Mcdonald v. City of N.Y.

• Decision Date: 06 April 2011
• Docket Number: No. 08–CV–2371 (KAM)(LB).,08–CV–2371 (KAM)(LB).
• Citation: 786 F.Supp.2d 588
• Parties: Joseph D. McDONALD, Plaintiff,v.CITY OF NEW YORK and New York City Department of Transportation, Defendants.
• Court: U.S. District Court — Eastern District of New York

786 F.Supp.2d 588

Joseph D. McDONALD, Plaintiff,

v.CITY OF NEW YORK and New York City Department of Transportation, Defendants.

No. 08–CV–2371 (KAM)(LB).

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

April 6, 2011.

William Roche, Law Office of William A. Roche, Assad Ali Bhatti, The Law Office of Assad Bhatti, P.C., Westbury, NY, for Plaintiff.Jane E. Andersen, Pinar Ozgu, New York City Law Department, New York, NY, for Defendants.

MEMORANDUM & ORDER

MATSUMOTO, District Judge.

Plaintiff Joseph D. McDonald (“plaintiff” or “McDonald”) brings this action ¹ against the City of New York and the New York City Department of Transportation (“DOT”) (together, “defendants”) alleging employment discrimination and retaliation on the basis of his disability in violation of the Americans with Disabilities Act, as amended, 42 U.S.C. §§ 12101 et seq. (“ADA” or “the Act”).² ( See generally,ECF No. 1, Complaint (“Complaint” or “Compl.”) at 1.) ³ In addition, for the first time in his opposition to defendants' motion for summary judgment, plaintiff asserts that he intended to raise claims specifically under the New York State Executive Law Section 296 (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”). ( See id. at 2 (asserting “any related claims under New York law”); see also ECF Nos. 41–27, 41–28, Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment dated 5/31/2010 (“Pl. Mem.”) at 19.) Plaintiff alleges that DOT discriminated against him because of his disability, namely his herniated disc in his cervical-lumbar areas, failed to promote him, failed to provide a reasonable accommodation, and retaliated against him for registering a discrimination charge with the New York State Division of Human Rights. ( See id. ¶¶ 4, 7, 8E, 9.)

After completing discovery, defendants move for summary judgment and seek dismissal of plaintiff's action pursuant to Federal Rule of Civil Procedure 56.⁴ For the reasons set forth below, defendants' motion is granted and plaintiff's Complaint is dismissed in its entirety.

FACTUAL BACKGROUND

The facts pertinent to this motion, either undisputed or, where disputed and supported by competent evidence, taken in a manner most favorable to plaintiff, are as follows.

A. Plaintiff's Employment with DOT

Plaintiff commenced employment with DOT on October 27, 1997 as a civil service Traffic Device Maintainer (“TDM”). (Defendants' Rule 56.1 Statement (“Def. 56.1 Stmt.”) ¶ 5.) TDMs generally perform a variety of duties depending on their assignments.⁵ (Declaration of Michael Greco in Support of Defendants' Motion for Summary Judgment (“Greco Decl.”) ¶ 5.)

Plaintiff's assignment as a TDM was to the Facilities Management Unit of the Parking Division,⁶ where his primary, but not exclusive, duty was painting. (Plaintiff's Rule 56.1 Statement (“Pl. 56.1 Stmt.”) ¶ 10.) The assignment of TDMs is handled pursuant to contractual rules established through a memorandum of agreement signed between the City of New York and the plaintiff's union, District Council 37, AFSCME, AFL–CIO (“union pick contract”). (Def. 56.1 Stmt. ¶ 8.) The union pick contract provides that TDMs with a satisfactory job evaluation desiring a reassignment to a specific unit or job skill can submit a transfer request form in which the TDM may bid for up to three positions.⁷ ( Id.; Ozgu Decl., Ex. C ¶ 2.)

Prior to sustaining the injuries pertinent to the present litigation, throughout his career at DOT plaintiff had always remained in good standing and received satisfactory employment evaluations. (Pl. 56.1 Stmt. ¶ 12.) Moreover, plaintiff had never had any charges filed against him by his employer, nor was he ever reprimanded for any reason. ( Id. ¶ 11.)

B. Plaintiff's Accident and Injury

On July 12, 2004, shortly after leaving work and pulling out of the DOT parking lot, plaintiff was involved in an automobile accident in which he sustained injuries to his neck and back. (Def. 56.1 Stmt. ¶ 9; Pl. 56.1 Stmt. ¶¶ 13–14.) Specifically, plaintiff suffered a herniated disc in the cervical and lumbar areas, which has caused him constant pain in varying degrees and limited his dexterity, his abilities to operate heavy machinery and drive an automobile. (Pl. 56.1 Stmt. ¶¶ 14–21.) As a result, immediately following the accident plaintiff was placed on medical leave until he returned to work on October 17, 2005 on a so-called “limited duty assignment.” ( Id. ¶ 26; Def. 56.1 Stmt. ¶ 25.)

Plaintiff has testified that his injury limited his ability to bend “as much as what somebody else may be able to do,” (Ozgu Decl., Ex. F, Deposition of Joseph D. McDonald (“Pl. Dep.”) at 83:16–21.), and that while he can bend somewhat at the waist, he cannot “touch [his] toes or bend down to like a 90–degree angle.” ( Id. at 83:25–84:3.) Plaintiff has described how “sometimes [he] ha[s] very bad days and sometimes the days aren't as bad.” ( Id. at 78:22–23.) As a result of plaintiff's chronic pain, plaintiff is on a daily regimen of pain medication, which “hinders his dexterity, as well as his ability to operate heavy machinery and drive.” (Pl. 56.1 Stmt. ¶ 21.) Plaintiff's injuries have also affected his ability to sleep and plaintiff has had to adjust his method of sleeping, placing pillows under his neck and back, and on his side, in order to alleviate the pain. ( Id. ¶ 24.) Moreover, plaintiff's injuries have “resulted in sciatica, which leaves his right leg and left foot numb.” ( Id. ¶ 22.) The pain he associates with the sciatica problem is “constant and medication does not help.” ( Id.) As a result of the injuries plaintiff sustained in July 2004, plaintiff has reported undergoing “extensive physical therapy, heat treatments, epidural injections” and acupuncture treatments. ( Id. ¶¶ 17, 19.)

C. Limited Duty Assignment Procedures

Prior to 2010,⁸ when a qualified DOT employee was unable to perform the full duties of his or her position, DOT policy allowed that employee to request “a work assignment for a specified period of time to perform duties which an ill or injured employee is capable of performing,” known as a ‘Limited Duty Assignment.’ (Ozgu Decl., Ex. J, Department of Transportation Limited Duty Policy (“DOT Limited Duty Pol.”) at SDHR 00096; see also Ozgu Decl. Ex. K, Department of Transportation Limited Duty/Extended Sick Leave Grant Policy (“DOT Limited Duty/Sick Leave Pol.”) at 1; Def. 56.1 Stmt. ¶ 12.) Such assignments were considered temporary and thus “used as a transition between the time when an employee is unable to perform his or her full duties as a result of illness or injury and the time an employee can return to full duty.” (DOT Limited Duty Pol. at SDHR 00096; Def. 56.1 Stmt. ¶ 12.) Accordingly, except in limited circumstances, the assignment was not to exceed one year's duration. (DOT Limited Duty Pol. at SDHR 00096; DOT Limited Duty/Sick Leave Pol. at 1.)

Such Limited Duty Assignments were subject to DOT discretion and “the availability of suitable limited duty positions.” (DOT Limited Duty/Sick Leave Pol. at 1.) Further, DOT policies and procedures in connection with such assignments provided that “limited duty assignments may necessitate a change of work location or a change of shift for the employee.” ( Id.) Moreover, prior to any Limited Duty Assignment, a physician's authorization was required. (Def. 56.1 Stmt. ¶ 17.) Specifically, a requesting employee was required to complete and submit a Limited Duty Assignment request and physician certification indicating those tasks that the employee would be capable of performing in light of the employee's physical limitations, along with a Tasks and Standards Sheet completed by the employee's physician. ( See Def. 56.1 Stmt. ¶ 14; DOT Limited Duty Pol. at SDHR 00097; see also DOT Limited Duty/Sick Leave Pol. at 1–2.)

In order for an employee to request a Limited Duty Assignment, the employee had to first obtain a limited duty request application form, a physician certification form, and a current Task and Standards Sheet corresponding to their position from their supervisor. (Def. 56.1 Stmt. ¶ 14; DOT Limited Duty Pol. at SDHR 00097; see also DOT Limited Duty/Sick Leave Pol. at 1–2.) The employee's physician would then need to review the Task and Standards Sheet and indicate in the physician certification which of the tasks and standards the employee was and was not capable of performing. (Def. 56.1 Stmt. ¶ 14; DOT Limited Duty Pol. at SDHR 00097.) Attaching all completed forms, the employee would then submit the request for a Limited Duty Assignment to his/her supervisor who would in turn review the application and forward it to the unit's personnel liaison. (Def. 56.1 Stmt. ¶ 14; DOT Limited Duty Pol. at SDHR 00097.)

Several DOT offices would then review the completed application. (Def. 56.1 Stmt. ¶ 14.) First, after reviewing the request for completeness, the personnel liaison would forward the application to the Personnel Coordinator. ( Id.) According to Valerie Coleman (“Coleman”), who served as DOT Personnel Coordinator from June 1998 through May 2007, the Personnel Coordinator would then review the request, and generally attempt “to ascertain if a suitable assignment” existed in the unit where there employee had served “in full duty capacity.” (Coleman Decl. ¶ 7.) If no such assignment in the employee's full duty unit was available, then the Personnel Coordinator would contact “other divisions and/or units within Traffic Operations to ascertain if an appropriate limited duty assignment for the injured employee was available.” ( Id.; Def. 56.1 Stmt. ¶¶ 14, 17.)

Upon completing this review, the Personnel Coordinator would then forward the request to the Safety and Health Division, which would set up an appointment with the DOT's Limited Duty Review Board (the “Review Board”), the body tasked with “reviewing, approving, and granting limited duty assignments.” (Coleman Decl. ¶ 5; see also Def. 56.1 Stmt. ¶ 14.) This Review Board was comprised of...