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finding it "clear that plaintiff did not suffer an 'adverse employment action' sufficient to establish a case for retaliation under the Rehabilitation Act" where the "plaintiff explained that he felt 'forced' to resign solely because his supervisor asked him to sign the resignation form"
Summary of this case from Monroe v. Cnty. of OrangeOpinion
05 Civ. 8712 (JSR).
June 21, 2006
MEMORANDUM ORDER
Plaintiff, a custodial assistant at Hunter College, alleges that his employer refused to provide reasonable accommodations for certain work-related injuries and retaliated against him for requesting such accommodations. He brings suit under the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Rehabilitation Act, 29 U.S.C. § 701 et seq., and state and local law. Presently pending before the Court is defendant's motion for summary judgment.
The pertinent facts, either undisputed or, where disputed, taken most favorably to plaintiff, are as follows. While working at Hunter College, plaintiff suffered and then repeatedly aggravated a groin injury, which made it difficult for plaintiff to walk, stretch, and engage in heavy lifting. Deposition of Cedric Jackson dated March 23, 2006, at 14-16. During the period here in issue, plaintiff was rarely asked to perform tasks he was medically unable to perform, id. at 30, 34, 39-40, but on a few occasions, his supervisors did ask him to move items that he found to be too heavy to move, such as a gate, classroom desks, and an office desk, id. at 18-19, 30-31, 39. During this period, plaintiff's injury also prevented him from cleaning blackboards. Although plaintiff claims his supervisor "insisted" that he clean them, plaintiff acknowledges that he refused, and there is no evidence in the record that he was ever disciplined for his refusal. Id. at 111.
Although plaintiff attempts to create a factual dispute on this and other issues by relying on his own affidavit, plaintiff's affidavit repeatedly contradicts in material fashion his prior deposition testimony, and "a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City Dep't of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
On November 17, 2003, plaintiff provided defendant with a note from plaintiff's physician, indicating that plaintiff was under the doctor's care for an injury resulting from a work-related trauma. Ex. A, attached to Affidavit of Robert McGarry sworn to March 22, 2006 ("McGarry Affidavit"). An additional note dated December 9, 2003 indicated that plaintiff remained "incapacitated." Ex. B, attached to McGarry Affidavit. On or about December 9, 2003, plaintiff informed his employer that he was experiencing pain as a result of his injury, and asked for short-term disability or family medical leave. The individual to whom he spoke refused to give him any leave forms, and instead gave him a resignation form to sign, which he did. Jackson Depo. at 43-51. In late January 2004, however, plaintiff applied for Family Medical Leave, which was ultimately approved retroactive to November 2003. Exs. D-F, attached to McGarry Affidavit.
Sometime between April and August 2004, plaintiff returned to work. Jackson Depo. at 82, 112-13; Ex. O, attached to Jackson Depo. Although plaintiff was only assigned the task of mopping hallways, he continued to experience back pains. Id. at 84-85. Sometime in late summer or early fall, plaintiff requested a transfer on the ground that he was being mistreated at the 68th Street campus, but this request was denied. In or about December 2004, plaintiff was sometimes assigned to clean classrooms, which involved moving desks to clean the floor and cleaning the chalkboards; plaintiff was unable to complete these tasks because of his injury. Id. at 119-20. When plaintiff told his supervisors that he was unable to do this work, they gave him different work to do instead. Id. at 123.
As a result of his injury, plaintiff again took some time off in December 2004; when he returned, he provided his employer with another doctor's note, which indicated several tasks he should not perform. Id. at 138-41; see also Ex. N, attached to McGarry Affidavit (providing that the plaintiff should not clean high chalkboards or walls, hand scrub stairs, clean windows or high electric fixtures, or remove snow). Plaintiff was temporarily assigned tasks consistent with the doctor's note. Defendant's Statement of Undisputed Facts ("Def. Statement") ¶ 27; Plaintiff's Statement of Undisputed Facts ("Pl. Statement") ¶ 27.
In April 2005, Hunter College required plaintiff to undergo a medical examination pursuant to Section 72 of the New York Civil Service Law to determine if he was medically able to fulfill his job responsibilities. Def. Statement ¶ 28; Pl. Statement ¶ 28. Because the physician who conducted the examination found plaintiff capable of performing all of his job tasks, Ex. P, attached to McGarry Affidavit, plaintiff was informed that he would no longer be assigned "light duty," Ex. Q, attached to McGarry Affidavit. Nonetheless, the plaintiff continued to be primarily assigned tasks which he was physically able to perform,i.e., mopping and sweeping floors. Jackson Depo. at 181-83.
Against this factual background, the Court turns first to defendant's argument that all of plaintiff's claims other than those under the Rehabilitation Act are barred by the Eleventh Amendment. It is well-settled that the Eleventh Amendment bars claims for damages against nonconsenting states and against entities, like Hunter College, that are considered "arms of the state." See, e.g., Clissuras v. City Univ. of New York, 359 F.3d 79, 81 (2d Cir. 2004) (per curiam). Plaintiff argues that there is no Eleventh Amendment bar to an award of injunctive relief, but that exception to Eleventh Amendment immunity pertains only when suit is brought against state officers sued in their official capacity. Ex Parte Young, 209 U.S. 123 (1908). Here, however, the only defendant named in plaintiff's complaint is Hunter College. Accordingly, plaintiff's claims under the ADA, FMLA, and state and local law must be dismissed under the Eleventh Amendment.
Turning to plaintiff's remaining claims of discrimination and retaliation under the Rehabilitation Act, to establish a claim of discrimination under the Act, a plaintiff must show that "(1) [he] is a handicapped person under the Act; (2) [he] is `otherwise qualified' for the position; (3) [he] was excluded from that position solely because of [his] handicap; and (4) the program sponsoring the position received federal funding."Guice-Mills v. Derwinski, 967 F.2d 794, 797 (2d Cir. 1992). To be "otherwise qualified," the plaintiff must be able to perform the "essential functions" of the job with or without reasonable accommodation. Id. at 797. Essential functions are "the `fundamental' duties to be performed in the position in question, but not functions that are merely `marginal.'" Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997) (citing 29 C.F.R. § 1630.2(n) (1)).
Here, even assuming, arguendo, that plaintiff were able to prove the other elements of a prima facie case of discrimination under the Rehabilitation Act, plaintiff concedes that his injury prevents him from cleaning high chalkboards and upper portions of walls and from moving classroom desks so that he can clean beneath them. Such tasks are among the "fundamental duties" of a custodial assistant. See, e.g., Ex. L attached to McGarry Affidavit. Although plaintiff argues that he could perform custodial tasks involving "light duty," an employer need not assign a plaintiff "light duty" if doing so would eliminate "essential elements" of his position.See Gilbert v. Frank, 949 F.2d 637, 644 (2d Cir. 1991). Further, an employer need not transfer an employee to a position whose duties he can perform unless there is such a position available, and plaintiff bears the burden of establishing the existence of such a vacancy. Jackan v. New York State Dep't of Labor, 205 F.3d 562, 566 (2d Cir. 2000). Plaintiff has produced no evidence that such a vacancy currently exists. Accordingly, because the undisputed facts establish that plaintiff is unable to perform the essential elements of his position, he is unable to establish a claim of discrimination under the Rehabilitation Act, and defendant is entitled to summary judgment on this claim.
As to plaintiff's claim of retaliation under the Rehabilitation Act, plaintiff must show that "(1) he engaged in an activity protected by the [Rehabilitation Act]; (2) the employer was aware of this activity; (3) the employer took adverse employment action against him; and (4) a causal connection exists between the alleged adverse action and the protected activity." See, e.g., Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). An adverse employment action is one that involves a "materially adverse change in the terms, privileges, duration and conditions of employment." Id. at 720 (internal quotation marks omitted). Examples include "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." See, e.g., Fairbrother v. Morrison, 412 F.3d 39, 56 (2d Cir. 2005) (internal quotation marks omitted).
Here, plaintiff has adduced no admissible evidence that he has suffered a "materially adverse change in the terms and conditions of his employment" as a result of his claims for accommodation under the Rehabilitation Act. As to changes in plaintiff's shift and work site, transfers that result in no "real change" in the "terms and conditions" of employment do not constitute adverse employment actions, see, e.g., id. at 56, and there is no evidence in the record of such a change in the terms and conditions of plaintiff's employment, see transcript, 4/24/06, at 10-11. Further, it is obvious that when defendant refused plaintiff's request for transfers, those refusals did not in any way change the "terms and conditions" of plaintiff's employment.
As to various negative evaluations plaintiff may have received, it is well-established that negative evaluations alone do not constitute an adverse employment action in the absence of some attendant effect on the terms and conditions of plaintiff's employment. See id. at 56-57 (collecting cases). Likewise, sending plaintiff to undergo a Section 72 medical examination, even if inappropriate under the circumstances, does not constitute an "adverse employment action" unless accompanied by a material change in the "terms and conditions" of plaintiff's employment. Although plaintiff was nominally removed from "light duty" following this examination, his work remained almost exclusively tasks that he was capable of performing, i.e., mopping and sweeping. Jackson Depo. at 182-83. On only one occasion, when defendant was short on staff, was plaintiff asked to clean a classroom; and, in that case, he was permitted to divide the work with a friend such that he did not have to move any furniture. Id. Thus, there is no evidence in the record that there was a material change in the "terms and conditions" of plaintiff's employment as a result of his § 72 examination. Likewise, plaintiff's claims that he was assigned heavy lifting tasks in retaliation for activities protected under the Rehabilitation Act, see, e.g., Affidavit of Cedric Jackson sworn to April 7, 2006 ("Jackson Affidavit") ¶ 30, are belied by his deposition testimony that he was only rarely assigned tasks which we he was incapable of performing,see Jackson Depo. at 30, 34, 40.
As to plaintiff's argument that his supervisor constructively terminated him when he requested FMLA leave, plaintiff cannot establish constructive termination because he has adduced no evidence whatsoever to suggest that "a reasonable person in [his] shoes would have felt compelled to resign" under those circumstances. Chertkova v. CT Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996). To the contrary, plaintiff explained that he felt "forced" to resign solely because his supervisor asked him to sign the resignation form. Jackson Depo. at 50. Given that plaintiff chose to sign the resignation form, the fact that he may not have received some pay checks in the period between his resignation and his return to work can hardly constitute an "adverse employment action." (Further, the record evidence establishes that, contrary to plaintiff's suggestion in his affidavit, see Jackson Affidavit ¶ 17, plaintiff received at least two pay checks from defendant following his resignation, see Ex. E, F, attached to McGarry Affidavit; Jackson Depo. at 53-54.) Finally, plaintiff's argument that defendant misrepresented plaintiff's leave status to the New York Department of Labor is belied by record evidence establishing that plaintiff's leave was approved at least as early as January 2004. Ex E, attached to McGarry Affidavit. Accordingly, it is clear that plaintiff did not suffer an "adverse employment action" sufficient to establish a case for retaliation under the Rehabilitation Act.
The Court has considered plaintiff's other arguments and finds them likewise without merit. Therefore, the Court hereby grants summary judgment to the defendant and dismisses plaintiff's complaint in its entirety, with prejudice. Clerk to enter judgment.
SO ORDERED.