Krasner v. City of N.Y.

• Decision Date: 23 September 2013
• Docket Number: 11 Civ. 2048 (PGG)
• Parties: GLENN KRASNER, Plaintiff, v. THE CITY OF NEW YORK, and THE FIRE DEPARTMENT OF THE CITY OF NEW YORK, Defendants.
• Court: U.S. District Court — Southern District of New York

GLENN KRASNER, Plaintiff, v. THE CITY OF NEW YORK, and THE FIRE DEPARTMENT OF THE CITY OF NEW YORK, Defendants.

11 Civ. 2048 (PGG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: September 23, 2013

MEMORANDUMOPINION & ORDER

PAUL G. GARDEPHE, U.S.D.J.:

Plaintiff Glenn Krasner alleges that Defendants the City of New York and the Fire Department of the City of New York ("FDNY") discriminated against him because he suffers from Asperger's syndrome, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the New York State Human Rights Law ("NYSHRL"), Executive Law § 296 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107 et seq. The Complaint also alleges that Defendants retaliated against him after he filed a complaint with the FDNY Office of Equal Employment Opportunity and because he sought a reasonable accommodation.

Krasner moved for summary judgment on September 12, 2012, and Defendants cross-moved for summary judgment on September 24, 2012. For the reasons stated below, Krasner's motion will be denied and Defendants' motion will be granted.

BACKGROUND

I. FACTS AND PROCEDURAL HISTORY

A. The Parties

On June 29, 1992, Krasner was provisionally appointed a Fire Protection Inspector ("FPI") with of the FDNY. (Def. R. 56.1 Stmt. ¶ 3)¹ Plaintiff received a permanent appointment as an FPI on December 9, 1996, after passing the civil service examination. (Def. R. 56.1 Stmt. ¶¶ 2, 4) FPI's inspect premises and businesses to ensure that they are in compliance with FDNY codes and regulations. (Def. R. 56.1 Stmt. ¶ 5) Plaintiff received six weeks of training, during which he was instructed on the relevant codes and regulations, how to perform inspections, and how to properly complete required paperwork. (Def. R. 56.1 Stmt. ¶¶ 6-7) Plaintiff was assigned to work at District Office 1, located at 9 Metrotech Center, Brooklyn, New York - the same building that houses the FDNY executive offices. (Def. R. 56.1 Stmt. ¶ 12) In 2006, Plaintiff was honored as Fire Inspector of the Year by the FDNY. (Pltf. R. 56.1 Stmt. ¶ 10)

B. Krasner's Disciplinary History

On April 4, 1997, Plaintiff was served with a disciplinary charge alleging that he had been disrespectful to a co-worker on January 2, 1997. (Def. R. 56.1 Stmt. ¶13) Plaintiff had said to a co-worker, "[c]an I fuck you in the ass?" (Def. R. 56.1 Stmt. ¶ 14) As a result of this incident, Plaintiff agreed to accept a formal letter of reprimand, in lieu of a formal evidentiaryhearing before an Administrative Law Judge (ALJ) of the City's Office of Administrative Trials and Hearings ("OATH").² (Def. R. 56.1 Stmt. ¶ 15)

In 2003, Plaintiff was again disciplined for using inappropriate language to a co-worker. (Def. R. 56.1 Stmt. ¶ 16) Plaintiff told a co-worker, "[s]uck my dick." (Def. R. 56.1 Stmt. ¶17) On May 5, 2003, Plaintiff signed a Stipulation and Agreement accepting a formal reprimand. (Def. R. 56.1 Stmt. ¶ 18)

On August 12, 2004, during a meeting of the District Office, Plaintiff was disorderly and disruptive. (Def. R. 56.1 Stmt. ¶ 19) According to Plaintiff, at this meeting he "screamed at the top of [his] voice with profanity and total disrespect so loud that it was almost deafening." (Def. R. 56.1 Stmt. ¶ 20) He was issued a disciplinary memorandum in connection with this incident. (Collyer Decl., Ex. I)

On February 14, 2006, Plaintiff was charged with violating the FDNY's Civilian Code of Conduct. (Def. R. 56.1 Stmt. ¶ 21) The charge alleged that Plaintiff "was given a verbal instruction . . . by two different supervisors to serve an outstanding repeat violation and Mr. Krasner refused to do [so]. In refusing to do as instructed, Mr. Krasner stated in a very loud voice that he would not serve the violation and used profane language." (Def. R. 56.1 Stmt. ¶ 21; Collyer Decl., Ex. J at BITS0007-BITS0010)

On February 16, 2006, Plaintiff was again charged with violating the Code of Conduct. (Def. R. 56.1 Stmt. ¶ 21) The charging documents state: "[Plaintiff] stated aloud in sum and substance: That son of a bitch was trying to get me to serve a violation. When Mr. Krasner was instructed by a supervisor to cease from yelling and using profanity, he then loudly stated in sum and substance to said supervisor: I'm going to get the birdshot and get you.You're both getting up my ass." (Def. R. 56.1 Stmt. ¶ 21; Collyer Decl., Ex. J at BITS0011-BITS0013) (emphasis in original). The charging documents also state that on the same day, "after [Krasner] was instructed by his supervisor to make a revision on a document[,] he struck said supervisor's chest three time[s] with his own chest while yelling in sum and substance: I'll fuck you up; I'll fuck you up. When another supervisor attempted to intervene and instructed Mr. Krasner to cease his conduct, Mr. Krasner then proceeded to yell in sum and substance: I'm going to fuck you both up; I'm going to kill you both." (Def. R. 56.1 Stmt. ¶21; Collyer Decl., Ex. J. at BITS0014-BITS0016) (emphasis in original).

On April 17, 2007, Cho Seung-Hui shot and killed 32 people and wounded others on the campus of Virgina Tech. (Def. R. 56.1 Stmt. ¶ 22; Collyer Decl., Ex. K) One week later, on April 24, 2007, Plaintiff chanted "Metrotech equals Virginia Tech" to his colleagues at District Office 1 and referred to himself as "Cho," the shooter at Virginia Tech.³ (Def. R. 56.1 Stmt. ¶ 23; Collyer Decl., Exs. J at BITS0017-BITS0018 and L) Plaintiff's supervisor at the time, John Tuah, instructed him to stop his chanting, but Plaintiff refused. (Def. R. 56.1 Stmt. ¶ 24) Tuah then reported Krasner's behavior to his supervisor. (Def. R. 56.1 Stmt. ¶ 25; Collyer Decl., Ex. L) Fire marshals responded to the floor and revoked Plaintiff's security credentials, requiring him to pass through metal detectors each morning. (Def. R. 56.1 Stmt. ¶ 26)

Following this incident, Plaintiff was ordered to seek treatment from the FDNY Counseling Services Unit. (Pltf. R. 56.1 Stmt. ¶ 16) Plaintiff saw FDNY counselor Michael Goldman and attended sessions with FDNY psychiatrist Dr. Sarah Gleacher. (Pltf. R. 56.1 Stmt. ¶ 17) There is no evidence that the FDNY Counseling Services Unit reported any aspect of Krasner's diagnosis and treatment to his supervisors. There is likewise no evidence that Krasnerengaged in additional acts of misconduct between April 24, 2007, and his termination on November 23, 2009.

C. Krasner's Disciplinary Proceedings

On April 30, 2007, Plaintiff was informally served with twelve disciplinary charges alleging disorderly or disruptive conduct, and conduct prejudicial to the good order and discipline of the FDNY. (Def. R. 56.1 Stmt. ¶ 27; Collyer Decl., Ex. J) The disciplinary charges relate to the February 14, 2006, February 16, 2006, and April 24, 2007 incidents discussed above. (Collyer Decl., Ex. J) Plaintiff acknowledged receipt of the charges on May 4, 2007. (Id.)

1. The "Step I" Disciplinary Hearing

On February 25, 2009 - 22 months after Krasner had been given notice of informal disciplinary charges against him - he was presented with proposed formal disciplinary charges at a "Step I Disciplinary Hearing." (Pltf. R. 56.1 Stmt. ¶ 21; Krasner Decl., ¶ 18) The hearing appears to have been conducted by an FDNY "conference leader" or hearing officer. (Krasner Decl., Ex. E) There is no explanation in the record for the delay between the initial presentation of charges and the Step I disciplinary hearing.⁴ Krasner had a union representative and was represented by counsel at the hearing. (Krasner Decl., Ex. E) In connection with the hearing, Krasner's attorney submitted a January 20, 2009 report from Dr. Gleacher. (Id.; see also Krasner Decl., Ex. A) The report states that Krasner has been under the care of Dr. Gleacher since August 2007, and that he

suffers from Asperger's Disorder, and consequently exhibits severely impaired social skills. This leads to awkward incidents at work and results in his inability to develop and maintain relationships. However, his ability to function at a high level as an inspector is not affected. . . .

(Krasner Decl., Ex. A at 1, 4-5)

In her findings, the hearing officer states that she is "very sympathetic to the fact that Mr. Krasner suffers from a disorder that, by definition, means he will have difficulty navigating any workplace that requires social interaction. . . . Nevertheless, using profanity and being insubordinate and disruptive in the workplace is not acceptable. His colleagues and supervisors have been subjected to uncomfortable situations that cannot have been pleasant." (Krasner Decl., Ex. E at BITS0066) The FDNY's disciplinary counsel recommended a penalty consisting of the loss of ten days' pay, the loss of ten days of annual leave, and a 24-month probationary period. If Krasner committed similar misconduct, he would "be sanctioned with an automatic 30 day pay penalty." (Id. at BITS0067) The hearing officer states that she does "not oppose that recommendation." (Id.)

The FDNY sought Krasner's removal, however, and on June 25, 2009, Krasner was informed that a disciplinary proceeding would be conducted on July 21 and 22, 2009, before an Administrative Law Judge of New York City's Office of Administrative Trials and Hearings. (Krasner Decl., Ex. F)

2. The Trial Before the ALJ

A trial before ALJ Ingrid Addison took place on July 21 and 22, 2009⁵ (Def. R. 56.1 Stmt. ¶ 28; Collyer Decl. Ex. F) At the hearing, Plaintiff was represented by counsel, testified on his own behalf, was able to call and examine witnesses, cross-examine FDNYwitnesses, and offer documentary evidence. (Def. R. 56.1 Stmt. ¶ 29) In addition to Krasner, Judge Addison heard testimony from William Dease and John Tuah, deputy chief inspectors, both of whom supervised Krasner at District Office 1. (Collyer Decl., Ex. F, at 4-6)

Dease and Tuah testified to the February 14 and 16, 2006 incidents discussed above and Krasner's work performance in general. (Collyer...