Opinion
00 Civ. 0707 (SHS)
October 22, 2001
OPINION ORDER
Two men who were employed by the New York City Department of Transportation (DOT) have sued their employer for discriminating against them due to their national origin, which is Italian. One also claims he was discriminated against based on a physical disability. The DOT has moved for summary judgment pursuant to Fed.R.Civ.P. 56 on all claims. Because plaintiffs have not shown that DOT's employment decisions were motivated by Mr. Potenza's and Mr. Aversano's national origin, nor by Mr. Potenza's disability, DOT's motion is granted.
I. BACKGROUND
Peter Potenza and Clifford Aversano have been working for the Department of Transportation since 1991 and 1987, respectively, as part of the Staten Island ferry transportation system. Potenza has been promoted over the years from the civil service title of Marine Oiler, to provisional Marine Engineer, and, in January of 2000, to provisional Chief Marine Engineer. Aversano has always held the civil service title of permanent Chief Marine Engineer. In October of 1998, Potenza was appointed port engineer, and in April of 1999, Aversano was appointed to the same position. As port engineers, their responsibilities included serving as a liaison between the ferry terminal supervisors, the ferry maintenance staff, the Port Captains and the Director of Ferry Operations; taking work orders from engineers assigned to the boats; and scheduling the boats for maintenance, tie-up times, fueling and Coast Guard-mandated drills. (Kaufman Decl. Ex. D. at 33, Ex. F at 37.) Although as port engineers, their civil service title and base pay remained the same, they received a greater number of guaranteed overtime hours. (Kaufman Decl. Ex. C at 40.) The work was also less labor intensive than their previous positions working on the vessels, and it garnered them more respect due to its quasi-managerial nature. (Kaufman Decl. Ex. C. at 81.)
The port engineer positions are filled at the discretion of management; unlike other ferry boat jobs, they are not subject to a bidding process in which specific duties and shifts are assigned according to seniority. (Kaufman Decl. Ex. C at 50, 54, Ex. D at 52, Ex. F at 19-20.) There is no formal process for removal, although the understanding among ferry workers is that port engineers will serve at least until the next bidding process, which takes place once a year. (Kaufman Decl. Ex. H at 63; Plt. Ex Z.)
A. Removal as Port Engineers
In June of 1999, Port Captain Patrick Ryan from the operations department became the supervisor of the port engineers. (Kaufman Decl. Ex. H at 78, Plt. Ex. C at 66.) Within the next two months, Potenza and Aversano had both been removed from their jobs as port engineers by Ryan and Director of Ferry Operations Pamela Cess. (Plt. Ex. A ¶ 67, Ex, J., Ex. Z; Kaufman Ex. C at 70, Ex. F at 29, 30, 46, 49, Ex. H at 63, 78-79.). Because both were removed after the annual bidding process for ferry boat jobs, both lost the opportunity to use their seniority to obtain the more desirable duties and shifts. (Plt. Ex. Z; Kaufman Decl. Ex. D at 66.) After Aversano was removed, he obtained a regular shift as an on-boat engineer. (Kaufman Ex. D. at 64-66.) Potenza worked for several months as an "extra on the dock," covering shifts for other engineers on the boats when necessary, and then received a regular shift as an engineer. (Kaufman Decl. Ex. A at ¶ 42, Ex. C at 81-84, Ex. D. at 77.) Both received the same base salary and benefits as they did while port engineers, but lost some guaranteed overtime hours. (Kaufman Decl. Ex. C at 40, 81-82, Ex. 0. at 59-60.) Potenza and Aversano were replaced by Gil Ross and Mark Tetonis. (Plt. Ex. D. at 41.)
Ryan and Cess both claim that Potenza and Aversano were removed because of "poor job performance" as well as the need to promote efficiency and lower costs in the operations department. (Kaufman Decl. Ex. F at 29-30, 49, Ex. H at 63-64, 78-79, 82.) Specifically, Cess claims that Potenza had been removed because he misdiagnosed problems on boats, had poor working relationships with other employees, and failed to provide proper feedback to management regarding the condition of the fleet. (Kaufman Ex. F at 29-30.) Cess recalled one incident in which Potenza misdiagnosed an electrical problem on the boat that could have resulted in a fire below deck. (Kaufman Ex. F at 31.)
Cess also said that Potenza mishandled the scheduling of necessary servicing for the ferries, such as fueling and maintenance. (Kaufman Decl. Ex. F. at 39-40.) On one occasion the schedule produced by Potenza would have left the Ferries Bureau with only one boat in operation, making it impossible to meet DOT's published schedule of trips. (Kaufman Del. Ex. F at 38-39.) It was scheduling problems such as these that prompted Ryan and Cess to transfer supervision of the port engineer positions to the operations department, in order to ensure that the person making the schedule understood the needs of that department and did not create a schedule that caused the department to spend extra money. (Kaufman Decl. Ex. F at 37-40, Ex. H. at 65-66, 78-82.) Cess and Ryan also claim that Potenza had difficulties communicating with supervisors and staff. (Kaufman Decl. Ex. F. at 34-35, Ex. H at 63-65, 67.)
Cess experienced similar problems with Aversano's work. She said he had difficulty communicating with herself, Ryan and other ferry staff and that he made similar scheduling and diagnosis errors. (Kaufman Decl. Ex. F at 49, 59.) Ryan had similar issues with Aversano's work but said that it was "not as bad" as Potenza's. (Kaufman Decl. Ex. H. at 78.)
Potenza and Aversano claim they were demoted because they were of Italian national origin. They claim that three other people with Italian surnames — Charles Covella, Richard Russo, Nicholas Lorello — all resigned or were removed from their positions around the time Ryan was appointed as Port Captain. (Plt. Ex. G. at 18-19, 42.) Union representative Peter O'Toole believed that Covella, Russo and Lorello left because Ryan "wanted to bring in his own people," meaning people who Ryan believed were "loyal" to him. (Plt. Ex. G. at 42, 43.) O'Toole also thought that the three "didn't get along" with Ryan. (Plt. Ex. G. at 42.) Two of these workers left of their own accord and one was removed by Ryan. (Plt. Ex. G at 40.) Russo told O'Toole that he left his position of assignment officer because he felt more relaxed working on the boats. (Plt. Ex. G at 40.)
Aversano claims that Ryan told him, "Cliffy, it has nothing to do with your job performance. You're doing a fantastic job . . . much better than anyone who has ever been in the position before you. It's not anything to do with your job. . . . They want someone they feel more comfortable with." (Plt. Ex. S at 12-26.) Ryan denies saying this. (Def. Response to Plt. Stat. Disputed Facts ¶ 44.)
In addition, the Equal Employment Officer at the Staten Island Ferry stated that ferry workers use the term "Irish Mafia" to describe Ryan and others in positions of power and authority. (Plt. Ex. O at 28-29.) Another ferry employee, Robert Pearl, wrote a letter to the Commissioner of the DOT, complaining that "assignments [to port engineer positions] are not made on the basis of seniority or experience, but rather it appears to be by favoritism." (Plt. Ex. AA.)
Potenza's and Aversano's immediate supervisor prior to Ryan, John Hollis, testified that both "did an excellent job as port engineers." (Plt. Ex. D. at 40.) Hollis was told by Cess that Potenza and Aversano were removed because Cess and Ryan wanted people from Ryan's department to fill the positions. (Plt. Ex. D at 40.) Forty-six dock workers signed a petition stating that "in the position of Port Engineer . . . Aversano performed his duties without malice or prejudice towards any other employees. He carried out his duties in a professional and competent manner." (Plt. Ex. K.)
The performance evaluations for both plaintiffs for the period from Spring of 1998 to Spring of 1999 were "outstanding." (Plt. Ex. L.) Aversano's was signed by Ryan and Cess, and Potenza's was signed by Hollis. (Id.)
B. Incidents Occurring before 1999
Potenza claims he had experienced discrimination based on his Italian ethnicity at the DOT since 1990. He claims that in May of 1990. the DOT rejected his first application for a job as a Marine Oiler in favor of two applicants of Irish national origin. (Plt. Ex. N.) He eventually was hired in April of 1991. Two months later, he was laid off even though a worker of Irish national origin with less seniority was not. (Plt. Ex. A ¶ 13, 14.) He was later rehired, but in April of 1992, he was passed over for a promotion in favor of another applicant, Thomas Berrigan, who was Irish, even though Potenza possessed the requisite license and Berrigan did not. (Plt. Ex. C at 26, 34, Ex. P, Q, R.) Potenza was promoted to that position a month later. (Kaufman Decl. Ex. B, Ex. C. at 11.) In 1994 Potenza was passed over for promotion to Permanent Marine Engineer in favor of Berrigan. (Plt. Ex. A ¶ 18.) In the summer of 1997 he was again passed over for a promotion to Provisional Chief Marine Engineer in favor of Berrigan, who Potenza claims was less qualified. (Plt. Ex. A ¶ 19, Ex. C. at 19.) Potenza was promoted to Chief Engineer in June of 1998 and was promoted to Provisional Chief Marine Engineer in January of 2000. (Plt Ex. A ¶ 20; Kaufman Decl. Ex. B.)
Aversano complains that "several employees who were Irish or otherwise not Italian were improperly placed on the permanent list ahead of him," when he became a permanent employee in 1987. (Plt. Ex. A ¶ 46, Ex. S at 16-17; Kaufman Decl. Ex. D at 12, 15.)
C. Potenza's Disability Discrimination Claims
Potenza injured his knee while working as a port engineer in November of 1998 and then injured his back three months later. (Plt. Ex. A ¶ 22.) A month after that, he informed his supervisor at the time, John Hollis, that he required surgery to correct the damage to his knee and would have to take disability leave. (Plt. Ex. C at 90, 129-30.) Hollis asked him to delay taking leave until a replacement could be found. (Id.) Potenza honored this request and put off the surgery for an extra month, even though his doctor advised against it. (Plt. Ex. C at 131.)
In April of 1999, Potenza informed Hollis that he could delay the surgery no longer. (Id., Ex. J.) Potenza claims that Hollis then threatened him, saying that by taking time off Potenza would be jeopardizing his promotional opportunities. (Plt. Ex. C at 137, Ex. J.) Despite the threat, Potenza took a medical leave to have the knee surgery performed. (Plt. Ex. C at 137.) He returned to work a month later even though his doctor recommended he rest his knee for three months. (Plt. Ex. C at 136.) He returned early because he wanted to protect his promotional opportunities and because he believed he would be able to limit his physical activity to working at a desk, while his partner did the more labor-intensive work. (Plt. Ex. C at 60, 136-37.)
When he returned to work, Potenza claims he was treated with hostility by Ryan and Cess. He claims that Cess sarcastically asked him if he had enjoyed his "vacation." (Plt. Ex. C at 59, 60.) Six weeks after he returned, Cess changed Potenza's hours to an 8 am. to 4 p.m. schedule. Previously Potenza and Aversano could alternate shifts, sometimes working from 8 to 4 and sometimes working from 5 a.m. to 1 p.m. (Plt. Ex. A ¶ 38, Ex. C at 61.) Although Potenza told Cess that the new hours would interfere with his physical therapy, she refused to accommodate him. (Plt. Ex. C at 61.) The new schedule forced Potenza to use his vacation time in order to attend physical therapy. (Plt. Ex. C at 62.)
A few weeks later, Potenza was removed from his position as port engineer. Potenza claims he continues to have difficulty walking, lifting, bending, and sleeping due to both the knee injury and the subsequent back injury. (Plt. Ex, A ¶¶ 22-27, Ex. C at 88-89.) During his deposition Potenza claimed that his knee "still hurts a little bit. I lost some mobility in that leg. . . . I feel some pain when I squat down and stuff like that. I can't move it as much as I used to be able to move it. I could still do stuff but I feel pain." (Plt. Ex. C at 88.) A non-notarized letter from Potenza's doctor provides, without elaboration, that Potenza is "unable to squat fully" and "as a result of [Potenza's] accident of November 12, 1998, [he is suffering from] a twenty-five (25%) percent schedule loss of use of the right knee and a seven and one-half (7-1/2%) percent schedule loss of use of the left foot." (Plt. Ex. Y.)
Plaintiff also presents facts in his Statement of Disputed Facts alleging that Cess failed to process in a timely fashion paperwork promoting him to Provisional Chief Marine Engineer in retaliation for Potenza complaining about his removal from the port engineer position. (Plt. Stat. of Disputed Facts ¶¶ 88-98.) However, Poteuza makes no such claim in his Complaint or Supplemental Complaint. (Kaufman Ex. A, Plt. Ex. A.) Therefore, this claim will not be considered.
D. Commencement of Legal Action
On December 16, 1999, Potenza filed an administrative charge jointly with the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission (EEOC) alleging that DOT discriminated against him on the basis of national origin, ethnicity, and disability. (Kaufman Decl. Ex. K.) On January 25, Aversano filed a similar charge with the same departments alleging discrimination based on his Italian national origin and ethnicity. (Def. Stat. Undisputed Facts ¶ 44.) Potenza and Aversano commenced this action on February 1, 2000, alleging that DOT discriminated against them on the basis of their ethnicity in violation of 42 U.S.C. § 1981, New York State Human Rights Law § 296, et seq., New York City Human Rights Law, Administrative Code § 8-101, et seq. Potenza also alleges that the DOT discriminated against him on the basis of his disability in violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.; the New York State Human Rights Law, Executive Law, § 290 et seq., New York City Human Rights Law § 8-107 et seq. After both received Notice of a Right to Sue from the EEOC, they filed a Supplemental Complaint in October of 2000 alleging that the DOT discriminated against them on the basis of their national origin in violation of the Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000, et seq.
II. DISCUSSION
A. Summary Judgment Standard
Summary judgment may be granted "only when the moving party demonstrates that `there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'"Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quoting Fed.R.Civ.P. 56(c)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor . . . and may grant summary judgment only when `no reasonable trier of fact could find in favor of the nonmoving party.'" Allen, 64 F.3d at 79 (quoting Lund's, Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d Cir. 1989)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must come forward with specific facts to show there is a factual question that must be resolved at trial. Fed.R.Civ.P. 56(e); See also Legal Aid Society v. City of New York, 114 F. Supp.2d 204 (S.D.N.Y. 2000). A nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). In short, a nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
B. Title VII Claim
In a Title VII action, the Court applies the three-step burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). First, plaintiffs must make a prima facie showing of discrimination based upon national origin or ethnicity. In order to establish a prima facie case, plaintiffs must demonstrate that (1) they belong to a protected class; (2) they were performing their duties satisfactorily; and (3) they suffered an adverse employment action., and (4) the adverse employment action occurred in circumstances giving rise to an inference of discrimination on the basis of their membership in that class. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); McDonnell Douglas, 411 U.S. at 802; Farias v. Instructional Sys., Inc., 259 F.3d 91, 97 (2d Cir. 2001); Velasquez v. Goldwater Memorial Hosp., 88 F. Supp.2d 257, 261 (2000). Plaintiff's burden to establish a prima facie case has been described as "de minimis." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2d Cir. 1995).
This burden shifting analysis is the same for the federal, state and local claims of discrimination. See Norville v. Staten Island University Hospital, 196 F.3d 89, 95 (2d Cir. 1999).
If plaintiffs succeed in establishing a prima facie case, the burden of production shifts to the defendants to "articulate a legitimate, clear, specific and non-discriminatory reason" for taking the adverse employment action. Quaratino v. Tiffany Co., 71 F.3d 58, 64 (2d Cir. 1995);Velasquez, 88 F. Supp. 2d at 261.
If defendant satisfies that burden, the burden of persuasion once again falls upon plaintiffs to demonstrate that defendant's proffered reasons are merely a pretext for discrimination. See Hicks, 509 U.S. at 515;Quaratino, 71 F.3d at 64. Unlike the de minimis burden of the first stage of the analysis, at this stage, "the factual inquiry proceeds to a new level of specificity." Hicks, 509 U.S. at 516. In order to demonstrate such a pretext, plaintiffs must establish that a genuine issue of material fact exists as to whether (1) the employer's asserted reason for its decision is false and (2) that reason is more likely than not a pretext for discrimination based upon ethnicity or national origin. See id. at 515-16; Bickerstaff v. Vassar College, 196 F.3d 435, 446 (2d Cir. 1999); Quaratino, 71 F.3d at 64; Gallo v. Prudential Residential Services, 22 F.3d 1219, 1225 (2d Cir. 1994); Velasquez, 88 F. Supp. 2d at 261.
Potenza and Aversano have met their burden of demonstrating the first three factors in establishing a prima facie case of discrimination based upon their national origin. They are both of Italian origin, and they were performing their duties satisfactorily according to their previous supervisor. They suffered an adverse employment action because: (1) they lost guaranteed overtime hours as well as the prestige of a quasi-managerial position, and (2) they were unable to use their seniority to bid for more desirable ferry boat positions. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
The Court will assume for purposes of this analysis that plaintiffs have met their de minimis burden on the fourth factor as well — that the circumstances give rise to an inference of discrimination — because (1) three other Italian employees left or were removed from their positions once Ryan became their supervisor, (2) the term "Irish Mafia" had been used by DOT employees to describe Ryan, and (3) the employees who replaced Potenza and Aversano — Gil Ross and Mark Tetonis — do not have names that suggest they were of Italian origin. See, e.g., Velasquez, 88 F. Supp. 2d at 261.
The DOT has also met its burden of producing "a legitimate, clear, specific and non-discriminatory reason" for removing Potenza and Aversano from the port engineer positions. Their supervisors Cess and Ryan offer two reasons for plaintiffs' removal: (1) poor job performance by plaintiffs and (2) the desire to have the port engineers come from the operations department, which Ryan supervised, in order to promote efficiency and cut costs. Cess offers specific examples of mistakes Potenza and Aversano made, such as poor communication with supervisors and misdagnosis of mechanical problems. Furthermore, plaintiffs cannot second-guess the business decision to transfer supervision of the port engineers to Ryan's department. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) ("[I]t is not the function of a fact-finder to second guess business decisions . . . [unless] the employer's `business decision' was so lacking in merit as to call into question its genuineness.")
Potenza and Aversano have presented evidence that would allow a jury to find that their job performance was in fact satisfactory; however, they fail to show that (1) Ryan's desire to replace them with workers from his own department in order to improve efficiency was not a legitimate reason for their removal, and (2) "job performance" was a pretextual reason for discrimination based upon their Italian ethnicity. Their written job evaluations, the praise from their former supervisor, Aversano's claims that Ryan told him he was doing a good job., and the petition signed by their fellow dock workers are evidence of satisfactory job performance; yet there is little to no evidence that their removal was based upon their Italian ethnicity.
Their evidence consists of three other workers with Italian names leaving or being removed from their positions once Ryan became Port Captain. However, at least two of those workers left of their own accord, one of which articulated personal, non discriminatory, reasons for his voluntarily leaving his position, and the union representative thought that the three "didn't get along" with Ryan. This suggests a personality conflict, not an ethnic one.
The plaintiffs' other evidence is similarly unhelpful. The union representative's reference to Ryan wanting "to bring in his own people" is consistent with Ryan's statement that he wanted to bring in workers from his operations department. There is no suggestion by the context of the remark that it was meant to refer to people of Ryan's national origin. The letter from a ferry employee to DOT complaining about the way port engineers are assigned suggests that favoritism may play a role, but did not suggest that discrimination based on ethnicity was a factor. The EEOC officer at the Staten Island Ferry testified that he heard the term "Irish Mafia" used in relation to Ryan, but did not explain whether that meant Ryan favored Irish workers over non-Irish workers in employment decisions, or offer any other evidence of discrimination by Ryan. The officer did not state whether he believed Potenza's current discrimination claim had any merit. (Plt. Ex. T.)
In addition, plaintiffs fail to offer any information about their replacements, other than their names. They offer no evidence of their nationalities or of their qualifications for the job.
Although plaintiffs have presented evidence that they were performing their jobs satisfactorily and that the timing of the removal was unfair because they lost the opportunity to bid for better jobs, they have not presented enough evidence for a jury to find that their removal was due to unlawful discrimination based upon ethnicity. See, e.g., McGuinness, ___ F.3d ___, 2001 WL 993572, at *5; Holt v. KMI-Continental, Inc., 95 F.3d 123, 134 (1996); Velasquez, 88 F. Supp. 2d at 263, Henriquez v. Times Herald Record, 1997 WL 732444, at *6 (S.D.N.Y. Nov. 25, 1997). Therefore, summary judgment is granted on the Title VII claim and related state and local claims.
C. Continuing Violation
Potenza and Aversano also allege that other instances of discrimination based upon their Italian ethnicity occurred between 1987 and 1997. However, Title VII requires claimants to file a charge of discrimination with a state or local equal employment agency within 300 days of the alleged discriminatory action. If they do not do so, their claims are time-barred. See 42 U.S.C. § 2000e-5(e); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982); Vant Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Gomes v. Avco Corp., 964 F.2d 1330, 1332-33 (2d Cir. 1992). Thus, plaintiffs' claims are time-barred unless they can prove the DOT engaged in a "continuous policy or practice of discrimination" which amounts to a "continuing violation" of Title VII. Gomes, 964 F.2d at 1333. "if a continuing violation is shown, plaintiff[s] [are] entitled to have a court consider all relevant actions allegedly taken pursuant to the employer's discriminatory policy or practice, including those that would otherwise be time barred." Van Zant, 80 F.3d at 713.
"[A] continuing violation may be found where there is proof of specific ongoing discriminatory polices or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Cornwell v. Robinson. 23 F.3d 694 , 704 (2d Cir. 1994); see also Van Zant, 80 F.3d at 713. The essence of a continuing violation is a series of repeated acts of discrimination over time as a result of a continuously applied discriminatory policy or practice. If there is discontinuity in the discriminatory policy or practice, the doctrine does not apply. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998) (finding two incidents in 1988, one incident in 1989, and one incident in 1990 are too isolated in time to constitute a continuing violation); Annis v. County of Westchester, 136 F.3d 239, 246 (2d Cir. 1998) (no "continuing violation" due to six-year gap between discriminatory events).
Potenza alleges four instances where the DOT failed to promote him in favor of someone with less seniority or qualifications, occurring in 1991, 1992, 1994, and 1997. Aversano alleges that five non-Italians were impermissibly put ahead of him on the seniority list in 1987. None of these instances occurred within 300 days of the filing of administrative charges with the New York State Division of Human Rights. In three of those instances, the same person was promoted ahead of Potenza. Furthermore, Potenza received promotions shortly after each incident. The large gaps of time between incidents, the fact that three of the five incidents involved the same person being promoted ahead of Potenza, and the fact that Potenza received promotions shortly after being passed over do not suggest a wide-spread policy or practice by the DOT to engage in discriminatory conduct. Therefore, these Title VII claims do not meet the continuing violation exception, and summary judgment is granted in favor of defendants.
Plaintiffs' allegations of New York State and City Human Rights Law violations are subject to a three-year statute of limitations. See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d-Cir. 1997);Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 238-40, 448 N.E.2d 86, 92-93 (1983). Only the 1997 incident falls within this limitations period because plaintiffs have failed to show a continuing violation. See Cruse v. G J USA Publishing, 96 F. Supp.2d 320, 326 (S.D.N Y 2000); Kim v. Dial Service Int'l., Inc., 1997 WL 5902, at * 5 (S.D.N.Y. Jan. 8, 1997).
Potenza alleges that he tiled a complaint with the DOT office of Equal Employment Opportunity in 1998, though the deputy director of that office has neither recollection nor written record of this complaint. (Plt. Ex. T, Kaufman Ex. J at 16-17, 19.) Even if Potenza did file such a complaint, the 1997 incident would still be the only one which would fall within the limitations period.
However, Potenza has failed to make out a prima facie case of discrimination for the 1997 incident. He simply alleges that the employee hired for the position, Thomas Berrigan, was less qualified than he. Potenza had previously alleged that Berrigan was less qualified for a promotion in 1992 because Berrigan did not have the requisite license; however, Potenza failed to explain the reason Berrigan would be less qualified for the 1997 promotion. Such bare, conclusory allegations are not enough to overcome a motion for summary judgment. Therefore, summary judgment is granted in favor of the DOT on the state and local claims as well.
D. 1981 claim
While there are some differences between a discrimination claim pursuant to 42 U.S.C. § 1981 and a Title VII claim, the prima facie elements and burden shifting analysis remain the same. See McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); Tomka v. Seiler Corp., 66 F.3d 1295, 1316-17 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)). The statute of limitations for a § 1981 claim is three years. See Tadros v. Coleman, 898 F.2d 10, 12 (2d Cir. 1990); Cruse, 96 F. Supp. 2d at 326;Kim, 1997 WL 5902, at * 5. Therefore, defendant's motion for summary judgement on the section 1981 claim is granted on the same grounds as the Title VII and state and local human rights claims.
The DOT contended that the section 1981 claim should be dismissed because that statute does not provide relief for national origin discrimination. See St. Francis College v. AlKhazraji, 481 U.S. 604, 613 (1987). However, courts have recognized a claim pursuant to that section for discrimination based upon a claimant's Italian ethnicity. See Bisciglia v. Kenosha Unified School Dist. No. 1, 45 F.3d 223, 229, 230 (7th Cir. 1995); Commodari v. Long Island University, 89 F. Supp.2d 353, 374-75 (E.D.N.Y. 2000); see also Anderson v. Conboy, 156 F.3d 167, 170 (2d Cir. 1998). Therefore, this Court would not have dismissed the claim on this ground.
E. Family and Medical Leave Act
Although there are no set guidelines to establish a prima facie case for wrongful termination under the Family and Medical Leave Act, an employee on protected leave is not entitled to "any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave." 29 U.S.C. § 2614(a)(3)(B); see also 29 C.F.R. § 825.216(a) ("An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period."); Noyer v. Viacom Inc., 22 F. Supp.2d 301, 308 (S.D.N.Y. 1998).
Some Courts have applied the prima facie elements of a claim pursuant to the Americans with Disabilities Act to a FMLA claim. See, e.g., Oswalt v. Sara Lee Corp., 889 F. Supp. 253, 259 (N.D. Miss. 1995). Under that analysis, Potenza's claim would fail. See Part II.F. infra.
Here, Potenza had been back at work for two months before he was removed as a port engineer. Furthermore, Aversano, who did not take a medical leave, was also removed from the position. These facts suggest that Potenza was not removed because he took a medical leave, but rather because of the administrative decision to transfer the supervisory responsibilities to Ryan. In effect, Potenza is asking for greater job protection than he would have received had he not taken medical leave. Because the FMLA does not provide such a benefit, Potenza's claim is denied.
F. Rehabilitation Act
An employment discrimination claim pursuant to the Rehabilitation Act is analyzed in the same manner as the later-enacted Americans with Disabilities Act. 29 U.S.C. § 794(d); Stone v. City of Mt. Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997); see also Bragdon v. Abbott, 524 U.S. 624, (1998); Kilcullen v. New York State Dep't of Labor, 205 F.3d 77, 78-82 (2d Cir. 2000). Under the burden-shifting analysis articulated in McDonnell Douglas Corp., 411 U.S. at 802-04, and applied by later courts to the ADA, the party claiming discrimination due to a disability must first establish a prima facie case. See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998); Vaughnes v. United Parcel Service, Inc., 2000 WL 1145400, at * 4 (S.D.N.Y. Aug. 14, 2000).
In order to establish a prima facie case in this context, Potenza must show that (1) the DOT is subject to the ADA, (2) he is a disabled person as defined by the ADA, (3) he is otherwise qualified to perform his job with or without reasonable accommodations, and (4) he suffered an adverse employment action because of his disability. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Comm. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir. 1999); Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998); Vaughnes, 2000 WL 1145400, at *4. Just as with a Title VII case, once the plaintiff makes out a prima facie case, the defendant must articulate a legitimate; non-discriminatory reason for its decision. See Greenway, 147 F.3d at 52. If the employer makes that showing, the burden shifts back to the plaintiff to demonstrate that "the employer's proffered explanation is merely a pretext for its intentional discrimination." Id.
Potenza has failed to show that he is disabled according to the standards set forth in the ADA and Rehabilitation Act, namely, that he suffers from "a physical or mental impairment that substantially limits one or more of the major life activities." 42 U.S.C. § 12102(2)(A);Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998). Potenza claims his knee injury, coupled with the subsequent back injury, constitute "impairments," and he claims that they hinder his ability to walk, lift, bend, and sleep, which are "major life activities" according to the act. See id. at 642-43, Vaughnes, 2000 WL 1145400, at *4.
Nevertheless, Potenza has not shown that the impairments "substantially limit" him from performing these tasks. This inquiry is individualized and fact-specific. See Colwell, 158 F.3d at 643. The EEOC regulations implementing the ADA recommend that the following factors be considered in determining a substantial limitation: "(i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2); see also Colwell, 158 F.3d at 643.
Courts have placed the bar relatively high when determining when the activity of walking has been substantially limited. See, e.g., Kelly v. Drexel Univ., 94 F.3d 102, 106-108 (3d Cir. 1996) (plaintiff who did not require crutches or cane, despite trouble climbing stairs or walking any significant distances, was not substantially limited in his ability to walk); Rosa v. Brink's Inc., 103 F. Supp.2d 287, 290 (S.D.N.Y. 2000) (employee's inability to clean her house properly, to walk or sit or stand for long periods without some undefined pain, or engage in sports such as biking, scuba diving, camping, hiking, and riding horses as result of work-related back injury did not amount to substantial limitation on any major life activity sufficient to support claim of disability discrimination under ADA.); Hardy v. Village of Piermont, 923 F. Supp. 604, 610 (S.D.N.Y. 1996); Vaughnes, 2000 WL 1145400, at * 6. Surgery-related absences from work and short-term working restrictions thereafter do not constitute a "disability" pursuant to the ADA or Rehabilitation Act. See Cousins v. Howell Corp., 52 F. Supp.2d 362, 364 (D. Conn. 1999).
Applying these factors, this Court finds that Potenza has not shown that he is "substantially limited" in a major life activity. In his deposition testimony, Potenza stated that he "can still do stuff" although he feels pain. He offered no specific description of the way in which his injuries affect his ability to function. In a non-notarized letter, a doctor found that Potenza was "unable to squat fully" using his knee, but does not indicate how significant this restriction is in performing major life activities, nor does he indicate the duration of the impairment. Because Potenza provides no evidence of the impact of his injuries on his ability to walk, lift, bend, and sleep, nor any evidence of the duration or long-term impact of the injuries, the Court finds that he has not shown that he suffers from a disability protected by the Rehabilitation Act.
Even if Potenza did suffer from a disability protected under that act, he still cannot show that he suffered an adverse employment action because of it. Requiring Potenza to use vacation time or unpaid leave to attend physical therapy sessions is a reasonable accommodation. See Van Ever v. New York State Dep't of Correctional Services, 2000 WL 1727713, at *3 (S.D.N Y Nov. 21, 2000); Powers v. Polygram Holding, Inc., 40 F. Supp.2d 195, 199 (S.D.N.Y. 1999); see also Ansonia Board of Educ. v. Philbrook, 479 U.S. 60, 70 (1986) (religious discrimination claim);Durant v. NYNEX, 101 F. Supp.2d 227, 233 (S.D.N.Y. 2000) (same). Furthermore, as explained above, both he and Aversano were removed from their positions within one month of each other. Thus, Potenza was treated the same as a similarly situated employee who did not suffer from any disability. Potenza cannot show that the DOT's legitimate non-discriminatory reason — the administrative change — was a mere pretext for discrimination based upon Potenza's disability. Summary judgment on the Rehabilitation Act and state and local law claims is granted.
Although New York State Human Rights Law adopts a broader definition of disability, in other respects it tracks the ADA analysis.See Parker v. Columbia Pictures Indus., 204 F.3d 326, 332 n. 1 (2d Cir. 2000); Reeves v. Johnson Controls World Services, 140 F.3d 144, 154 (2d Cir. 1998). Even assuming arguendo that Potenza has demonstrated a disability pursuant to state and local law, he has not made out a claim for discrimination. Therefore, these claims are dismissed as well.
III. CONCLUSION
Accordingly, this Court finds that: (1) Potenza and Aversano have not carried their burden of demonstrating that their demotions were due to unlawful discrimination, (2) they have not shown that the DOT fostered a continuing violation of anti-discrimination laws, (3) Potenza has not shown that he was treated differently from a similarly situated employee in violation of the Family and Medical Leave Act, and (4) Potenza does not suffer from a physical impairment that substantially limits a major life activity pursuant to the Rehabilitation Act. Therefore., summary judgment is granted in favor of the DOT and all of plaintiffs' claims are dismissed.
Dated: New York, New York October 22, 2001
SO ORDERED: