absence of any issue of material fact
rests with the movant. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986) . Once the moving party has established
its prima facie entitlement to summary judgment, the
burden shifts to the non-moving party to "go beyond the
pleadings and by . . . affidavits, or by the depositions,
answers to interrogatories/ and admission on file, designate
specific facts showing that there is a genuine issue for
trial." Id. at 324 (internal citations
omitted). Put differently, the non-moving party must show
that materials cited establish "the presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact." Fed.R.Civ.P. 5
6(c). It is not enough for the non-movant to present evidence
that just raises doubts; the non-movant must present
"concrete evidence from which a reasonable juror could
return a verdict in his favor." Anderson, 477
U.S. at 256. The "mere existence of a scintilla of
evidence" to support the non-moving party's claims
is insufficient to defeat a motion for summary judgment.
Id. at 252.
analyzing the merits of a summary judgment motion in the
context of a discrimination claim, courts must be cautious in
granting relief where the conduct at issue "requires an
assessment of individuals' motivations arid state of
mind.” Brown v. Henderson, 257 F.3d 246, 251
(2d Cir. 2001). These are "matters that call for a
sparing use of the summary judgment device because of
juries' special advantages over judges in this
area." Id. (internal quotations and citations
omitted). Nevertheless, "the salutary purposes of
summary judgment avoiding protracted, expensive, and
harassing trials - apply no less to discrimination cases than
to commercial or other areas of litigation." Meiri
v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Indeed,
"summary judgment remains available to reject
discrimination claims in cases lacking genuine issues of
material fact." Chambers v. TRM Copy Ctrs.
Corp., 43 F.3d 29, 40 (2d Cir. 1994}; see also
Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d
456, 466 (2d Cir. 2001) ("It is now beyond cavil that
summary judgment may be appropriate even in the
fact-intensive context of discrimination cases.").
Ultimately, at this juncture of the case, the Court is
limited to "issue-finding, " and not resolution,
while keeping "in mind that only by reference to the
substantive law can it be determined whether a disputed fact
is material to the resolution of the dispute." Gallo
v. Prudential Residential Serv., Ltd., 22 F.3d 1219,
1224 (2d Cir. 1994) .
Under the Americans with Disabilities Act:
Americans with Disabilities Act ("ADA") prohibits
an employer from discriminating against an otherwise
qualified individual with a disability because of that
disability. See 42 U.S.C. § 12112(a). According
to the statute, the term "discriminate against a
qualified individual oh the basis of disability"
not making reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with
a disability who is an applicant or employee, unless such
covered entity can demonstrate that the accommodation would
impose an undue hardship on the operation of the business.
42 U.S.C. § 12112(b)(5)(A).
well established that disability discrimination claims
brought pursuant to the ADA are evaluated under the
burden-shifting paradigm set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) . See McBride v.
BIC Consumer "Prods., Mfg., 583 F.3d 92, 96 (2d
Cir. 2009} (applying the McDonnell Douglas test to
ADA claims). "A plaintiff alleging employment
discrimination under the ADA bears the initial burden of
establishing a prima facie case, " Ryan v.
Grae & Rybicki, P.G., 135 F.3d 867, 869 (2d Cir.
1998) (citing Wernick v. Fed. Reserve Bank of N.Y.,
91 F.3d 379, 383 (2d Cir. 1996)). To establish a prima
facie- case of discrimination under the ADA, a plaintiff
must show that: (1) his employer is subject to the ADA; (2)
he is disabled within the meaning of the ADA or perceived to
be so by his employer; (3) he is otherwise qualified to
perform the essential functions of his job with or without
reasonable accommodation; and (4) he suffered an adverse
employment action because of his disability. Giordano v.
City of New York, 274 F.3d 740, 747 (2d Cir. 2001) .
that a plaintiff is capable of performing his job with a
reasonable accommodation - the third factor - requires its
own separate analysis. To prove a prima facie
reasonable accommodation case, "a plaintiff must show
that: '(1) [he has] a disability under the meaning of the
ADA; (2) an employer covered by the statute had notice of
[his] disability; (3) with reasonable accommodation, [he]
could perform the essential functions of the job at issue;
and (4) the employer has refused to make such accommodations.
'" Young v. New York City Dep't ofEduc., No. 09 Civ. 6621, 2010 WL 2776835, at *7
(S.D.N.Y. July 13, 2010) (quoting Rodal v. Anesthesia
Grp. Of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir.
2004)}. Once the plaintiff has established a prima
facie case of disability discrimination, "the
burden of production shifts to the defendant, who must
articulate a legitimate nondiscriminatory reason for its
challenged actions." Rodal, 369 F.3d at 118
n.3. If such a reason is offered, the burden returns to the