DAVID N. HURD, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION .......................................195
II. FACTUAL BACKGROUND ................................196
A. Croons' Injury.................................196
B. Croons' Termination............................197
C. Croons' Reinstatement..........................198
III. DISCUSSION.........................................199
A. Motion for Summary Judgment — Legal Standard.....200
B. Race Discrimination Claims.....................201
1. Light Duty.................................203
2. Termination................................206
C. Retaliation....................................207
D. Disability Claims..............................210
IV. CONCLUSION.........................................213
Plaintiff Charles M. Croons ("plaintiff" or "Croons") brings this action against the New York State Office of Mental Health's Central New York Psychiatric Center ("CNYPC"); Donald Sawyer, the former Executive Director of CNYPC ("Sawyer"); Debbie Collver, a Human Resources ("HR") secretary at CNYPC ("Collver"); Sharon Schoen, a retired HR secretary formerly employed at CNYPC ("Schoen"); and John and Jane Does (the "Does"). Plaintiff later amended his complaint to add defendants Patricia Bardo, Director of CNYPC's HR Department ("Bardo") and Corey Conley, the Director of CNYPC's Security Department ("Conley").
Croons' Amended Complaint enumerates fourteen causes of action for alleged violations of federal and state law. Plaintiff brings claims against CNYPC for race and disability discrimination (Counts One, Three, Four, and Five) as well as retaliation (Counts Nine, Ten, and Eleven) pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), Titles I and II of the Americans with Disabilities Act ("ADA"), and the Rehabilitation Act of 1973 ("Rehabilitation Act"). Plaintiff also brings claims against Sawyer, Collver, Schoen, Bardo, Conley, and the Does (collectively the "individual defendants") for race discrimination and retaliation (Counts Eight and Thirteen) as well as alleged violations of the First and Fourteenth Amendments (Counts Seven and Fourteen) pursuant to 42 U.S.C. §§ 1981 and 1983. Finally, plaintiff brings claims against the individual
Following the completion of discovery, CNYPC and the individual defendants (collectively "defendants") moved for summary judgment on all fourteen causes of action pursuant to Federal Rule of Civil Procedure ("Rule") 56. The motion was fully briefed. Oral argument was heard on September 27, 2013, in Utica, New York. Decision was reserved.
CNYPC is a mental health treatment facility administered by the Office of Mental Health ("OMH"), an agency of the Executive branch of the New York State government. See Defs.' Statement of Material Facts, ECF No. 39-47, ¶ 1 ("Rule 7.1 Stat.").
On June 1, 2007, Croons was on duty at CNYPC when he was alerted to one of these "red dot" situations. Rule 7.1 Stat. ¶ 9. In his haste to arrive at the scene of the alert, plaintiff collided with a doorframe, injuring his shoulder and neck. Id. ¶ 10; Croons' First Dep. 19-21. Although he was still able to work a full eight-hour day, plaintiff's injury prevented him from lifting heavy objects with his right arm or restraining violent people, as required of SHTAs. Id. ¶ 17. Plaintiff was placed on leave in accordance with the terms of a contract between his Union, the New York State Correctional Officers & Police Benevolent Association, Inc. (the "Union"), and New York State.
An injured CNYPC employee placed on Union leave, such as Croons, is eligible to return to work in a "light duty" capacity prior to making a full recovery subject to certain restrictions established as part of a Memorandum of Understanding ("MOU") between New York State and the Union.
After he was placed on Union leave, Croons underwent a series of medical evaluations by different physicians to determine his fitness to return to full duty. Rule 7.1 Stat. ¶¶ 19-24. These evaluations, conducted largely between September 21, 2007, and July 11, 2008, characterized plaintiff's injury as "moderate," "temporary," "partial," and "mild." Id.; see also McCartin Decl., Ex. 1, ECF No. 39-6 ("Medical Records"). Each of these evaluations indicated that although plaintiff could return to work in a light duty capacity, he could not be in a "potentially violent environment" and was restricted from lifting various weights with his injured right arm. See generally Medical Records.
On January 16, 2008, James Schuster, M.D. completed an "Estimated Capabilities Report," which stated that Croons could work an eight-hour day, but was still restricted from pushing or pulling with his right arm or restraining combative patients. Rule 7.1 Stat. ¶ 23; see Croons Aff., Ex. B, 34. Notably, Dr. Schuster's report indicated that plaintiff would be ready to return to full duty on March 1, 2008, within the forty-five day period required by the MOU for clearance to light duty. Id. However, a later "work ability report," completed by plaintiff's personal physician Nathaniel Gould, M.D. on March 3, 2008, indicated plaintiff was still limited from lifting more than ten pounds with his right arm, could not be in a "potentially violent environment," and that plaintiff should follow-up with him in six weeks. Medical Records 15. Plaintiff did not receive any light duty assignments at CNYPC during this period and remained on continuous Union leave. Rule 7.1 Stat. ¶ 16.
On June 12, 2008, CNYPC sent Croons a letter informing him that his employment would be terminated on July 13, 2008 pursuant to New York Civil Service Law § 71. Rule 7.1 Stat. ¶ 69; McCartin Decl., Ex. 3, ECF No. 39-7. Section 71 provides, in relevant part, that "[w]here an employee has been separated from the service by reason of a disability resulting from occupational injury ... [he] shall be entitled to a leave of absence for at least one year, unless [his] disability is of such a nature as to permanently incapacitate [him] for the performance of the duties of [his] position." N.Y. Civ. Serv. Law § 71.
On July 11, 2008, Dr. Gould completed a "work ability report" indicating that Croons could return to full duty on August 4, 2008, again within the forty-five day period required by the MOU for clearance to light duty.
Following his termination, Croons pursued reinstatement under other provisions of the Civil Service Law, which provide that an employee who has been terminated pursuant to § 71, such as plaintiff, can apply to be examined by a physician from the New York State Department of Civil Service ("Civil Service") Staffing Services Division, the central personnel agency of the Executive branch of New York State. Rule 7.1 Stat. ¶¶ 74, 76; Ryan-Lynch Decl., ECF No. 39-41, ¶ 2. If the employee can show that his injury has healed and he is fit to return to work without limitations, a medical clearance letter is transmitted to the relevant facility, such as CNYPC, to begin a reinstatement process. Ryan-Lynch Decl. ¶ 9.
In February 2009, Croons reported to the Civil Service's Employee Health Services ("EHS") office, where he was evaluated by John E. Hargraves, M.D. Rule 7.1 Stat. ¶¶ 77-78. On February 11, 2009, Dr. Hargraves issued a letter clearing plaintiff to return to work as an SHTA without restrictions. Id. ¶ 78; Ryan-Lynch Decl., Ex. A, ECF No. 39-42 ("Clearance Letter"). This Clearance Letter indicated that it was "cc'ed" to both "Staffing Services — Director" and "[CNYPC], Personnel." Rule 7.1 Stat. ¶ 79.
For reasons the parties dispute, CNYPC did not reinstate Croons following his medical clearance.
During the pendency of this litigation, CNYPC applied for a "budgetary waiver" to reinstate Croons despite the hiring freeze. Rule 7.1 Stat. ¶ 93. In August 2011, New York State approved CNYPC's budgetary waiver application and plaintiff was directed to report to EHS for a physical exam and drug test prior to being reinstated as an SHTA. Rule 7.1 Stat. ¶¶ 93-94; Bardo Decl., Ex. D, ECF No. 39-19. However, plaintiff was initially
Each of the fourteen causes of action asserted in Croons' Amended Complaint incorporates all of the factual allegations preceding it as well as adopting all of the allegations of each preceding count. Consequently, "it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief." Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996). The initial confusion undoubtedly caused by this "shotgun pleading" strategy was only exacerbated by defendants' decision not to move against either plaintiff's initial or amended complaint seeking clarification of the issues. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 590 n. 9, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("The remedy for an allegation lacking sufficient specificity to provide adequate notice is, of course, a Rule 12(e) motion for a more definite statement.") (Stevens, J., dissenting) (internal quotations omitted). Instead, the parties elected to sort things out by engaging in a protracted course of sweeping discovery spanning several years before delivering this motion for consideration.
But this is exactly backwards. "Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading." Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1127, 2014 WL 1363544, at *7 (11th Cir.2014). And left unchecked, this type of litigation strategy ultimately acts to thwart meaningful legal analysis. This is especially true where, as here, the parties can barely seem to agree on even the most inconsequential background facts in the case. Left with little in the way of useful guidance on the critical disputes, a court must instead attempt to stitch together the plaintiff's various theories of recovery by slogging through the inevitable morass of discovery materials. The result is a "massive waste of judicial and private resources." Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1333 (11th Cir.1998). Indeed, "[e]xperience teaches that, unless cases are [pleaded] clearly and precisely, . . . discovery is not controlled, the trial court's docket becomes unmanageable, [and] the litigants suffer[]." Anderson, 77 F.3d at 366.
The repercussions of Croons' "successful" shotgun pleading strategy are readily apparent from a review of the docket in this action — when the dust settled on the briefing in this case, the parties' exhibits,
Nevertheless, a thorough review of the voluminous filings reveals that Croons' various causes of action, drawn from the contours of his three-act employment saga, are based on: (1) defendants' failure to provide him a light duty assignment following his injury; (2) his termination; and (3) defendants' failure to promptly reinstate him following his medical clearance.
The entry of summary judgment is warranted when "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 a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing FED.R.CIV.P. 56(c)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir.2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
When summary judgment is sought, the moving party bears the initial burden of demonstrating that there is no genuine issue of material fact to be decided with respect to any essential element of the claim. Id. at 250 n. 4, 106 S.Ct. 2505. The failure to meet this burden warrants denial of the motion. See id. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Id. at 250, 106 S.Ct. 2505.
When deciding a summary judgment motion, a court must resolve any ambiguities and draw all inferences from the facts in a light most favorable to the non-moving party. Jeffreys, 426 F.3d at 553. Summary judgment is inappropriate where "review of the record reveals sufficient evidence for a rational trier of fact to find in the [non-movant's] favor." Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.2002) (citations omitted); see also Anderson, 477 U.S. at 250, 106 S.Ct. 2505 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").
A plaintiff's "[m]ere conclusory statements, conjecture or speculation" will not defeat summary judgment. Gross v. Nat'l Broad. Co., Inc., 232 F.Supp.2d 58, 67 (S.D.N.Y.2002); see also Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008) ("Even in the discrimination context ... a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment."). Instead, a plaintiff must offer "concrete particulars." Bickerstaff v. Vassar Coll., 196 F.3d 435, 451-52 (2d Cir.1999) (disregarding plaintiff's affidavit because it lacked "concrete particulars"); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases.").
With this framework in mind, it bears noting that "direct evidence of ... [discriminatory] intent will only rarely be available, so ... `affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.'" Holcomb, 521 F.3d at 137 (internal citation omitted). However, this cautious attitude toward summary judgment in the employment discrimination context cannot excuse a court's obligation to "carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture." Bickerstaff, 196 F.3d at 448.
Croons' various race discrimination claims are brought pursuant to Title VII (Count One), the NYSHRL (Count Two), and 42 U.S.C. §§ 1981 and 1983 (Counts Seven and Eight). Plaintiff challenges two related employment actions: (1) defendants' failure to provide him light duty assignments during the period he was on Union leave; and (2) his termination effective July 13, 2008.
Defendants contend Croons has failed to establish a prima facie case of race discrimination with regard to either action. Defs.' Mem. 18-19. Plaintiff's opposition memorandum does little to clarify his theory of recovery or otherwise respond to defendants' arguments, but rather summarily concludes that defendants' assertions are a pretext for discrimination. See Pl.'s Mem. Opp'n 8-9.
As an initial matter, Croons argues defendants have "erroneously construed" his burden at this stage of the litigation and suggests that his discrimination claims are not subject to the McDonnell Douglas "burden-shifting" framework, see Pl.'s Mem. 6 (citing Henry v. Wyeth Pharm., Inc., 616 F.3d 134 (2d Cir.2010)), but plaintiff's reliance on Henry is misplaced. In
Here, a denial of defendants' motion for summary judgment on any or all of Croons' claims would merely necessitate a trial that might ultimately result in submitting the case to a jury and it is therefore entirely unclear as to why plaintiff believes the McDonnell Douglas framework is inapplicable at this stage of the litigation.
Indeed, it is well-settled that employment discrimination claims brought pursuant to Title VII, the NYSHRL, and 42 U.S.C. §§ 1981 and 1983 are all subject to the same substantive, burden-shifting framework.
This framework places the initial burden of establishing a prima facie case of discrimination on the plaintiff, who must demonstrate that: (1) he is a member of a protected class; (2) he was qualified for the position in question; (3) he suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination. Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491 (2d Cir.2010). While this burden has been characterized as "minimal," the plaintiff must still "proffer some admissible evidence of circumstances that would permit an inference of discriminatory motive." Risco v. McHugh, 868 F.Supp.2d 75, 98-99 (S.D.N.Y.2012).
The burden then shifts to the defendant to offer "legitimate and non-discriminatory reasons for the adverse employment action demonstrated in plaintiff's prima facie case." Id. at 99 (citing Abdu-Brisson, 239 F.3d at 468). The burden at this stage is also "light," and "[t]he employer need not persuade the court that it was motivated by the reason it provides; rather it must
The burden then remains with the plaintiff to produce sufficient evidence to cast doubt on the defendant's legitimate, non-retaliatory reasons. Sharpe v. Utica Mut. Ins. Co., 756 F.Supp.2d 230, 249 (N.D.N.Y. 2010). "Although intermediate evidentiary burdens shift back and forth under this framework, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."" Risco, 868 F.Supp.2d at 99 (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
Notably, "in order to raise an issue of fact that is sufficiently material to defeat a motion for summary judgment, the plaintiff must produce more than simply some evidence; it must be enough evidence to support a rational finding that the defendant's explanation for the adverse action is actually a pretext to disguise discrimination." Barounis v. N.Y.C. Police Dep't, No. 10 Civ. 2631(SAS), 2012 WL 6194190, at *6 (S.D.N.Y. Dec. 12, 2012) (citations omitted). In other words, a plaintiff must do "more than cite to [his] mistreatment and ask the court to conclude that it must have been related to [his] race." Id. (quoting Lizardo v. Denny's Inc., 270 F.3d 94, 104 (2d Cir.2001)).
Croons advances two theories to argue that defendants' failure to assign him to light duty resulted from impermissible discrimination: (1) he could have been assigned light duty in the Security Supervisor's office; or (2) he could have been appointed provisionally to another department at CNYPC. Plaintiff supports these theories by asserting that white SHTAs received favorable treatment at CNYPC. Pl.'s Mem. Opp'n 3-4, 7.
"A plaintiff may raise an inference of discrimination for purposes of making out a prima facie case by relying on the theory of disparate treatment; that is, by showing that [his] employer treated [him] less favorably than a similarly situated employee outside [his] protected group." Risco, 868 F.Supp.2d at 99 (citing Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir.2003)). This requires a showing that the plaintiff is "similarly situated in all material respects" to the individual or individuals with whom he seeks to compare himself. Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000). This determination "must be judged based on [ ] whether the plaintiff and those he maintains were similarly situated were subject to the same workplace standards." Id. at 40; see also McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir.2001) ("[W]here a plaintiff seeks to establish the minimal prima facie case
Here, Croons purports to have identified Deb Vrooman, Danny Valieki, and Ray Mellor, three white employees who were afforded the light duty he was denied. Pl.'s Mem. Opp'n 7; Response to Rule 7.1 Stat. ¶ 64; Richardson Aff., ECF No. 42, ¶¶ 1-3. However, defendants provide sworn affidavits stating that although Ms. Vrooman was assigned light duty in the Security Supervisor's Office at one point, she was a senior SHTA at the time of her assignment and is therefore not similarly situated to plaintiff, a non-senior SHTA, for purposes of this analysis. See Collver Decl., ECF No. 39-34, % 17. Plaintiff states that this distinction is merely a "pretext," but does not belabor the point by even attempting to identify any evidence in the record to support a claim that senior and non-senior SHTAs were treated identically when assigning light duty.
Rather, Croons relies on Mr. Mellor — a fellow non-senior, non-supervisory white SHTA who was indisputably given light duty in the Security Supervisor's office — to support his theory of disparate treatment. Pl.'s Mem. Opp'n 7. Plaintiff supports his claims about Mr. Mellor through an affirmation by Keith Richardson, a former CNYPC employee. Richardson Aff., ECF No. 42, ¶¶ 1-3. Richardson identifies Mr. Mellor as having worked light duty during the relevant time period. Id. ¶ 9. Richardson also claims light duty was available for plaintiff in the Security Supervisor's office during the period in which he was denied such assignments. Id. ¶¶ 6-8. Defendants admit that Mr. Mellor worked light duty in the Security Supervisor's office as a non-senior, non-supervisory SHTA at one point, but identify a policy change that precluded lower-level SHTAs from working in that office because of Union concerns regarding the confidentiality of patient records.
As an initial matter, a review of Richardson's affirmation shows that it is completely bereft of the sort of "concrete particulars" ordinarily required from sworn affidavits.
Putting the sufficiency of Richardson's affidavit aside and construing those statements in Croons' favor for purposes of this motion, plaintiff still cannot establish a prima facie case of discrimination based on defendants' failure to assign him light duty. Plaintiff identifies five dates when he claims to have presented the requisite medical documentation to CNYPC's HR Department, but claims that he was "always told" there was no light duty available. Croons Aff., ECF No. 41, ¶ 8.
Despite extensive discovery in this case, plaintiff has not identified a single non-senior, non-supervisory SHTA given light duty between the period of his injury on June 1, 2007 and his termination on July 13, 2008. Plaintiff has offered Mr. Mellor as the only other non-senior, non-supervisory white SHTA who was apparently ever afforded light duty in the Security Supervisor's office, and the medical evidence establishes that this was in the period before plaintiff's injury. Even assuming defendants' claimed policy change is irrelevant and Mr. Mellor is an otherwise suitable comparator, the mere fact that a single white SHTA was given light duty in the Security Supervisor's office at some point in the past while plaintiff was later denied it, without anything more, does not suggest that defendants' failure to assign plaintiff light duty was motivated by some unlawful intent. Defendants have repeatedly asserted that there was no light duty available during this time frame and the one instance in which there was a documented communication to Schoen regarding whether light duty was available for plaintiff during this time period seems, if anything, to confirm this assertion.
Alternatively, Croons contends that he could have been appointed as a "provisional employee" to other positions within CNYPC that did not involve contact with violent patients while he recovered from his shoulder injuries. This argument is notably absent from plaintiff's opposition memorandum, but is rather found buried in his Response to defendants' Statement of Material Facts. See Response to Rule 7.1 Stat. ¶¶ 37-39. The entirety of plaintiff's argument on this point consists of
This cited material reveals that CNYPC employs people in a number of positions that are similar to the job descriptions required by the SHTA title. Some of these positions do not require contact with potentially violent patients. Bosman Aff., Ex. 16, 5-7 ("Bardo Dep."). While a current SHTA can be provisionally appointed to these other positions at CNYPC pending completion of the specific exam requirements, or can even "change titles," these positions are tested and assigned separately within the Civil Service system. Bosman Aff., Ex. 14, 16 ("Schoen Dep."). Announcements for these opportunities are posted to all employees along with information explaining they may be eligible for certain positions. Bardo Dep. 7.
Essentially, Croons' citation to these two deposition excerpts seems based on his desire to have an adverse inference drawn — without any context, argument, or other supporting evidence — that the failure of supervisory individuals at CNYPC to offer or otherwise guide plaintiff through the process of being provisionally appointed to a different Civil Service "title" should give rise to an inference of discriminatory intent,
Croons' second theory in support of his discrimination claims concerns his allegedly wrongful termination. Assuming plaintiff carried his initial burden of establishing a prima facie case with respect to this theory, defendants' proffered reason — that plaintiff was terminated pursuant to New York Civil Service Law § 71 — sufficiently rebuts it.
"An employer's decision to terminate an employee pursuant to Civil Service Law § 71 is a legitimate, non-discriminatory reason for an employee's termination." Meyer v. William Floyd Union Free Sch. Dist., 07-CV-2524 JS ETB, 2008 WL 4415271 (E.D.N.Y. Sept. 24, 2008); Bresloff-Hernandez v. Horn, No. 05-CV-0384, 2007 WL 2789500, at *6, 2007 U.S. Dist. LEXIS 71257, at *20 (S.D.N.Y. Sept. 21, 2007) ("No presumption of discrimination arises when an employer makes a decision explicitly provided for by the Civil Service Law."); Hatter v. Fulton, 92 Civ. 6065, 1997 WL 411623, at *7 (S.D.N.Y. July 21, 1997), aff'd sub nom., Hatter v. New York City Housing Auth., 165 F.3d 14 (2d Cir.
It is undisputed that plaintiff did not work any days at CNYPC during the one-year period immediately following his June 1, 2007 injury and therefore his one-year medical leave under § 71 was unquestionably exhausted when he was terminated effective July 13, 2008. Plaintiff fails to respond to this argument in his opposition brief and thus provides no guidance as to how his termination pursuant to a Civil Service provision could conceivably be a pretext for unlawful discrimination, especially since defendants have offered evidence showing that such terminations were routine. See, e.g., Bardo Decl., Ex. F, ECF No. 39-21 (listing terminated SHTAs). Plaintiff has failed to produce "enough evidence to support a rational finding that the defendant's explanation for the adverse action is actually a pretext to disguise discrimination." Barounis, 2012 WL 6194190, at *6 (citations omitted).
Accordingly, Counts One, Two, Seven, and Eight will be dismissed.
Croons' retaliation claims are brought pursuant to Title VII (Count Nine), the ADA (Count Ten), the Rehabilitation Act (Count Eleven), NYSHRL (Count Twelve), and 42 U.S.C. §§ 1981 and 1983 (Counts Thirteen and Fourteen). Plaintiff contends that CNYPC's failure to reinstate him despite his medical clearance was retaliation for filing his DHR complaint and pursuing this federal litigation. Pl.'s Mem. Opp'n 9. Defendants contend that CNYPC was not aware of the Clearance Letter until this litigation commenced, but that the state-wide hiring freeze would have precluded CNYPC from immediately reinstating plaintiff. Plaintiff argues that this assertion is a falsehood because CNYPC was made aware of the Clearance Letter, at the very latest, during the two-party conference with DHR on December 1, 2009.
Croons various retaliation claims are analyzed under the same McDonnell Douglas burden-shifting framework discussed above.
To establish a prima facie case of retaliation, a plaintiff must show that: (1) he engaged in a protected activity; (2) the employer was aware of this activity; (3) the employer took an adverse action against him; and (4) a causal connection exists between the protected activity and the adverse action. Summa v. Hofstra
Here, it is not readily apparent how plaintiff seeks to establish a causal relationship between his DHR complaint or federal lawsuit and CNYPC's failure to reinstate him after February 11, 2009, because those events occurred, respectively, on June 26, 2009 and October 25, 2010. "Proof of a causal connection can be established indirectly by showing that the protected activity was followed closely by" the adverse employment action or by evidence of disparate treatment of fellow similarly situated employees, Davis v. State Univ. of New York, 802 F.2d 638, 642 (2d Cir.1986), or directly through evidence of retaliatory animus directed against a plaintiff by the defendant. DeCintio v. Westchester Cnty. Med. Ctr., 821 F.2d 111, 115 (2d Cir.1987).
Croons suggests that CNYPC was hostile to his efforts to return to work following his termination on July 13, 2008, claiming that Schoen and her employees simply told him "that it was too late and there was nothing they could do" and that he was "not advised" that he could be medically cleared to return to work. Croons Aff., ¶ 15. But these statements are not direct evidence of retaliatory animus, and it is undisputed that plaintiff was not medically cleared until February 11, 2009. See Clearance Letter. Even then, over four additional months elapsed before plaintiff filed his DHR complaint on June 26, 2009. In any event, these claims are undermined by plaintiff's prior deposition testimony, where he states that he took it upon himself to go "back to the employee handbook and read through it" after he was told by CNYPC's HR Department that they could not assist him following his termination. Croons' First Dep. 65-67. Plaintiff was not hopelessly adrift in the harsh post-termination actions of defendants' employees, as he suggests, but rather testified that he learned about the required reinstatement procedures in the employee handbook at some point before December of 2008. Id. 66.
The inverted temporal relationship plaintiff describes here is insufficient to establish the requisite causal relationship under any measure. Assuming defendants were disinclined to reinstate plaintiff despite his medical clearance based on some impermissible animus, it was not causally related to the protected activity plaintiff identifies — his decision to file an administrative complaint with DHR four months after CNYPC's continued refusal to reinstate him, or even his decision to file a federal lawsuit nearly twenty months later. See Stephan v. West Irondequoit Cent. Sch. Dist., 450 Fed.Appx. 77, 80 (2d Cir. 2011) (summary order) (finding no causal
Even assuming, arguendo, defendants' continued failure to reinstate Croons once he filed a DHR complaint can somehow be transmogrified into a sufficient causal relationship to establish a prima facie case of retaliation, defendants have articulated a legitimate, non-retaliatory reason for doing so: the state-wide hiring freeze. See, e.g., Westbrook v. City Univ. of New York, 591 F.Supp.2d 207, 229-30 (E.D.N.Y.2008) (finding that a hiring freeze was a "legitimate business rationale" for an employer's action); Wilburn v. Fleet Fin. Grp., Inc., 170 F.Supp.2d 219, 240 (D.Conn.2001) (finding that defendant's evidence of a hiring freeze was a legitimate, nondiscriminatory reason for purposes of the burden-shifting analysis).
Thus, Croons would still retain the burden of establishing, through either direct or circumstantial evidence, that CNYPC's failure to reinstate him was, in fact, motivated by some retaliatory animus. "A plaintiff may prove that retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its action." Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013) (collecting cases). Plaintiff attempts to do this by claiming that defendants falsely asserted that they were unaware of his medical clearance until this litigation commenced. However, plaintiff's own deposition testimony indicates that he initially "held onto" this medical clearance letter and did not bring it to anyone at the facility. Croons' First Dep. 72-75. Even then, plaintiff could have provided evidence that other SHTAs had been reinstated during the hiring freeze to claim that the hiring freeze was an attempt to conceal some retaliatory motive. "From such discrepancies a reasonable juror could infer that the explanations given by [defendants] were pretextual." Zann Kwan, 737 F.3d at 846 (citations omitted). But plaintiff has not done so, and it appears that no other SHTAs were hired or reinstated by CNYPC from July 31, 2008 until after the hiring freeze ended around June 14, 2012. Bardo Decl. ¶ 14.
Finally, Croons contends that he has additional support for his argument that defendants' refusal to reinstate him was motivated by retaliatory animus. In his sworn affidavit, plaintiff states:
Croons Aff., ¶ 22. Plaintiff claims that the "the Court must accept [this statement] as true for purposes of this motion" and that it "create[s] genuine issues of material fact." Pl.'s Mem. Opp'n 9. Defendant contends that this statement is hearsay because Ms. Kennedy, an employee of DHR, is not authorized to speak on behalf of CNYPC. Kennedy Decl., ECF No. 39-46.
Notwithstanding Croons' improper understanding of his burden at the summary judgment stage, plaintiff failed to establish the requisite causal connection between the adverse employment action and his protected activity to even make out a prima facie case, as discussed above. In any
Accordingly, Counts Nine, Ten, Eleven, Twelve, Thirteen, and Fourteen will be dismissed.
Croons' disability discrimination claims are brought pursuant to Titles I and II of the ADA (Counts Three and Four), the Rehabilitation Act (Count Five), and the NYSHRL (Count Six). Defendants contend that plaintiff's injury did not constitute a disability as it is defined under the federal statutes. Def.'s Mem. 6. Plaintiff argues that the ADA does not foreclose "temporary" disabilities from coverage and presses a "regarded as" theory of recovery in his opposition brief. Pl.'s Mem. Opp'n 11-12.
As an initial matter, defendants argue Croons' Title II ADA claim (Count Four) fails as a matter of law based on the Second Circuit's recent holding that "[a] public employee may not bring a Title II claim against his or her employer, at least where the defendant employer employs fifteen or more employees." Def.'s Mem. 19 (citing Mary Jo C. v. N.Y. State & Local Retirement System, 707 F.3d 144, 171 (2d Cir.2013), cert. dismissed, ___ U.S. ___, 133 S.Ct. 2823, 186 L.Ed.2d 881 (2013)). Plaintiff does not respond to this argument, but it is undisputed that CNYPC is part of OMH, an agency of the Executive Branch of the New York State Government. Rule 7.1 Stat. ¶ 1. As such, it is a public employer. See 42 U.S.C. § 12131(1) (defining "public entity" as "any State or local government [or agency thereof]"). Likewise, it is undisputed that CNYPC's Security Department, standing alone, employs "approximately 188 people." Rule 7.1 Stat. ¶ 6; see also Sawyer Decl., ECF No. 39-14, ¶ 5 (noting that there were approximately 700 staff members at CNYPC). Therefore plaintiff, as a public employee, may not pursue his Title II ADA claim against his employer, a public entity subsumed within OMH employing fifteen or more people. Mary Jo C., 707 F.3d at 171 ("[W]e conclude that the [ADA] unambiguously limits employment discrimination claims to Title I."). Accordingly, Count Four will be dismissed.
Croons' remaining claims of discrimination under the ADA, the Rehabilitation Act, and the NYSHRL are all analyzed under the now-familiar McDonnell Douglas burden-shifting framework.
To establish a disability, "plaintiff must first show that [he] suffers from a physical or mental impairment. Second, plaintiff must identify the activity claimed to be impaired and establish that it constitutes a `major life activity.' Third, [] plaintiff must show that [his] impairment `substantially limits' the major life activity previously identified." Weixel, 287 F.3d at 147 (citations omitted); see also Villanti v. Cold Spring Harbor Cent. Sch. Dist., 733 F.Supp.2d 371, 377-78 (E.D.N.Y.2010) (discussing the three-step test); Reilly v. Revlon, Inc., 620 F.Supp.2d 524, 539 (S.D.N.Y. 2009) (same). "In addition, ... the identified major life activity must be `of central importance to daily life.'" Weixel, 287 F.3d at 147.
"According to the EEOC regulations, `substantially limit[ed]' means `[u]nable to perform a major life activity that the average person in the general population can perform'; or `[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform the same major life activity.'" Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195-96, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002) (quoting 29 C.F.R. § 1630.2(j)).
Both "lifting" and "working" are considered major life activities for purposes of the federal statutes. McDonald v. City of New York, 786 F.Supp.2d 588, 607 (E.D.N.Y.2011). But to survive summary judgment on the issue of whether a plaintiff's condition substantially limits these activities, a plaintiff "must not only (1) describe how those life activities are limited, but must also (2) support this description with competent medical evidence." Villanti, 733 F.Supp.2d at 380 (citing Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 722-23 (2d Cir.1994)).
Here, Croons suffered an injury to his neck and shoulder on July 1, 2007. Each of his various examining physicians
Finally, Croons has fully recovered from his injury and the medical evidence does not describe any long-term limitations. Although the injury lasted "more than a year," plaintiff has since returned to work as an SHTA without limitations. See Huskins v. Pepsi Cola of Odgensburg Bottlers, Inc., 180 F.Supp.2d 347, 351-52 (N.D.N.Y. 2001) (Munson, S.J.) (noting that a disability under the ADA "does not include temporary medical conditions, even if those conditions require extended leaves of absence from work" and collecting cases).
Alternatively, Croons contends that defendants perceived him as "being substantially limited in the major life activity of working" as evidenced by defendants' refusal to permit him to perform even administrative or secretarial work in a light duty capacity. Pl.'s Mem. Opp'n 12.
While it is true that "[a] plaintiff is also disabled within the meaning of the ADA if he is `regarded' by his employer as having a physical or mental impairment that substantially limits a major life activity," Capobianco v. City of New York, 422 F.3d 47, 57 (2d Cir.2005), this argument has no merit. Croons' medical reports, which he claims he delivered to CNYPC's HR Department on numerous occasions requesting light duty, repeatedly indicate that he could return to work immediately provided he was not in a violent environment. The record includes evidence that on at least one occasion, the HR Department contacted Collver to inquire whether light duty was available. Collver Decl., Ex. A. Although Collver responded that "no light duty [was] available," this statement does not militate in favor of the conclusion that plaintiff was somehow regarded as substantially limited from working in a broad range of jobs as contemplated by these federal statutes. There is no evidence that secretarial or administrative light duty assignments were given to other non-senior, non-supervisory SHTAs during the relevant time period such that an inference could be drawn that defendants regarded plaintiff's light duty clearance as somehow different or more restrictive than that of other SHTAs seeking the same light duty assignments. Likewise, there is no evidence of any employees, supervisory or otherwise, making any remarks to suggest that he was regarded within the facility as disabled within the meaning of the statutes. See Stephan, 450 Fed.Appx. at 80 (discussing comments by employees); Petrone,
Croons' state law disability claim fares no better. Even assuming, arguendo, that plaintiff is able to sustain a prima facie case of disability discrimination under the considerably broader definition of "disability" contemplated by the NYSHRL, defendants have proffered a non-discriminatory reason for plaintiff's termination. Specifically, that his cumulative one-year medical absence gave rise to termination under New York Civil Service Law § 71. Plaintiff has not produced any evidence to carry his burden of demonstrating that the proffered reason is a pretext. See McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir.2009). Indeed, despite directing his NYSHRL claim at the individual defendants, he provides little to no guidance as to how any of their acts are related to his failure to receive light duty or his eventual discharge.
Accordingly, Counts Three, Five, and Six will be dismissed.
Despite viewing the record in the light most favorable to Croons, the non-movant here, there is insufficient evidence for a rational trier of fact to find in his favor. See Treglia, 313 F.3d at 719. Plaintiff has not identified any circumstances surrounding either his failure to receive light duty or his termination sufficient to give rise to an inference of discriminatory intent. Even under the more generous definition of disability found in the NYSHRL, plaintiff has failed to carry his burden of showing any evidence of pretext such that his claim can survive summary judgment. Likewise, his failure to draw a causal connection between his protected activity and his allegations of retaliation are insufficient to establish a prima facie case. In any event, defendants have identified legitimate reasons for the adverse actions plaintiff suffered — Civil Service Law § 71 and the state-wide hiring freeze.
Therefore, it is
ORDERED that
1. Defendants' motion for summary judgment is GRANTED; and
2. Plaintiff's Amended Complaint is DISMISSED; and
The Clerk of the Court shall enter a judgment and close the file.
IT IS SO ORDERED.
