Guerrero Toro v. Northstar Demolition

366 F.Supp.3d 449

Alexander GUERRERO TORO, Plaintiff,

v.NORTHSTAR DEMOLITION & REMEDIATION, Defendant.

6:16-CV-06610 EAW

United States District Court, W.D. New York.

Signed March 28, 2019

Alexander Guerrero Toro, Rochester, NY, pro se.

Tania J. Mistretta, Wendy J. Mellk, Jackson Lewis LLP, New York, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Alexander Guerrero Toro ("Plaintiff"), proceeding pro se , commenced this action on September 6, 2016, alleging that NorthStar Demolition & Remediation LP¹ ("Defendant") violated his rights under the Americans with Disabilities Act of 1990, as codified, 42 U.S.C. § 12112 et seq. (the "ADA"), by failing to provide reasonable accommodations for his alleged disability, wrongfully terminating his position of employment, permitting workplace harassment, and retaliating against him on the basis of his disability. (Dkt. 1). Presently before the Court is Defendant's motion for summary judgment. (Dkt. 42). For the following reasons, Defendant's motion is granted.

BACKGROUND ²

I. Plaintiff's Employment as an Asbestos Handler

Plaintiff began his employment with Defendant as an asbestos handler in February 2015. (Dkt. 42-1 at ¶ 21; see Dkt. 43-1 at 44-45, 50).³ An asbestos handler removes asbestos and performs limited interior demolition, worksite cleaning, "work area plasticizing," water filtration procedures, and "hot work" on abatement projects. (Dkt. 42-1 at ¶ 22; see Dkt. 43-1 at 52-53, 60-63). These responsibilities generally require the use of both hands. (Dkt. 42-1 at ¶ 23; see , e.g., Dkt. 43-1 at 55-57, 59, 61-62). For example, work area plasticization requires both hands to hang plastic sheets securing the area, and an asbestos handler's demolition duties entail the operation of power drills and the use of sledgehammers. (Dkt. 42-1 at ¶¶ 26-28; see Dkt. 43-1 at 56-57, 63).

Plaintiff was primarily charged with using a "power-washer" machine, which is a device that "sprays high pressure water from a hose" and requires both hands to operate. (Dkt. 42-1 at ¶¶ 29-30, 33, 43; see Dkt. 43-1 at 64-65; Dkt. 44 at ¶ 22). One hand must continuously grip the trigger on the machine's "wand" to release the flow of water, while the other hand maneuvers the wand to direct the water at the desired target. (Dkt. 42-1 at ¶¶ 31-32; see Dkt. 43-1 at 64-65; Dkt. 44 at ¶ 22). Plaintiff's other duties included the removal of asbestos, lead, mercury, batteries, certain light fixtures, and different types of chemicals. (Dkt. 42-1 at ¶ 35; see Dkt. 43-1 at 53-56). When removing mercury, Plaintiff was at times required to scale ladders and scaffolding and use both his hands to unscrew lamps, cut cables, and apply sealant. (Dkt. 42-1 at ¶ 36; see Dkt. 43-1 at 53-56). Plaintiff used the power-washer to spray pressurized water at the worksite asbestos, and then placed the asbestos into disposal bags. (Dkt. 42-1 at ¶ 38; see Dkt. 43-1 at 57-59). Asbestos handlers also changed the hoses and filters on the water treatment system that filtered water at the worksite, which required the use of both hands as well. (Dkt. 42-1 at ¶ 39; see Dkt. 43-1 at 60-61).

Additionally, asbestos handlers were assigned "hot work," which entails using a "flaming gas pressurized tool to cut though" train rails and requires the operator to use both hands in doing so. (Dkt. 42-1 at ¶ 41; see Dkt. 43-1 at 61-62; Dkt. 45 at ¶ 33). After hot work is completed, another employee is required to watch the gas tool for about one hour to make sure it does not reignite, but this secondary task, denoted as "fire watching," is "only required when someone performed hot work" to begin with. (Dkt. 42-1 at ¶ 42; see Dkt. 44 at ¶ 31; Dkt. 45 at ¶ 33; see also Dkt. 43-1 at 88).

II. The Onset of Plaintiff's Disability

Between February 2015 and August 2015, Plaintiff had full use of each of his arms and hands and could perform all the essential functions of an asbestos handler. (Dkt. 42-1 at ¶ 44; see Dkt. 43-1 at 66). Starting in August 2015, Plaintiff began to experience pain in his right arm, which he attributed to his use of the power-washer. (Dkt. 42-1 at ¶¶ 45-46; see Dkt. 45 at ¶ 20). Plaintiff subsequently opened a Workers' Compensation claim and was examined by a medical physician before being placed on "restricted duty." (Dkt. 42-1 at ¶¶ 46-48; see Dkt. 45 at ¶ 21; Dkt. 45-1 at 6). At this point, Plaintiff was directed not to use his right arm or right hand. (Dkt. 42-1 at ¶¶ 46-48; see Dkt. 45-1 at 6).

As a result of Plaintiff's limited use of his extremities, he was unable to perform certain essential functions of an asbestos handler. (Dkt. 42-1 at ¶ 49; see Dkt. 43-1 at 45-49, 97-99; Dkt. 44 at ¶ 14; Dkt. 45 at ¶ 57). Initially, Defendant offered Plaintiff "light duty tasks" to permit his continued employment despite these physical limitations. (Dkt. 42-1 at ¶ 50; see Dkt. 44 at ¶¶ 26-28; Dkt. 45 ¶¶ 25, 30). Because Defendant's employees had difficulty finding applicable light duty tasks to assign Plaintiff, Plaintiff was permitted to watch safety trainings and clean an on-site office trailer, which were not tasks assigned to asbestos handlers. (Dkt. 42-1 at ¶ 51; see Dkt. 44 at ¶ 26; Dkt. 45 at ¶ 25).

On August 31, 2015, a physician examined Plaintiff for a second time. (Dkt. 42-1 at ¶ 52; see Dkt. 45 at ¶ 24). The physician concluded that Plaintiff's restrictions had not changed, and Plaintiff was advised to refrain from using his right hand and right arm; limitations that continued to undermine his ability to perform all essential functions of an asbestos handler. (Dkt. 42-1 at ¶¶ 52-53; see Dkt. 43-1 at 45-49, 97-99; Dkt. 45 at ¶ 24; Dkt. 45-1 at 9). On September 18, 2015, Plaintiff supplied a doctor's note from the New York Physical Medicine Center, LLC, which dictated that Plaintiff restrict the use of his upper right extremities for eight weeks. (Dkt. 42-1 at ¶ 57; Dkt. 45 at ¶ 27; Dkt. 45-1 at 12). On September 22, 2015, Plaintiff was diagnosed with mild carpal tunnel syndrome in his left side and moderate carpal tunnel syndrome in his right side. (Dkt. 42-1 at ¶ 124; see Dkt. 43-1 at 152). Plaintiff subsequently received another doctor's note from the same facility, dated September 23, 2015, which directed Plaintiff to limit any "gripping, grasping or lifting [of] more than 10 pounds with his right hand." (Dkt. 42-1 at ¶ 57; Dkt. 45 at ¶ 28; Dkt. 45-1 at 14). On October 9, 2015, Plaintiff submitted a third doctor's note, indicating that Plaintiff should avoid "repetitive gripping and grasping" and "lifting more than 15 pounds" with his upper right extremities for ten weeks. (Dkt. 42-1 at ¶ 59; Dkt. 45 at ¶ 29; Dkt. 45-1 at 16). On November 20, 2015, Plaintiff secured a fourth doctor's note, indicating that Plaintiff should "avoid writing paperwork, avoid repetitive gripping and grasping," and avoid lifting "more than 10 pounds" with his upper right extremities for about 12 weeks. (Dkt. 42-1 at ¶ 61; see Dkt. 43-1 at 123).

III. Plaintiff's New Job Assignments

In light of Plaintiff's restrictions, Defendant created "new light duty assignments for Plaintiff" between September and October of 2015 to keep him employed, which included the decontamination of tools utilized at the worksite. (Dkt. 42-1 at ¶¶ 63-64; see Dkt. 43-1 at 68-69; Dkt. 44 at ¶¶ 26-28). When Plaintiff "complained" that this task "required him to use his right hand," Defendant assigned other light duty tasks to Plaintiff, which included "sweeping and picking up garbage, picking up loose nails with a magnetic broom, fire watching, tracking the entry and exit time of vehicles and their license plates as they exited and entered the [worksite], inspecting and measuring fences and monitoring the water treatment system for leaks." (Dkt. 42-1 at ¶ 65; see Dkt. 43-1 at 71, 84, 86, 88-90; Dkt. 44 at ¶ 28; Dkt. 45 at ¶ 30).

Asbestos handlers were not generally responsible for performing such tasks, with the exception of fire watching. (Dkt. 42-1 at ¶¶ 64, 66-67; see Dkt. 44 at ¶ 28; Dkt. 45 at ¶ 30). Asbestos handlers performed fire watching duties after "hot work" on a "boiler casing" because "disposing of the boiler was part of the asbestos removal process," but this task was conducted about 200 feet above the worksite and required the worker to climb ladders and scaffolding. (Dkt. 42-1 at ¶¶ 67-68; see Dkt. 44 at ¶¶ 31-32; Dkt. 45 at ¶ 33). Since Plaintiff was unable to safely scale ladders and scaffolding to reach these elevated positions, Plaintiff was assigned to "fire watch" after hot work was performed on train rails on the ground; an assignment not usually tasked to asbestos handlers because it is not related to asbestos abatement. (Dkt. 42-1 at ¶¶ 68-69; see Dkt. 44 at ¶¶ 31-32; Dkt. 45 at ¶ 33).

Subsequently, Plaintiff complained that the task of logging vehicular license plates and the entry and exit times of vehicles coming and going from the worksite was "unsafe" and stated that he would no longer perform this task. (Dkt. 42-1 at ¶ 71; see Dkt. 43-1 at 94; Dkt. 44 at ¶¶ 33-34; Dkt. 45 at ¶¶ 34-35). Plaintiff also became "dissatisfied" with the task of inspecting and measuring fences because the measuring tool, which was "similar to a measuring tape connected to a wheel,... required him to use his right hand." (See Dkt. 42-1 at ¶¶ 72-74; see Dkt. 43-1 at 89-91; Dkt. 44 at ¶ 35; Dkt. 45 at ¶ 35). On November 2, 2015, Plaintiff was tasked with monitoring the water treatment system at the worksite for leaks, which was also not a task required of asbestos handlers. (Dkt. 42-1 at ¶¶ 75-76; see Dkt. 43-1 at 85, 88-89, 91; Dkt. 44 at ¶ 36; Dkt. 45 at ¶ 37). The water treatment system is located outdoors, and, as the seasonal temperature began to drop, the system would often freeze, requiring that the hoses, pumps, and filters be disconnected to prevent the system from bursting. (Dkt. 42-1 at ¶¶ 76-77; see Dkt. 43-1 at 85, 88-89, 91; Dkt. 45 at ¶ 37).

As a result of his new light duty assignments, Plaintiff's...