Opinion
98 Civ. 2210 (MGC)
July 15, 2002
LAW OFFICES OF LOREN B. MILLER White Plains, NY., Loren B. Miller, Esq., Attorney For plaintiff.
MARY SCHUETTE New York, NY., Barbara Jane Carey, Esq., Jeanmarie L. Schieler, Esq., Attorney For Defendant.
OPINION
Plaintiff Michael J. Kealy, Jr. sues consolidated Edison Company of New York, Inc. ("Con Edison"), for the following: 1) discrimination based on a perceived disability in violation of the Americans with Disabilities Act ("ADA"), 29 U.S.C. § 12101 et seq., New York State Human Rights Law ("NYHRL"), Executive Law § 290 et seq., and the New York City Human Rights Law ("City Law"), Administrative Code of the City of New York § 8-101 et seq.; 2) age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., NYHRL, and City Law; 3) retaliation for complaining about discrimination in violation of the ADA, ADEA, NYHRL, and City Law; 4) discrimination and retaliation for complaining about practices or activities in violation of the New York Labor Law, including but not limited to sections 215, 201-b, 740 and 880, and the occupational Safety and Health Act ("OSHA"), 29 U.S.C. § 651 et seq.; and 5) common law slander.
Con Edison now moves for summary judgment on all of plaintiff's claims. At oral argument on the motion, in open court, I granted summary judgment to defendant on plaintiff's claims of age discrimination, retaliation under the ADEA, discrimination and retaliation for complaining about workplace conditions, and slander. For the reasons that follow, defendant's motion is also granted on plaintiff's claim of discrimination based on a perceived disability under the ADA and his claims of retaliation for complaining about disability discrimination. Plaintiff's claims of discrimination under the NYHRL and City Law are dismissed without prejudice.
BACKGROUND
Plaintiff began working for defendant in 1972. Until 1997, he worked solely for the defendant's Bronx Gas Distribution unit in the Capital Construction Section, located at 1560 Bruckner Yard. Defendant promoted plaintiff to the position of "Mechanic A" in 1981. As Mechanic A, plaintiff had primary responsibility for each job, read engineering layouts, attended to paperwork, ordered materials, and was responsible for the utility truck's equipment, among other duties.
In March of 1993, plaintiff was diagnosed by Dr. Bennett Rosner, plaintiff's psychiatrist, with an "adjustment disorder with mixed emotional features." Dr. Rosner prescribed 100 milligrams of Zoloft to be taken daily. Between 1993 and 1997, Dr. Rosner saw plaintiff approximately every six months.
On June 16, 1997, plaintiff first met with his unit's equal employment opportunity ("EEO") representatives Janis Amrhein. Plaintiff at the time complained of harassment "relating to environmental and safety issues and of age discrimination." Amrhein's notes of this meeting reflect that she believed plaintiff was complaining only of age discrimination. On July 29, 1997, plaintiff gave Amrhein a "chronology of events" related to his claims. Amrhein told him that "she thought [he] had no complaint, but could pursue the matter with EEO at Con Edison headquarters if [he] chose to."
On August 4, 1997, plaintiff visited Dr. Feierman, an internkist and his regular physician since 1981. Dr. Feierman diagnosed him with a "stress reaction" and recommended that he take a leave of absence from work. On his report, which Con Edison received, Dr. Feierman stated that the plaintiff could return to work on August 11, 1997 "with restrictions." Beginning August 5, 1997, plaintiff began voluntary sick leave.
On August 11, upon his return from sick leave, plaintiff visited Con Edison's medical department, where he saw Nurse Andrea Brown. Brown kept him on sick leave and told plaintiff to see her again on August 14. At the second visit, plaintiff brought with him a note from Dr. Rosner stating that "there are no psychiatric findings which indicate an impairment of his ability to work." Nevertheless, Brown again kept him on sick leave and referred him to Dr. Orsalina Sepe, a physician at Cornell Medical Center who consulted for Con Edison's medical department.
That same day, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), in which he alleged that defendant had discriminated against him on the basis of his disability and his age. Plaintiff simultaneously filed companion complaints with New York state and city agencies. On August 18, the EEOC gave notice to defendant of plaintiff's claims.
Plaintiff first saw Dr. Sepe on August 20. During that meeting, plaintiff again produced Dr. Rosner's note. However, Dr. Sepe questioned Dr. Rosner's recommendation, noting that Dr. Rosner had seen plaintiff only nine times in the last four years. She instead recommended to plaintiff that he obtain a new psychiatrist. Dr. Sepe stated in her notes that plaintiff was "punctual and cooperative, but extremely anxious — with continual twitching and grimacing. . . ." Ultimately, Dr. Sepe extended his sick leave for an additional three weeks, and told him to return for another appointment on September 11.
On September 12, plaintiff met again with Dr. Sepe. At that meeting, he told Dr. Sepe that he was feeling much better and desired to return to work. Dr. Sepe asked whether plaintiff had found a new psychiatrist, to which he answered that he was searching for one with the assistance of his family doctor. Dr. Sepe's notes indicate that she also saw improvement in plaintiff's condition: "[H]e continues to appear very anxious with twitching movement and grimacing [unreadable] — but much more able to participate fully in this session.
Following the meeting, Dr. Sepe approved plaintiff's return to work, but with four "temporary restrictions": 1) not to operate motor vehicle; 2) no work involving the safety of others; 3) no work above unprotected floor levels or about open excavations; and 4) no work around unprotected equipment — electric/steam moving parts. According to Con Edison's company policy, any temporary restrictions remaining in effect after three months would either be rescinded by the medical department or transformed into permanent restrictions. If the permanent restrictions were still in effect after six months, and Con Edison was unable to find any permanent job position which the employee could perform with the restrictions, the employee would be terminated.
After this meeting, plaintiff went to the Bruckner Yard to report for work. Plaintiff was told by Kevin Kelly, a "planner" and assistant manager at the Bruckner Yard, that no work was available that could be performed with his restrictions. Kelly directed him to report to Con Edison's office at 310 East Kingsbridge Road. Plaintiff performed clerical duties in the Kingsbridge office until February of 1998.
On September 30, 1997, plaintiff saw a different psychiatrist, Dr. Ilana E. Kochen, for the first time. Dr. Kochen wrote a note on his behalf to Con Edison, recommending that Con Edison "continue temporary restriction[s] until evaluation is concluded and [plaintiff] will start treatment." On October 9, plaintiff saw Gregory Pagano, a social worker and associate of Dr. Sepe. Following a "five-minute visit," Pagano continued plaintiff' s restrictions.
Beginning in November, several doctors sent written communications to Con Edison's medical department on behalf of plaintiff. Dr. Kochen wrote a note on his behalf dated November 4, stating that "[i]n my opinion Mr. Kealy can go back to his regular job." Dr. Feierman wrote a letter to Con Edison dated November 24 stating that "[t]here are no physical findings that prevent him from performing his usual construction duties including driving heavy equipment." Dr. Feierman also wrote a letter on December 22 stating that "I find no reason why he cannot perform his normal work duties, such as construction, driving heavy equipment, etc." On December 9, Dr. Phyhis L. Bieri, who was treating plaintiff for a "benign tic disorder," wrote a letter to Con Edison stating that the condition "is not progressive and in no way impairs Mr. Kealy's ability to work in construction, operate equipment, or drive motor vehicles." Dr. Bieri wrote another letter on December 23 stating that plaintiff's benign tic disorder "does not cause any limitations in ability to work under full-duty conditions." Finally, Dr. Kochen also wrote to Con Edison on a number of occasions between mid-December of 1997 and January of 1998, each time expressing her opinion that plaintiff could return to work without any restrictions.
On December 15, plaintiff again met with Dr. Sepe. Dr. Sepe did not lift the medical restrictions. As mandated by Con Edison's policy, therefore, the restrictions became "permanent." Plaintiff began withdrawing his EEOC complaints around this time, "preparatory to filing this action in federal court."
Starting in early January of 1998, Con Edison began to lift the restrictions on plaintiff. On January 12, the restrictions against plaintiff operating motor vehicles and doing work involving the safety of others were lifted. Plaintiff requested that he be allowed to return to the Bruckner Yard. His request was refused by Richard Lawson, the general manager of Kealy's unit, who stated that he would not permit plaintiff to return so long as any restrictions remained in effect. On January 19, Gregory Pagano lifted plaintiff's final two restrictions and imposed a new restriction, that plaintiff work under close supervision. Plaintiff informed Dr. Ali Schwaryi, who was a deputy director of the medical department at the time, that the Bruckner Yard would not allow him to return to the Bruckner Yard while any restrictions were imposed. Dr. Schwaryi told him that he would speak to plaintiff's unit management. On February 6, 1998, plaintiff's final restriction was removed and he returned to work in Bruckner Yard.
DISCUSSION
Summary Judgment Standard
When there are no material facts in dispute, a motion for summary judgment should be granted. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The judge's role in summary judgment is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In deciding whether a genuine issue exists, a court must "examine the evidence in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party." In re Chateaugay Corp., 10 F.3d 944, 957 (2d Cir. 1993) Nonetheless, "Rule 56(c) mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
Plaintiff's claims of discrimination and retaliation are analyzed under the burden-shifting framework set out in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) See Heyman v.Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir. 1999) (ADA claim); Sarno v. Douglas Elliman-Gibbons Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999) (retaliation under the ADA); Delta Air Lines v. New York State Div. of Human Rights, 652 N.Y.S.2d 253, 258 (1st Dep't 1996) (disability claim under the NYHRL). UnderMcDonnell-Douglas, the plaintiff first has the burden of establishing a prima facie case of discrimination. Heyman, 198 F.3d at 72. The burden of production, not persuasion, then shifts to the defendant to proffer admissible evidence of a legitimate, non-discriminatory reason for its actions. Id. If the defendant offers a legitimate reason, plaintiff must show that the reason offered by the defendant is merely a pretext for engaging in discriminatory conduct. Id. This "may be demonstrated either by the presentation of additional evidence showing that the employer's proffered explanation is unworthy of credence, or by reliance on the evidence comprising the prima facie case, without more." Id. (internal quotations omitted).
ADA Claim
The ADA states in pertinent part:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . employee compensation, job training, and other terms and conditions, and privileges of employment.42 U.S.C. § 12112(a). To establish a prima facie case under the ADA, the plaintiff must submit evidence showing that he suffers from a "disability" within the meaning of the ADA. Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001) (quoting Heyman, 198 F.3d at 72).
The ADA defines the term "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102 (2). Plaintiff argues that Con Edison regarded him as being disabled within the meaning of the statute. In Sutton v. United Air.Lines, Inc., 527 U.S. 471 (1999), the Supreme Court explained:
There are two apparent ways in which individuals may fall within [section 12102(2)(C)]: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment limits one or more major life activities.Sutton, 527 U.S. at 489. In either event, plaintiff must demonstrate that Con Edison perceived his disability (real or not) as substantially limiting one or more of his major life activities. Id.
The only category of "major life activities" that applies to this case is plaintiff's work. Plaintiff also claims that the category of "driving" should apply because one of the restrictions placed on him prohibited him from operating motor vehicles. However, the Second Circuit has explicitly rejected the argument that driving, by itself, constitutes a major life activity. See Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 643 (2d Cir. 1998). Plaintiff cites Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 871-82 (2d Cir. 1998) to the contrary, but Ryan referred to driving as one of many activities which together constitute the major life activity of "caring for oneself." Plaintiff also suggests that defendant somehow perceived him as being unable to do such things as pick up an infant or small child, help a child or elderly person to cross the street or operate a stove. Even assuming that these activities combined rise to the level of a "major life activity," which they do not, plaintiff has submitted no evidence to show that Con Edison perceived him as being unable to perform these activities outside the work environment.
As plaintiff admits, the only evidence that Con Edison perceived his mental impairment as substantially limiting his ability to work is the actual restrictions Con Edison placed on him. These restrictions include the following: I) putting plaintiff on sick leave for a period of three weeks against his wishes; 2) placing four "temporary restrictions" on plaintiff for a period of three months; 3) failing to lift the temporary restrictions within three months, thereby causing the "temporary restrictions" to become "permanent restrictions" pursuant to Con Edison's company policy; and 4) requiring plaintiff to work in a clerical office, instead of the Bruckner Yard where he normally worked, during the six months in which he was subject to work restrictions.
Each of the work restrictions imposed on plaintiff was temporary in nature. The undisputed facts establish that whatever Con Edison thought of plaintiff's mental condition, it had restored plaintiff to fully active duty at Bruckner Yard six months after it placed him on sick leave. The EEOC, the agency charged with administering the ADA and whose interpretation of the ADA is given great deference, Francis v. City of Meriden, 129 F.3d 281, 283 n. 1 (2d Cir. 1997), has noted that the duration of the limitation is a critical factor in determining whether an impairment is "substantially limiting." See 29 C.F.R. § 1630 (2)(j) (2). Following these guidelines, the Second Circuit has held that a temporary impairment of one's ability to work is not "substantially limiting." See Adams v. Citizens Advice Bureau, 187 F.3d 315, 316-17 (2d Cir. 1999) (three and one-half month impairment not substantially limiting); Colwell, 158 F.3d at 646 (seven month impairment not substantially limiting). In Colwell, the plaintiff, a police officer, suffered from a cerebral hemorrhage. As a result of the hemorrhage, the plaintiff 1) was hospitalized for a month, 2) was forced to remain at home for six months after the hospitalization, and 3) could perform only light duties at work for several years after his return. The Second Circuit ruled that "a seven-month impairment of his ability to work, with the non-particularized and unspecific residual limitations described on his police work, is of too short a duration and too vague an extent to be `substantially limiting.' Id. In fact, in Colwell, the plaintiff was totally unable to work for seven months. By contrast, Kealy was able to work at a broad class of jobs including clerical positions, even though he was unable to work in the particular location that he had worked in before his alleged impairment.
The fact that the status of plaintiff's restrictions changed from `temporary' to "permanent" does not show otherwise. It is undisputed that, pursuant to Con Edison's policy, all "temporary restrictions" automatically become "permanent" after three months. A "permanent restriction" is not permanent in the sense that Con Edison will never lift the restriction, as shown by the fact that plaintiff's own restrictions were lifted within two months of their becoming "permanent." The change in status does not constitute evidence that Con Edison believed plaintiff to be permanently limited in his ability to work without restrictions.
Retaliation
Plaintiff also alleges that the defendant retaliated against him for engaging in a protected activity in violation of 42 U.S.C. § 12203 (b), as well as the NYHRL and City Law. As noted above, plaintiff's claim of retaliation is analyzed under the McDonnell-Douglas framework. The NYHRL and City Law require the same standard of proof for a claim of retaliation as is required under the ADA. See Sacay v. Research Found. of City Univ. of New York, 44 F. Supp.2d 505, 508-09 (E.D.N.Y. 1999).
To begin with, plaintiff does not clearly describe the "protected activity," apart from the filing of a complaint with the EEOC on August 14, 1997 which apparently contained allegations of disability discrimination. There is no evidence that plaintiff engaged in any protected activity under the ADA before the filing of his EEOC complaint. Plaintiff states in his affidavit that he complained to Janis Amrhein, his unit's "EEO representative," of safety and work issues as well as age discrimination. He does not state that he ever complained to her about discrimination based on a perceived disability. Therefore, the only acts of defendant that could have been retaliation for plaintiff's complaints about disability discrimination are after August 18, when plaintiff filed his EEOC complaint.
The same work restrictions that formed the basis of plaintiff's failed ADA claim also form the basis of his retaliation claim. That is, having failed to show that defendant imposed work restrictions on him because of a perceived disability within the meaning of the ADA, plaintiff argues alternatively that defendant imposed the work restrictions in retaliation for plaintiff's complaining about disability discrimination. Defendant argues that it had a legitimate, nondiscriminatory reason for its conduct. Specifically, defendant argues that the imposition of sick leave and subsequent restrictions were based on medical reasons — the very perceived disability plaintiff uses as the basis of his unsuccessful disability discrimination claim. There is substantial evidence supporting this argument, much of it submitted by plaintiff in support of his discrimination claim.
It is plaintiff's burden to show that this alleged medical basis was a pretext for engaging in retaliation. In doing so, plaintiff does not have to submit additional evidence, but may rely on the evidence supporting his prima facie case. But, plaintiff must ultimately show that "the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited [retaliation] occurred." James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000). Proof that the employer's proffered reason is false does not necessarily establish that the proffered reason was pretextual, see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993), but may constitute circumstantial evidence of retalitory intent in the appropriate case. See Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 146-47 (2000). Factors to consider include "the strength of plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports [or undermines] the employer's case. James, 233 F.3d at 157 (quoting Reeves, 530 U.S. at 120).
In an attempt to show ammus on the part of defendant, plaintiff alleges that a member of Con Edison's medical department lied to a court-appointed environmental monitor about the diagnosis given by plaintiff's own psychiatrist. Plaintiff submits an email sent by Dr. Michael Crane, head of Con Edison's medical department, on November 19, 1997 to John S. Wilson, an "environmental monitor" appointed by Judge Martin of this Court to oversee Con Edison's compliance with environmental laws and regulations. Wilson had asked Dr. Crane whether plaintiff's doctors had communicated to defendant any disagreement with the restrictions imposed on plaintiff. Dr. Crane responded in the email that "[t]he most recent communication from his private physician dated 9/30/97 recommends continuing restricted duty and we agree . . . I don't see any conflict at this point." However, on November 4, 1997, Dr. Kochen, plaintiff's psychiatrist, had written a letter stating that plaintiff "can go back to his regular job." Plaintiff argues that Dr. Crane knew about the November 4 letter from Dr. Kochen when he wrote the email to Wilson on November 19.
However, plaintiff's argument is contradicted by his own letter to Dr. Sepe dated December 9, 1997. In that letter, plaintiff stated: "[T]o give you more complete and up-to-date information about [Dr. Kochen's] treatment, last week I faxed her November 4 note to Dr. Schwayri [of Con Edison's medical department]." Thus, Con Edison did not receive this note before late November or early December, after Dr. Crane had sent his email to Wilson.
Plaintiff also attempts to demonstrate defendant's retalitory intent by showing that defendant treated him differently from other workers with restrictions. According to plaintiff, Kevin Kelly, the manager of his unit, told him that he could not work in Bruckner Yard (his preferred yard and usual place of work) while he was under restrictions. Plaintiff notes that at least eight people worked in Bruckner Yard with various restrictions, and contends that Con Edison singled him out. However, defendant has produced evidence showing that these eight employees had different restrictions from the plaintiff. Furthermore, plaintiff has not offered any evidence to show what position at Bruckner Yard he could have filled while on restricted duty.
Finally, in an attempt to discredit defendant's proffered legitimate reason, plaintiff submits evidence that other doctors disagreed with the medical diagnosis of Dr. Sepe and Nurse Brown. Two psychiatrists, an internist and several neurologists submitted notes or letters to Con Edison on behalf of plaintiff between November of 1997 and January of 1998, stating that plaintiff was fit to work without restrictions.
However, these documents show that there was a difference of opinion between plaintiff's doctors and Dr. Sepe. The fact that Dr. Sepe possessed these notes when she made her medical diagnoses, by itself, does not show that she was motivated by anything other than her medical opinion. The question is what motivated Dr. Sepe to reject the opinions of plaintiff's doctors. Plaintiff has offered no evidence to show that Dr. Sepe chose to discredit the opinion of his doctors because of a retalitory motive. Indeed, Dr. Sepe's contemporaneous notes show that she held a poor opinion of plaintiff's psychiatrist, Dr. Rosner, because of his infrequent contact with plaintiff. Her notes also demonstrate her concern over plaintiff's mental and emotional health. Accordingly, plaintiff cannot show that defendant's medical diagnosis was a pretext for retahating against him.
State and City Law Claims of Discrimination
The only remaining claims are plaintiff's claims of discrimination based on a perceived disability pursuant to the NYHRL and City Law. If his federal claims of disability discrimination are dismissed, plaintiff requests that I not decide the merits of his state and city law claims of discrimination. Defendant argues that plaintiff's NYHRL and City Law claims should be dismissed on the same ground as his ADA claim. However, the Second Circuit has noted that:
[I]n the absence of any remaining federal claims, the appropriate analytic framework to be applied to discrimination claims based on a "disability" as defined by New York state and municipal law is a question best left to the courts of the State of New York.Giordano, 274 F.3d at 754.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is granted as to plaintiff's claim of disability discrimination under the ADA and retaliation under the ADA, the NYHRL and City Law. Plaintiff's claims of disability discrimination under the NYHRL and City Law are dismissed without prejudice.