Thrane v. Metropolitan Transportation Authority

Filing 61

MEMORANDUM and ORDER: The defendant's motion 58 for summary judgment is DENIED. See attached Memorandum and Order. Ordered by Judge Frederic Block on 7/26/2019. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------x
BRIAN THRANE
MEMORANDUM AND ORDER

Plaintiff,

Case No. 1: 15-cv-7418 (FB)(LB) 

-againstMETROPOLITAN
TRANSPORTATION AUTHORITY and
MTA BUS COMPANY,
Defendants.
------------------------------------------------x
Appearances:
For the Plaintiff:
WALKER G. HARMAN, ESQ.
The Harman Firm, LLP
381 Park Avenue South, Suite 1220
New York, New York 10016

BLOCK, Senior District Judge:

For the Defendants:
GABRIELLA PALENCIA, ESQ.
Office of the General Counsel
MTA Bus Company
2 Broadway, D21.71
New York, New York 10004

Plaintiff Brian Thrane, a New York City bus driver, was temporarily
removed from his bus driving duties after experiencing a dizzy spell and being
hospitalized. He claims that his employer, Defendants Metropolitan
Transportation Authority and MTA Bus Company (collectively “the MTA”),
discriminated against him because of a perceived disability in violation of the
Americans with Disabilities Act (“ADA”) and the New York City Human Rights
Law (“NYCHRL”); discriminated against him because of his age in violation of
1

the Age Discrimination in Employment Act of 1967 (“ADEA”) and the NYCHRL;
and retaliated against him in violation of the ADA and the NYCHRL. The MTA
moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. For
the following reasons, its motion is denied.
I
The following facts, which are taken from the parties’ Rule 56.1 statements
and supporting documentation, are undisputed unless otherwise noted. Where
disputed, they are presented in the light most favorable to Thrane. See, e.g,. Federal
Ins. Co. v. American Home Assurance Co., 639 F.3d 557, 566 (2d Cir. 2011).
Thrane, who is currently 65, began working as a bus driver for the MTA in
2007. On or about April 16, 2015, he experienced dizziness and leg weakness during
a shift. He ended his shift early and went to the hospital, where he stayed overnight.
Thrane’s hospital records state that the admitting diagnosis was transient cerebral
ischemia, also called a transient ischemic attack (“TIA”). The hospital records also
note that he was told that his symptoms were suspicious of TIA and that he would
need to be cleared to return to work by his primary care physician and neurologist.
However, one of the doctors at the hospital noted that it was probable that Thrane’s
symptoms were related to his chronic neck issues.
After being released from the hospital, Thrane got medical clearance from
several doctors, including three neurologists, to return to work as a bus driver.
2

However, the MTA asserts that its policy after a driver has been hospitalized is to
have their office of Occupational Health Services medically assess and approve the
driver. Therefore, Thrane saw OHS doctor Nicole Esquenet on May 5, 2015. At
that appointment, where Thrane claims she did not examine him but merely looked
at the paperwork he provided, Dr. Esquenet requested additional medical
documentation to be reviewed at another appointment. Thrane also claims that Dr.
Esquenet said that she could do whatever she wanted with his file because he was
“getting up there in age” and “lucky to work at all.” Thrane saw Dr. Esquenet twice
more, but she never cleared him for work.1
The MTA then had Dr. Arthur Weiss, a neurologist, examine Thrane on May
18, 2015. Dr. Weiss noted that Thrane could return to driving his bus route, though
the possibility of a TIA could not be ruled out. The next day Dr. Weiss added an
addendum noting that, after having received additional hospital records, it appeared
that Thrane had experienced a TIA. On June 8, 2015, Dr. Weiss added another
addendum stating that after receiving the MTA’s medical standards for bus drivers,
it appeared that a TIA was a disqualifying condition for a bus driver and that Thrane
was not fit for the position. Thrane then began to work as a cleaner for the MTA.

1

Thrane’s declaration seems to say that Dr. Esquenet examined him—rather than
merely reviewed his medical documentation—at least once, on May 28, 2015.
3

On July 24, 2015, Thrane filed a charge with the Equal Employment
Opportunity Commission (“EEOC”), alleging age and disability discrimination. He
also filed a grievance seeking reinstatement as a bus driver in accordance with his
union’s collective bargaining agreement. In March 2016, an arbitrator held that,
although an independent medical examination had concluded that Thrane was able
to work as a bus driver, the MTA could have 30 days to obtain additional information
concerning Thrane’s medical condition.

However, because Thrane was then

presenting symptoms of Lyme disease, his reinstatement was delayed until his
treating doctor cleared him. He began working as a bus driver again on May 24,
2016, and the arbitrator awarded him back pay for the period of time that he was
working as a cleaner.
II
A court may grant summary judgment only if “there is no genuine dispute as
to any material fact and . . . the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). An issue of fact is genuine “if the evidence is such that a
reasonable jury could return a judgment for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

4

A. Disability Discrimination Claims2
The burden-shifting analysis laid out in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–03 (1973), governs employment discrimination claims brought
under the ADA. Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006).
Under that framework, “[a] plaintiff must establish a prima facie case; the employer
must offer through the introduction of admissible evidence a legitimate nondiscriminatory reason for the discharge; and the plaintiff must then produce evidence
and carry the burden of persuasion that the proffered reason is a pretext.” Id.
(citation omitted).
A plaintiff can make a prima facie case under the ADA by establishing, by a
preponderance of the evidence, that: “(1) his employer is subject to the ADA; (2) he
was disabled within the meaning of the ADA; (3) he was otherwise qualified to
perform the essential functions of his job, with or without reasonable
accommodation; and (4) he suffered adverse employment action because of his
disability.”

Id.

Alternatively—rather than showing at step two that he was

disabled—a plaintiff can show that the employer regarded him as disabled. See
Hilton v. Wright, 673 F.3d 120, 128 (2d Cir. 2012).

2

Because disability discrimination claims under the NYCHRL require the same
elements as claims under the ADA, the Court analyzes Thrane’s disability
discrimination claims by examining only the ADA’s elements. Kinneary v. City of
New York, 601 F.3d 151, 158 (2d Cir. 2010).

5

As a defense to an ADA discrimination claim, an employer can establish that
a plaintiff posed a “direct threat,” meaning a “significant risk to the health or safety
of others that cannot be eliminated by reasonable accommodation.” Sista, 445 F.3d
at 170. That defense requires an “individualized assessment of the employee's
present ability to safely perform the essential functions of the job . . . based on a
reasonable medical judgment that relies on the most current medical knowledge
and/or on the best available objective evidence.” Id. (quoting 29 C.F.R. § 1630.2(r)).
The assessment should consider factors including “(1) [t]he duration of the risk;
(2)[t]he nature and severity of the potential harm; (3)[t]he likelihood that the
potential harm will occur; and (4)[t]he imminence of the potential harm.” Sista, 445
F.3d at 170 (quoting 29 C.F.R. § 1630.2(r)).
Here, the MTA argues that it did not discriminate against Thrane by
temporarily reassigning him as a cleaner because he posed a direct threat to the
public’s safety due to his diagnosis of TIA. Thrane contests that he was conclusively
diagnosed with TIA and challenges the methods by which the MTA determined that
he was unfit to drive his bus route. Instead, he claims, he was cleared for bus driving
by multiple doctors, but the MTA still regarded him as disabled and discriminated
against him.
Because there are issues of fact here surrounding whether the OHS’s
assessment of Thrane sufficiently involved consideration of the necessary factors,
6

such as the duration of the risk, the MTA has not demonstrated that it is entitled to
summary judgment. See Simms v. City of New York, 160 F. Supp. 2d 398, 407
(E.D.N.Y. 2001) (“As there is significant disagreement between the parties as to
both the adequacy and result of Defendants’ assessment of Plaintiff’s qualifications,
summary judgment cannot be granted.”). Though, as the MTA argues, it is entitled
to set rigorous safety standards for its bus drivers, it must implement those standards
in accordance with the ADA and conduct an individualized assessment considering
the required factors. Accordingly, the defendants have not shown that they are
entitled to summary judgment on Thrane’s ADA claim.
B. Age Discrimination Claims3
The McDonnell Douglas framework likewise applies to ADEA claims.
Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012).
To establish a prima facie case under the ADEA, a plaintiff must show “(1) that [he]
was within the protected age group, (2) that [he] was qualified for the position, (3)
that [he] experienced adverse employment action, and (4) that the action occurred
under circumstances giving rise to an inference of discrimination.” Id.
(citation omitted).

3

Because it is easier to establish a case under the NYCHRL than under the ADEA,
the Court analyzes only whether the MTA has established that it is entitled to
summary judgment on Thrane’s ADEA claim. Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013)
7

Here, there is a genuine issue of material fact as to whether the MTA
discriminated against Thrane under the ADEA.

If Thrane is successful in

establishing that he was qualified to work as a bus driver, despite his hospital visit,
he may be able to show that he was discriminated against because of his age. Dr.
Esquenet’s alleged statement that she could do whatever she wanted with Thrane’s
file because he was “getting up there in age” and “lucky to work at all” could allow
a jury to infer that the MTA had a discriminatory motivation in removing him from
his position as a bus driver. Thrane Decl. ¶35. Accordingly, the MTA is not entitled
to summary judgment on Thrane’s age discrimination claims.
C. Retaliation Claims
Retaliation claims under the ADA and NYCHRL are also analyzed under the
McDonnell Douglas framework. Kemp v. Metro-N. R.R., No. 04 CIV. 9926 (RWS),
2007 WL 1741256, at *16 (S.D.N.Y. June 14, 2007), aff’d, 316 F. App’x 25 (2d Cir.
2009). To establish a prima facie case of retaliation, a plaintiff must show that: “(1)
he engaged in an activity protected by the ADA; (2) the employer was aware of this
activity; (3) the employer took adverse employment action against him; and (4) a
causal connection exists between the alleged adverse action and the protected
activity.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation
omitted).

8

Here, the MTA argues that Thrane cannot establish a prima facie case for
retaliation because his protected activity—filing a charge with the EEOC—took
place after he was removed from his position as a bus driver and assigned to
cleaning. But, as Thrane points out, the MTA continued to refuse to reinstate him
after he filed the EEOC charge. That can constitute and adverse employment action.
See Wanamaker v. Town of Westport Bd. of Education, 11 F.Supp.3d 51, 56 (D.C.T.
Mar. 27, 2014); Heneghan v. New York City Admin for Children’s Services, No. CV03-2992(BMC)(LB), 2006 WL 2620430 at *6 (E.D.N.Y. Sep. 12, 2006). The
MTA’s argument that failing to reinstate Thrane was just maintaining the status quo
is unavailing because Thrane continued to contest his removal and the MTA
continued to decide that he was not fit for reinstatement.
IT IS SO ORDERED.

/S/ Frederic Block___________
FREDERIC BLOCK
Senior United States District Judge
July 26, 2019
Brooklyn, New York

9