Opinion
98 Civ. 9016 (RPP)
July 8, 2002
OPINION AND ORDER
On October 12, 2001 the Court issued an Opinion and Order that granted defendant Bloomingdale's motion for summary judgment on plaintiff Abel Hidalgo's allegations of employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., ("Title VII") and the Age Discrimination In Employment Act of 1967, 29 U.S.C. § 621-34 ("ADEA") based on national origin (Hispanic, Latino) and age, and held in abeyance plaintiff's allegations of employment discrimination in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112-12117 ("ADA") pending the submission of further documents and briefing; Plaintiff's cross-motion for summary judgment was denied, and Plaintiff's motion to amend the complaint was denied. For the reasons that follow, defendant's summary judgment motion is granted.
Procedural Background
On or about August 11, 1998, plaintiff filed a charge of discrimination against Bloomingdale's with the Equal Employment Opportunity Commission ("EEOC"). After receiving a "Notice of Right to Sue" letter from the EEOC, dated September 17, 1998, plaintiff filed this action as of September 25, 1998. As the other claims have been dismissed, the only claim remaining is the ADA claim.
According to the Complaint, plaintiff suffered spinal injuries as the result of an accident that occurred at work on September 28, 1997 (Compl. at 4, ¶ 8.); that although he has been medically unfit to perform the housekeeping position he has held at Bloomingdale's since 1992, he is able to resume work on a "light duty basis"; that defendant will not rehire him on a "light duty" basis; and that he believes defendant will not rehire him "because of my age and Spanish accent and status of disability." (Id.)
The Court, in its October 12, 2001 opinion dismissing plaintiff's claims based on age and country of origin, held in abeyance defendant's summary judgment motion with respect to plaintiff's ADA claim because the record concerning plaintiff's social security disability payments was incomplete.
Facts
Plaintiff began his employment with defendant Bloomingdale's in 1992 in the housekeeping department. Generally, his responsibilities included cleaning the store, vacuuming, mopping, dusting, cleaning the bathroom and restocking bathroom supplies, and picking up garbage, including wet garbage from the restaurant. (Hidalgo Dep. 59-61.) As a member of the housekeeping staff, Hidalgo was represented for purposes of collective bargaining by Local 3 of the United Storeworkers Union (the "Union"). (Hidalgo Dep. 64.)
On or about August 27, 1997, plaintiff suffered a work-related injury while throwing wet garbage. He continued to work that day and the next day until he could not move because of the back and neck pain, and he was taken to the hospital by ambulance. (Hidalgo Dep. 208-209; 216-218; Hidalgo Dep. Ex. 19.) Plaintiff returned to work on or about September 11, 1997. Initially, for the first 1-2 weeks, he did not perform any heavy work. Then, he returned to full duty. (Hidalgo Dep. 228-229; 236-237.)
It is undisputed that the workers compensation claims manager for the New York store, Rosemarie Robertson, and the human resource department work together in an effort to bring employees back to work from injury. While the company has no permanent light duty positions, it will bring employees back to work on a modified or light duty basis as part of a program to return the employee to full duty. (Decl. of Rosemarie Robertson, ¶¶ 1 and 2.)
On or about March 10, 1998, Mr. Hidalgo reinjured himself at work. He came to work the next couple of days, but was told by a representative of defendant to stay out and not work. (Hidalgo Dep. 237; 247-249; 256; Hidalgo Dep. Ex. 20.) According to plaintiff, a doctor wrote him a return to light duty slip, but plaintiff looked for another doctor since he was experiencing pain in his back and neck. (Hidalgo Dep. 265-269.)
Shortly after his reinjury on about March 10, 1998, Mr. Hidalgo was also seen by Dr. Robert Hyman for an `independent' medical examination. By report dated March 21, 1998, Dr. Hyman released Mr. Hidalgo to return to work. (Decl. of Rosemarie Robertson, ¶ 3 and Ex. "A.") A note dated April 1, 1998 from a doctor in Mr. Hidalgo's doctor's group, Dr. Bondi, released Mr. Hidalgo to return to work as of April 6, 1998. (Decl. of Rosemarie Robertson, ¶ 4 and Ex. "B.")
On March 26, 1998, based upon Dr. Hyman's medical report, defendant wrote plaintiff asking him to return to work. (Hidalgo Dep. Ex. 21.) The letter states: "We are very pleased to learn from the results of your independent medical exam completed by Dr. Hyman, that you are able to return to work with no restrictions. The entire store eagerly awaits your return, and your former position is available to you as of Monday, March 30% . . ." Plaintiff did not return to work on March 30. Rather, he produced a note from a Dr. Hearn's, dated April 4, 1998, stating that "he may not lift heavy objects, bend, walk up down stairs, or do any motion that would be detrimental to his condition . . ." (Hidalgo Dep. Ex. 22.) No such housekeeping position existed. Mr. Hildago did not return to work at this time. (Declaration of Rosemarie Robertson, ¶ 5.)
On or about July 31, 1998, the company received a Physical Assessment Form for Return to Work from Dr. Hearns releasing Mr. Hidalgo to return to work on modified duty for 6-8 weeks. (Decl. of Rosemarie Robertson, ¶ 6 and Ex. "C.") On August 3, 1998, the company faxed a note to Dr. Hearns asking if Mr. Hidalgo would be able to return to full duty after this 6-8 week period. Dr. Hearns replied in the affirmative. (Decl. of Rosemarie Robertson, ¶ 6 and Ex. "D.") On August 4, 1998, the company faxed Dr. Hearns a light duty job description which included sweeping, mopping, and vacuuming, as well as no lifting over 20 pounds. Dr. Hearns replied that Mr. Hidalgo could perform that job description. (Decl. of Rosemarie Robertson, ¶ 7 and Ex. "E.") As a result, by letter dated August 5, 1998, defendant offered plaintiff a light duty position to be followed by a return to fully duty. (Hidalgo Dep. Ex. 28.) By letter dated August 10, 1998, Dr. Hearns wrote that plaintiff's return to work must be limited to the replenishment of bathroom supplies. (Hidalgo Dep. Ex. 29.) Dr. Hearns continued, "All of the other job responsibilities in housekeeping — porter are not appropriate at this time for Mr. Hidalgo feels that he can not perform these duties and also the diagnostic test suggest that a person with his injuries should not perform these duties. Mr. Hidalgo will be re-evaluated in six (6) weeks and a determination will be made as to his disability status."
The defendant states it did not have any light duty jobs limited to replenishing bathroom supplies and the defendant did not offer Mr. Hidalgo any such position. Rather, by letter dated August 31, 1998, it wrote Dr. Hearns seeking further medical information. (Decl. of Rosemarie Robertson, ¶ 9; Decl. of Linda Revere, ¶ 3 and Ex. "A.") Defendant never received a response to this letter. (Decl. of Linda Revere, ¶ 3.) From March until September of 1998, plaintiff received disability benefits from defendant's Storeworkers Security Plan. Thereafter, he has been collecting workers compensation benefits. (Hidalgo Dep. 402; Exs. 36-37.)
On or about September 29, 1998, defendant received another doctor's report from Dr. Lobrutto stating that plaintiff needed physical therapy three times a week; that it was undetermined when plaintiff would be able to work; the portion of the form for work restrictions, i.e. limited sitting, no climbing stairs, was not filled in, instead Dr. Lobrutto wrote "patient has been totally disabled since March, 1998." (Hidalgo Dep. Ex. 34.) Defendant has a policy of terminating employees who have been absent from work for any reason for twelve (12) consecutive months. (Decl. of Linda Revere, ¶ 11.) Because of the pendency of plaintiffs charge of discrimination since August 11, 1998, defendant has not taken any steps to terminate plaintiff pursuant to that policy. (Decl. of Linda Revere, ¶ 11.)
A report dated October 10, 1999 found that plaintiff needed physical therapy three times a week, that it was undetermined when he would be able to work, that he was totally disabled, that he could stand for one hour a day, not lift over five pounds, and has shoulder pain that limited the use of his arms. (Hidalgo Dep. Ex. 35.) On December 24, 1999, Dr. Michael Marrone filled out a report that stated that plaintiff was medically unable to return to work. (Hidalgo Dep. Ex. 39.)
On April 15, 1999, Linda Revere, a human resources representative of defendant, spoke to Mr. Hidalgo about a newly posted opening for a door guard. She explained that the position included hailing taxicabs for customers, carrying packages for customers, and standing outdoors. (Decl. of Linda Revere, ¶ 4.) Mr. Hidalgo stated he could perform the door guard job and an interview was arranged for him for April 19, 1999. Mr. Hidalgo did not attend the interview. On April 20, he informed Ms. Revere that his doctor would not release him to interview for a door guard position, that he could not stand all day or be exposed to cold weather. (Decl. of Linda Revere, ¶ 4.)
Ms. Revere also spoke to Mr. Hidalgo at that time and on several other occasions about other positions with the company, including fitting room checker or coat checker. Both those positions, however, require heavy lifting — garments being removed from the fitting room or heavy coats — as well as bending, stooping, and other repetitive motions. (Decl. of Linda Revere, ¶ 5.) Mr. Hidalgo did not accept these positions and provided a letter dated April 20, 1999, from Dr. David Zelefsky that stated "due to the severity of his injuries the patient is partially disabled and the restriction to his condition are no squatting, bending, lifting (20 lb.) posture that increase patient symptomatology." (Pl. Ex. Letter from Dr. Zelefsky dated April 20, 1999.) Ms. Revere also spoke to Mr. Hidalgo about working the overnight shift in the housekeeping department because she felt the housekeeping work on this shift was not as physically demanding as other shifts. Mr. Hidalgo said he could not work the night shift. (Decl. of Linda Revere, ¶ 6.) On April 20, 1999, Mr. Hidalgo stated his primary interest was to be given a job as a greeter, an employee who answers questions for customers and handles customer complaints. (Decl. of Linda Revere, ¶ 8.) Defendant claims that it did not offer him this position because 1) his prior disciplinary record included instances of insubordination to his supervisors; 2) his poor communication skills; and that for these reasons Mr. Hidalgo was not qualified for a position requiring good communication skills, patience when dealing with customers, and the ability to get along with customers without losing one's temper. (Id.) Plaintiff asserts that these grounds were a mere subterfuge for not offering him the position.
Pursuant to this Court's Opinion and Order of October 12, 2001 requiring production of further documents, plaintiff produced a Social Security Decision, dated February 25, 2000, by Administrative Law Judge Cofresi, in which he found that plaintiff "has been under a disability . . . since March 11, 1998," and "can perform the demands of no more than sedentary work." (Def.'s Ex. C.)
Summary Judgment Standard
Summary judgment may not be properly granted unless, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir. 1994). "[A]ll ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought." Id. "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Id. at 1224.
A pro se plaintiff's papers should be read liberally. Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, a pro se plaintiff must still provide evidentiary support, not mere assertions, to overcome a motion for summary judgment. Pell v. Trustees of Columbia Univ., No. 97 Civ. 0193 (SS), 1998 WL 19989, at *2 (S.D.N.Y. Jan. 21, 1998).
ADA Claim
Among other things, "discrimination" under the ADA means "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C. § 12115(5)(A). Connolly v. Bidermann, 56 F. Supp.2d 360, 364 (S.D.N.Y. 1999).
The ADA specifically states that the term "reasonable accommodation" includes reassignment to a vacant position." 42 U.S.C. § 12111(9)(B). Though a qualified person with a disability must be able to perform the essential functions of a job, "that inquiry is not limited to the employee's existing job. Rather, the plain language of the statute includes an employee who has the ability to do other jobs within the company that such disabled employee `desires.'" Smith v. Midland Brake, Inc., 180 F.3d 1154, 1160-61 (10th Cir. 1999).
A plaintiff bears the burden of establishing that a suitable vacancy existed into which he or she might be reassigned. Jackan v. New York State Dept. of Labor, 205 F.3d 562, 566 (2d Cir. 2000). Once a plaintiff meets the burden of proving that a vacancy exists, the analysis shifts to the question whether an accommodation is required and if so, whether the proposed accommodation is reasonable. On this question, the defendant bears the burden of persuasion to show that the proposed accommodation is not reasonable. Id. at 567.
To establish a prima facie case of discrimination under the ADA, the Plaintiff must show that (1) he is "disabled" within the meaning of the statute; (2) his employer is subject to the ADA; (3) his employer had notice of the disability; (4) he was otherwise qualified to perform the essential functions of the position sought, with or without reasonable accommodation; and (5) his employer failed to provide such accommodation. D'Amato v. Long Island R.R. Co., No. 99 Civ. 1797 (JB), 2001 WL 563569 at *5 (S.D.N.Y. May 24, 2001).
Plaintiff does not deny that defendant has not terminated him, nor has plaintiff asserted that he was demoted or subject to any adverse employment actions in the terms or conditions of his employment in the housekeeping department. His claim is that he should have been employed as a greeter.
Here plaintiff argues that the defendant's reasons for not offering him the greeter position in April of 1999 were a subterfuge for discriminating against him in violation of the ADA. However, prior to reaching that issue which the Court has found involves disputed issues of fact, plaintiff must first establish that he has a prima facie case of discrimination under the ADA.
Greeter Position
In the Court's October 12, 2001 Opinion, the Court recognized that for plaintiff to prove a prima facie case of ADA violation, plaintiff must show a vacancy in the greeter position existed after February 10, 1998, and that he had the capacity to perform that position, with or without a reasonable accommodation. Stone v. City of Mt. Vernon, 118 F.3d 92, 96-7 (2d Cir. 1997). Plaintiff has established, and defendant does not deny, that a position of greeter was available during the time period February, 1998 and September 17, 2001. The question remains has plaintiff established that he was otherwise qualified to perform the essential functions of the greeter position.
However, as of June, 2001 Bloomingdale's laid off six greeters for economic reasons. Between the layoff and September 17, 2001, three of the greeters have been recalled. There have been no recalls since September 17, 2001 and three greeters remain on layoff status today. (Decl. of Helena Gubelman, ¶ 2.)
The plaintiff does not contest the requirements of a greeter's duties. Greeters at Bloomingdale's stand at the top or bottom of escalators where they greet customers, hand out directories or daily events calendars, and answer any questions that customers might have. (Incontro Decl., at ¶ 3.) Greeters are required to stand all day except during breaks and meal periods. Greeters also escort customers to shopping destinations and locate a salesperson to assist the customer and may help guests carry packages out of the store to a taxi. (Id. at ¶ 5.)
Based on plaintiff's application for benefits, plaintiff has received disability benefits from the Social Security Administration ("SSA") for the period March 11, 1998 to present based on its findings that "the claimant retains the residual functional capacity to lift and/or carry ten pounds; to sit for six hours in a workday, and to stand and/or walk for two hours in a workday" and that plaintiff "can perform the demands of no more than sedentary work." (Def.'s Ex. C, at 4.) These findings conflict with the greeter position which is clearly non sedentary work since one of its requirements is standing all day except for breaks or meal periods.
In Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 806 (1999) the Supreme Court held that although a plaintiff's pursuit and receipt of Social Security Disability Insurance does not automatically estop him from pursing an ADA claim, where they conflict, a plaintiff must proffer a sufficient explanation for any inconsistency with his social security claims. Similarly, in Mitchell v. Washingtonville Central School District, 190 F.3d 1 (2d Cir. 1999), the plaintiff had made statements to the SSA and Workers' Compensation Board that he was incapable of standing for any length of time or walking and that he required work that he could perform seated, whereas in his ADA claim, he was asserting that he was capable of performing work that required him to stand or walk. The Second Circuit held, "[s]ince Mitchell's earlier assertions as to his inability to walk or stand were accepted by these prior administrative tribunals, resulting in a determination in his favor, judicial estoppel prevents Mitchell from advancing, for purposes of this litigation, the contrary position." Id. at 7-8.
Although the Court's Order and Opinion of October 12, 2001 required the plaintiff to give the Court, "an explanation of why his ADA claim is not inconsistent with the disability finding of the SSA," plaintiff has offered no explanation. He only argues in a conclusory maimer that "I could perform a job as fitting room checker, coat checker, greeter etc . . . with littler [sic] accommodation." (Pl.'s Br. To Obtain Liability and J. Against Bloomingdale's, at 4.) However, the requirements of being a greeter, standing all day with short breaks and walking with customers to various locations to locate a salesperson, are clearly inconsistent with the findings of the SSA. The Court in Cleveland recognized that lower courts have held with virtual unanimity "that a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement . . . without explaining the contradiction or attempting to resolve the disparity" and did not disturb these findings. Cleveland, 526 U.S. at 806. Therefore, plaintiff suggesting now that he could perform a position that requires standing all day without offering any explanation for his obvious represenations otherwise to the SSA, are insufficient to survive a motion for summary judgment.
Subsequent to the Court's Opinion and Order of October 12, 2001, plaintiff has produced a note from Nelson W. Castro, D.C., a chiropractor, dated November 15, 2001, indicating "It is our opinion that he is able to perform a job as a greeter with restrictions of lifting any object more than 20 lbs." (Def.'s Ex. E.) However, plaintiff does not show that Mr. Castro was aware of the requirements of being a greeter, i.e. standing for long periods of time and does not explain why Mr. Castro's conclusion is not contradicted by the SSA findings that defendant can only stand or walk for two hours in a workday. Furthermore, since it is undisputed that there were no openings for the position of greeter since September, 2001, a possible substantial recovery by plaintiff as of November 15, 2001 is irrelevant since it is undisputed that there has been no vacancy for greeters since September, 2001.
Coat Checker and Fitting Room Checker Positions
Although the Court in its October 12, 2001 Opinion and Order requested only that plaintiff explain why his claim that he should have been offered the greeter position was not inconsistent with his pursuit of Social Security Disability Insurance, plaintiff now argues for the first time that the coat checker and fitting room checker positions were available in July and September, 1998 and that he could perform these positions. He submits Promotional Lists dated July 25, 1998 and September 19, 1998 which, for the purposes of this motion, the Court will consider as establishing that a vacancy existed during that time period.
It is undisputed that in April of 1999, as well as at other times subsequent to plaintiffs rejection of the position of door guard for medical reasons, Ms. Revere spoke to plaintiff about his filling positions as coat checker and fitting room checker. (Decl. of Linda Revere, ¶ 5.) In response, plaintiff provided medical information that indicated that he was not physically capable of performing either position. (Pl. Ex. Letter from Dr. Zelefsky dated April 20, 1999; Pl. Mot. dated April 5, 2002, at 3.) Thus plaintiff's April, 1999 response and the medical support he offered at that time raises doubts that he could have accepted such a position at a time earlier in his recovery from his injury.
As for July and September, 1998, the dates the plaintiff now addresses, the undisputed record shows that from March to September, 1998 defendant was communicating with plaintiff and his doctors about plaintiff returning for a period of modified duty and then to his previous position, and that plaintiff presented defendant with one conflicting doctor's note after another. Although offered modified duty his former position he did not return to work because-his doctor stated that he was "totally disabled" and "unable to work" or was "only able to replenish bathroom supplies." When defendant requested more medical information, it received no response.
Furthermore, it is also undisputed that the job requirements of coat checker and fitting room checker include some heavy lifting — garments being removed from the fitting room or heavy coats — as well as bending, stooping, and other repetitive motions. These job requirements also conflict with the findings of the SSA and the evidence plaintiff presented to it. The SSA, in its "Evaluation of the Evidence" stated that Dr. Hearns, a treating physician, "reported in June, July and August of 1998 that the claimant could not lift, bend, walk up and down stairs, but could do "light duty' work." (Def.'s Ex. C, at 2.) It awarded plaintiff benefits since March 11, 1998 finding he could "perform the demands of no more than sedentary work." Fitting room checker and coat checker are not sedentary work. Plaintiffs conclusory argument on this motion, "I could perform a job as fitting room checker, coat checker, greeter, etc . . . with littler [sic] accommodation" (Pl.'s Br. To Obtain Liability and J. Against Bloomingdale's, at 4.) is inconsistent with all of the medical evidence to the contrary which he has submitted to the SSA and which was accepted by it. That evidence shows that at the time of the July and September, 1998 vacancies for the coat checker and fitting room checker positions he was not physically capable of performing the essential functions of these positions with or without reasonable accommodation. Plaintiff has not raised a genuine issue as to the material fact that he has been unable to perform the duties of greeter, fitting room checker or coat checker, with or without reasonable accommodation.
Conclusion
Defendant's motion for summary judgment is granted.