Greenberg v. New York City Transit Authority

• Citation: 336 F.Supp.2d 225
• Decision Date: 27 September 2004
• Docket Number: Civil Action No. CV-99-3666 DGT CLP.
• Parties: Marc GREENBERG, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant.
• Court: U.S. District Court — Eastern District of New York

336 F.Supp.2d 225

Marc GREENBERG, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant.

Civil Action No. CV-99-3666 DGT CLP.

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

September 27, 2004.

COPYRIGHT MATERIAL OMITTED

Marc Greenberg, Belle Harbor, NY, pro se.

James Reif, Margaret Ann Malloy, Gladstein, Reif & Meginniss, LLP, New York, NY, for Plaintiff.

Joyce Rachel Ellman, Michele Leigh Sheridan, Richard Schoolman, Sundria R. Lake, Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

TRAGER, District Judge.

In this action, plaintiff Marc Greenberg ("Greenberg," "plaintiff") claims (i) that his termination as an employee of the New York City Transit Authority ("TA," "Transit Authority," "defendant") in August 1994 violated Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12111-12117 ("ADA"), because the TA intended to discriminate against him because he was either actually disabled or was perceived to be disabled, and (ii) that his reinstatement by the TA in June 1997 was delayed, in violation of the ADA, because the TA wished to retaliate against him for his having asserted ADA-related rights by filing an Equal Employment Opportunity Commission ("EEOC") charge following his termination. (Second Amended Complaint ("Am.Compl.") ¶ 1). Plaintiff also brought supplemental claims under the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. ("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq. ("NYCHRL"). (Am.Compl.¶ 1).

The TA has moved for summary judgment in its favor, and also to dismiss the action for allegedly false material statements made by plaintiff during his deposition. Specifically, as to the first part of its motion, defendant argues that summary judgment in its favor is appropriate because "the undisputed material facts do not show that the employment of the plaintiff, Marc Greeneberg, was terminated ... in mid-1994 because he was, or was perceived as being disabled, within the meaning of the ADA; nor do the facts show that his reinstatement (in June 1997) was delayed by any ADA-retaliatory motive, or for any other reason proscribed by the ADA" (Def. Mem. of Law in Support 8). As to the second part of its motion, defendant argues that this action should be dismissed "because the plaintiff lied in his deposition about what is effectively [his] sole remaining claim in this action, that is, his emotional distress claim arising from his termination" (Notice of Defendant's Motion to Dismiss; Def. Mem. of Law in Support 9).

Plaintiff has cross-moved for partial summary judgment in his favor on the following matters: (1) defendant "discharged [p]laintiff from his employment in 1994 because it regarded him as disabled within the meaning of the [ADA]"; (2) "[d]efendant discharged [p]laintiff from his employment in 1994 because he was disabled within the meaning of the [NYSHRL] and the [NYCHRL]"; and (3) "[d]efendant had no valid reason to terminate [p]laintiff's employment." (Notice of Plaintiff's Motion for Partial Summary Judgment; Pl. Mem. of Law in Support 1).

Prior to filing this action in federal court, plaintiff initiated several proceedings in response to his termination. Following is a brief overview of those proceedings. On August 31, 1994, plaintiff filed a grievance contesting his discharge (Greenberg Decl. Ex. F). The TA denied plaintiff's grievance and his appeal (id.).

Plaintiff filed a charge of disability discrimination with the EEOC in September 1994, complaining of his termination by the TA in August 1994 (Greenberg Decl. ¶ 50). The EEOC eventually issued a right-to-sue letter and plaintiff commenced this action, pro se, on June 28, 1999. Subsequently, plaintiff obtained counsel and filed an Amended Complaint and a Second Amended Complaint. Discovery as to liability has been completed.

In a separate action, on February 13, 1995, plaintiff filed a charge of discrimination with the New York State Workers' Compensation Board ("WCB") (Greenberg Decl. ¶ 50). After several hearings, a Workers' Compensation Law ("WCL") Judge in December 1995 determined that in discharging plaintiff in 1994, the TA had discriminated against him in violation of the Workers' Compensation Law and ordered the TA to reinstate him, subject to a satisfactory medical examination (Malloy Decl. Ex. V. at 30). The TA did not comply with that order, but instead, on January 3, 1996, submitted an application for WCB review of the decision (Malloy Decl. Ex. W). On February 3, 1997, a WCL Judge again ordered the TA to reinstate plaintiff to employment (Malloy Decl. Ex. X at 2). The TA did not comply with the order, but instead, on March 25, 1997, submitted an application for WCB review of the decision. In addition, the TA submitted an application for full WCB review on December 30, 1997 and June 17, 1998 (Malloy Decl. ¶ 4, Ex. W). The WCB issued a decision, which was subsequently amended two times, finding that the TA discriminated against plaintiff, including a finding that the TA "did not have a valid reason for terminating [plaintiff] on August 22, 1994" (Malloy Decl. Ex. W (May 17, 2001 Decision) at 3). The WCB rejected as a pretext the TA's assertion that it discharged Plaintiff pursuant to Civil Service Law § 71 (id.).

The TA filed three notices of appeal with the New York State Supreme Court Appellate Division, Third Department, but failed to prosecute all three (Malloy Decl. ¶ 4). Pursuant to section 22 N.Y.C.R.R. § 800.12, all three of those appeals were deemed abandoned. On September 11, 2002, the Third Department dismissed the TA's third abandoned appeal, and the litigation of the TA's liability under the WCL has been concluded (Malloy Decl. ¶ 4 and Ex. W (3rd Dep't Sept. 11, 2002 Decision and Order on Motion)).

Plaintiff received back pay by order of a WCB proceeding for the period from August 26, 1994 to June 9, 1997 (Schoolman Decl. ¶ 13; Defendant's Local Rule 56.1 Statement ("Def. Rule 56.1 Statement") ¶ 28; Plaintiff's Rule 56.1 Statement in Opposition to Defendant's Motion to Dismiss ("Pl. Rule 56.1 Opp.") ¶ 28).

Background

Plaintiff was hired by the TA in June 1978, and within a year became a Bus Maintainer, Group B (a civil service title) (Declaration of Marc Greenberg, Sept. 24, 2003 ("Greenberg Decl.") ¶ 2; Defendant's Memorandum of Law in Support of its Motion to Dismiss ("Def.Mem.") at 2). In September 1987, plaintiff suffered an on-the-job injury to his left knee (Declaration of Richard Schoolman ("Schoolman Decl."), Ex. E; Greenberg Decl. ¶ 6).

Plaintiff's orthopedist, Dr. Bennet Futterman, in a report dated March 15, 1988, reported to the TA that plaintiff suffered from a tear of the left medial meniscus and requested authorization to perform arthroscopic surgery of the left knee (Plaintiff's Rule 56.1 Statement in Support of Plaintiff's Motion for Partial Summary Judgment ("Pl. Rule 56.1 Statement") ¶ 4). Arthroscopic surgery was eventually performed on the left knee on August 18, 1988 (Malloy Decl. Ex. C at P58, P64).

On April 12, 1988, the TA Medical Assessment Center ("MAC") concluded that plaintiff was able to perform "no work," which meant that plaintiff was considered unable to perform any work for the TA (id. ¶ 5). Plaintiff continued in a "no work" status until December 28, 1988, when the MAC determined that plaintiff could perform restricted work (id. ¶ 6). The restrictions that the TA imposed on plaintiff on December 28, 1988 included "limited use of left leg" and "limited bending, crawling, crouching, kneeling, stooping" (id. ¶ 6; Malloy Decl. Ex. C at P81).

Plaintiff states that he was not permitted to return to work until June 1, 1989, at which time he returned to "restricted" work as a bus maintainer in a bench job working on small parts (Pl. Rule 56.1 Statement ¶ 8). Defendant explains that there was no work available for plaintiff until June 1, 1989 (Defendant's Counter Local Rule 56.1 Statement in Opposition to Plaintiff's Motion for Partial Summary Judgment ("Def. Counter Local Rule 56.1 Statement") ¶ 2). The record shows that on December 30, 1988, plaintiff was placed in the "No Work Available" category by the TA's Surface Department (Schoolman Decl. Ex. F).

In April 1989, before returning to work, plaintiff submitted an application for disability retirement, which was denied (Greenberg Decl. ¶ 16).¹

On November 30, 1989, it was determined by a physician at the TA Medical Services Department that plaintiff could "remain at bench job. No bending or crouching until reevaluated" (Malloy Decl. Ex. C at P131-32, P124B). In February 1990, a TA doctor deemed plaintiff's continuing medical restrictions "permanent" (Greenberg Decl. ¶ 17; Malloy Decl. Ex. C at P131-32).²

In June 1990, plaintiff was examined by the MAC, and he was told that he was eligible for reclassification to work as a Transit Property Protection Agent ("TPPA")³ or Railroad Clerk (Pl. Rule 56.1 Statement ¶ 12; Def. Counter Local Rule 56.1 Statement ¶ 6; Greenberg Decl. ¶ 18; Malloy Decl. Ex. G). Plaintiff was reclassified and began work as a TPPA on August 13, 1990 (Pl. Rule 56.1 Statement ¶ 12; Greenberg Decl. ¶ 18).

Between 1989 and 1994, as indicated in Dr. Futterman's regular reports to the TA and in records of the MAC, plaintiff's medical problems expanded to include his right knee, back, and neck (Pl. Rule 56.1 Statement ¶ 15; Def. Counter Local Rule 56.1 Statement ¶ 7). Dr. Futterman submitted requests for the TA to authorize physical therapy for both plaintiff's knees and for surgery to his right knee and back (Pl. Rule 56.1 Statement ¶ 16).⁴ Physiotherapy and right knee surgery were authorized by decisions of Workers' Compensation Law Judges (id.). Despite these ongoing medical problems, plaintiff continued to work for the TA without taking any additional work-related disability leaves from employment (Pl. Rule 56.1 Statement ¶ 17).

Plaintiff worked as a TPPA until July 11, 1994, when he claims his right knee gave out while he was...