Dipinto v. Westchester Cnty.

Decision Date01 February 2023
Docket Number18-CV-00793 (PMH)
PartiesPHILLIP DIPINTO, Plaintiff, v. WESTCHESTER COUNTY, et al., Defendants.
CourtU.S. District Court — Southern District of New York


WESTCHESTER COUNTY, et al., Defendants.

No. 18-CV-00793 (PMH)

United States District Court, S.D. New York

February 1, 2023



Phillip Dipinto (“Plaintiff”) initiated this action on January 29, 2018 (Doc. 2), filed his First Amended Complaint with the Court's leave on July 7, 2018 (Doc. 21), and, following Judge Karas's August 29, 2019 Opinion & Order (Doc. 60),[1] filed his Second Amended Complaint on September 17, 2019 (Doc. 61, “SAC”). Plaintiff, in the Second Amended Complaint, pressed nine claims for relief against Westchester County (the “County” or “Defendant”), Thomas Lauro (“Lauro”), and Jeffrey Bryant (“Bryant”): (1) discrimination, in violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et seq., against the County; (2) ADA retaliation against the County; (3) ADA hostile work environment against the County; (4) discrimination, in violation of the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 296 et seq., against all defendants; (5) NYSHRL retaliation against all defendants; (6) NYSHRL hostile work environment against all defendants; (7) NYSHRL aiding and abetting against all defendants; (8) discrimination and due process under 42 U.S.C. § 1983 against all defendants; and (9) hostile work environment under 42 U.S.C. § 1983 against all defendants.


This Court, in an October 19, 2020 Memorandum Opinion & Order, inter alia, dismissed Lauro as a defendant in the action; dismissed the NYSHRL claims against the County and Bryant in his official capacity; dismissed the Monell claims; and permitted Plaintiff's claims against the County of ADA discrimination (Claim 1), ADA retaliation (Claim 2), and ADA hostile work environment (Claim 3), and his claims against Bryant in his individual capacity of NYSHRL discrimination (Claim 4), NYSHRL hostile work environment (Claim 6), and NYSHRL aiding and abetting (Claim 7) to proceed to discovery.[2] The County and Bryant filed an Answer to the Complaint on November 12, 2020. (Doc. 90, “Ans.”).

Discovery was completed on August 16, 2021. (See June 23, 2021 Min. Entry). On August 24, 2021, Plaintiff advised the Court that he sought to discontinue his claims pressed under state law. (Doc. 102). The Court, accordingly, issued an Order on August 25, 2021 dismissing the remaining state law claims (Claims 4, 6, and 7) alleged in the Second Amended Complaint. (Doc. 103). In light of the dismissal of those claims, the Court granted the County's unopposed request to terminate Bryant as a defendant individually and in his official capacity, and removed him from the caption of this action. (Doc. 110). Thus, the only outstanding claims in the Second Amended Complaint are Plaintiff's claims under the ADA against the County alleging discrimination (Claim 1), retaliation (Claim 2), and hostile work environment (Claim 3).

Defendant, in accordance with the briefing schedule set by the Court, moved for summary judgment dismissing those remaining claims. (Doc. 129; Doc. 130, “Peart Decl.”; Doc. 131, “Def. Br.”). Plaintiff opposed (Doc. 132, “Opp. Br.”; Doc. 132-1, “Allen Decl.”), and the motion was


fully submitted with the filing of Defendant's reply papers in further support of the motion on April 22, 2022 (Doc. 133, “Reply Br.”; Doc. 134, “Peart Reply Decl.”).

For the reasons set forth below, Defendant's motion for summary judgment is GRANTED.


The Court recites the facts herein only to the extent necessary to adjudicate the extant motion for summary judgment and draws them from the pleadings, Defendant's Rule 56.1 Statement and Plaintiff's responses thereto (Doc. 121-1, “56.1”), and the admissible evidence proffered by the parties. Unless otherwise indicated, the facts cited herein are undisputed.

Plaintiff was initially hired by Defendant as a temporary employee at the Yonkers Joint Wastewater Treatment Plant (the “Plant”) on October 20, 2014. (SAC ¶¶ 21, 34; Ans. ¶¶ 21, 34). Defendant then offered Plaintiff a “contingent probationary appointment” to the position of Wastewater Treatment Plant Operator, effective September 14, 2015. (Peart Decl., Ex. 13; SAC ¶ 35; Ans. ¶ 35). Plaintiff, as a probationary employee, was required to complete a probationary period of no less than twelve and no more than 52 weeks to qualify as a full-time employee of the County. (Peart Decl., Ex. 13; SAC ¶ 36; Ans. ¶ 36). Plaintiff's role as an operator mainly involved monitoring pumps, taking samples, and general monitoring of the Plant. (Peart Decl., Ex. 4, “DiPinto Tr.” at 20:3-23). The operators, including Plaintiff, rotated the shifts that they worked on a weekly basis. (Id. at 82:1-5; 86:14-24, 35, 59, 60). The rotation included assignments in “Primary,” “Secondary,” “Building,” and “Samples.” (56.1 ¶ 21; DiPinto Tr. at 85). At times, the position had physical demands that involved extensive walking and heavy lifting. (DiPinto Tr. at 21-22). For instance, it was a quarter mile distance to walk from one plant to the other and required carrying “samples,” which were stored in 5-gallon jugs. (Id.). Plaintiff's initial supervisors were Keith May, Ben Rogers, and Andrew Wozniak. (SAC ¶ 37; Ans. ¶ 37). Plaintiff's supervisor from April 2016 until his termination in August 2016 was Dave Scarlato (“Scarlato”). (Allen Decl., Ex.


1, “DiPinto Decl.”). Plaintiff also reported to Bryant, the Plant Superintendent, and received assignments from him. (SAC ¶ 26; Ans. ¶ 26; 56.1 ¶ 4).

On or about February 5, 2016, Plaintiff suffered a workplace injury to both feet when a 6-foot, 100+ pound angle iron rod fell across his feet. (56.1 ¶¶ 5, 10-11; Peart Decl., Ex. 3). Plaintiff filed an incident report immediately following the accident but declined to go to the hospital and instead continued to work the remainder of his scheduled 12-hour shift. (56.1 ¶¶ 11-12). Plaintiff did not request or take any time off for his foot injury for the remainder of his employment at the Plant. (Id. ¶ 12). The day after the accident, Plaintiff was not scheduled to work. (Id. ¶ 13). He then took a previously scheduled two-week family vacation to Colorado. (Id.).

By letter dated March 13, 2016, Plaintiff requested to be transferred to a different plant. (Id. ¶ 17). Plaintiff stated in the letter that he sought the transfer to further his professional development, citing “[r]ecent discussions about my character have led me to believe that this feeling is not based on a performance issue but rather a personal issue.” (Peart Decl., Ex. 5). Plaintiff did not, in that letter, complain of discrimination as a result of his alleged disability or a hostile work environment. (Id.).

Scarlato completed, and Plaintiff signed, a performance evaluation on August 14, 2016. (Peart Decl., Ex. 8). The overall rating indicated that Plaintiff's “Performance Requires Improvement.” (Id. at 1). Plaintiff received a score of two (“Needs Improvement”) in five of the fourteen categories; a score of three (“Fully Meets Expectations”) in six of the fourteen categories; and a score of four (“Exceeds Expectations”) in three of the fourteen categories. (See generally, id.). Bryant, after reviewing the performance evaluation, recommended that Plaintiff's probation not be approved such that Plaintiff would not be appointed to a permanent position. (Peart Decl.,


Ex. 6, “Bryant Tr.” at 21:3-11, 100:6-11). Plaintiff was terminated on or about August 23, 2016 for unsatisfactory job performance, effective August 30, 2016. (Peart Decl., Ex. 2).

Plaintiff first sought medical attention for his February 5, 2016 workplace injury in November 2016, nearly nine months after the accident and three months after his termination. (56.1 ¶ 14). On December 7, 2017, Dr. Samuel A. Hoisington examined Plaintiff for a “schedule loss of use” and completed a report. (Allen Decl., Ex. 2). The report indicates that Plaintiff has a 20% loss of use of the right foot and ankle and that it is a permanent impairment. (Id.). Plaintiff's condition, plantar fasciitis, manifested because Plaintiff did not seek medical attention immediately following the workplace accident. (56.1 ¶ 15).

Defendant now moves for summary judgment dismissing the Second Amended Complaint.


Under Federal Rule of Civil Procedure 56, a “court shall grant summary judgment if the movant shows that 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). “A fact is ‘material' if it ‘might affect the outcome of the suit under the governing law,' and is genuinely in dispute ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Liverpool v. Davis, 442 F.Supp.3d 714, 722 (S.D.N.Y. 2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “‘Factual disputes that are irrelevant or unnecessary' are not material and thus cannot preclude summary judgment.” Sood v. Rampersaud, No. 12-CV-05486, 2013 WL 1681261, at *1 (S.D.N.Y. Apr. 17, 2013) (quoting Anderson, 477 U.S. at 248). The Court's duty, when determining whether summary judgment is appropriate, “is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Id. (quoting Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)). Indeed, the Court's function is not to determine the truth or


weigh the evidence; the task is material issue spotting, not material issue determining. Therefore, “where there is an absence of sufficient proof as to one essential element of a claim, any factual disputes with respect to other elements of the claim are immaterial ....” Bellotto v. Cty. of Orange, 248 Fed.Appx. 232, 234 (2d Cir. 2007) (quoting Salahuddin v. Goord, 467 F.3d 263, 281 (2d Cir. 2006)). Claims simply cannot proceed in the absence of sufficient proof as to an essential...

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