Cooney v. Consolidated Edison

• Decision Date: 06 September 2002
• Docket Number: No. 00 Civ. 4965(JGK).,00 Civ. 4965(JGK).
• Citation: 220 F.Supp.2d 241
• Parties: Joseph COONEY, Plaintiff, v. CONSOLIDATED EDISON, Defendant.
• Court: U.S. District Court — Southern District of New York

220 F.Supp.2d 241

Joseph COONEY, Plaintiff, v. CONSOLIDATED EDISON, Defendant.

No. 00 Civ. 4965(JGK).

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

September 6, 2002.

COPYRIGHT MATERIAL OMITTED

Joseph Cooney, Bayside, NY, pro se.

OPINION AND ORDER

KOELTL, District Judge.

The plaintiff, Joseph Cooney, brings this action pro se against his employer, Consolidated Edison Company of New York, Inc. ("Con Ed"). The plaintiff alleges that Con Ed discriminated against him on the basis of an alleged disability, namely Chronic Fatigue Immunity Dysfunctional Syndrome ("Chronic Fatigue Syndrome"), failed to provide him with reasonable accommodations for this condition, subjected him to discriminatory employment conditions, harassed and defamed him, and retaliated against him for filing complaints with the Equal Employment Opportunity Commission ("EEOC"), all in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12102 et seq. Construed liberally, the Complaint also contains a state law claim for defamation.

The defendant moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the Complaint in its entirety. The plaintiff moves for additional discovery.

I.

The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224.

The moving party, Con Ed in this case, bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive law governing the case will determine those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether summary judgment is appropriate, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Gallo, 22 F.3d at 1223.

If the moving party meets its burden, the burden shifts to the nonmoving party, Mr. Cooney in this case, to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994).

Finally, although the same standards for summary judgment apply when a pro se litigant is involved, the pro se litigant should be given special latitude in responding to a summary judgment motion. See McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir.1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest'") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)); see also Amaker v. Goord, No 98 Civ. 3634, 2002 WL 523371, at *2 (S.D.N.Y. Mar.29, 2002). The pro se party must also be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment, unless the plaintiff's papers establish that the pro se litigant understood the nature and consequences of summary judgment. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir.1999); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996); Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir.1994). In this case, by Notice to Pro Se Litigant Opposing Motion for Summary Judgment dated February 1, 2002, the plaintiff was advised of the procedures for responding to a motion for summary judgment, including the requirement to submit a response to the defendant's Rule 56.1 Statement and to submit counter-evidence. The plaintiff has submitted an appropriate response to the defendant's motion in this case, together with supporting affirmations.¹

II.

Unless otherwise indicated, the following facts are either undisputed or are matters of public record. The defendant Con Ed is a New York corporation that is engaged in the business of supplying electric, gas and steam services to the five boroughs of New York City and Westchester County. (Def.'s Rule 56.1 St. ¶¶ 1-2.) The plaintiff began working for the defendant in 1990 as a General Utility Worker, which is an entry-level position, in the Queens Gas Construction division ("Queens Gas Operations"). (Deposition of Joseph A. Cooney dated October 23, 2001 ("Cooney Dep.") at 64-65; Def.'s Rule 56.1 St. ¶ 6.) The plaintiff concedes that he was not disabled at the time. (Cooney Dep. 78.) During the course of his employment, the plaintiff received training from the defendant in gas construction and repairs and on-the-job training covering gas construction and repair techniques and safety. (Cooney Dep. 65-66, 100-01; Def.'s Rule 56.1 St. ¶¶ 9-11.) The plaintiff was successively promoted until he was given the highest level mechanic's title, outplant Mechanic A in April 1994. (Cooney Dep. 86, 102-03; Def.'s Rule 56.1 St. ¶¶ 11-13.) This job involves a high degree of physical exertion. (Cooney Dep. 102-03, 117; Def.'s Rule 56.1 St. ¶ 4.) The plaintiff is currently a weekly union employee of Con Ed, working as an outplant Mechanic A in Gas Operations. (Def.'s Rule 56.1 St. ¶ 3.)

The plaintiff alleges that he was first diagnosed with the Epstein Barr virus, which causes him Chronic Fatigue Syndrome, in 1993, and that he began to seek certain accommodations in 1994 but ultimately declined to have any medical restrictions imposed on his work assignments because he did not want to lose the opportunity to work overtime. (Cooney Dep. 96-97, 107-12.)

On March 30, 1999, the plaintiff, who had been working at Queens Gas Operations, was suspended for thirty (30) days and was given a final warning and a transfer to Manhattan as discipline after an internal investigation resulting in a finding that he and his partner, Michael Senise, had harassed, intimidated and/or threatened a number of co-workers at the Queens Gas site. (Cooney Dep. 46-48; Def.'s Rule 56.1 St. ¶¶ 16-26.) Mr. Senise, who does not have any alleged disability, was terminated as a result of the findings in this investigation. (Cooney Dep. 47; Def.'s Rule 56.1 St. ¶ 26.) The plaintiff filed an EEOC Charge on March 31, 1999 claiming he was disciplined not for harassing other workers but because he was disabled by Chronic Fatigue Syndrome and alcoholism, allegedly in violation of the ADA. (Affidavit of Jonathan A. Fields dated February 1, 2002 ("Fields Aff.") Ex. C.) On June 28, 1999, the EEOC issued a Dismissal and Notice of Rights with respect to this charge, and the plaintiff did not commence any federal action raising these claims. (Fields Aff. Ex. D; Cooney Dep. 9-10, 12.)

On May 12, 1999, the plaintiff completed his suspension and began working for Con Ed in Manhattan, under a different set of supervisors and managers. (Affidavit of Alfredia Sales-Fairnot sworn to January 25, 2002 ("Sales Aff.") ¶ 16.) Approximately two months later, in July 1999, the plaintiff alleges that he sought to be transferred back to Queens Gas Operations from Manhattan. (Cooney Dep. 88, 214.) The parties dispute whether the plaintiff ever submitted the appropriate documents to request such a transfer through the formal channels. (Cooney Dep. 94-95; see generally also Sales Aff. ¶ 26). The plaintiff was not transferred back to Queens. (Cooney Dep. 95.)

In October 1999, Rafael Morato, a supervisor in Manhattan Gas Operations who did not know the plaintiff and had never met him before, observed that the plaintiff appeared to be sleeping in a Con Ed truck at mid-morning near a job site. Morato questioned the plaintiff about his apparent sleeping, though the parties dispute what exactly was said during this conversation and whether the plaintiff had actually been sleeping. (Cooney Dep. 125-28; Def.'s Rule 56.1 St. ¶ 30.) On October 28, 1999, the plaintiff was given a disciplinary interview for "sleeping on the job" and "creating a poor public image" and received a five-day suspension and an extension of his all-inclusive final warning for one year from the date of the interview. (Sales Aff. Ex. G; Cooney Dep. 137, 151, 153-54.) The plaintiff was told that because he was on an all-inclusive final warning, any future infractions would subject him to immediate discipline up to, and including, termination. (Sales Aff. Ex. G.)

In October 1999, a series of incidents of vandalism occurred at the College Point yard in Queens, which was one of the locations in which the plaintiff and Senise had worked and had allegedly harassed co-employees. (Cooney Dep. 274; Def.'s Rule 56.1 St. ¶ 38.) On October 29, 1999, a photograph posted on a bulletin board of two employees who had given statements against the plaintiff and Senise during the investigation that resulted in the plaintiff's discipline and...