Molina v. City of Rochester et al

Filing 53

ORDER denying 43 Plaintiff's Motion for Summary Judgment; granting 45 Defendant's Motion for Summary Judgment. Signed by Hon. Jonathan W. Feldman on 03/30/2017. (JKT)-CLERK TO FOLLOW UP-

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK DECISION & ORDER RICHARD MOLINA, 13-CV-6607 Plaintiff, v. CITY OF ROCHESTER, Defendant. Procedural History Plaintiff "Molina") Richard Molina (hereinafter "plaintiff" filed this action alleging unlawful discrimination and retaliation under the Americans with Disabilities Act of ("ADA") 1990 and discrimination under the New York Human Rights Law ("NYHRL"). moved for See Am. Compl. (Docket# 33) at , 29, 35. 1 summary judgment on January 15, 2015, 23, 28) . 2 2015, Plaintiff and defendant cross-moved to dismiss for failure to state a claim 15, or (Docket ## The Court heard oral argument on both motions on July denying the motions on the record and by brief Order the following day. Docket# 37. The parties thereafter engaged 1 Molina voluntarily dismissed an equal protection claim under § 1983 and a Monnell claim against the City of Rochester. See Pl.' s Reply/Response in Opp. (Docket # 31) at 3 (dismissing Monell claim); Pl.' s Mot. (Docket # 43) at 4 (dismissing equal protection claim). Plaintiff additionally stipulated to the dismissal of individual named defendants Paul Holahan, Theo Maxey, Charles Lundy, Thomas Belknap, Bar Mee sh, Karen Simoni, and Norman Jones. See Stipulation and Order (Docket # 52). 2 In accordance with the provisions of 28 U.S.C. § 636(c), the parties have consented to the jurisdiction of this Court for all matters, including dispositive motions. See Docket # 13. in further discovery, and plaintiff filed the instant motion, second motion for summary judgment, on June 14, Mot. 25 , See Def.' s 2 O16 . Mot. (Docket # and both parties the reasons judgment (Docket 2016 submitted post-hearing briefs stated below, # is 43) plaintiff's denied, summary judgment (Docket # 45) Court (Docket # to address See Docket ## 49, questions that arose during the hearing. For The 45) . heard oral argument on the motions on October 21, 50), See Pl.' s 2016. Defendant cross moved for summary judgment (Docket # 43) on June a and motion for defendant's 51. summary motion for is granted. Factual Background Richard (hereinafter Molina "the was City" hired or by the "defendant") City in of the Rochester Department Environmental Services as an ESQ/Trainee in September 2006. "C" attached to Def.'s Mot. (Docket# 45-6). of Ex. He was appointed to the Solid waste Management Division as an ESO I on February 12, The primary 2007. See Pl. 's Mot. (Docket # duty of this position is to collect 43 -1) at 1. refuse and recycling along established routes within the City of Rochester. Plaintiff began his began employment history notes that he work performance having disciplinary with the (1) City. Id. issues His soon after he employee performance received a written reprimand for poor on July 9, 2007; 2 (2) was fined fifty dollars for poor work performance/violating work on December 13, received ( 3) performance/absence suspension for on poor April work for reprimand written a 8, 2008; performance on July work poor had ( 4) 2007; a day 2008; 7, one (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 work performance on January 5, 2009; and (7) reprimand attached for to "MVA preventable" Def.' s Mot. # for poor received a written on August (Docket days 9, 45-6) 2010. Notes "C 11 EX:. 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. Plaintiff began to have medical issues related to his job beginning in 2009. Plaintiff injured his working and was placed on a January 2, 2009. See left shoulder while "light duty" Pl. 's Mot. assignment beginning (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. restrictions. Plaintiff returned in June See id.; see also Def.'s Mot. 2010 with no (Docket# 45-2) at 2 (timeline of plaintiff's employment history) Back on the job, right shoulder, on plaintiff injured his other shoulder, his August 18, 2010 3 and was out on 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 on Worker's Compensation Def.'s Mot. for most of the rest of 2010. Plaintiff underwent was out on January 6, right shoulder surgery in January 2011 and Worker's 2012. (Docket# 45-2) at 2. Compensation See Ex. Submission (Docket # 49) on Worker's Compensation, # from January 20, 2 attached to Def.' s at 7. On November 28, plaintiff to Post-Hearing 2011, received a 2011 while out letter from the City stating that his one year leave of absence provided by his contract 3 would be exhausted on January 7, 2012, at which time he would be removed from the payroll regular duty assignment. See if he did not return to his Pl. 's First Mot. for Summ. J. (Docket# 23) at 27. Plaintiff returned to full-duty work on January with a disability status report from his doctor, MD, P.K. returning him to regular work with no restrictions. 3 6, 2012 Peartree, See Ex. Civil ·Service Law § 71 states " [w] here an employee has been separated from the service by reason of a disability resulting from occupational injury . . he shall be entitled to a leave of absence for at least one year, unless his disability is of such a nature as to permanently incapacitate him for the performance of the duties of his position." N.Y. Civ. Serv. Law § 71 (McKinney) . The law also provides that, even if terminated, an employee can obtain reinstatement to his former position if a medical examination confirms that he is physically and mentally fit to return to his former position or a vacant similar position. Id. 4 # 2 attached to Def.'s Post-Hearing Submission (Docket# 49) at 9. A Nurse "physician's return to work form" completed by Registered (RN) New York, 5, 2012, Samuel Cappiello of Occupational Health Centers of an affiliate of Cortcentra Medical Centers, on January noted that plaintiff had restrictions of never crawling and never lifting more than sixty pounds. a "return to (signature January evaluation" illegible) 5, complaints, work at completed Concentra stated 2012, Id. at 10. that Medical plaintiff by a physician Center, had However, no also present had full range of motion and strength in the right shoulder, and repeated that plaintiff had "no limitations." at 11. Plaintiff's physician, letter to Human Resources plaintiff on "ha [d] Dr. Peartree, on February 14, requested return to Id. wrote a follow-up 2012, to stating that work without restrictions, anticipating a transfer to another department, but has continued pain in the recommendation for transfer, accommodations listed nor the than the letter asked for no specific specific Ex. "B" attached to Pl.' s Mot. Other shoulders." work related restrictions. (Docket # 43) at 8. Molina was not transferred, however, and he continued to be employed as an EOS I upon return from his Worker's Compensation leave in problems January and in 2012. July 2012 He continued received a to have ten-day disciplinary suspension for "faulty work performance" and then was cited for "misconduct" on 5 November 19, 45-6). 2012. Ex. "C" attached to Def.' s Mot. (Docket # A detailed letter from Paul Holahan, Commissioner of the Department "faulty of work reciting Environmental performance" incidences exhibiting rudeness service customers, such Services, during as the leaving towards members working described without prior work of plaintiff's three months, without permission, the public, failing to proper safety attire, and being involved in a motor vehicle accident with a City truck. See Ex. 21, "D" attached to Def.'s Mot. 2013, (Docket # 45-7). On Jurie plaintiff received a Notice of Termination from the City, outlining at least six additional instances of violations of standards of conduct and procedure. Def.'s Mot. See Ex. "B" attached to (Docket# 45-5). Plaintiff's 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 the NYHRL, York Executive Law §§ 296, et. and seq. (5), See Amended New Complaint (Docket # 33). Discussion Presently before the Court are the parties' for summary judgment under Rule 56 (c) Civil Procedure, cross-motions of the Federal Rules of each alleging that there is no genuine dispute 6 of material fact between the parties. Plaintiff claims that the City's interactive failure engage to an in process to accommodate plaintiff's disability was a violation of the ADA, entitling him to summary plaintiff has failed to judgment. establish discrimination by failing to show (2) a request for an Defendant a (1) prima argues facie case that of a cognizable disability, accommodation, and (3) that he was otherwise qualified to perform his job. Defendant also contends that, prima even if this finds Court discrimination under the ADA, a facie case of summary judgment should be granted to defendant because plaintiff has failed to rebut defendant's proffered legitimate and reasons non-discriminatory for plaintiff's termination. Summary judgment is appropriate Summary Judgment Standard: 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." standard Fed. R. Civ. P. 56(c). provides that the mere "By its very terms, the 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." v. Liberty Lobby, original) . Inc., 477 U.S. 242, 247-48 (1986) Anderson (emphasis in A dispute of fact is material "only if it has some effect on the outcome of the suit." 7 Eagley v. State Farm Ins. Co., No. 13-CV-66530, 2015) (citation 2015 WL 5714402, at *6 and quotation omitted). (W.D.N.Y. Sept. Moreover, a 29, genuine issue exists as to a material fact "if the evidence is such that a reasonable party." jury could Anderson, judgment 477 motion, return U.S. courts at a verdict 248. the nonmoving When deciding a resolve must for all summary inferences and ambiguities in favor of the party against whom summary judgment is sought. Thompson v. 1990); Donahue v. 54, (2d Cir. 57 though, Elec. 896 Windsor Locks Bd. F.2d Of 716, (2d Cir. Comm' rs, Fire 720 834 F.2d 1987). The reasonableness of those inferences, on depends Indus. Gjivoje, record taken as Co. "the v. Zenith Radio a whole." Corp., 475 Matsushita U.S. 574, 587 (1986) The burden of showing the absence of any issue of material fact rests with the movant. Celotex Corp. v. 317, moving has 323 (1986) prima facie Once entitlement the to party summary judgment, Catrett, 477 U.S. established the its burden shifts to the non-moving party to "go beyond the pleadings and by . affidavits, and or by the depositions, p.dmission there is a on file, genuine issue citations omitted). or that for to specific trial." Put differently, show that materials dispute, designate answers Id. interrogatories, facts at showing 324 (internal the non-moving party must cited establish "the presence of a an adverse party 8 that cannot produce genuine admissible evidence to support the fact." Fed. R. Civ. P. 56(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, of 477 U.S. evidence" at 256. to support The "mere existence of a scintilla the non-moving party's claims is Id. at insufficient to defeat a motion for summary judgment. 252. In analyzing the merits of a summary judgment motion in the context of a granting discrimination claim, relief where the assessment of individuals' " courts must be cautious conduct at issue "requires in an motivations and 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. 11 (internal Id. Nevertheless, "the avoiding protracted, quotations salutary purposes expensive, and of citations summary omitted). judgment and harassing trials - apply no less to discrimination cases than to commercial or other areas of litigation." 1985) . Indeed, discrimination material fact." 40 (2d Cir. Meiri v. Dacon, 759 F.2d 989, "summary judgment remains claims in Chambers v. 1994); cases lacking available genuine TRM Copy Ct rs. see also Abdu-Brisson v. 9 998 (2d Cir. to reject issues of Corp. , 4 3 F. 3d 2 9, Delta Air Lines, Inc., 239 F.3d 456, that summary intensive this judgment context juncture finding," 466 of of the (2d Cir. may be 2001) ("It is now beyond cavil appropriate even discrimination cases.") . case, the and not resolution, Court is in the fact- Ultimately, limited to at "issue- 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) . Discrimination Under the Americans with Disabilities Act: The Americans employer from with Disabilities discriminating ("ADA" ) Act against an prohibits otherwise qualified See 42 individual with a disability because of that disability. u.s.c. 12112 (a) . § "discriminate against According a to qualified the statute, individual on the an the term basis of disability" includes 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. It claims § is 12112 (b) (5) (A). well brought established pursuant to that the ADA disability are discrimination evaluated under the burden-shifting paradigm set forth in McDonnell Douglas Corp. v. 10 Green, ~' 411 U.S. 583 792 92, F.3d Douglas test (1973). 96 See McBride v. (2d Cir. to ADA claims) discrimination under the 2009) 869 Bank of N.Y., bears ADA 91 F.3d 379, prima facie (2d Cir. case must show that: of (applying 1998) 383 the McDonnell initial burden Ryan v. Grae & Rybicki, (citing Wernick v. (2d Cir. 1996)) discrimination under (1) the "A plaintiff alleging employment establishing a prima facie case." 135 F.3d 867, BIC Consumer ·prods. the of P.C., Fed. Reserve To establish a ADA, a plaintiff 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; essential (3) functions accommodation; ahd because of his F.3d 740, 747 its of (4) is otherwise qualified to perform the his job with or a reasonable own separate Giordaho v. New York, 274 is capable of performihg his plaintiff job accommodation - the statute reasonable City of third To prove a analysis. factor prima facie "a plaintiff must show that: disability under the meaning of the ADA; the reasonable (2d Cir. 2001) accommodation case, by without he suffered an adverse employment action disability. Proving that with a he had notice accommodation, functions of the job at issue; to make such accommodations.'" [his] of [he] (2) (4) perform reasonable [he has] a the ( 3) with essential the employer has refused Young v. 11 requires an employer covered disability; could and '(1) - New York City Dep' t of Educ., No. 13, 2010) 369 F.3d 09 Civ. 113, a burden articulate of a 118 (2d prima is Cir. facie of shifts legitimate offered, 2004)). case production challenged actions." reason 2010 WL 2776835, at *7 (quoting Rodal v. Anesthesia Grp. established "the 6621, Of Onondaga, Once the disability to the the returns P.C., plaintiff has discrimination, who must reason for its If such a 369 F.3d at 118 n.3. burden July defendant, nondiscriminatory Rodal, (S.D.N.Y. to the plaintiff to produce adequate evidence to support a rational finding that the employer's explanation is false and that, more likely than not, discrimination was the real reason for the adverse action. McDonnell Douglas, 411 U.S. at 802-04. Analysis: stipulate that For the the purpose City of of these Rochester motions, is parties "covered a all entity" under, and is subject to, the ADA, satisfying the first prong of the McDonnell Douglas test. l; Def.' s Mot. See Pl.'s Mot. (Docket # 45-3) at 8. (Docket# 43"1) at Defendant also agrees that plaintiff suffered an adverse employment action at prong four, namely, his termination. See Def.'s Mot. (Docket# 45-3) at 9. Though the crux of plaintiff's motion for summary judgment centers that on reasonable accommodations, plaintiff's shoulder injury defendant contends does disability under the ADA. Specifically, letter doctor, from plaintiff's 12 Dr. not qualify first as a defendant points to a Peartree, returning plaintiff 2012. to See full Ex. work "I" Defendant states submitted by with that Def.' s there is during limitations, Mot. no his on February (Docket # medical from specific sent to 2011, employment See Def.'s Mot. shows that he was limitations. the City's 45-12) . documentation showing any (Docket# 45-3) Plaintiff counters that an earlier letter from Dr. dated March 11, 14, or present injuries which would have restricted his employment. 8. restrictions attached to plaintiff restrictions, no Resources Peartree disabled and suffered Plaintiff argues Human at that this Department, letter, constituted a request for an accommodation such that the City was required to engage in an accommodation "interactive that further letter to 11 would allow (Docket# 43-2) at constitutes a find plaintiff See Pl.'s Mot. either process counters that 2-3. request regardless, to a reasonable Continue working. Defendant denies that accommodations, and for plaintiff has failed to demonstrate that he was otherwise qualified to perform his job. See Def.'s argues Mot. (Docket that plaintiff between his employment he the rebutted City's # has at 12-13. not shown any Defendant causal proffered legitimate finally relationship termination and his disability, reason for his termination. Plaintiff's 45-3) nor has non-discriminatory Id. at 8-12. Disability Under the ADA: A disability is a "physical or mental impairment that substantially limits one or 13 more of U.S.C. a the major life 12102(1) (A) § activities the ADA, approach taken by the Supreme 624, 630 New York, consider (1998). 287 F.3d whether impairment. claimed "major be life and be seeing, (2d in Bragdon v. plaintiff 2002). a must establish Id. Major § and it importance 1630 .2 (i) (2). Third, "substantially the life. 111 is the major life include, 2008 shall not a 'major 29 activity C.F.R. previously "Whether an impairment substantially limits a activity determined by severity of the impairment; and v. (3) considering: (2) ( 1) the nature Brighton, (citing 29 C.F.R. § 732 F. life and the duration of the impairment; the impairment's permanent or long-term impact." Town of § impairment identified. is a to whether it is plaintiff must show that his limits" activity The the term "major" daily mental communicating, "[w] hether an activity to must constitutes 1630.2 (i) (1) (i). is not determined by reference we or activities lifting, 524 Of City of physical that life walking, C.F.R. Abbott, First, identify and 29 construed, 'central 42 three-step Board of Educ. from to the ADA specifies that strictly individual." we apply the Cir. suffers sleeping, See life activity' of 147 plaintiff impaired working. amendment 138, activity." inter alia, Court See Weixel v. Second, to [an] In determining whether an individual has disability for purposes of U.S. of Supp. 1630.2(j)). 14 2d 263, 278 (W.D.N.Y. Lundy 2010) Plaintiff suffered consecutive shoulder injuries during his employment, resulting in two surgeries and subsequent leaves of employment for considerable portions of 2010 and 2011. While some of plaintiff's injuries seem to have healed over time and with surgery, plaintiff alleges ongoing issues that render him disabled under the terms of the ADA. The Court finds it helpful to discuss plaintiff's injuries in two distinct The the first employment 2012, period with the dates from City - beginning September 2006 time periods: of plaintiff's through January 5, the day before plaintiff returned to work from his last documented leave. This first period includes plaintiff's two The second period commences on January 6, shoulder surgeries. 2012, when plaintiff returned to work, and ends with plaintiff's termination on June 21, 2013. During the first time period, plaintiff tore his left shoulder in 2008 which was operated on in 2009, and then injured his right shoulder in 2010 and had surgery on that shoulder in January 2011. See Ex. at 8; attached to Def.'s Mot. Ex. "N" Plaintiff's physician, the City's Human "B" attached to Pl.' s Mot. Dr. discussing plaintiff's (Docket # 45-17) Paul Peartree, Resources Department limitations. (Docket # 43) Dr. at 7. submitted a letter to on March Peartree 16, 2011, stated that "repetitive heavy lifting has led to bilateral shoulder injuries that have required surgery." Dr. Peartree opined that plaintiff 15 would likely have some ongoing restrictions with his shoulders. It is my recommendation that he be transferred to a different department or position that does not require repetitive heavy use of his arms. He should be able to lift up to 20 pounds continuously below shoulder level, up to 25 pounds occasionally, and rarely 50 pounds of over. Ex. Aside medical from Medical this evidence A January 20, to (Docket # 43). "A" attached to Pl. 's Mot. letter, the record contains the nature of illuminating 2011 assessment little Molina's other injuries. from the university of Rochester Center deferred judgment on whether plaintiff was able perform the restriction to Dr. (Docket # 49-2) functions essential of his job without See Def.'s Post-Hearing Submission Peartree. at 3. The assessment diagnosed right shoulder strain and noted that plaintiff would be following up with Dr. Peartree, but indicated no restrictions or limitations. Thus, asserts a Id. it is based on a very limited record that plaintiff There disability under the ADA. shoulder injury is no dispute that plaintiff's right impairment. He had surgery on both shoulders and testified at his deposition that he suffers to perform heavy lifting, such as pull ups, to Def.'s opinion Mot. qualifies restricted # certain 45-17) plaintiff a physical from ongoing pain and is unable types or heavy manual labor. (Docket as at 12, considerably, 16 of physical See Ex. 18. "N" Dr. including training attached Peartree' s no heavy repetitive lifting, occasional lifting up to twenty-five pounds and rare lifting over fifty pounds. Importantly, Paul Holahan, the Commissioner of the Department of Environmental Services for the City of Rochester during plaintiff's employment, testified at his deposition that there is no job in Environmental Services that could be performed by someone permanently needing the type of restrictions contemplated attached to Def.'s Mot. by Dr. Peartree. (Docket# 45-13) at work. that 3-4 That's not reasonable accommodation people See light . can't work in that "J 11 ("It's heavy can't have [I] department. Ex. That's just too to the . 10 pounds . " ) . Viewing plaintiff, the I find record in that a a light most reasonable jury favorable could find Molina disabled under the ADA during the period before January 5, 2012, and thus defendant is not entitled to summary judgment on this ground. Based on the lifting limitations imposed by Dr. Peartree, plaintiff was substantially limited in his ability to lift, and according to limitation prevented plaintiff Environmental Services. the head from Indeed, of his department, performing any job unable to work. 4 4 in plaintiff was out of work on Worker's Compensation from January 20, 2011 to January 6, indicating that he was that Plaintiff's 2012, shoulder The Court recognizes that the standard for determining occupational injury under NYS Worker's Compensation Law is 17 injury substantially limited his ability to work. Town of Islip, No. 12-CV-2984, Sept. to 22, 2014) ("[T]o show substantial the 'significantly class of 786 F. to ADA a restricted jobs or a compared skills, 2014 WL 4700227, at *10 under work] the 2d the broad range and abilities.'") Supp. plaintiff in average 588, See Morris v. limitation must ability of person jobs [in ability prove to that perform in various having (E.D.N.Y. he either classes comparable is a as training, (quoting McDonald v. City of New York, 609 (E.D.N.Y. 2011) and 29 C.F.R. § 1630.2(j) (3) (i)). However, returned to plaintiff's work Compensation leave. on disability January Def.'s Post-Hearing 2012 changed from his when he Worker's His return was accompanied by a disability status report completed by Dr. returning plaintiff 6, status to Peartree dated January 5, "Regular work Submission / no (Docket # restrictions." 49-2) at 9. 2012, See An accompanying "physical abilities summary" completed by RN Samuel Cappiello noted minimal limitations, including never lifting different from the standard to find disability under the ADA. The Court only notes plaintiff's Worker's Compensation leave as one factor contributing to its assessment of his disability, not as disposi ti ve of that issue. See EEOC Enforcement Guidance: Worker's Compensation and the ADA, EEOC Notice Number 915. 002, July 6, 2000; cf. Williams v. Salvation Army, 108 F. Supp. 2d 303, 312 at n.9 (S.D.N.Y. 2000) (finding estoppel inappropriate where plaintiff was denied Worker's Compensation and then claimed disability under the ADA, stating "the prior worker's compensation determination does not entirely resolve the issue of disability discrimination raised here"). 18 over sixty pounds or crawling. Id. at 10. A "return to work evaluation" completed at Concentra Medical Centers on January 5, 2012 with an illegible doctor's signature states that plaintiff has no restrictions and no complaints, "full range of motion and strength of right shoulder, no limitations." Dr. Id. at 11. Peartree supplemented these evaluations with a dated February 14, 2012. letter In his letter Dr. Peartree stated: Mr. Molina has been a patient of mine for the past 2 years for bilateral shoulder problems. He has undergone surgical procedures on both shoulders. He continues to have pain primarily when working in the recycling department due to repetitive lifting. He has requested return to work without restriction, anticipating a transfer to another department, but has continued pain in the shoulders after being placed back in his original position. My recommendation would be that he be transferred to a different department within the city of Rochester. There are no specific restrictions but he will continue to have issues with his shoulders working in his current department, and I think it would be in the best interest of both parties to make this transfer. Ex. "B" attached to Pl.'s Mot. (Docket# 43) A straightforward reading of these medical records shows that plaintiff no longer had the same limitations to his ability to lift and work that he had in 2011. 5 5 At oral argument, plaintiff's counsel argued that the Court should disregard Dr. Peartree' s opinion that Mr. Molina had no restrictions because he was trying to satisfy plaintiff's need to return to work since his Worker's Compensation had run out. Counsel asked the Court to make such an assumption based on a November 28, 2011 letter from the City stating that plaintiff 19 This record, assessment including is the consistent deposition with other testimony of evidence Thomas in the Belknap, plaintiff's supervisor: Unless [a light duty request form] was filled out and considering the evaluation in [the return to work evaluation from Concentra] on January 5, 2012, would [plaintiff] have been eligible for a light-duty assignment? Q: A: No. Q: Why is that? A: Because his doctor gave him no restrictions. A light duty-assignment is a limited time and a limited number of people for limited ability for for our employees. We' re trying to get the employee back to work to a full-duty status. Rick's doctor's statement there says that he has no restrictions. He would never have been offered a light duty assignment. Ex. "K" attached to Def.'s Mot. added). the City, Similarly, (Docket# 45-14) Theodore Maxey, testified that Dr. at 12 assistant superintendent for Peartree's letter cleared plaintiff from his injury and returned him to full-duty work. attached to Def.'s Mot. (Docket # 45-15) at plaintiff's contentions that he was disabled, clear that plaintiff was returned motion and no restrictions. (emphasis to work 7. See Ex. Contrary ''L" to the record here is with See McDonald v. full range of City of New York, had to return to "work at a regular duty assignment on or before January 7, 2012, [or else he would] be removed from the City" payroll. Pl.' s First Mot. for Summ. J. (Docket # 23) at 27. However, the Court will not draw such assumptions or conclusions without some admissible evidence on the record. None is present here. 20 786 F. Supp. 2d 588, 608 (E.D.N.Y. 2011) ( "These vague and ambiguous descriptions by plaintiff of his limitations, coupled with by the doctor record to finding walk evidence up a by to that three rational plaintiff miles per was day factfinder cleared cannot his support plaintiff that a was substantially limited in the major life activities of walking or standing."); 6187-CJS, see also DeMarco v. 2009 WL 656337, CooperVision, at *12 (W.D.N.Y. ("'Plaintiff's mere allegation that she was supporting medical evidence, Inc., No. 06-CV- Mar. 11, 2009) 'disabled, ' without is insufficient to create a genuine issue as to whether she was substantially limited in any major life activity.'" Office 2014) of Mental (citation Health, 18 omitted)); Supp. F. Croons 3d 193, v. N.Y. 211-12 State (N.D.N.Y. (finding no disability where "examining physicians cleared plaintiff to return to work 'immediately' provided he limited the weight he lifted with his right shoulder and stayed out of an environment people") . where Because there whether plaintiff was January 6, as to three 2012, this of he is have no interactions genuine factual with violent dispute as to disabled following his return to work on I grant defendant's motion for summary judgment time period. the may McDonnell Accordingly, Douglas the Court turns analysis only for the to step period prior to January 6, 2012. Request for Reasonable Accommodation: 21 Having found that Molina was suffering from a period prior to January 6, disability under 2012, the ADA for the the Court next assesses whether plaintiff was able to perform the essential functions of his job with an appropriate accommodation. reasonable accommodation case, [he has] a disability under a prove meaning of employer covered by the (3) accommodation, of issue; essential has functions refused to make the had notice job at Here, the parties dispute accommodation was ever made. Peartree's letters were requests Defendant responds accommodation, to a an disability; could perform the ( 4) the employer Anesthesia (2d Cir. 2004). a request for an 2011 and February 14, which letters were anything were requests the City not ignored. requests to be 2012 for transferred different department which is not an accommodation but is instead a 3) and if the his (2) "(1) Plaintiff argues that both of Dr. accommodation that ADA; Rodal v. whether dated March 16, for facie show that of and such accommodations." Grp. Of Onondaga, P.C., 369 F.3d 113, 118 prima the plaintiff with reasonable a plaintiff must the statute To at 9. "wholly different job." Even accommodation, if Dr. See Def.'s Mot. Peartree' s letters (Docket# 45- were requests plaintiff must also show that he was able, or without accommodation, for with to perform the essential functions of the job. "Generally, 'it is the responsibility 22 of the individual with a disability to inform the employer that an accommodation is needed.'" Cir. 2006) However, is not Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d (quoting 29 C.F.R. pt. 1630, app. at 363 (2003)). the notice requirement for a request for accommodation a heavy burden. "Because defendants possess superior access to information regarding their own facilities are typically plaintiff's in a position proposal prove otherwise." as far more unreasonable Roberts v. easily than is to a Royal Atlantic . they refute plaintiff Corp., a to 542 F. 3d that Dr. 363, 371 (2d Cir. 2008). Based on the record Peartree's March 11, City on notice letter, sent clearly an of to before Court, I find 2011 letter sufficiently put the defendant plaintiff's the alert the to City's the work-related Human City limitations. Resources regarding Department, plaintiff's The is physical limitations. The letter also contains a request for transfer, which can be considered a law. See 42 U.S.C. § reasonable 12111(9)(B). accommodation under the The City has not proffered evidence regarding a standard process for an employee to request reasonable accommodations. 6 6 Perhaps Dr. Peartree' s letter was Indeed, deposition testimony from Paul Holahan, Commissioner of the Department of Environmental Services, shows confusion over what the proper mechanism for requesting an accommodation would have been. Holahan testified "hopefully somebody would have directed him. If - if there was a process to get started, this [letter] could, you know, have started the process, but . . I 23 not sufficient, by itself, to constitute a formal request for an accommodation; nor was the City necessarily obliged to take the letter as a final determination that plaintiff was disabled or did in fact need accommodation. But the letter indisputably put the City on notice such that they had a duty under the ADA to investigate further, City of North 3352046 which they did not do. Tonawanda, (W.D.N.Y. Mar. No. 21, See Mineweaser v. 2016 14-CV-00144-RJA-JJM, 2016) (finding plaintiff's WL written letter a request for accommodation, though it was reasonable for the defendant to request additional documentation in order to complete a Graves v. Finch plaintiff's Pruyn verbal & Co., request 457 for paperwork and formal request) ; F.3d at unpaid 185 leave medical see also (finding that constituted a request for an accommodation such that it triggered a duty on the part of the employer "to investigate that request and not complete the determine its feasibility"). Satisfying Court's the analysis test, however. accommodate, production notice at the requirement does third prong of the McDonnell Douglas Where it is alleged that there was a failure to "the and plaintiff persuasion 'bears as accommodation that would allow employment.'" to [him] the the burdens of both existence of some to perform the essential McMillan v. City of New York, functions of [his] don't know." Ex. "C" attached to Pl.'s Mot. 24 (Docket# 43). 711 F.3d 120, 126 Consumer Prods., is not heavy: (2d Cir. 583 F.3d 92, 'It 96 enough (2d Cir. for McBride 2009)) do not clearly exceed its benefits.'" (quoting Borkowski v. F.3d 131, 138 Despite 2011 meet requests Though a a his letter is a department. of the which, McMillan, 711 School Dist., 63 no difficulty in finding that plaintiff has burden plaintiff's vaguely suggest costs Valley Cent. BIC (2d Cir. 1995)). Court has to the to facially, failed accommodation, v. "This burden the plaintiff of The plausible (quoting existence F.3d at 127 a is 2013) here, insistence however that Dr. light See Ex. plaintiff "A" be may be. March Peartree's request for an accommodation, that it 11, the letter only transferred to a different (Docket # 43) . attached to Pl. 's Mot. request to transfer or be reassigned can be considered reasonable maintains accommodation the burden to under establish the law, "that plaintiff there was a still vacant position into which he could have been transferred pursuant to then-existing civil service performed." Jackan v. 562, (2d 566-67 Cir. rules whose duties New York State Dept. 2000) ("a plaintiff he could of Labor, seeking to have 205 F.3d hold the employer liable for failing to transfer her to a vacant position as a reasonable accommodation must demonstrate that there was a vacant position (agreeing with into the which 3d, 7th, she might 11th, 25 and have D.C. been transferred") Circuits on this point) . The evidence in the current record supports a finding that an accommodation was not possible. For instance, Paul Holahan, the of Commissioner of testified that the Department "there's no Environmental job in environmental Services, services that could have permanent restrictions" such as the ones suggested in Dr. and Peartree's letter twenty-five Def.' s Mot. (lifting only up to ten pounds frequently pounds occasionally) . (Docket # 45-13) at 4. Ex. "J" attached to Defendant asserts that "all tasks of an EOS I were identical and only varied on a day to day basis," and thus plaintiff could not have been given permanent lighter duty within his position. 5-6. Aside from Dr. Peartree's plaintiff has provided the Def.'s Resp. letter (Docket# 48) at requesting Court with no guidance as transfer, to what accommodation would allow plaintiff to continue working, what position plaintiff is qualified to be transferred. 7 or to On this point, plaintiff's "evidence" consists of one internet print-out 7 Moreover, at the time that Dr. Peartree sent his first letter, plaintiff was out on Worker's Compensation, presumably because he was unable to work. " [W] here an employee concedes that he is unable to work at all, he is per se unable to perform the essential functions of his position." Daley v. Cablevision sys. Corp., No. 12-CV-6316 (NSR), 2016 WL 880203, at *5 (S.D.N.Y. Mar. 7, 2016), aff'd, No. 16-991, 2017 WL 506977 (2d Cir. Feb. 6, 2017) (citations omitted); see also Piccolo v. Wal-Mart, No. ll-CV-406S, 2012 WL 1965440, at *8 (W.D.N.Y. May 31, 2012) (medical evidence showed that plaintiff suffered from a "total disability" which "would have simply excluded him from the position entirely"). 26 page listing including, departments inter alia, the within "Chief of Staff," (Docket# 43). Rochester, "About the Department of Finance," and "Assistant to the Mayor." Pl.'s Mot. of City Ex. "G" attached to It is unclear what plaintiff even suggests with this exhibit, but it certainly does not meet the burden born by him to identify accommodations or other actual jobs that he is qualified to perform. In short, the City's failure to engage in an interactive process does not alone form the basis of an accommodation ADA was claim in the possible. absence McBride See of v. evidence BIC that Consumer Products Mfg., 583 F.3d at 100 ("the ADA imposes liability fo:t . discriminatory accommodation, not accommodations possible") refusal mere where, in undertake end, the feasible explore possible no refusal a to to accommodation was (agreeing with every other circuit as to this point); see also Sheng v. M&T Bank Corp., 848 F.3d 78, 87 (2d Cir. 2017) ("The regulations implementing the ADA are consistent with our view that a failure to engage in a good faith interactive process is not an independent violation of the ADA."). Because plaintiff has failed to show the existence of any accommodation that would make him qualified to perform his job, defendant's motion for summary judgment is granted and plaintiff's motion for summary judgment is denied. Reasons for Termination: Even 27 assuming, arguendo, that plaintiff could establish a prima facie case of discrimination, there is an additional reason why the City is entitled to summary judgment, namely that no reasonable juror could dispute that the defendant has proffered legitimate, non-discriminatory, non-pretextual reasons for plaintiff's termination. "must offer through the Defendant introduction of admissible evidence a non-discriminatory reason for their actions that, if believed by the that trier of discrimination action. fact, was not Heyman v. 11 would a support cause of a finding the Queens Village Comm. disputed unlawful employment For Mental Health for Jamaica Comm. Adolescent Program, Inc., 198 F.3d 68, 72 1999). "The defendant's burden is [] (2d Cir. The employer need light. not persuade the court that it was motivated by the reason it provides; rather, it must simply articulate an explanation that, if true, would connote lawful behavior." Hilton Hotel, 143 F.3d 47, 52 Greenway v. (2d Cir. 1998). Buffalo If the defendant provides such a reason, the presumption of discrimination "drops out of the picture." to the plaintiff to persuasion that the Id. The ultimate burden then shifts back "produce evidence and carry the burden of proffered intentional discrimination. reason Sista v. is a pretext" for CDC Ixis North America, Inc., 445 F.3d 161, 169 (2d Cir. 2006). This record pays tribute to a finding that the reason for plaintiff's termination was his poor performance and misconduct 28 at work. Plaintiff has a long history of misconduct on the job beginning in working for (Docket # misconduct, absences City. See A Paul profane equipment, involving a than Ex. Holahan to language and to October 26, (1) (5) he on the job, to Mot. 2012 from Manager Operations Karen 2012 and faulty work performance, (2) rudeness 28, standards, toward members failure ( 8) report a See Ex. "D" to (7) wear motor vehicle during a when asked why he appointment at process something to eat? (Docket# 45-8). left work at 1:07 p.m. 3:30 I p.m., don't plaintiff few of meeting, suspended for to attend a responded (Docket # 45-9). 2013, See Ex. "F" See doctor's "can know where Penfield is." ten days. but For instance, Based on this string of disciplinary issues in 2012, was use attached to Def. 's Mot. documented due "E" attached to Def.'s Mot. of safety largely failed to rebut the claims of his poor performance. Ex. ( 4) accident Plaintiff provided some insight into a incidences began Def.' s to obey orders of supervisors, City vehicle. (Docket # 45-7). attached of various workplace failure (9) after "C" Refuse authorization, refusal (6) year instances between August violations (3) one dated letter 2012 of plaintiff's without the public, these less outlines numerous October 22, of the 2007, 45-6) Commissioner Simoni July Id. I get at 4. plaintiff attached Def. 's Mot. Plaintiff's termination letter dated June 21, outlines additional instances of 29 insubordination, failure to perform his job adequately, and leaving work early. "B" attached defendant to has Def.'s Mot. # (Docket provided sufficient 45-5) . evidence of See Ex. In short, legitimate non- discriminatory reasons for terminating plaintiff. Given the misconduct, the extensive burden record shifts to of Molina's plaintiff to job show related that the reasons given by the City for terminating him are pretext for discrimination. disciplinary Plaintiff history and offers points no to explanation no admissible for his evidence suggesting that misconduct never occurred or was misunderstood. Because plaintiff's discriminatory employment, own misconduct justification for was itself his a termination 2005) nonfrom summary judgment in favor of the City is warranted. See Jackson v. Nor Loch Manor Healthcare Facility, 2d 633, valid 636 (W.D.N.Y. 2004), 297 F. Supp. aff'd, 134 Fed. App'x 477 (2d Cir. (granting summary judgment where plaintiff failed to show that defendant's reason for termination was pretextual, • [c] ertainly, stating an employer is entitled to discharge an employee who fails to follow company rules and fails to appear for work without notification"); Of Co-op Educ. Sys., see also Gaidasz v. 791 F. Supp. 2d 332, Genesee Valley Bd. 337 (W.D.N. Y. 2011) (granting summary judgment to defendant where plaintiff failed to rebut defendant's reasons for adverse employment action - plaintiff's poor attitude, lack of cooperation, failure to abide 30 by standard safety failure procedures, to achieve expected productivity, and inappropriate use of work time); Brown v. Pension Boards, failed to 488 F. demonstrate Supp. 2d 395 defendant's (S.D.N.Y. reason 2007) for The (plaintiff termination violation of company policy - was pretextual) Retaliation Claim Under the ADA: Under the McDonnell Douglas burden shifting framework, the ADA, in order to prove retaliation under plaintiff must first retaliation protected by by showing the ADA; "that establish a prima facie case of 1) the 2) he engaged employer in was an aware activity 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, Once plaintiff has 313 F.3d 713, 719 (2d Cir. made out a prima facie case, to articulate a "the burden shifts to the defendant legitimate, non-retaliatory challenged employment decision." must then show that this 2002). Id. at reason Id. the Then plaintiff 721. non-retaliatory reason pretext for impermissible retaliation." for "is merely a (citation omitted) Based on plaintiff's failure to rebut defendant's proffered reason for his termination, his retaliation claim is denied and summary judgment is granted to the defendant. See Widomski v. State University of New York (SUNY) at Orange, 748 F.3d 471, 476 (2d Cir. 2014) (affirming summary 31 judgment for defendant on retaliation claim where plaintiff evidence of pretext); Daley v. 991, at 2017 WL summary 506977, judgment plaintiff failed establish that in *l (2d Cir. "present [defendant's to provide Cablevision Sys. retaliation to failed Feb. claim "evidence 6, Corp., 2017) under that competent 16- (affirming the ADA could non-discriminatory] No. where reasonably reasons were pretextual") . Discrimination under the New York Human .Rights Law: In discrimination and retaliation claims brought under the New York Human Rights Laws, federal courts See Graves v. Finch Pruyn & Co., 457 burden-shifting framework. F.3d 181, 184 n.3 of plaintiff's analysis under (2d Cir. 2006). NYHRL the claim ADA, apply the McDonnell Douglas is the Because the Court's analysis substantially defendant's the motion same 8 for as its summary judgment on the NYHRL claim is granted for the same reasons as set forth in the Court's analysis of the federal claims. Conclusion For 8 the reasons stated above, plaintiff's motion for The Court notes that the NYHRL defines "disability" more broadly than does the ADA. See Treglia v. Town of Manlius, 313 F.3d 713, 723-24 (2d Cir. 2002); Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 233 (2d Cir. 2000) (per curiam). However, this does not alter the Court's assessment of reasonable accommodations under the McDonnell Douglas test, nor does it affect the fact that plaintiff has failed to rebut defendant's proffered non-discriminatory reason for plaintiff's termination. 32 summary judgment (Docket # 43) for summary judgment is denied, and defendant's motion (Docket # 45) dismissed with prejudice. The is granted. Clerk of Court This action is is directed to enter a judgment for defendant accordingly. W. FELDMAN d States Magistrate Judge Dated: March 30, 2017 Rochester, New York 33

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