Campa v. Entergy Nuclear Operations

MICHAEL CAMPA, Plaintiff, v. ENTERGY NUCLEAR OPERATIONS, INC., Defendant.

No. 17-CV-792 (KMK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 5, 2019

OPINION & ORDER

Appearances:

Michael Campa

Montrose, NY

Pro Se Plaintiff

Christina M. Schmid, Esq.

Patrick M. Collins, Esq.

Shabri Sharma, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

New York, NY

Counsel for Defendant

KENNETH M. KARAS, United States District Judge:

Michael Campa ("Plaintiff") brings this pro se Action asserting claims aginst Entergy Nuclear Operations, Inc. ("Defendant") for disability-based discrimination and failure to accommodate, in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296 et seq. (See Am. Compl. (Dkt. No. 23).) Before the Court is Defendant's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 (the "Motion"). (See Not. of Mot. (Dkt. No. 66).) For the following reasons, the Motion is denied.

I. Background

A. Factual History

The following facts are taken from Defendant's statement pursuant to Local Civil Rule 56.1, (Def.'s Local Rule 56.1 Statement ("Def.'s 56.1") (Dkt. No. 69)), Plaintiff's response, (Pl.'s Resp. to Def.'s Local Rule 56.1 Statement ("Pl.'s 56.1") (Dkt. No. 85, at 1-24)), and the admissible evidence submitted by the Parties.¹ The Court recounts only those facts necessary for consideration of the instant Motion.

1. Employer and Regulatory Scheme

Defendant operates the Indian Point Energy Center (the "Center"), a nuclear power plant in Buchanan, New York. (Def.'s 56.1 ¶ 1.) Defendant holds a license from the U.S. Nuclear Regulatory Commission (the "Commission"), and as such is subject to the requirements set out in 10 C.F.R. § 73.55, regarding the physical protection of nuclear power plants. As relevant here, Defendant is required to "maintain a physical protection program, to include a security organization," that ensures "that activities involving special nuclear material are not inimical to the common defense and security and do not constitute an unreasonable risk to the public health and safety." 10 C.F.R. § 73.55(b)(1). Defendant is also required to "demonstrate the ability to meet Commission requirements through the implementation of the physical protection program, including the ability of armed and unarmed personnel to perform assigned duties and responsibilities required by the security plans." Id. § 73.55(b)(5).

More specifically, Defendant is required to "maintain a security organization that is . . . qualified . . . to implement [its] physical protection program," and "may not permit any individual to implement any part of the physical protection program unless the individual has been . . . qualified to perform their assigned duties and responsibilities in accordance with appendix B . . . to this part." Id. §§ 73.55(d)(1), (3). Appendix B, in turn, provides that Defendant "may not allow any individual to perform any security function . . . until that individual satisfies the . . . qualification requirements of this appendix and the Commission-approved . . . qualification plan, unless specifically authorized by the Commission." Id. app. B, Part VI, § A(6). Those qualification requirements include "[g]eneral physical qualifications": "Individuals whose duties and responsibilities are directly associated with the effective implementation of the Commission-approved security plans . . . may not have any physical conditions that would adversely affect their performance of assigned security duties and responsibilities." Id. § B(2)(a).

2. Plaintiff's Hiring and Disability

In February 2007, Plaintiff was hired by Defendant as an armed Nuclear Security Officer ("NSO") at the Center, a position housed within the Security Department and responsible for the Center's physical protection. (Def.'s 56.1 ¶¶ 5, 8; Aff'n of Christina M. Schmid, Esq. in Supp. of Mot. ("Def.'s Decl.") Ex. I (employment offer letter) (Dkt. No. 67); Def.'s Decl. Ex. B (Deposition of Michael Campa) ("Campa Dep.") 55, 74; Pl.'s Decl. in Opp'n to Mot. ("Pl.'s Decl.") ¶ 20 (Dkt. No. 87).) As an NSO, Plaintiff's responsibilities included the "[i]mplementation of defensive strategy, answering alarms, interdiction of external threat[s]," conducting searches of "vehicle[s], material[,] and personnel," and conducting "vehicle escorts" and patrols. (Def.'s Decl. Ex. C (Deposition of Daniel Gagnon) ("Gagnon Dep.") 15-16; Def.'s Decl. Ex. D (Deposition of Mitchell Wood) ("Wood Dep.") 17-18.)

The terms of Plaintiff's employment were governed by a collective bargaining agreement ("CBA"), which provides, in relevant part, that NSOs "must qualify and re-qualify" for the position "by meeting the criteria specified" by the Center. (Def.'s 56.1 ¶¶ 6-9; Def.'s Decl. Ex. J (CBA), Art. 7, § 7(a).) The CBA also provides that, where an NSO "fails . . . to maintain the necessary qualifications," or "fails to re-qualify . . . due to a bona fide medical condition," Defendant, "[i]n recognition of its potential obligation to provide reasonable accommodation for disabled individuals who can perform the essential functions of their job, . . . has the right to determine the necessity, nature, extent, and/or reasonableness of the potential accommodations, as appropriate." (CBA, Art. 7, § 7(e).)

In October 2014, Plaintiff began suffering from "severe back pain," as well as "arthritis, degenerative disk disease, sciatica, and muscle spasms," which caused him to have "difficulty standing, . . . walking, [and] jogging with the equipment" that NSOs carry. (Pl.'s Decl. ¶ 21; Campa Dep. 56, 64-65.) Due to his pain, Plaintiff was unable to perform the functions of an NSO, and, accordingly, Plaintiff went on multiple leaves of absence in 2014 and 2015. (Def.'s 56.1 ¶ 26; Pl.'s Decl. ¶ 21; Campa Dep. 53-58.) Plaintiff's last day of active work was on December 30, 2015, after which he was on various forms of paid and unpaid leave. (Def.'s 56.1 ¶¶ 28-31, 57.)

3. The Watchperson Position

In addition to the NSO position, Defendant also employs Unarmed Nuclear Security Officers, commonly known as Watchpersons, a position whose terms of employment are also covered by the CBA. (Def.'s 56.1 ¶ 11.) According to the Watchperson position description (the "Position Description"), Watchpersons are required to, as relevant here, "control entry processing of all individuals into protected and vital areas of the [Center]"; "conduct personnel and vehicle searches in accordance with the [Center's] security requirements"; "make scheduled and unscheduled monitoring of the [Center's] protected and vital areas"; "report all security and safety violations observed"; "secure, protect, and assist at scenes of accidents, fires, and similar events"; "operate company vehicle[s] during patrol"; "conduct operational tests of intrusion detection[] and contraband detection equipment"; be "subject to emergency call-in, 12 hour shifts[,] and [to] work[ing] under adverse weather conditions"; and have the "physical stamina for walking, climbing, etc., as per [Commission] regulations for a Watchperson." (Def.'s Decl. Ex. K (Position Description) (initial capitalization removed throughout).)

In order to qualify for the Watchperson position, an individual must pass an annual evaluation that demonstrates the ability to perform each of the functions set forth on the Security Critical Task Qualification Record, known as the "Qualification Card," prepared by Defendant "in accordance with [Commission] regulations." (Def.'s 56.1 ¶¶ 18-20; Def.'s Decl. Ex. L (Qualification Card); see also 10 C.F.R. § 73.55(c)(4).) Those functions include the ability to "perform visitor access control"; "conduct personnel access to [protected areas and vital areas]" of the Center; "conduct personnel searches"; "perform material" and "vehicle search[es]" and "escort functions"; "conduct security patrols"; "provide compensatory measures"; "conduct area searches"; "respond to contingency events & execute defensive strategy"; "react to bomb, hostage, and civil disturbance situations"; and "perform non-lethal defense measures." (Qualification Card (initial capitalization removed throughout).)

According to Daniel Gagnon ("Gagnon"), a Security Manager and supervisor at the Center, in order to conduct a vehicle search as required by the Qualification Card, a Watchperson must search the driver, climb into the vehicle and search every compartment, including the hood, truck, and glove compartment; search under the carriage of the vehicle using a long-handle mirror; search the top of the vehicle with the use of a ladder, if necessary; and climb up into the bed of the vehicle. (Gagnon Dep. 15, 21, 94-96.) Plaintiff disputes Gagnon's characterization "to the extent it forecloses the ability to use other tools to search the locations identified, such as movable stairs, a scissor lift, a stationary pully system . . . , a stationary mirror, a swivel seat, a car cane, . . . a strap to use for standing, video surveillance equipment, or other vehicle access mobility aides." (Pl.'s 56.1 ¶ 23; Campa Dep. 147-51.) Gagnon also states that a Watchperson must be able to move large or heavy items in vehicles to search around them. (Gagnon Dep. 21, 41-42.) Plaintiff disputes this contention and states that, in fact, "it is the responsibility of the operator of the vehicle to move any large or heavy items." (Pl.'s 56.1 ¶ 24.)

4. Plaintiff's Application for the Watchperson Position

On April 6, 2016, Plaintiff and his physician, Dr. Lucy Perazzo ("Dr. Perazzo"), together determined that his lower back pain prevented him from returning to the NSO position "[b]ecause the physical limitations of [his] disability prevented [him] from carrying out all the necessary responsibilities of an [NSO]." (Def.'s 56.1 ¶ 32; Campa Dep. 63, 69-72.) They also concluded that Plaintiff's lower pack pain would not prevent him from performing...