Clark v. Coca-Cola Beverages Ne., Inc.

BRIAN J. CLARK, Plaintiff, v. COCA-COLA BEVERAGES NORTHEAST, INC., Defendant.

1:18-CV-1298 (NAM/CFH)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

November 20, 2020

APPEARANCES:

Carlo Alexandre C. de Oliveira

Cooper, Erving Law Firm

39 North Pearl Street, 4th Floor

Albany, New York 12207

Attorney for Plaintiff

John V. Hartzell

Nolan & Heller, LLP

39 North Pearl Street

Albany, New York 12207

Attorney for Defendant

Peter Bennett

The Bennett Law Firm, P.A.

75 Market Street, Suite 201

Portland, Maine 04101

Attorney for Defendant

Hon. Norman A. Mordue, Senior United States District Court Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Brian J. Clark brings this action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., Title I of the Civil Rights Act of 1991 ("Title I"), 42 U.S.C. § 1981a, and the New York State Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq., asserting claims against Defendant Coca-Cola Beverages Northeast, Inc. for disability discrimination, failure to accommodate, and retaliation. (Dkt. No. 1). Now before the Court are the parties' cross motions for summary judgment. (Dkt. Nos. 44, 52). For the reasons that follow, Plaintiff's motion is denied and Defendant's motion is granted.

II. BACKGROUND¹

A. Employment History

Coca-Cola Refreshments USA, Inc. ("CCR") employed Plaintiff from March 17, 2009 until September 29, 2017. (Dkt. Nos. 52-3, ¶ 1; 53-1, ¶ 1). Plaintiff worked at CCR's Albany Sales Center in a bargaining unit represented by Teamsters Union Local 294. (Dkt. Nos. 52-3, ¶ 2; 53-1, ¶ 2). The relevant terms and conditions of employment for the employees in the Albany bargaining unit are set forth in the Collective Bargaining Agreement ("CBA") between Defendant and Local Unions No. 294, 317, and 687 of the International Brotherhood of Teamsters. (Dkt. Nos. 52-3, ¶ 3; 53-1, ¶ 3). In September 2017, Defendant purchased the Albany Sales Center from CCR and agreed with the Teamsters Union to honor the existing terms of the CBA, including its seniority list. (Dkt. Nos. 52-3, ¶¶ 14, 15; 53-1, ¶¶ 14, 15). The seniority list defines the relative seniority rights of every bargaining member and is used in determining preference when more than one employee bids on an open position and the order in which employees select vacation time. (Dkt. Nos. 52-3, ¶ 16; 53-1, ¶ 16). The CBA contains agrievance and arbitration procedure through which a bargaining unit member can assert alleged violations of the member's seniority rights by Defendant. (Dkt. Nos. 52-3, ¶ 17; 53-1, ¶ 17).

B. Plaintiff's Injury and Medical Treatment

In March 2011, Plaintiff sustained a work-related back injury while working as a delivery driver for CCR. (Dkt. No. 44-41, ¶ 7). Plaintiff underwent spinal fusion surgery in February 2012. (Id.). In October 2012, Plaintiff returned to work as a member of the "General Warehouse" team, and due to his seniority, Plaintiff was able to successfully bid for a "Truck Jockey" position with a 50-pound lifting restriction to accommodate physical limitations stemming from his back injury. (Dkt. No. 44-41, ¶¶ 11, 12; see also Dkt. No. 44-22, pp. 62-63). In January 2016, Plaintiff reinjured his back while at work and went back on medical leave beginning January 9, 2016. (Dkt. No. 44-41, ¶¶ 13, 14; see also Dkt. No. 44-22, p. 34). When Plaintiff went out on medical leave in January 2016, the seniority clause of the CBA protected his seniority and employment for two years. (Dkt. Nos. 52-3, ¶ 10; 53-1, ¶ 10). Plaintiff never returned to work after his injury in 2016. (Dkt. Nos. 52-3, ¶ 11; 53-1, ¶ 11).

While on medical leave, Plaintiff had a second back surgery in February 2017 and gastric bypass surgery in June 2017. (Dkt. No. 44-41, ¶¶ 15, 16). In August 2017, Plaintiff notified his physician that he "would lose his full-time job as of January 2018 if [he] did not have some kind of permanency [test]." (Dkt. No. 52-10, p. 6). Plaintiff underwent a Functional Capacity Examination on September 15, 2017. (Dkt. No. 52-7). The evaluator concluded that:

Based on the results of this Functional Capacity Evaluation, I find that this [ ] patient gave good consistent effort. Mr. Brian Clark presents with limitations in trunk active range of motion as well as limitations in hip/trunk flexibility and strength. He also presents with decreased upper and lower extremity strength for functional lifting, carrying, pushing and pulling activities as well as decreased endurance to activity. At this point in time, Brian Clark does not possess the required physical abilities to resume employment for Coca Cola as a Driver/Delivery person. There is a light dutyposition of Product Checker that may be available which he could perform as he states this position does not require lifting, but this has not been confirmed. Mr. Clark reports he has resumed physical therapy, which will assist in returning some of his physical strength and endurance for successful employment.

(Dkt. No. 52-7, p. 4). The evaluator assessed that Plaintiff could sit for one hour at a time, stand for 30 minutes at a time, walk for 15 minutes at a time, and "lift 10lbs frequently, and 8lbs constantly." (Id., pp. 3-4).

On November 22, 2017, a physician assistant cleared Plaintiff to return to work beginning on December 6, 2017. (Dkt. No. 52-14, p. 2). The note includes the following restrictions: "Back to work light duty December 6, 2017. 100% temp. Disabled until 12/6^th, 2017. No pushing, pulling, lifting greater than 20lbs occasionally." (Id.).

C. Reinstatement Efforts

On November 28, 2017, Plaintiff discussed his desire to return to work on light duty with Amy Johnson, Defendant's Warehouse Manager. (Dkt. No. 44-27, pp. 54-56). Ms. Johnson told Plaintiff that there were no light duty positions available at that time. (Dkt. No. 44-42, ¶¶ 86, 90; 50-1, ¶¶ 86, 90). Defendant claims that its representatives sent Plaintiff a letter on November 30, 2017 reminding him that his medical leave would expire in January 2018, and contacted him by telephone on December 12, 2017 with a further reminder, but Plaintiff denies receiving these communications. (Dkt. Nos. 52-3, ¶¶ 68, 69; 53-1, ¶¶ 68, 69). According to Defendant, Plaintiff was not informed about any available positions because there were no positions that could "reasonably accommodate Plaintiff's restriction of no pushing, no pulling and no lifting over 20 lbs. occasionally." (Dkt. No. 44-42, ¶¶ 86, 90, 91; 50-1, ¶¶ 86, 90, 91).

From September 29, 2017 through January 10, 2018, Defendant posted a number of positions for bidding, but Plaintiff did not bid on any of them. (Dkt. Nos. 52-3, ¶ 21; 53-1, ¶21). Specifically, Defendant posted warehouse positions on the following days: October 6, 2017 (three positions), November 2, 2017 ("multiple positions"), and January 10, 2018 ("multiple positions"). (Dkt. No. 44-10, pp. 11-13, 17-20). Plaintiff claims that he did not apply to these positions because "Defendant's representatives never advised him that such positions were available for bidding." (Dkt. No. 53-4, ¶ 21; see also Dkt. No. 44-2). Plaintiff inquired about various other positions (i.e. inventory checker and sales), which he was told were not available when he inquired about them. (Dkt. Nos. 52-3, ¶¶ 34, 39, 11; 53-1, ¶¶ 34, 39). Plaintiff did not apply for any non-union positions. (Dkt. Nos. 52-3, ¶ 33, 11; 53-1, ¶ 33).

On December 18, 2017, Plaintiff filed a grievance alleging that Defendant denied him the right to return to light duty work and discriminated against him due to his disability. (Dkt. No. 52-16, p. 2). Defendant denied Plaintiff's grievance on December 21, 2017, finding no violation of the CBA or evidence of discrimination. (Dkt. No. 52-17, pp. 2-3). Rocco Losavio, the business agent for the Teamsters Local 294, testified that the union ultimately decided not to help Plaintiff pursue his grievance before the labor management panel because Plaintiff made threats of violence to Defendant's employees. (Dkt. No. 44-28, pp. 90-91).

Pursuant to the CBA, Plaintiff's seniority status and employment lapsed in early January 2018, two years after Plaintiff initially went out on medical leave. (Dkt. Nos. 52-3, ¶¶ 10, 11; 53-1, ¶¶ 10, 11). Then, on January 15, 2018, Plaintiff presented a physician's note to Defendant, which updated Plaintiff's work limitations:

This note is to verify that Mr Brian Clark is under my professional care. Effective 1/15/18, Mr Clark may return to work full time (maximum of 10 hours per day, 50 hours per week) with the following restrictions: No lifting greater than 50 lbs, no repetitive twisting or bending with lumbar spine, no climbing, no kneeling.

(Dkt. No. 52-18, p. 2).

On February 1, 2018, Defendant sent Plaintiff a termination letter, stating:

This letter is in follow up to our conversation on January 17, 2018, in which we discussed the status of your leave of absence and your current medical restrictions. During our discussion it was advised that based on your current medical restrictions you are unable to perform the essential functions of your General Laborer role with or without a reasonable accommodations. As you have exhausted all leave options under the applicable bargaining agreement, your separation has been processed effective February 1, 2018.

(Dkt. No. 52-26, p. 2). Plaintiff never filed a grievance regarding the termination of his seniority rights or employment. (Dkt. Nos. 52-3, ¶ 30; 53-1, ¶ 30).

III. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if all the submissions taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. A...