Chizman v. Scarnati

• Decision Date: 02 November 2016
• Docket Number: 14–CV–5910 (JS)(AKT)
• Citation: 218 F.Supp.3d 175
• Parties: Harold CHIZMAN, Plaintiff, v. Michael SCARNATI and Robert Karolkowski, individually and in their official capacities, Defendants.
• Court: U.S. District Court — Eastern District of New York

218 F.Supp.3d 175

Harold CHIZMAN, Plaintiff,

v.Michael SCARNATI and Robert Karolkowski, individually and in their official capacities, Defendants.

14–CV–5910 (JS)(AKT)

United States District Court, E.D. New York.

Signed November 2, 2016

For Plaintiff: Matthew Ian Marks, Esq., Ricotta & Marks P.C., 31–10 37th Avenue, Suite 401, Long Island City, NY 11101.

For Defendants: Caroline Beth Lineen, Esq., Lewis R. Silverman, Esq., Silverman & Associates, 445 Hamilton Avenue, Suite 1102, White Plains, New York 10601.

MEMORANDUM & ORDER

SEYBERT, District Judge:

Plaintiff Harold Chizman ("Plaintiff") commenced this action against defendants Michael Scarnati ("Scarnati") and Robert Karolkowski ("Karolkowski" and, collectively, "Defendants") alleging violations of the Equal Protection Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983. Presently pending before the Court is Defendants' motion for summary judgment. (Defs.' Mot., Docket Entry 47.) For the following reasons, Defendants' motion is GRANTED.

BACKGROUND

I. Factual Background ¹

Plaintiff was born in 1950. (Defs.' 56.1 Stmt., Docket Entry 48, ¶ 1.) In or about December 1991, Plaintiff was hired by the Nassau Board of Cooperative Educational Services ("BOCES") as a Head Custodian I. (Defs.' 56.1 Stmt. ¶ 2.) A Head Custodian I is a supervisor whose responsibilities include, but are not limited to:

[S]upervision of custodial and maintenance staff, HVAC, lighting, security systems, building safety, building cleanliness, ordering custodial supplies and oil, help with manual maintenance and custodial tasks that come up, light maintenance, necessary repairs, cleaning the grounds, preventative maintenance on boilers and air conditioners, dusting of hallways, cleaning windows, snow removal, all areas of plumbing, electrical, any necessary services to the staff of the building, use of ladders to perform duties, and walking around the assigned building.

(Defs.' 56.1 Stmt. ¶ 4.) Plaintiff alleges that a Head Custodian I generally assists his staff with "assigned tasks." (Pl.s' 56.1 Counterstmt., Docket Entry 56, ¶ 4.)

Scarnati is fifty-seven years old and began working for BOCES in or about 1999. (Defs.' 56.1 Stmt. ¶¶ 6, 69.) Scarnati was initially the Supervisor of Operations for the night shift. In or about 2003 or 2005, Scarnati became Supervisor of Operations for the day shift. (Defs.' 56.1 Stmt. ¶ 8.) Scarnati is responsible for "manag[ing] the entire custodial staff, the night supervisor of operations, the grounds crew, and the warehouse crew." (Defs.' 56.1 Stmt. ¶ 9.) Scarnati evaluated Plaintiff's performance as Supervisor of Operations for the day shift and "gave [Plaintiff] satisfactory ratings." (Defs.' 56.1 Stmt. ¶¶ 12–13.) Scarnati serves as Karolkowski's direct supervisor. (Defs.' 56.1 Stmt. ¶ 21.)

Karolkowski is sixty-six years old and began working at BOCES in or about 1998. (Defs.' 56.1 Counterstmt. ¶¶ 15, 73). Karolkowski has been the Supervisor of Night Custodial since in or about 2003. (Defs.' 56.1 Stmt. ¶¶ 14.) Karolkowski is responsible for ensuring that the night custodial staff is "working according to procedure." (Defs.' 56.1 Stmt. ¶ 16.) Karolkowski "informally write[s]-up subordinate employees," but does not complete performance evaluations. (Defs.' 56.1 Stmt. ¶¶ 17, 20.)

Plaintiff suffers from blood clots

and Chronic Obstructive Pulmonary Disease ("COPD"), which causes "significant difficulty breathing, using stairs, and using ladders." (Defs.' 56.1 Stmt. ¶¶ 22–23.) Plaintiff alleges that his COPD makes it difficult for him to walk and climb stairs after the sixth stair. (Pl.'s 56.1 Counterstmt. ¶ 22.) Plaintiff also suffers from hypertension. (Pl.'s 56.1 Counterstmt. ¶ 25.) The parties dispute whether Plaintiff advised BOCES personnel about his health issues and Plaintiff alleges that Scarnati and Karolkowski observed Plaintiff's difficulties breathing, climbing stairs, and using ladders. (Defs.' 56.1 Stmt. ¶¶ 24, 26; Pl.'s 56.1 Counterstmt. ¶¶ 24, 26.)

A. Assignment to Lipinski

In or about 2009, Plaintiff was assigned the Head Custodian position at the Lipinski Center ("Lipinski"). (Defs.' 56.1 Stmt. ¶ 27.) Lipinski is a one-story building with certain split-level areas that are accessed by one flight of stairs. (Defs.' 56.1 Stmt. ¶ 30.) Plaintiff alleges that the flights of stairs in Lipinski are six or seven steps. (Pl.'s 56.1 Counterstmt. ¶ 30.) Additionally, Lipinski utilizes Building Management System ("BMS") technology. (Defs.' 56.1 Stmt. ¶ 29.) Plaintiff received two formal trainings regarding BMS. (Defs.' 56.1 Stmt. ¶ 29.)

Managers at Lipinski complained to Scarnati that Plaintiff "did not have areas ready for meetings, and about his inability to interact with some staff." (Defs.' 56.1 Stmt. ¶ 32.) Plaintiff disputes the veracity of the substance of these complaints. (Pl.'s 56.1 Counterstmt. ¶ 32.) Scarnati discussed these complaints with Plaintiff; however, Plaintiff was not formally disciplined. (Defs.' 56.1 Stmt. ¶¶ 33–34.)

B. Transfer to Seaman

On January 18, 2013, Scarnati advised Plaintiff that he was being transferred to the Seaman Neck School ("Seaman") effective February 4, 2013. (Defs.' 56.1 Stmt. ¶¶ 35–36.) Director of Facilities Tony Fierro, along with Scarnati, and Karolkowski collaboratively made the decision to transfer Plaintiff. (Defs.' 56.1 Stmt. ¶¶ 10, 37.) Plaintiff had been transferred on four previous occasions during his tenure at BOCES. (Defs.' 56.1 Stmt. ¶ 68; Pl.'s 56.1 Counterstmt. ¶ 68.) On February 4, 2013 Sean McQuade, who was forty-nine years old, was transferred to Lipinski. (Defs.' 56.1 Stmt. ¶¶ 45, 86.)

Defendants allege that Plaintiff was transferred to Seamen because of his difficulty with the BMS system and "problems" with the Lipinski administration. (Defs.' 56.1 Stmt. ¶ 38.) Plaintiff disputes that explanation and alleges that "Scarnati told Plaintiff, with respect to the transfer [ ] ‘You know what this is about,’ and shortly thereafter, during the same meeting ... made reference to Plaintiff being at the end of his career." (Pl.'s 56.1 Counter stmt. ¶ 38.) Additionally, Plaintiff alleges that: (1) he did not have difficulties using BMS, and (2) Scarnati assigned Plaintiff a second in command who was not allowed to shovel snow due to his heart issues. (Pl.'s 56.1 Counterstmt. ¶ 38.)

Seaman is a two-floor building with approximately three flights of stairs to access the second floor in a certain area of the building, as well as a boiler room below the first floor. (Defs.' 56.1 Stmt. ¶ 39.) Plaintiff alleges that Seaman's subbasement renders it a four story building and asserts that his office area at Seaman did not have air conditioning. (Pl.'s 56.1 Counterstmt. ¶ 39.) Plaintiff did not complain about his transfer, and did not advise Defendants that he could not physically handle the transfer. (Defs.' 56.1 Stmt. ¶¶ 40–42.)

On February 3, 2013, Scarnati directed Plaintiff to perform snow removal at Seaman. (Defs.' 56.1 Stmt. ¶ 46.) Plaintiff alleges that he told Scarnati that he did not believe he was "physically safe" to shovel snow and Scarnati replied that it was part of his job. (Pl.'s 56.1 Counterstmt. ¶ 46.) The parties do not dispute that snow removal is within the Head Custodian's job description, but Plaintiff alleges that prior to his transfer "he would supervise or help a little." (Pl.'s 56.1 Counterstmt. ¶ 47.) Plaintiff alleges that he called staff for assistance with the snow removal, but the only employee available had seven stents and was not supposed to shovel snow. (Pl.'s 56.1 Counterstmt. ¶ 48.) Plaintiff further alleges that when he was transferred to Seaman, "only two (2) custodial staff were allowed to come to a particular building in order to clear snow." (Pl.'s Aff. ¶ 5.) Plaintiff removed snow for approximately three and one half hours and had to use his inhaler when he had difficulty breathing. (Defs.' 56.1 Stmt. ¶¶ 50–51.)

The next day, Plaintiff reported to work at Seaman. (Defs.' 56.1 Stmt. ¶ 54.) That afternoon, Plaintiff began experiencing chest, jaw, and shoulder pain and believed he was having a heart attack

. (Defs.' 56.1 Stmt. ¶ 55.) Plaintiff left work at approximately 3:00 p.m. and did not seek medical treatment but "called out sick from work for the next two days." (Defs.' 56.1 Stmt. ¶¶ 56–58.)

On February 7, 2013, Plaintiff reported to work and advised Karolkowski and Fierro that he was suffering from chest pains. (Defs.' 56.1 Stmt. ¶ 59.) Karolkowski advised that Plaintiff could not return to work and needed to go to Human Resources. (Defs.' 56.1 Stmt. ¶ 59.) Plaintiff alleges that Karolkowski was smiling when he made this remark and "had an extremely pleased look on his face, which made his comments seem like a threat." (Pl.'s 56.1 Counterstmt. ¶ 59.) Plaintiff further alleges that Karolkowski stated that Plaintiff would need to "make some hard decisions." (Pl.'s 56.1 Counterstmt. ¶ 59.) Plaintiff went home early and did not attempt to contact Human Resources. (Defs.' 56.1 Stmt. ¶¶ 60–61.)

Plaintiff went to the emergency room the next Monday and was diagnosed with Cardiomyopathy

, anxiety, and Panic Disorder. (Defs.' 56.1 Stmt. ¶¶ 62–63.) Plaintiff did not return to work and utilized sick time and Family and Medical Leave Act ("FMLA") time. (Defs.' 56.1 Stmt. ¶¶ 64–65.) Plaintiff submitted a resignation letter prior to the expiration of his FMLA leave and his retirement became effective May 1, 2013. (Defs.' 56.1 Stmt. ¶ 67.)

From 2008 to the present, all of BOCES' Head Custodians have been over forty-years old, with most active Head Custodians being fifty years old or older. (Defs.' 56.1 Stmt. ¶ 85.) Plaintiff alleges that when he resigned, he was the oldest Head Custodian by approximately five years. (Pl.'s 56.1 Counterstmt. ¶ 85.) Defendants allege that they were not aware of Plaintiff's age. (Defs.' 56.1 Stmt. ¶ 70.) Plaintiff disputes that allegation and asserts that: (1) on a number of occasions, Scarnati told him "it sucks getting old," and asked "[w]hat the fuck are...