July 9, 2002
JAMES P. EVANS, ESQ., JENNIFER G. SPELLER, ESQ., O'HARA O'CONNELL Syracuse, New York, Attorneys for Plaintiff.
THOMAS J. GROOMS, ESQ., PAUL LIMMIATIS, ESQ., BOND, SCHOENECK KING, LLP, Syracuse, New York, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
Currently before the court is defendants' motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow below, defendants' motion is GRANTED.
Plaintiff failed to file an appropriate response to Defendants' Statement of Material Facts. Therefore, these facts are deemed admitted pursuant to Local Rule 7.1(a)(3).
From 1988 to May 1998, plaintiff Bogdan John Zaborowski worked as a Shipping Supervisor at defendant Sealright Packaging Company's ("Sealright") warehouse in Fulton, New York. The Shipping Supervisor position is an exempt, salaried position and Shipping Supervisors are expected to work, and regularly do work, well in excess of 40 hours per week on a rotating shift schedule.
In 1997, plaintiff was diagnosed with fibromyalgia, which has been described as "a common, but elusive and mysterious, disease, much like chronic fatigue syndrome, with which it shares a number of features. . . . Its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia." Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996).
Due to various complications associated with the fibromyalgia, plaintiff's doctor requested a medical leave of absence for plaintiff lasting from June 3, 1997 until September 21, 1997. At the conclusion of the leave of absence, plaintiff returned to work as a Shipping Supervisor.
In March of 1998, plaintiff's treating physician, Dr. Patrick Riccardi, noted that plaintiff would benefit from a switch to a permanent day shift position, instead of continuing to work on a rotating shift schedule. Sealright considered whether it could, consistent with the needs of the business, accommodate the request, but ultimately decided that it could not do so at that time. Following Sealright's decision, plaintiff continued to work without incident.
Two months later, Sealright decided to open a satellite warehouse in Liverpool, New York. After reviewing its options, Sealright decided to place plaintiff in the position of Shipping Supervisor at the new location. This decision was made based in part on the fact that, by doing so, Sealright could accomodate Dr. Riccardi's request that plaintiff be placed in a permanent day shift position, and the fact that the Liverpool facility was located much closer to plaintiff's house than the Fulton facility. Plaintiff accepted the new position and worked at the Liverpool facility as Shipping Supervisor from May 1998 until mid-January 1999.
The Liverpool facility was a much smaller operation than the Fulton facility. Initially, the operation consisted of only a first shift, with plaintiff as the Shipping Supervisor. Working under plaintiff were a Working Foreman and another three to five hourly employees. Eventually, a second shift was implemented at the Fulton facility, staffed by a Working Foreman and another three to five hourly employees. Because of the small size of the operation, a Shipping Supervisor was not required for the second shift. The Working Foreman acted as the person in charge and reported to plaintiff.
In January 1999, Dr. Riccardi decided that plaintiff would have to stop working due to his fibromyalgia. Originally, Dr. Riccardi stated that plaintiff would have to be off work from January 19, 1999 until March 1, 1999, but on February 25, 1999, Dr. Riccardi informed Sealright that the leave would have to be extended until April 5, 1999. Subsequently, on March 29, 1999, Dr. Riccardi once again extended the leave duration, this time until June 1, 1999.
Initially, Sealright covered plaintiff's absence by transferring one of the Fulton facility's Shipping Supervisors to the Liverpool facility and having the two remaining Fulton Shipping Supervisors and the Shipping Department Manager cover the three shifts at the Fulton facility. This was accomplished by either having the remaining two Shipping Supervisors work 12-hour shifts (in addition to the typical overtime requirements), or by having the Shipping Department Manager work four hours per day as a Shipping Supervisor (in addition to his managerial duties) and the other two Shipping Supervisors work alternating 12- and 8-hour shifts (in addition to the typical overtime requirements).
Sealright continued the initial arrangement until Dr. Riccardi extended plaintiff's leave until June 1. Once this occurred, Sealright decided that it had to take a different course of action because the Fulton Shipping Supervisors were complaining about being "worn out" as a result of the extra hours that they were required to work. Sealright representatives met several times to evaluate their options and ultimately decided that they would have to fill plaintiff's position on a more permanent basis. The decision was made to fill the vacant Shipping Supervisor position and Sealright advertised for candidates.
Shortly after Sealright advertised for the vacant Shipping Supervisor position, plaintiff presented a slip from Dr. Riccardi, which indicated that plaintiff could return to work on May 10, 1999, but which also contained a restriction that limited plaintiff to no more than 40 hours of work per week. Plaintiff subsequently presented another note from another doctor, but that note also limited plaintiff to a 40-hour work week. Sealright representatives considered whether they could accommodate the doctors' restriction, but decided that they could not because working more than 40 hours per week was an essential function of the Shipping Supervisor position and there was no practical way to accommodate such a request. In making their decision, Sealright representatives took into account the fact that the Shipping Supervisor position at the Liverpool facility had become increasingly more difficult during the time subsequent to plaintiff's commencement of his leave of absence in January 1999. Individuals who filled in as the Shipping Supervisor at the Liverpool facility regularly worked 60 or more hours per week and even worked as many as 86 hours per week.
Plaintiff was offered four different positions by Sealright, but turned them all down because they were not "his old job." Sealright ultimately hired a current employee to fill the vacant Shipping Supervisor position at the Liverpool facility. At that time, plaintiff was placed on "inactive, leave without pay" status.
On May 17, 2000, plaintiff filed a complaint with this court asserting four causes of action: (1) disability discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"); (2) age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"); (3) discrimination in violation of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"); and (4) disability discrimination on violation of the New York State Human Rights Law, Executive Law § 290 et seq. ("NYSHRL"). However, in his Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, plaintiff withdraws his claims under the ADEA and ERISA. Therefore, only plaintiff's claims with respect to the ADA and NYSHRL remain.
Currently before this court is defendants' motion for summary judgment dismissing the complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has entered opposition to this motion.
I. Standard for Summary Judgment
The standard for summary judgment is well-settled. Rule 56 of the Federal Rules of Civil Procedure allows for summary judgment where the evidence demonstrates that "there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is properly regarded as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1991) (quoting Federal Rule of Civil Procedure 1). A motion for summary judgment may be granted when the moving party carries its burden of showing that no triable issues of fact exist. See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). In light of this burden, any inferences to be drawn from the facts must be viewed in the light most favorable to the non-moving party. See id.; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam). If the moving party meets its burden, the burden shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). To defeat a motion for summary judgment, however, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A dispute regarding a material fact is genuine "if evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. When reasonable minds could not differ as to the import of the evidence, then summary judgment is proper. See id. at 250-251.
II. Disability Discrimination Claim Under the Americans with Disabilities Act
Plaintiff claims that defendants discriminated against him in violation of the ADA by failing to provide him with a reasonable accommodation and then terminating him on the basis of his disability.
The ADA prohibits an employer from discriminating against a qualified individual with a disability because of the disability of such individual in regard to the various terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). The burden of proof to establish a prima facie case of disability discrimination is placed on the employee. See Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 383 (2d Cir. 1996). In order to make out a prima facie case of disability discrimination under the ADA, plaintiff must establish that: (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability. See Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001).
Defendants argue that plaintiff's disability discrimination claim under the ADA must be dismissed because he was unable to perform the essential functions of the Shipping Supervisor position, namely work extensive overtime hours. Whether a function is essential is evaluated on a case-by-case basis by examining a number of factors. The ADA specifies that "consideration shall be given to the employer's judgment as to what functions of a job are essential." 42 U.S.C. § 12111(8). Additionally, ADA regulations provide that other relevant factors to consider are: (1) written job descriptions; (2) the consequences of not requiring the incumbent to perform the function; and (3) the current work experience of the incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(3) (2001).
The facts of this case show that working extensive overtime was an essential function of plaintiff's position as Shipping Supervisor, and that he was unable to perform this essential function of the job, with or without reasonable accommodation, at the time of the alleged disability discrimination. Where the demands of the job require working overtime on a regular basis, other courts have held that overtime constitutes an essential function of the job. See, e.g., Davis v. Florida Power Light Co., 205 F.3d 1301, 1305-06 (11th Cir.), cert. denied, 531 U.S. 927, 121 S.Ct. 304 (2000) (holding that mandatory overtime work was an essential function of employee's job as utility lineman); Tardie v. Rehabilitation Hosp. of Rhode Island, 168 F.3d 538, 544 (1st Cir. 1999) (holding that working more than 40 hours per week was an essential function of employee's job as director of human resources).
As far back as 1997, plaintiff regularly worked more than 50 hours per week as one of three Shipping Supervisors at the Fulton facility. Plaintiff's transfer to the Liverpool facility in May 1998 had little effect on the total number of hours worked, as plaintiff continued to work a significant number of overtime hours. The work demands continued to increase, especially after January 1999, to the point of requiring plaintiff's replacement to work more than 80 hours per week on a regular basis. The post-January 1999 increase in overtime hours can be contributed to the implementation of a new BPCS computer system at the Liverpool facility. The BPCS system made the Liverpool Shipping Supervisor position more difficult, requiring even longer hours than before.
Throughout 1999 and 2000, the overall workload of the Liverpool facility increased. Terri Hope, Shipping Supervisor at the Liverpool facility from September 1999 to May 2000, testified that during her tenure, Sealright incorporated the West Warehouse into the Liverpool facility, which doubled the number of trucks loaded daily and significantly increased the workload. As a result, Ms. Hope testified that she worked 15 to 16 hours per day Monday through Friday, and worked virtually every Saturday, for a typical work week in excess of 80 hours. In May 2000, Robert Anderson took over as Shipping Supervisor at the Liverpool facility and held that position until the facility closed in March 2001. During that time, Mr. Anderson testified that he worked 11 to 12 hours per day Monday through Friday, and worked occasionally on Saturday, for a typical work week of 63 to 68 hours.
Plaintiff claims that his requests for reasonable accommodations were denied, specifically his request for a permanent day shift and his request to return to his position with a maximum 55-hour work week. Each of these claims are without merit. Plaintiff's May 1998 request for a permanent day shift was granted when Sealright transferred him to the Liverpool facility, so it cannot constitute the denial of a reasonable accommodation.
Plaintiff's other request is similarly unavailing. The request to return to his position with a maximum 55-hour work week did not take place until late September 1999, after Sealright had already hired a permanent replacement for the Shipping Supervisor position at the Liverpool facility. Regardless of the timing, plaintiff's requested reasonable accommodation is unreasonable as a matter of law. "Reasonable accommodation" does not mean the elimination of any of a job's essential functions. See Wernick, 91 F.3d at 384. Therefore, plaintiff's request cannot constitute a reasonable accommodation because the court has already concluded that extensive overtime was an essential function of plaintiff's position as Shipping Supervisor and any limitation on the amount of overtime worked would impermissibly eliminate a portion of the position's essential functions.
Plaintiff has failed to meet his burden to establish the third element of a prima facie case of disability discrimination under the ADA, namely that he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation. Therefore, plaintiff's disability discrimination claim under the ADA is dismissed.
III. Disability Discrimination Claim Under the New York State Human Rights Law
Plaintiff claims that defendants discriminated against him in violation of the NYSHRL by failing to provide him with a reasonable accommodation and then terminating him on the basis of his disability.
It is well-established that the legal standard for a discrimination claim under the NYSHRL, Executive Law § 296 is essentially the same as the legal standard for a discrimination claim under the ADA. See Powers v. Polygram Holding, Inc., 40 F. Supp.2d 195, 202 n. 2 (S.D.N.Y. 1999). Therefore, for the reasons articulated above, plaintiff's disability discrimination claim under the NYSHRL is dismissed.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED, that defendants' motion for summary judgment is GRANTED and the complaint is hereby DISMISSED in its entirety. It is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and Order upon the parties by regular mail.