Fahey et al v. City of New York et al, No. 1:2010cv04609 - Document 31 (E.D.N.Y. 2012)
Court Description: ORDER granting 18 Motion for Summary Judgment. For all of the foregoing reasons, defendants' motion for summary is hereby GRANTED as to all of Fahey's federal claims. Fahey's state and municipal claims are dismissed without prejudice to their renewal in state court. The Clerk of the Court is directed to close the case. Ordered by Senior Judge I. Leo Glasser on 2/7/2012.
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Fahey et al v. City of New York et al UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x EDWARD FAHEY, Plaintiff, Doc. 31 MEMORANDUM AND ORDER 10 Civ. 460 9 (ILG) (MDG) - against CITY OF NEW YORK and NEW YORK CITY FIRE DEPARTMENT, Defendants. ------------------------------------------------------x GLASSER, Senior United States District J udge: On October 8, 20 10 , plaintiff Edward Fahey (“Fahey”), who suffers posttraum atic stress disorder (“PTSD”) as a result of his experiences working as a firefighter at ground zero on Septem ber 11, 20 0 1, initiated this action against his form er em ployers, defendants the City of New York (the “City”) and the New York City Fire Departm ent (the “FDNY”), alleging that he was wrongfully term inated on account of his PTSD in violation of the Am ericans with Disabilities Act, 42 U.S.C. § 1210 et seq. (the “ADA”), the New State Executive Law §§ 296, 297, and the New York City Adm inistrative Code § 8-10 7. Defendants have m oved for sum m ary judgm ent on Fahey’s claim s, contending, am ong other things, that Fahey was term inated because he tested positive for cocaine use, not because he suffered from PTSD, and that this suit m erely constitutes a last ditch effort by Fahey to relitigate the propriety of his term ination—a decision that has previously been upheld both in adm inistrative proceedings and on judicial review by the New York State Suprem e Court (the “state court”). For the reasons stated below, defendants’ m otion for sum m ary judgm ent is hereby GRANTED. Dockets.Justia.com I. BACKGROU N D The following facts are undisputed. Fahey joined the FDNY as a firefighter on October 15, 1995 at the age of 27. Defendants’ Statem ent Pursuant to Local Civil Rule 56.1 dated Oct. 20 , 20 11 (“Defs.’ 56.1”) ¶ 1 (Dkt. No. 11); Com plaint dated Aug. 12, 20 10 (“Com pl.”) ¶ 14 (Dkt. No. 1). From 1998 to 20 0 4, Fahey was assigned to Ladder 1, Battalion 1 on Duane Street in downtown Manhattan—near the form er World Trade Center site. Declaration of J ane Andersen in Support of Defendants’ Motion for Sum m ary J udgm ent (“Andersen Decl.”) Ex. D, at 16-17 (Dkt. No. 20 ); Com pl. ¶ 19. On the m orning of Septem ber 11, 20 0 1, Fahey was assigned the job of driving First Battalion Chief J oseph Pfeifer (“Pfeifer”), and, after seeing the first hijacked plane strike the North Tower of the World Trade Center, went to the North Tower to assist Pfeifer in organizing a com m and station in its lobby. Com pl. ¶ 19, 21. Once there, the scenes Fahey witnessed were horrific: “burned victim s, badly injured victim s, and bodies exploding.” Com pl. ¶ 21. Moreover, when he left the North Tower lobby to retrieve radios and get a count of the fire com panies reporting to the site, he witnessed scores of people jum ping from its top floors, “raining bodies around [him ].” Com pl. ¶ 22. Shortly after Fahey returned to the lobby of the North Tower, the South Tower was struck and subsequently collapsed, blowing him to the floor and covering him with debris and rubble. Com pl. ¶ 23. When the dust-filled air began clearing and Fahey was able to see again, Fahey helped carry the body of Father Michael J udge, the FDNY’s chaplain, out of the North Tower’s lobby and, m om ents later, the North Tower too collapsed. Com pl. ¶¶ 24-25. Physically unscathed, Fahey returned to Ladder 1, which 2 becam e the com m and post for the recovery operation at ground zero, and eventually m ade his way hom e. Com pl. ¶¶ 27-28. The events of Septem ber 11 haunted Fahey, and, in the years after, he frequently turned to alcohol for solace. Com pl. ¶¶ 28-29, 31. Beginning on Novem ber 11, 20 0 1, he also sought m edical treatm ent for sym ptom s of anxiety and PTSD. Declaration of Leonard Zack in Opposition to Sum m ary J udgm ent dated Dec. 9, 20 11 (“Zack Decl.”) Ex. I, at 7. Fahey never told anyone from the FDNY about his anxiety or that he was suffering from PTSD. Andersen Decl. Ex. D, at 31-32. Nor did he seek out help from FDNY counselors; in fact, he refused counseling, testifying that “I was approached by counselors, but I didn’t believe in counseling. I didn’t know what was going on and I really didn’t care.” Id. Ex. D, at 30 . Fahey’s wife, Shannon Colonna, wanted Fahey to attend counseling for his alcohol problem , and his drinking concerned her to such an extent that in late 20 0 2 she contacted Battalion Chief Bill Ulm to try to urge him to get Fahey counseling. Zack Decl. Ex. E, at 2. Her efforts were ultim ately unavailing. Andersen Decl. Ex. D, at 53-54. On October 14, 20 0 4, the FDNY’s Testing Unit adm inistered a random drug test on Fahey, and Fahey tested positive for cocaine. Defs.’ 56.1 ¶ 6; Andersen Decl. Ex. E, at 37. Fahey testified that two nights before the positive test, he had attended a retirem ent party for one of his colleagues where he drank to the point of blacking out. Andersen Decl. Ex. E, at 38. The day after the party, Fahey started a shift as the chauffeur, or driver, of the fire truck. Zack Decl. Ex. E, at 2. The FDNY on October 21, 20 0 4 brought disciplinary charges against Fahey as a result of the positive drug test. Defs.’ 56.1 ¶ 7. Pending the outcom e of these charges, 3 Fahey was rem oved from his firefighter duties and was forced to report to headquarters, where he “did nothing all day.” Andersen Decl. Ex. D, at 20 ; Defs.’ 56.1 ¶ 8. After seven or eight m onths, Fahey was assigned to assist in the library at the Fire Academy. Defs.’ 56.1 ¶ 9. As a result of the positive drug test, the FDNY also ordered Fahey to attend counseling at the FDNY’s Counseling Services Unit (“CSU”), where a counselor there diagnosed him with PTSD. Defs.’ 56.1 ¶ 25; Andersen Decl. Ex. D, at 42. On May 18, 20 0 7 and J une 20 , 20 0 7, an adm inistrative law judge (the “ALJ ”) at the New York City Office of Adm inistrative Trials and Hearings conducted an Adm inistrative Hearing with respect to the disciplinary charges brought against Fahey, and, in a report and recom m endation dated October 9, 20 0 7, concluded that the FDNY had established that Fahey tested positive for cocaine and that Fahey did not prove that his PTSD rendered his drug use involuntary. Defs.’ 56.1 ¶¶ 10 , 13; Andersen Decl. Ex. B, at 13. Although the ALJ acknowledged that the FDNY’s “zero-tolerance” Substance Abuse Policy requires term ination in all instances where an em ployee tests positive for illegal drug use unless the em ployee voluntarily seeks counseling with the CSU or another program —which Fahey failed to do—she recom m ended that the FDNY depart from its policy, not term inate Fahey, and instead assess a penalty of a 20 day forfeiture of pay. Andersen Decl. Ex. B, at 14-16. The ALJ reasoned that such m itigation was warranted in light of Fahey’s brave service on Septem ber 11th and because inability to seek help voluntarily is a sym ptom of those who suffer from PTSD. Id. Ex. B, at 14-15. In a decision dated Novem ber 19, 20 0 8, FDNY Com m issioner Nicholas Scoppetta (the “Com m issioner”) adopted the ALJ ’s findings with respect to Fahey’s guilt but rejected the ALJ ’s recom m ended penalty, instead term inating Fahey’s em ploym ent with 4 the FDNY effective Novem ber 21, 20 0 8. Id. Ex. C, at 1, 4. The Com m issioner reasoned that the FDNY “cannot sim ply ignore the facts that Firefighter Fahey refused the counseling services available to all firefighters, that he voluntarily ingested an illegal substance, cocaine, and that he worked with cocaine in his system ” and that Fahey’s conduct “potentially placed his safety, his co-worker’s safety, and the public’s safety in jeopardy.” Id. Ex. C, at 3. Fahey sought judicial review of the Com m issioner’s decision and on February 24, 20 0 9 comm enced a proceeding in the state court pursuant to Article 78 of New York’s Civil Practice Law and Rules (the “Article 78 proceeding”). Defs.’ 56.1 ¶ 20 ; Zack Decl. Ex. E, at 1. At the Article 78 proceeding, Fahey m aintained that the Com m issioner’s decision was arbitrary and capricious and an abuse of discretion because (1) the Com m issioner chose to ignore evidence that the FDNY did not recognize or com bat Fahey’s problem s with alcohol abuse until after he tested positive for cocaine; and (2) the FDNY’s failure to help Fahey with his PTSD was in contravention of FDNY protocols. Zack Decl. Ex. E, at 4; id. Ex. F. The state court rejected these contentions, concluding that the Com m issioner’s decision to term inate Fahey “had a rational basis in law and fact.” Id. Ex. E, at 6. In neither his adm inistrative proceedings nor the Article 78 proceeding did Fahey contend that the FDNY discrim inated against him on the basis of his PTSD. Instead, he does so for the first tim e here, asserting in the com plaint filed October 8, 20 10 claim s against the FDNY and the City arising under the ADA, the New State Executive Law §§ 5 296, 297, and the New York City Adm inistrative Code § 8-10 7.1 Fahey alleges that he was subject to discrim inatory discharge on the basis of his PTSD and that the FDNY failed to reasonably accom m odate his illness by allowing him to continue working at the FDNY in a role other than as a firefighter. Com pl. ¶¶ 55-56, 58-78. Defendants filed their answer on Decem ber 27, 20 10 . Answer dated Dec. 27, 20 10 (Dkt. No. 6). On October 20 , 20 11, defendants filed their subm issions in support of their m otion for sum m ary judgm ent. Mem orandum of Law in Support of Defendants’ Motion for Sum m ary J udgm ent dated Oct. 20 , 20 11 (“Defs.’ Mem .”) (Dkt. No. 21). Fahey on Decem ber 22, 20 11 filed his opposition subm issions, and on J anuary 13, 20 12 defendants filed their reply. Mem orandum of Law in Opposition to Defendants’ Motion for Sum m ary J udgm ent dated Dec. 8, 20 11 (“Pl.’s Mem .”) (Dkt. No. 24); Reply Mem orandum of Law in Further Support of Defendants’ Motion for Sum m ary J udgm ent dated J an. 13, 20 12 (Dkt. No. 30 ). II. D ISCU SSION A. Le gal Stan d ard Sum m ary judgm ent is appropriate “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). “‘An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonm oving party. A fact is m aterial if it 1 The com plaint also originally included a negligence claim ; however, the Court on J anuary 12, 20 12 granted Fahey’s m otion to am end the com plaint to withdraw it. Order dated J an. 12, 20 12 (Dkt. No. 29). Moreover, Fahey’s wife, Shannon Colonna, was originally a nam ed plaintiff in this action, but by Stipulation and Order dated April 21, 20 11, the Court dism issed Colonna’s claim s with prejudice. Stipulation and Order dated Apr. 11, 20 11 (Dkt. No. 14). 6 m ight affect the outcom e of the suit under the governing law.’” Fincher v. Depository Trust & Clearing Corp., 60 4 F.3d 712, 720 (2d Cir. 20 10 ) (quoting Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 20 0 8)). The m oving party bears the burden of establishing the absence of any genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 10 6 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). When the burden of proof at trial would fall on the nonm oving party, it ordinarily is sufficient for the m ovant to point to a lack of evidence to go to the trier of fact on an essential elem ent of the nonm ovant’s claim . Id. at 322-23. To defeat a m otion for sum m ary judgm ent, the non-m oving party “‘m ust do m ore than sim ply show that there is som e m etaphysical doubt as to the m aterial facts,’” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 20 11) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 10 6 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)), and cannot “‘rely on conclusory allegations or unsubstantiated speculation.’” Id. (quoting Fed. Deposit Ins. Corp. v. Great Am . Ins. Co., 60 7 F.3d 288, 292 (2d Cir. 20 10 )). A court deciding a m otion for sum m ary judgm ent m ust “‘construe the facts in the light m ost favorable to the non-m oving party and m ust resolve all am biguities and draw all reasonable inferences against the m ovant.’” Brod v. Om ya, Inc., 653 F.3d 156, 164 (2d Cir. 20 11) (quoting William s v. R.H. Donnelley Corp., 368 F.3d 123, 126 (2d Cir. 20 0 4)). “‘Credibility determ inations, the weighing of the evidence, and the drawing of legitim ate inferences from the facts are jury functions, not those of a judge.’” Kaytor v. Elec. Boat Corp., 60 9 F.3d 537, 545 (2d Cir. 20 10 ) (quoting Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 , 120 S. Ct. 20 97, 147 L. Ed. 2d 10 5 (20 0 0 )). 7 Although the Court of Appeals has stated that “an extra m easure of caution is m erited in affirm ing sum m ary judgm ent in a discrim ination action because direct evidence of discrim inatory intent is rare and such intent often m ust be inferred from circum stantial evidence found in affidavits and depositions” it has nevertheless also stated that “sum m ary judgm ent rem ains available for the dism issal of discrim ination claim s in cases lacking genuine issues of m aterial fact.” Schiano v. Quality Payroll Sys., 445 F.3d 597, 60 3 (2d Cir. 20 0 6) (internal citations and quotation m arks om itted). Defendants advance several argum ents in support of their m otion for sum m ary judgm ent: (1) the FDNY is not a suable entity and the claim s against it m ust be dism issed; (2) collateral estoppel bars Fahey’s ADA claim s; (3) Fahey has failed to establish a prim a facie case for the claim s; and (4) even if he could, defendants have offered a legitim ate, nondiscrim inatory reason for their term ination of Fahey—his positive drug test for cocaine. Defs.’ Mem . at 6-14. The Court will address these contentions in turn below. B. Th e FD N Y is n o t a Su able En tity As an initial m atter, sum m ary judgm ent is granted on all claim s brought against the FDNY because the FDNY—a m unicipal agency—cannot be subject to suit. The New York City Charter provides that “all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the nam e of the City of New York and not in that of any agency, except where otherwise provided by law.” N.Y. City Charter Ch. 17. § 396; accord Xim ines v. George Wingate High Sch., 516 F.3d 156, 160 (2d Cir. 20 0 8) (per curiam ) (citing J enkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 20 0 7)). Accordingly, the FDNY is not a suable entity, and all claim s against it are dism issed. 8 See, e.g., United States v. City of New York, 683 F. Supp. 2d 225, 243 (E.D.N.Y. 20 10 ) (citing Warheit v. City of New York, No. 0 2 Civ. 7345 (PAC), 20 0 6 WL 2381871, at *13 (S.D.N.Y. Aug. 15, 20 0 6)) (dism issing all claim s against FDNY because FDNY not suable); Petaway v. City of New York, No. 0 2 Civ. 2715 (NGG) (LB), 20 0 5 WL 213780 5, at *3 (E.D.N.Y. Sept. 2, 20 0 5) (citations om itted) (sam e). C. D is ability D is crim in atio n Claim s u n d e r th e AD A The ADA prohibits em ployers from discrim inating against workers with disabilities. The version of the ADA in force at the tim e of the relevant events in this action provided: [n]o covered entity shall discrim inate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancem ent, or discharge of em ployees, em ployee com pensation, job training, and other term s, conditions, and privileges of em ploym ent. 42 U.S.C. § 12112(a) (20 0 6).2 “Discrim ination under the ADA includes ‘not m aking reasonable accom m odations to the known physical or m ental lim itations of an otherwise qualified individual with a disability who is an applicant or em ployee, unless such 2 The Am ericans with Disabilities Act Am endm ents of 20 0 8 (“ADAA”), which am ended the ADA and expand its coverage, becam e effective on J anuary 1, 20 0 9. See Pub. L. 110 -325, 112 Stat. 3553 (20 0 8). “Federal courts have uniform ly decided that the ADAA will not be retroactively applied to conduct that preceded its effective date. Because all relevant conduct is alleged to have occurred prior to J anuary 1, 20 0 9, the Court will not apply the ADAA to [plaintiff’s] claim s.” Parada v. Banco Indus. de Venezuela, C.A., No. 10 Civ. 0 883 (SHS), 20 11 WL 519295, at *4 n.4 (S.D.N.Y. Feb. 15, 20 11) (citations om itted); see also Wega v. Ctr. for Disability Rights, Inc., 395 F. App’x 782, 784 n.1 (2d Cir. 20 10 ) (sum m ary order); Ragusa v. Malverne Union Free Sch. Dist., 381 F. App’x 85, 88 n.2 (2d Cir. 20 10 ) (sum m ary order). Here, the alleged discrim inatory conduct—Fahey’s term ination—occurred on Novem ber 21, 20 0 8 before the effective date of the ADAA. Com pl. ¶ 57. The ADAA thus does not apply to Fahey’s ADA claim s. 9 covered entity can dem onstrate that the accom m odation would im pose an undue hardship on the operation of the business of such covered entity.’” Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 20 0 8) (quoting 42 U.S.C. § 12112(b)(5)(A)). Fahey contends that defendants violated the ADA by (1) term inating him because he suffered from PTSD and (2) failing to provide him with a reasonable accom m odation for his PTSD by allowing him to continue his em ploym ent at the FDNY in a position in which he would not pose a risk to public safety. Pl.’s Opp’n at 16, 18. The Court m ust analyze Fahey’s ADA discrim ination claim s under the “burdenshifting” fram ework set forth by the Suprem e Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and its progeny. See, e.g., McBride v. BIC Consum er Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 20 0 9). Under this fram ework, the plaintiff bears the initial burden of proving a prim a facie case by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 80 2. “The burden of establishing a prim a facie case is not a heavy one. One m ight characterize it as m inim al.” Carlton v. Mystic Transp., Inc., 20 2 F.3d 129, 134 (2d Cir. 20 0 0 ) (citation om itted). If the plaintiff is successful, the burden of production shifts to the defendant to articulate a “legitimate, nondiscrim inatory reason” for the adverse em ploym ent action. Reeves, 530 U.S. at 142-43. If the defendant is successful, the presum ption of discrim ination has been rebutted, and the burden then shifts back to the plaintiff to prove that those “legitim ate” reasons were a pretext for discrim ination. St. Mary’s Honor Ctr. v. Hicks, 50 9 U.S. 50 2, 50 7-0 8, 113 S. Ct. 2742, 125 L. Ed. 2d 40 7 (1993). To establish a prim a facie case for discrim inatory discharge under the ADA, a plaintiff m ust show that: (1) his em ployer is subject to the ADA; (2) he is a “qualified 10 individual” with a disability within the m eaning of the ADA; (3) he could perform the essential functions of his job with or without reasonable accom m odation; and (4) he was fired because of his disability. See, e.g., Brady, 531 F.3d at 134 (citing J acques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 20 0 4)); Reeves v. J ohnson Controls World Servs., Inc., 140 F.3d 144, 149-50 (2d Cir. 1998). Moreover, to establish a prim a facie reasonable accom m odation claim , a plaintiff m ust show that: “(1) plaintiff is a person with a disability under the m eaning of the ADA; (2) an em ployer covered by the statute had notice of [his] disability; (3) with reasonable accom m odations, plaintiff could perform the essential functions of the job at issue; and (4) the em ployer has refused to m ake such accom m odations.” Monterroso v. Sullivan & Crom well, LLP, 591 F. Supp. 2d 567, 577 (S.D.N.Y. 20 0 8) (citing Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir. 20 0 4)). Having set forth the legal fram ework that governs Fahey’s ADA claim s, the Court first considers whether they are barred by collateral estoppel. 1. Fah e y’s Claim s are N o t Barre d by Co llate ral Es to p p e l 28 U.S.C. § 1738 requires federal courts to “afford the sam e full faith and credit to state court judgm ents that would apply in the State’s own courts.” Krem er v. Chem . Constr. Corp., 456 U.S. 461, 463, 10 2 S. Ct. 1883, 72 L. Ed. 2d 262 (1982). Accordingly, unless a later statute contains an express or im plied repeal of section 1738, a federal court m ust apply the collateral estoppel principles of the rendering state. Allen v. McCurry, 449 U.S. 90 , 98-99, 10 1 S. Ct. 411, 66 L. Ed. 2d 30 8 (1980 ) (collateral estoppel applied where section 1983 did not expressly or im pliedly repeal section 1738); see Krem er, 456 U.S. at 468 (collateral estoppel applied where Title VII did not expressly or 11 im pliedly repeal section 1738). “Since the Court is pointed to no statute that repeals section 1738 as to ADA claim s, the preclusion law of New York State applies.” Givens v. City of New York, No. 11 Civ. 2568 (PKC) (J CF), 20 12 WL 750 27, at *5 (S.D.N.Y. J an. 10 , 20 12). Collateral estoppel bars litigants from relitigating any fact or issue that has already been fully and fairly litigated in a prior proceeding that produced a final judgm ent on the m erits. See Bank of N.Y. v. First Millenium , Inc., 60 7 F.3d 90 5, 918 (2d Cir. 20 10 ) (citing Purdy v. Zeldes, 337 F.3d 253, 258 (2d Cir. 20 0 3)). Under New York law, collateral estoppel “will apply only if (1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom [collateral estoppel] is asserted had a full and fair opportunity to litigate the issue in the first proceeding.” Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 94 (2d Cir. 20 0 5) (citation om itted); accord J enkins v. City of New York, 478 F.3d 76, 85 (2d Cir. 20 0 7) (citation and internal quotation m arks om itted). The party seeking the benefit of collateral estoppel “bears the burden of proving the identity of the issues, while the party challenging its application bears the burden of showing that he or she did not have a full and fair opportunity to adjudicate the claim s involving those issues.” Khandhar v. Elfenbein, 943 F.2d 244, 247 (2d Cir. 1991) (citations om itted). Defendants have failed to m eet their burden of proving the identity of the issues here as the issue that would bar Fahey’s ADA claim s—that the FDNY term inated him solely because of his drug use—was neither raised nor resolved against him at the Article 78 proceeding. Latino Officers Ass’n v. City of New York, 253 F. Supp. 2d 771 (S.D.N.Y. 20 0 3), is instructive in this regard. There, the court considered the equal protection and 12 First Am endm ent retaliation claim s of several m inority NYPD officers who were dism issed for various infractions and brought unsuccessful Article 78 petitions challenging their dism issals. Id. at 783-85. One of the officers contended in the Article 78 proceeding that his term ination was retaliatory and discrim inatory; the other did not. Id. at 784-87. With respect to the officer who raised the issues at the Article 78 proceeding, the court concluded that because he had done so, the state court’s conclusion that the penalty of dism issal did not shock the conscience, “necessarily im plied rejection of [his] claim that his term ination was discrim inatory and retaliatory” and therefore the court concluded that his claim s were barred. Id. at 787. As for the officer that did not raise the issues during the Article 78 proceeding, the court reached the opposite conclusion because the state court’s “finding that the decision to term inate was supported by substantial evidence—essentially a finding that it was rational—does not lead inexorably to the conclusion that race was not a m otivating factor in the NYPD’s decision to term inate him .” Id. at 785; see also id. (“It is possible that race m otivated defendants’ decisions to term inate [the plaintiff], even though defendants had another articulated basis for the term ination that the Article 78 court found to be rational.”). The sam e is true here. Like the officer in Latino Officers who did not argue during his Article 78 proceeding that he was term inated for discrim inatory reasons, Fahey did not m aintain that he was term inated because of his disability during his Article 78 proceeding. See Zack Decl. Ex. E, at 4; id. Ex. F.3 Accordingly, the state 3 Defendants cite to Latino Officers in support of their contention that collateral estoppel bars Fahey’s discrim inatory discharge claim . Defs.’s Mem . at 6 (“‘Castro is barred from relitigating the wrongful term ination claim s.’” (quoting Latino Officers, 253 13 court’s ruling that the Com m issioner’s decision to term inate Fahey “was not arbitrary or capricious, or without a rational basis in law or fact,” does not necessarily address whether the decision to term inate Fahey was m ade, at least in part, because of his PTSD. Id. Ex. E, at 6. Fahey’s ADA claim s are thus not barred by collateral estoppel because the issue of the reason for Fahey’s term ination was neither raised by Fahey nor actually and necessarily decided by the state court during the Article 78 proceeding. Though the facts giving rise to Fahey’s term ination are not dispositive of his ADA claim s, to the extent Fahey seeks to challenge these facts, he is collaterally estopped from doing so as their determ ination was essential to the state court’s resolution of Fahey’s petition in the Article 78 proceeding. See Latino Officers, 253 F. Supp. 2d at 784; see also Cooper v. Fed. Reserve Bank of Richm ond, 467 U.S. 867, 874, 10 4 S. Ct. 2794, 81 L. Ed. 2d 718 (1984) (“A judgm ent in favor of either side is conclusive in a subsequent action between them on any issue actually litigated and determ ined, if its F. Supp. 2d at 787)). But the language from Latino Officers they seize upon refers not to the officer that failed to raise his discrim ination and retaliation argum ents at the Article 78 proceeding—the situation analogous to the one presented here—but the officer who argued at his Article 78 proceeding that he was term inated for discrim inatory and retaliatory reasons. See Latino Officers, 243 F. Supp. 2d at 787 (“Castro raised in his Article 78 proceeding the argum ents that his term ination was retaliatory and discrim inatory.”). Defendants reliance on DiLauria v. Town of Harrison, 64 F. App’x 267, 269 & n.1 (2d Cir. 20 0 3) (sum m ary order) and Krem er is sim ilarly m isplaced. Each of the plaintiffs in those cases had argued during their Article 78 proceedings that their term inations were discrim inatory. See Krem er, 456 U.S. at 463-64 (plaintiff com plained that he was term inated from his en gineering job on the basis of his religion and natural origin in adm inistrative channels and during Article 78 proceeding); DiLauria, 64 F. App’x at 270 (explaining that at the Article 78 proceeding, “[p]laintiff specifically presented to the state court a description of the discrim inatory actions that he believed played a role the Police Com m ission’s unlawful decision to term inate him .”). 14 determ ination was essential to that judgm ent.” (em phasis added)). Fahey thus is collaterally estopped from challenging that (1) he voluntarily ingested cocaine; (2) his excessive drinking was not a valid excuse for failing his drug test; and (3) that he worked as a chauffeur the next day while the cocaine was still in his system —all factual issues essential to the state court’s judgm ent that the Com m issioner’s decision to term inate Fahey had a rational basis in law and fact. See Zack Decl. Ex. E, at 6. Having concluded that Fahey’s ADA claim s are not barred by collateral estoppel, the Court now turns to their m erits. 2 . Fah e y’s D is crim in ato ry D is ch arge Claim is Me ritle s s Again, to establish a prim a facie case for discrim inatory discharge case Fahey m ust show that (1) defendants are subject to the ADA; (2) he is a “qualified individual” with a disability within the m eaning of the ADA; (3) he could perform the essential functions of his job with or without reasonable accom m odation; and (4) he was fired because of his disability. See, e.g., Brady, 531 F.3d at 134. Defendants do not dispute that they are “covered entit[ies]” subject to the ADA. See 42 U.S.C. § 12111(2) (“The term ‘covered entity’ m eans an em ployer, em ploym ent agency, labor organization, or joint labor m anagem ent com m ittee.”). Instead, they focus on the second, third, and fourth elem ents of the prim a facie case for discrim inatory discharge, contending that Fahey is neither a “qualified individual” with a disability, nor that he is entitled to a reasonable accom m odation, nor that he was fired because of his disability. Def.’s Mem . at 7-10 . The Court will begin by addressing defendants’ last contention—that Fahey was not fired because of his PTSD. Although Fahey is correct that because “it is rare indeed 15 to find in em ployer’s records proof that a personnel decision was m ade for a discrim inatory reason,” the Court m ust scrutinize the record for circum stantial evidence that could support an inference of discrim ination, Pl.’s Opp’n at 18; see also Schiano, 445 F.3d at 60 3; Chertkova v. Conn. General Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996), Fahey nevertheless fails to point the Court to any evidence—and the Court has found none—that could support such an inference. In fact, Fahey appears to acknowledge in his subm issions that he was fired not because he allegedly suffered from PTSD but because he violated the Fire Departm ent’s zero tolerance policy regarding drug use. See Pl.’s Opp’n at 17 (“Plaintiff, in his com plaint, asserts that he was discrim inated against for violating Fire Departm ent rules and regulations.”); id. at 21 (“Plaintiff’s Em ploym ent . . . Was Term inated Pursuant to the FDNY’s Zero Tolerance Drug Policy.”). Fahey also m aintains that his alleged PTSD should have been a m itigating factor in the decision whether to term inate him in light of his history with the disease and the FDNY’s purported failure to provide him with counseling—actions, he claim s, that em body the very “definition of disability discrim ination.” Pl.’s Opp’n at 21; see also Pl.’s Opp’n at 30 (“[W]hen som ething unfortunate happened such as the positive drug testing, the FDNY turned a blind eye and decided to avoid any and all m itigating circum stances and sim ply term inate him .”). But this claim was already considered and rejected by the state court in the Article 78 proceeding. See Zack Decl. Ex. E, at 4.4 4 Much of Fahey’s subm ission seem s sim ply to reprise the argum ents he previously m ade to the state court. See, e.g., Pl.’s Opp’n at 21 (“In further support of Plaintiff’s claim , the New York Court of Appeals has explicitly stated that ‘a decision of an adm inistrative agency which neither adheres to its own prior precedent nor indicates its reasons for reach a different result . . . is arbitrary and capricious.’ . . . [T]he decision . . . to term inate the em ploym ent of Plaintiff Fahey has failed to adhere to precedent 16 Moreover, it has no bearing on the inquiry here: whether Fahey was term inated because of his PTSD. Because Fahey failed to establish this elem ent—a sine qua non of his prim a facie case—Fahey’s discrim inatory discharge claim fails, and the Court need not consider whether he can establish its other elem ents. Even assum ing that Fahey was able to establish a prim a facie case of discrim inatory discharge, defendants have offered a legitim ate nondiscrim inatory reason for their decision to term inate Fahey—his positive test for cocaine use—and Fahey has “failed to provide any evidence of discrim inatory anim us on which the Court could conclude that [defendants] stated reason for . . . term inating [plaintiff] was pretextual.” Exarhakis v. Visiting Nurse Serv. of New York, No. 0 2 Civ. 5562 (ILG), 20 0 6 WL 335420 , at *11 (E.D.N.Y. Feb. 6, 20 0 6) (dism issing ADA claim on sum m ary judgm ent where plaintiff failed to provide the Court with any evidence that em ployer’s explanation was pretextual beyond plaintiff’s “bald allegations”).5 Indeed, courts previously set by the FDNY.”); id. at 23 (“Fahey was discrim inated against not just because he violated the zero tolerance policy but rather because the decision to term inate was arbitrarily m ade.”); id. at 25 (“It is com pletely arbitrary and capricious then for the FDNY, after the fact, to m ake such allowances without m aking it binding on all m em bers for all infractions.”). This observation is also borne out by Fahey’s deposition testim ony: Q. How did [Com m issioner Scoppetta] discrim inate against you based on the [PTSD]? A. Because he fired m e. Term inated m e after going to the oath and him reading the whole transcript, just disregarding it all and just fire m e [sic]. Andersen Decl. Ex. D, at 49. 5 Fahey contends that the reason for term inating him is pretextual as “other firefighters who had not been found to be suffering from a disability who had received 17 consistently conclude that an em ployee’s failure of a drug test constitutes a legitim ate nondiscriminatory reason for term inating the em ployee, particularly where, as here, the em ployee’s job involves the public. See Knighton v. City of Syracuse Fire Dept., 145 F. Supp. 2d 217, 224 (N.D.N.Y. 20 0 1) (positive drug test constitutes “legitim ate business reason to term inate” firefighter asserting Title VII discrim ination claim ); Pierce v. Highland Falls-Fort Montgom ery Cent. Sch. Dist., No. 0 8 Civ. 1948 (RKE), 20 11 WL 4526520 , at *11 (S.D.N.Y. Sept. 28, 20 11) (positive drug tests and other m isconduct constitute legitim ate non-discriminatory reason for term ination of public school teacher asserting ADA discrim ination claim ); Brown v. Triboro Coach Corp., 153 F. Supp. 2d 172, 177 (E.D.N.Y. 20 0 1) (positive drug tests constitute valid non-discrim inatory reason [sic] different types of punishm ent for illegal drug use, including but not lim ited to suspensions without pay for various period [sic] of tim e and early retirem ent with the applicable benefits ancillary to retirem ent, without term ination.” Com pl. ¶ 49; see also Pl.’s Opp’n at 29. But Fahey fails to provide the Court with any evidence that establishes, or even suggests, that the FDNY’s intentionally discrim inated against Fahey on the basis of his disability—the ultim ate question in determ ining whether an em ployer’s reason for discharge is pretextual. See Reeves, 530 U.S. at 146-47 (“The ultim ate question is whether the em ployer intentionally discrim inated, and proof that the em ployer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff’s proffered reason . . . is correct.” (internal citation and quotation m arks om itted)); Weinstock v. Colum bia Univ., 224 F.3d 33, 42 (2d Cir. 20 0 0 ) (“In short, the question becom es whether the evidence, taken as a whole, supports a sufficient rational inference of discrim ination. To get to the jury, it is not enough . . . to disbelieve the em ployer; the factfinder must [also] believe the plaintiff's explanation of intentional discrim ination.” (internal citations and quotation m arks om itted)). Moreover, Fahey has m ade no showing that any individuals who were not term inated after testing positive for drugs were “sim ilarly situated [to him ] in all m aterial respects.” See Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 20 0 0 ). 18 for em ployer’s term ination of bus driver asserting ADA and Title VII discrim ination claim s); Santiago v. Greyhound Lines, Inc., 956 F. Supp. 144, 156 (N.D.N.Y. 1997) (positive drug tests constitute legitim ate nondiscrim inatory reason for term ination of bus driver asserting state law em ploym ent discrim ination claim s); cf. Raytheon Co. v. Hernandez, 540 U.S. 44, 54-55, 124 S. Ct. 513, 157 L. Ed. 2d 357 (20 0 3) (no-rehire policy for known drug users is “a quintessential, legitimate, nondiscrim inatory reason for refusing to rehire an em ployee who was term inated for violating workplace conduct rules”). In sum , because Fahey has failed to establish a prim a facie case of discrim inatory discharge and, even if he could, the FDNY has offered a legitim ate nondiscriminatory reason for their decision to term inate him that is not pretextual, defendants’ m otion for sum m ary judgm ent on Fahey’s discrim inatory discharge claim is granted. 3. Fah e y’s Failu re to Acco m m o d ate Claim is Me ritle s s Fahey also claim s that he suffered discrim ination as defendants failed to provide him with a reasonable accom m odation for his PTSD by allowing him to continue his em ploym ent at the FDNY in a position in which he would not pose a risk to public safety. Pl.’s Opp’n at 16 (“Defendants fail to recognize . . . that reassignm ent of a disabled em ployee to a vacant light duty position constitutes a reasonable accom m odation under the ADA.”). The “accom m odation” Fahey thus seeks is essentially to receive a penalty for testing positive for cocaine other than his term ination. “Such a request is unreasonable as a m atter of law, because [em ployee m isconduct] . . . always constitute[s] legitim ate and nondiscrim inatory reasons for term inating em ploym ent, even where the m isconduct is caused by an undivulged 19 psychiatric condition. The ADA does not excuse workplace m isconduct because the m isconduct is related to a disability.” Canales-J acobs v. N. Y. State Office of Ct. Adm in., 640 F. Supp. 2d 482, 50 0 (S.D.N.Y. 20 0 9) (rejecting as unreasonable purported “accom m odation” that court em ployee suffering from depression receive penalty other than term ination for her acts of m isconduct—yelling at a judge and cursing at the public—and granting sum m ary judgm ent on failure to accom m odate claim ) (citations om itted); see also 2 Am ericans with Disabilities: Practice and Com pliance Manual § 7:184 (20 11) (“An em ployer need not consider a reasonable accom m odation, however, where the m isconduct results from alcoholism or illegal drug use, as disability-caused m isconduct due to alcoholism and illegal drug use is not protected under the ADA.”). Even if such a request were not unreasonable as a m atter of law, Fahey has not established a prim a facie case of failure to reasonably accom m odate, am ong other reasons, because he has failed to provide the Court with any evidence that defendants had notice of his PTSD before rem oving him from his duties as a firefighter and before the com m encem ent of disciplinary proceedings against him .6 When seeking an accom m odation for an alleged disability, an em ployee m ust notify his em ployer of his disability before the em ployer takes the job action which the em ployee is challenging. See, e.g., Canales-J acobs, 640 F. Supp. 2d at 499 (collecting cases); William s v. N.Y. City 6 To establish a prim a facie claim for failure to reasonably accom m odate, a plaintiff m ust show that: “(1) plaintiff is a person with a disability under the m eaning of the ADA; (2) an em ployer covered by the statute had notice of [her] disability; (3) with reasonable accom m odations, plaintiff could perform the essential functions of the job at issue; and (4) the em ployer has refused to m ake such accom m odations.” Monterroso v. 591 F. Supp. 2d at 577 (citing Rodal, 369 F.3d at 118 (2d Cir. 20 0 4); accord Stone v. City of Mount Vernon, 118 F.3d 92, 96 (2d Cir. 1997). 20 Hous. Auth., No. 0 7 Civ. 7587 (RJ S), 20 0 9 WL 80 4137, at *7 (S.D.N.Y. Mar. 26, 20 0 9) (granting m otion to dism iss ADA claim as “without adequate knowledge of her m edical condition,” defendant was “not in a position to even offer, let alone refuse, a reasonable accom m odation to plaintiff” (quoting Thom pson v. City of New York, No. 98 Civ. 4725 (GBD), 20 0 2 WL 31760 219, at *9 (S.D.N.Y. Dec. 9, 20 0 2))). Fahey, nevertheless, failed to provide such notice here. It is undisputed that he was diagnosed with PTSD by counselors at the FDNY’s CSU only after he had already tested positive for cocaine and, as a result, was ordered by the FDNY to attend CSU counseling. Defs.’ 56.1 ¶ 24; see also Andersen Decl. Ex. D, at 41-42. Likewise, although Fahey’s private doctor diagnosed him with PTSD shortly after Septem ber 11, Fahey did not inform anyone at the FDNY of the diagnosis: Q. So Dr. Andin m entioned you m ight be suffering from post traum atic stress disorder? A. Yes. Q. When was that? A. Right after 9/ 11. Q. Did you tell anyone at the fire departm ent that Dr. Andin said you m ight be suffering from post traum atic stress disorder? A. No. Q. Dr. Andin is not associated with the fire departm ent; is that right? A. No. 21 Andersen Decl. Ex. D, at 31-32. In any event, assum ing Fahey’s PTSD was known to the FDNY earlier, such knowledge would not excuse the fact that Fahey’s positive drug test constitutes a legitim ate nondiscrim inatory reason for his term ination, rendering the “accom m odation” Fahey sought unavailable. Accordingly, for all of these reasons, Fahey’s claim against defendants for failing to m ake a reasonable accom m odation fails, and defendants’ m otion for sum m ary judgm ent with respect to this claim is granted. D . Fah e y’s Re m ain in g Claim s are D is m is s e d Because all of Fahey’s federal claim s are dism issed and the only rem aining claim s arise under state and local law, the Court declines to exercise supplem ental jurisdiction over Fahey’s pendent claim s, which are dism issed without prejudice to their renewal in state court. See 28 U.S.C. § 1367(c)(3); Giordano v. City of New York, 274 F.3d 740 , 755 (2d Cir. 20 0 1) (noting that because ADA claim s are dism issed, state law disability discrim ination claim s also “should be dism issed so that state courts can, if so called upon, decide for them selves whatever questions of state law this case m ay present”). 22 III. CON CLU SION For all of the foregoing reasons, defendants’ m otion for sum m ary is hereby GRANTED as to all of Fahey’s federal claim s. Fahey’s state and m unicipal claim s are dism issed without prejudice to their renewal in state court. The Clerk of the Court is directed to close the case. SO ORDERED. Dated: Brooklyn, New York February 7, 20 12 / s/ I. Leo Glasser Senior United States District J udge 23
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