Gemerek v. Buffalo Sewer Auth.

• Decision Date: 22 July 2011
• Docket Number: 99-CV-0879S
• Parties: KEVIN R. GEMEREK, Plaintiff, v. BUFFALO SEWER AUTHORITY and ANTHONY HAZZAN, Defendants.
• Court: U.S. District Court — Western District of New York

KEVIN R. GEMEREK, Plaintiff,

v.BUFFALO SEWER AUTHORITY and ANTHONY HAZZAN, Defendants.

99-CV-0879S

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Dated: July 22, 2011

DECISION AND ORDER

I. INTRODUCTION

Plaintiff Kevin R. Gemerek commenced this employment discrimination action by filing a Complaint in the United States District Court for the Western District of New York. (Docket No. 1.) He subsequently filed an Amended and Second Amended Complaint. (Docket Nos. 19, 75.) The Second Amended Complaint alleges that Defendant Buffalo Sewer Authority ("BSA") violated Gemerek's First Amendment rights, and that BSA and its general manager, Anthony Hazzan, discriminated against him and subjected him to a hostile work environment.

Gemerek brings this action pursuant to Section 1983 of the Civil Rights Act of 1964, 42 U.S.C. § 1983; the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., (hereinafter, "ADA"); the New York State Human Rights Law, N.Y. Exec. L. §§ 296 et seq, (hereinafter, "NYHRL"); and, New York Labor Law § 201-d.

Presently before this Court is Defendants' Motion for Summary Judgment (Docket

No. 119), seeking dismissal of the Complaint in its entirety.¹ Gemerek opposes the motion.² For the reasons stated below, Defendants' motion is granted in part and denied in part.

II. BACKGROUND

A. Facts

Plaintiff Kevin R. Gemerek commenced employment at BSA in February 1981 as a Wastewater Operator I. (Docket No. 119, p. 50.) In June 1993, he was promoted to Shift Superintendent. (Id.) After Gemerek's Shift Superintendent position was eliminated in a May 1996 workforce restructuring, he accepted a temporary Assistant Shift Superintendent position where he remained until his termination on November 8, 1996. (Defs.' Stmt.³ ¶ 1; Docket No. 119-5, p. 50.) At all relevant times, Gemerek was a member of the Civil Service Employees Association Inc., Local 1000, AFSCME, AFL-CIO ("CSEA" or "union"). (Defs.' Stmt. ¶ 2.) CSEA is recognized as the exclusive bargaining unit for some of BSA's employees, including Gemerek. (Id. ¶ 3.)

Defendant Anthony Hazzan commenced employment with BSA in March 1994 as Secretary to the General Manager. (Docket No. 131-3, 11:20-25.) He became acting General Manager in or around July 1995, and was appointed to General Manager in 1998. (Id. 13:22-24, 14:2-4, 13-17.) As acting General Manager, Hazzan was responsible formaking decisions about restructuring. (Id. at 13:7-9.)

BSA's Restructuring

In 1994, BSA began planning to restructure its personnel in order to run more efficiently. (Id. at 19:15-19.) As part of the restructuring plan, in or about July 1995, BSA eliminated overtime that Shift Superintendents traditionally had been allowed to work. (Docket No. 84-5, pp. 5-6.) On August 11, 1995, CSEA filed a grievance alleging that BSA violated the Collective Bargaining Agreement (hereinafter, "CBA") by having Assistant Shift Superintendents do the work of Shift Superintendents. (Docket No. 85-5, p. 59.) On August 14, 1995, CSEA filed an improper practice charge with the New York State Public Employment Relations Board ("PERB"), alleging BSA violated the Public Employees' Fair Employment Act when it shifted overtime work from Shift Superintendents to Assistant Shift Superintendents. (Docket No. 85-5, p. 57.)

In May 1996, BSA determined that it could operate with five Shift Superintendents rather than eight. (Docket No. 84-5, pp. 2-3.) The three least senior Shift Superintendents, including Gemerek, were impacted. (Id. at p. 3.) Two of the affected employees were "bumped" to vacant assistant positions. (Id.) Gemerek, having the least seniority, was laid off. (Id. at p. 10.) However, a temporary Assistant Shift Superintendent position became available later that same month, and Gemerek was offered and accepted the position. (Id.) On August 28, 1996, CSEA filed an improper practice charge relative to the elimination of positions, which charge was later amended to include Gemerek's termination. (Id. at 6166.) Some of the facts set forth herein are drawn from the testimony at the PERB hearing and findings of the PERB Administrative Law Judge ("ALJ"). (Id. at 32-52.)

Plaintiff's Absence from Work and Failure to Provide Doctor's Note

Throughout the time period at issue here, Gemerek was treated for depression. In 1995, Gemerek was off work due to a back injury. (Docket No. 119-5, p. 51.) On or about November 6, 1995, BSA received a letter from Dr. Ring, the orthopedic surgeon who examined Gemerek for his injury, noting that Plaintiff was "very depressed," was on anti-depressants, and had been on Prozac for 1-1/2 years. (Docket No. 131-11 at 2.) Dr. Ring felt Gemerek's "psychiatric problems [were] a definite factor in his recovery" from the injury. (Id.)

After recovering from his back injury, Gemerek returned to work for a short period of time. (Docket No. 119-5 at 52.) BSA did not take any action to determine Gemerek's psychological condition prior to his return to work. (Id. at 51.) Gemerek failed to report to work as scheduled on June 21, 1996. (Id. at 52.) From June 26, 1996 to July 1, 1996, he was confined at Bry-Lin Psychiatric Hospital for "Acute crisis stabilization" after he presented as overtly depressed. (Id. at p. 60-61.) Gemerek also was treated for addiction to codeine, which he had begun taking because of his back problems. (Id. at 60.) He stabilized without difficulty, was discharged with a diagnosis of Major Depression, Recurrent Without Psychotic Features, and was prescribed Xanax and Prozac, along with Darvocet-N for pain. (Id. at 61.) He followed up with Dr. Kang, who had treated him during his hospitalization. (Id. at 60-61.) Gemerek testified before the PERB ALJ that he called in to work sick on a daily basis, but did not tell anyone why he was absent or the nature of his illness. (Docket No. 85-4 at 42.)

When Sal LoTempio, assistant treatment plant superintendent, advised Director of Employee Relations, Pamela DiPalma, that Gemerek was off work, she wrote a letter,dated July 1, 1996, advising Gemerek of the need to report to her and present a doctor's note. (Docket Nos. 85-4 at 36, 42; 119-5 at 2.) DiPalma had BSA employee Angelo Provenzano hand-deliver the letter to Gemerek's residence. (Docket No. 85-4 at 42.) Gemerek testified that Provenzano made a scene when he dropped off the letter, screaming "does Kevin Gemerek live here." (Pl. Dep. 213:3-7.) This incident was so upsetting to Gemerek that he consulted his therapist, Dr. Kang. (Id. 163:19.)

Sometime thereafter, LoTempio informed DiPalma that he had been in contact with Gemerek, and that Gemerek would be returning to work on July 21, 2006. DiPalma again wrote to Gemerek, on July 16, 1996, directing that he appear at her office on July 18, 1996 at 2:00 p.m., with a note from his doctor "stating that [Gemerek] may return to work with no restrictions or limitations." (Docket No. 119-5 at 6.) Since at least January 1996, BSA has required that an employee returning to work from an extended illness meet with DiPalma in advance, and provide written authorization to return to work from his or her physician. (Id. at 30.) BSA employee Dennis Faye hand-delivered DiPalma's second letter to Gemerek's house, dropping it in his mailbox. (Docket No. 85-4 at 42.)

Gemerek arrived for the scheduled meeting with a note from Dr. Kang, dated July 9, 1996, certifying he was able to "return to work on 07-14-96, with no restrictions." (Id. at 43; Docket No. 119-5 at 43.) However, DiPalma was unable to meet with Gemerek due to a family emergency. (Docket No. 85-4 at 43.) Gemerek testified that he became loud and angry when he discovered DiPalma was not there to meet with him, and concedes he told Faye he had reported Faye to the Postmaster General for placing the July 16 letter in his mailbox. (Id.)

DiPalma thereafter called Gemerek to ask him who Dr. Kang was and what he wasbeing treated for, but Gemerek declined to provide that information. (Id. at 43-44.) DiPalma testified at the PERB hearing that she believed she had a right under the contract to inquire about the nature of Gemerek's illness, citing Article IX, Section 1(h) of the collective bargaining agreement between BSA and CSEA for the period July 1, 1995 - June 30, 1998. (Id. at 44.) That provision states, in pertinent part, that:

"Prior to receiving sick pay under this provision, an employee must execute and file... written proof of his illness or disability during the period of his absence. Said proof... shall include a physician's certificate specifically setting forth the exact nature of the employee's illness or disability..."

(Docket No. 119-5 at 24). This provision does not relate to an employee's return to work. Rather, it sets forth the requirements an employee must meet to have his or her absence charged against accumulated sick leave credits. (Id.)

Union Demonstration

One day after Gemerek had been scheduled to meet with DiPalma, on July 19, 1996, he attended a union demonstration in front of Buffalo City Hall. (Docket No. 85-4 at 44-45.) Gemerek's union, CSEA, was not involved in the picketing. (Docket No. 119-5 at 53.) Gemerek spotted Hazzan and DiPalma leaving City Hall, grabbed a bull horn, and started yelling at them. (Docket No. 85-4 at 44-45.) Accounts differ as to what Gemerek said. Hazzan testified before the ALJ that Gemerek stated:

"I'm going to get you, f- - - head. Here I am, come and get me." (Id. at 45.)

DiPalma testified Gemerek shouted:

"Hazzan and DiPalma, you mother f- - - ers want me, come and get me. I'm out here. You send political cronies to my house. You f---ing people, if you want me, come and get me. You harass my family." (Id.)

Gemerek testified that he yelled:

"Hi Pam. Hi Tony. I'm over here. You want to threaten my family, come over here and do it on camera." (Id.)

Patricia DeBenedetti, an employee in DiPalma's office, heard Gemerek's remarks and wrote them down. (Id.) Her account was substantially similar to what DiPalma recalled Gemerek saying. (I...