Picinich v. United Parcel Service

• Decision Date: 15 June 2004
• Docket Number: No. 5:01-CV-01868 (NPM).,5:01-CV-01868 (NPM).
• Citation: 321 F.Supp.2d 485
• Parties: Richard M. PICINICH, Plaintiff, v. UNITED PARCEL SERVICE, Jim Grover, Brendan Canavan, Jeffrey Wilson and United Parcel Service of America, Inc., Defendants.
• Court: U.S. District Court — Northern District of New York

321 F.Supp.2d 485

Richard M. PICINICH, Plaintiff, v. UNITED PARCEL SERVICE, Jim Grover, Brendan Canavan, Jeffrey Wilson and United Parcel Service of America, Inc., Defendants.

No. 5:01-CV-01868 (NPM).

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

June 15, 2004.

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Legal Services of Central New York, David Thomas Hutt, of Counsel, Syracuse, NY, for the Plaintiff.

Pitney, Hardin, Kipp & Szuch, Adin C. Goldberg, of Counsel, Morristown, NJ, for the Defendants.

MEMORANDUM-DECISION and ORDER

MCCURN, Senior District Judge.

I. INTRODUCTION

Plaintiff, Richard M. Picinich ("Picinich") brings this suit against United Parcel Service ("UPS"), United Parcel Service of America, Inc. ("UPS of America"), Jim Grover ("Grover"), Brendan Canavan ("Canavan"), and Jeffrey Wilson ("Wilson"), alleging violations of the Americans with Disabilities Act ("ADA") and New York Human Rights Law ("NYHRL").¹ Presently before the court is the defendants' motion for summary judgment dismissing the entire complaint. Also before the court is a motion for partial summary judgment by the plaintiff. Oral argument was heard regarding the pending motions on December 22, 2003 in Syracuse, New York. Decision was reserved.

II. BACKGROUND

Picinich began his employment with defendant UPS in 1976. From 1982 until 1991, he held various management level positions which required him to supervise operations at different UPS facilities, primarily in New Jersey. Picinich was promoted to Security Manager in June 1991, and UPS relocated him to its Upstate New York District ("Upstate N.Y. District"), where he continued as a Security Manager until June 1999. The Security Manager position required that Picinich work out of Syracuse, New York and complete security responsibilities in an area spanning from the New York-Canadian border to the north, Albany, New York to the east, and Binghamton, New York to the south.

On July 1, 1999, Picinich was reassigned to a new position, entitled District Damage Coordinator, in the Damage Recovery Group of the Upstate N.Y. District. In November 1999, Picinich was temporarily assigned to an operations management position in Utica, New York, entitled Preload Manager, and in December 1999, he was notified that the assignment was permanent. Picinich objected to this assignment for reasons unrelated to the present motions, and elected to challenge same through the "Employee Dispute Resolution" ("EDR") process at UPS. As the first step of EDR, Picinich met with Doye Lux, the District Manager at that time, and defendant Grover on January 7, 2000 to ask that he be placed back on his career path in the area of security. Picinich also requested a "peer review" hearing with a committee, which included two representatives selected by him and one selected by UPS. The hearing, held on March 2, 2000, resulted in a decision by the committee that Picinich's reassignment to the Preload Manager position was appropriate. See Aff. of Jonathan J. Harper, Oct. 8, 2003 at Ex. 3, Dkt. No. 40.

Prior to the hearing, on January 20, 2000, Picinich "called out" from work due to a back condition, for which he had been receiving medical treatment for approximately three weeks. See Pl.'s Ex. D, Dep. of Richard Picinich, Feb. 24, 2003 ("Picinich Dep. I") at 204:20-205:14, Dkt. No. 45.² A review of Picinich's deposition transcript indicates that he testified to experiencing back pain while at work in the early morning on January 20, 2000, that he called Dr. J. Christopher Stringer on the same day and was told not to go into work that evening, as his shift was to begin at approximately 9:00 p.m. on January 20, 2000 and end in the early morning of January 21, 2000.

On February 1, 2000, Picinich began short-term disability leave, which included continuation of his full salary,³ after Dr. Jeffery Kahn, to whom he was referred by Dr. Stringer, notified UPS that Picinich could not return to work due to a back injury. Dr. Kahn issued a physician's note on January 21, 2000 which stated that Picinich was "temporarily totally disabled" until further notice.⁴ See Harper Aff. at Ex. 4, Dkt. No. 40. Dr. Kahn issued a report after Picinich's January 21, 2000 office visit, wherein he stated that "it is contraindicated for [Picinich] to perform the type of work that he does, given the fact that he has a subacute disc herniation, and with the minimum of two hours of sitting per day in traveling from Syracuse to Utica that is required for his job. I am going to provide him with an out of work note until further notice." Id. at Ex. 5. On March 10, 2000, Dr. Kahn diagnosed Picinich with "multilevel lumbar disc herniations with radiculopathy" and stated that the work restrictions in place at that time should not be modified. See Pl.'s Ex. 6, Dkt. No. 45.

On March 15, 2000, Picinich underwent an independent medical examination ("IME") at the request of CIGNA, the then administrator of disability benefits for UPS. Defendants contend that Dr. W. David Ferraraccio, the orthopedic surgeon who conducted the IME, concluded that Picinich "could return to the pre-load within certain medical restrictions." See Defs.' Statement of Material Facts at ¶ 29, Dkt. No. 38. In fact, as Picinich correctly notes, the IME report indicates that he "cannot return to his previous employment with the degree of lifting, bending, and stooping involved." Dr. Ferraraccio further stated in this report that "[i]f work were available where [Picinich's] lifting could be limited to no more than 10 to 12 pounds on an occasional basis where he did not have to bend, twist, stoop, push or pull repetitively, and where he had complete freedom to change position from sitting to standing at will, I would feel this to be satisfactory." See Harper Aff. at Ex. 6, Dkt. No. 40. Dr. Kahn informed CIGNA on March 27, 2000 that after review of Dr. Ferraraccio's report, he agreed that Picinich could return to his previous job only if his work were modified appropriately and that he could not return to his previous job with the degree of lifting, bending and stooping involved. See Pl.'s Ex. 10, Dkt. No. 45. By letter dated March 31, 2000, CIGNA notified Picinich that it recommended immediate termination of his wage continuation benefits because, based on the reports of Drs. Ferraraccio and Kahn, UPS determined "that they are able to make reasonable accommodations in order for [Picinich] to successfully return to work." See Pl.'s Ex. 11, Dkt. No. 45.

On April 3, 2000, Dr. Kahn notified CIGNA that Picinich could return to work with the following restrictions: no bending or lifting below the waist, no more than 30 minutes of standing or walking, no lifting in excess of 10 pounds between waist and shoulder level, no kneeling, stooping, bending, climbing or twisting, and no driving more than 30 minutes. See Pl.'s Ex. 12, Dkt. No. 45. Dr. Kahn also stated that he expected the aforementioned restrictions would remain on a permanent basis, and that considering, among other factors, the driving distance between Picinich's home and the UPS location where he last worked, Picinich "could not return to his work activities" as Kahn understood them to be offered at that time. See id.

UPS requested a meeting with Picinich to discuss his return to work, and on April 7, 2000, Picinich met with four UPS representatives, including Registered Nurse Robin Fey, Occupational Health Manager for the Upstate N.Y. District, and defendant Grover, and reviewed his work restrictions. During that meeting, Picinich was told to work within his restrictions, and that a part time Preload Supervisor would be available to assist him. On April 10, 2000, Dr. Kahn issued a formal release for Picinich to return to work within the restrictions he outlined for CIGNA on April 3, 2000.

Picinich contends that he returned to work as the Preload Manager at the UPS facility in Utica in the evening of April 11, 2000 and worked "for three or so days" until Dr. Kahn removed him from work "because of the pain and condition [he] was in." See Aff. of Richard Picinich, Oct. 27, 2003 at ¶ 9, Dkt. No. 44; Pl.'s Ex. E, Dep. of Richard Picinich, Mar. 17, 2003 ("Picinich Dep. II") at 70:4-23, Dkt. No. 45. According to Picinich, when he arrived at work on the evening of April 11, 2000, he discovered that the part time Preload Supervisor, Scott Briggs, was in a knee brace because, according to Mr. Briggs, he underwent knee surgery. See Picinich Aff. at ¶ 9, Dkt. No. 44. Further, Picinich contends that during the three days of his return to work, Mr. Briggs was unable to assist Picinich with any physical activities and requested that Picinich train new employees, since, Mr. Briggs claimed, he was unable to do so due to his knee. Id. at ¶ 10. Also during this time, Picinich contends he "was forced to restrain a package sliding towards [him] to protect [himself] while on the operations floor, to twist and bend due to inadequate room, to maneuver on the operations floor, to be on [his] feet most of the day, and to train new employees." Id. at ¶ 11.⁵ On April 14, 2000, Dr. Kahn removed Picinich from work "effective immediately," stating that he was to be considered "temporarily totally disabled until further notice." See Harper Aff. at Ex. 9, Dkt. No. 40.

Picinich contends that in May 2000, he asked Robin Fey about returning to work, and in June 2000, he inquired with her about relocating to another district. See Pl.'s Ex. J, Dep. of Robin Fey, Feb. 26, 2003 at 138:17-139:5, 148:7-149:5, Dkt. No. 45. However, on June 15, 2000, Dr. Kahn diagnosed Picinich with "multilevel lumbar degenerative disc disease with bilateral L5 and left S1 radiculopathies" and concluded that, regarding work issues, he "would like to have [Picinich] perform an aggressive stabilization program for the next four weeks before considering any release to return to work at this time." Moreover, Dr. Kahn stated that "the violation of the...