Cortes v. MTA N.Y.C. Transit

• Citation: 32 A.D. Cases 1,802 F.3d 226
• Decision Date: 04 September 2015
• Docket Number: Docket No. 14–713–cv.
• Parties: Juan E. CORTES, Plaintiff–Appellant, v. MTA NEW YORK CITY TRANSIT, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

802 F.3d 226

32 A.D. Cases 1

Juan E. CORTES, Plaintiff–Appellant

v.MTA NEW YORK CITY TRANSIT, Defendant–Appellee.^*

Docket No. 14–713–cv.

United States Court of Appeals, Second Circuit.

Submitted: Feb. 19, 2015.

Decided: Sept. 4, 2015.

Stewart Lee Karlin (Natalia Kapitonova on the brief), The Law Offices of Stewart Lee Karlin, P.C., New York, N.Y., for Plaintiff–Appellant.

Robert Kenneth Drinan (Lewis S. Finkleman and Kristen M. Nolan on the brief), New York City Transit Law Department, Brooklyn, N.Y., for Defendant–Appellee.

Before: WINTER, POOLER, and SACK, Circuit Judges.

Opinion

WINTER, Circuit Judge:

Juan E. Cortes appeals from Judge Vitaliano's grant of summary judgment to MTA New York City Transit (“MTA”), dismissing appellant's claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12112 –12117. Before bringing the present action, appellant filed a substantially similar disability discrimination claim with the New York State Division of Human Rights (“NYSDHR”), which dismissed it. Based on Collins v. New York City Transit Authority, 305 F.3d 113 (2d Cir.2002), the district court gave almost preclusive weight to the NYSDHR's dismissal of this claim. Because Collins addresses only the effect of arbitration awards under a collective bargaining agreement and does not apply to the decisions of state administrative agencies, we vacate and remand the dismissal of appellant's disability discrimination claim. However, we affirm the dismissal of appellant's retaliation claim.

BACKGROUND

This is an appeal from a grant of summary judgment, and we view the factual record in the light most favorable to appellant. McGuinness v. Lincoln Hall, 263 F.3d 49, 52 (2d Cir.2001).

On July 11, 1994, MTA hired appellant as a train conductor. He was promoted to passenger train operator in 1998. In late 2001, he became a work train (no passengers) operator. On October 15, 2006, appellant had a dispute with a supervisor. On that day or soon thereafter, he also injured his back. A subsequent MRI showed injury to four lumbar discs, and appellant's personal doctor ordered him not to work from November 3, 2006 until January 7, 2007.

Appellant's employment was governed by a collective bargaining agreement (“CBA”) that required him, before returning to work, to undergo a full physical evaluation at MTA's Medical Assessment Center (“MAC”) and to obtain a fit-for-duty certificate. On January 7, 2007, in the course of the physical evaluation, an EKG test revealed a potentially dangerous cardiac abnormality. MAC doctors barred appellant from operating trains until he had undergone complete cardiac testing. Because appellant's job was “safety sensitive,” the MTA determined that there were no train-operator duties appellant could perform until he was medically cleared.

Appellant's doctor confirmed the abnormal EKG and referred him to a cardiologist, Dr. Jane Levine. On March 5, 2007, appellant submitted documentation to MAC showing that Dr. Levine confirmed the coronary artery disease diagnosis and, as a result, he could not perform train-operator duties. Dr. Levine recommended additional diagnostic procedures including a nuclear stress test and a cardiac catheterization or, alternatively, a cardiac CTangiogram.

On March 20, 2007, appellant met with MAC doctors again. The stress test revealed coronary artery disease, but appellant refused to undergo a catheterization. Appellant claimed that he refused catheterization only because was waiting for his insurer's approval of an angiogram. Because appellant had not provided the requisite documentation, MAC doctors left the work restrictions in place and gave him until May 15, 2007 to submit the results of an angiogram. Appellant failed to submit the results by the deadline. Consequently, his work restrictions were changed from temporary to permanent, which allowed him to be reclassified to a position encompassing duties he was physically fit to perform.

In late August 2007, appellant received the results of the angiogram, which revealed no heart or artery disease. Appellant, however, did not give these results to the MTA and missed a September 25, 2007 appointment with MAC for a reclassification evaluation. At a rescheduled appointment on November 28, appellant produced the August diagnostic results. On March 31, 2008, based on the new information, the MTA doctors altered appellant's work restrictions to allow him to operate work (non-passenger) trains, as he had done since 2001.

On April 16, 2007, during the various medical examinations, appellant's counsel filed a complaint with the NYSDHR, claiming the MTA had illegally discriminated against him under state and federal law by failing to accommodate his disability, i.e., his cardiac problem and neck injury. On January 23, 2009, the NYSDHR issued a decision holding that appellant had not met his burden of proof on the discrimination claim. The NYSDHR found, in relevant part, the following facts. Appellant had not complied with the CBA requirement that he obtain a fit-for-duty certificate from MAC to return to work. Although the MTA was ready to consider lifting appellant's job restriction if further testing ruled out a heart condition serious enough to endanger passengers, appellant failed to submit the diagnostic results in a timely manner. As soon as appellant submitted the results of the further cardiac testing, the MTA modified his work restrictions and allowed him to return to operating work trains. Because appellant could not fulfill the essential duties of his safety-sensitive position as passenger train operator without medical clearance, the NYSDHR concluded that no reasonable accommodation would have been possible. The NYSDHR further noted that appellant never requested an accommodation for his disability. The NYSDHR opinion became final on January 25, 2010. The EEOC adopted its findings on June 10, 2012. 42 U.S.C. § 2000e–5(b) (“[T]he Commission shall accord substantial weight to the final findings and orders made by state or local authorities....”). Appellant did not challenge the NYSDHR's decision administratively or in state court.

On September 10, 2010, appellant commenced the present action by filing a pro se complaint against the MTA in the Eastern District of New York. The complaint asserted claims under Title VII, the ADEA, and the ADA.¹ 42 U.S.C. §§ 2000e to 2000e–17, 29 U.S.C. §§ 621 –634, 42 U.S.C. §§ 12112 –12117. The only facts alleged in the complaint were that “[I] have never had a medical appeal of my case according to our collective bargaining agreement” and “I had a neck injury 12–26–1996 and believe the Transit Authority is retaliating against me because of this.” J. App'x at 13. The complaint did not assert discrimination because of appellant's back or cardiac conditions or retaliation because of his NYSDHR complaint.

The MTA moved for summary judgment, submitting, inter alia, a copy of the NYSDHR/EEOC order. In response to the MTA's Rule 56.1 statement of material facts, appellant admitted that he had filed an NYSDHR complaint alleging that the MTA discriminated against him on the basis of his initial injury and his cardiac condition. He also conceded that the NYSDHR had held a hearing at which he was represented by counsel and gave sworn testimony. He did not contest any of the NYSDHR's findings of fact.

Appellant's response to the MTA's Rule 56.1 statement further stated, for the first time, that the alleged discrimination stemmed not only from an injury sustained at home and a verbal confrontation with a superior, but also from his cardiac condition and a neck injury suffered in 1996. The neck injury pre-dated by many years his promotion from conductor to train operator.

He alleged that he was facing disciplinary charges “for being injured.” J. App'x at 86. In addition, the parties' summary judgment briefing discussed additional acts of alleged disability discrimination during the period after Cortes returned to work, including restricted work assignments and overtime.

The district court granted summary judgment to the MTA. The court held that appellant's claims were not precluded by virtue of the NYSDHR's prior administrative ruling based on the same facts. With regard to appellant's disability discrimination claim, the court assigned substantial weight to the NYSDHR's findings of fact because they were the product of an “independent and unbiased” hearing. J. App'x at 121 (quoting Collins, 305 F.3d at 115 ). Relying on this court's opinion in Collins, 305 F.3d at 115, the court held that appellant “utterly fail[ed] to confront much less carry” the burden of showing that the NYSDHR's decision was wrong as a matter of fact or that its impartiality was tainted. Instead of presenting the district court with “any evidence related to his 2007–2008 claims that was not already presented,” appellant “rehash[ed]” the same facts and arguments he provided to the NYSDHR. Therefore, the court granted the MTA summary judgment on the ADA discrimination claims.

Appellant's briefing in the district court also claimed that he was retaliated against for filing a complaint with the NYSDHR. This claim “appear[ed] nowhere in his complaint.” J. App'x at 122. Nonetheless, because appellant filed the complaint pro se and the court would have granted permission to amend it to add a retaliation claim, the court deemed the retaliation claim as properly before it.

However, the district court held that appellant failed to make out a prima facie retaliation case. Although he had filed an NYSDHR complaint, a protected activity of which the MTA had knowledge, and he was put under work restrictions, an adverse employment action, the district court held that appellant had not shown a causal connection between the NYSDHR complaint and the adverse employment action. It concluded that, because the NYSDHR complaint was filed in April 2007 and the claimed retaliation took place 14 months later, there was not even a “tenuous temporal connection” to suggest...