Pabon v. N.Y. City Transit Auth.

703 F.Supp.2d 188

Gabriel PABON, Plaintiff,v.NEW YORK CITY TRANSIT AUTHORITY, a/k/a Nycta, a/k/a Nyct, Metropolitan Transportation Authority, a/k/a Mta, Anthony Bartolotta, Michael Lombardi and Ricardo John, Defendants.

No. 06-CV-2859 (RRM)(LB).

United States District Court E.D. New York.

March 31, 2010.

Order Denying Reconsideration May 11, 2010.

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Tom Kocian, Ralph Casella & Associates PC, Keith Michael Casella, Casella & Casella, LLP Staten Island, NY, for Plaintiff.

Michele Leigh Sheridan, New York City Transit Authority, Kavita K. Bhatt, Michele Leigh Sheridan, New York City Transit Authority, Brooklyn, NY, for Defendants.

MEMORANDUM & ORDER

MAUSKOPF, District Judge:

Plaintiff Gabriel Pabon brings this action against the New York City Transit Authority (the “Transit Authority”) ¹ and its employees, Anthony Bartolotta, Michael Lombardi and Ricardo John. Pabon alleges violations of the Americans with Disabilities Act (“ADA”); 42 U.S.C. 1985(2), the First, Fifth, and Fourteenth Amendments to the United States Constitution; Section 75-b of the New York Civil Service Law; Section 740 et seq. of the New York Labor Law; Section 296 of the New York State Executive Law (the Human Rights Law); Chapter 8-107 of the New York City Administrative Code, and unspecified common law torts. For the reasons below, Defendants' motion for summary judgment is GRANTED as to all federal causes of action. This Court declines to exercise 28 U.S.C. § 1367 supplemental jurisdiction over Pabon's remaining state law claims, and those causes of action are DISMISSED.

FACTUAL BACKGROUND

Until the termination of his employment in March 2005, Pabon was a Train Service Supervisor with the Transit Authority.

It is uncontroverted that on October 7, 2004, Pabon caused substantial damage to the offices of psychiatrist Peter Sass. The episode occurred during the course of an independent medical examination, which sought to determine Pabon's fitness for duty in connection with his then-pending worker's compensation claim. Sass's letter to the Transit Authority regarding the incident states that Pabon became violent when Sass recommended a return to “full work” duty. At that point, according to Sass, Pabon overturned and broke the office furniture and stole the tape recorded record of the medical examination. Pabon's outburst allegedly caused Sass to flee the office. Sass then called the police.

As a result of the episode at Sass's office, and pursuant to an applicable collective bargaining agreement process, the Transit Authority took disciplinary action against Pabon. At the conclusion of that process, Pabon's employment was terminated.

On June 5, 2006, Pabon commenced this civil rights action challenging the propriety of his termination. Pabon claims that he was denied a fair opportunity to participate in the disciplinary process and that the process itself was merely a pretext for disability discrimination, and/or the culmination of a consistent and vicious pattern of reprisal for his outspokenness regarding alleged negligence by the Transit Authority in the death of employee Michael Hamill. Pabon's claims are discussed in further detail below.

A. Mental Disability

Pabon claims to have suffered an allegedly work-related nervous breakdown on or about May 8, 2004. As evidence of his mental disability, Pabon submits medical testimony from his treating psychologist Joseph L.J. Schwartz (see Affirmation of Joseph L.J. Schwartz, sworn Jan. 15, 2009 (“Schwartz Aff.”)), which states, in relevant part:

Within a reasonable degree of medical certainty Gabriel Pabon's mental disability manifested itself as a mental impairment that substantially limited ... the ability to socialize within normal limits, the ability to interact with people within normal limits, the ability to deal with ordinary occurrences of life, the ability to concentrate for any significant period of time, the ability to sleep, the ability to work effectively, the ability to relax and separate stressful experiences and be able to adjust to life within normal limits, the ability to live without fear and/or reprisal, the ability to focus, the ability to control anger and irritability, the ability to complete tasks beyond simple tasks, the ability to care for himself ....

As stated in Pabon's Opposition papers, his mental condition left him “unable to interact with people, deal with ordinary occurrences, or live without fear or paranoia.” Plaintiff's Memorandum (docket no. 73) at 14. As a result, Pabon filed for worker's compensation benefits. It was in connection with the worker's compensation process that Pabon was required to undergo the independent medical evaluation at Sass's offices in October 2004. Accordingly, it is Pabon's position that the Transit Authority was well aware of his significant mental impairments even prior to his destructive episode. Pabon further claims that, notwithstanding knowledge of Pabon's mental disability and its effect on his job performance, the Transit Authority failed to make reasonable accommodations in the conditions of his employment, including a change of location, reduction in responsibilities, relegation to office work job restructuring, part-time work, or reassignment to a vacant position. However, while Pabon claims that such accommodation should have been made, he does not dispute the fact that he failed to affirmatively request any such accommodation.

Finally, Pabon argues that his ultimate termination from the Transit Authority was the result, at least in part, of disability-based animus and in retaliation for his reporting Transit Authority negligence.

B. Hamill Incident

In March 2002, Transit Authority employee Michael Hamill was killed in an accident at a Transit Authority worksite. Pabon claims that in his role as transit supervisor, he learned that the accident involved the negligence of several Transit Authority employees. Pabon further claims that his attempts to report the matter to higher-ups at the Transit Authority, as was his duty under applicable Transit Authority regulations, were met with strong-arm tactics, including physical violence, threats, harassment and intimidation. Specifically, Pabon claims that he was roughed up on several occasions, having been shoved and thrown to the ground-incidents that caused him to sustain neck and back pain that would ultimately contribute to his worker's compensation claims. More importantly, Pabon claims that certain of the individual defendants in this case threatened to hurt him (allegedly at gun point in one instance) and even threatened his life and that of his family members if he continued to discuss the Hamill matter within the Transit Authority, or further assist the plaintiffs in Hamill's wrongful death civil lawsuit, whose attorneys Pabon had met with previously.

Pabon claims that his complaints of harassing and threatening conduct were ignored by the Transit Authority, who dismissed Pabon's claims as unfounded after what he alleges was a sham investigation. Ultimately, Pabon claims that the emotional strain and fear of personal reprisals from his immediate superiors resulted in the nervous breakdown that he allegedly suffered in May 2004.

C. Pabon's Termination

In response to Pabon's allegations of pretextual termination, the Transit Authority maintains that he was properly dismissed for “ransacking” Sass's office, conduct unbecoming a Transit Authority employee. Moreover, the Transit Authority claims that Pabon was afforded all due process rights afforded by the governing collective bargaining agreement. The chronology of that process is outlined below.

Pabon was sent a disciplinary notice, indicating that a hearing would be held on November 4 or November 5, 2004. Pabon then sent notice that he would appeal the disciplinary action and that he would not appear at the scheduled hearing, stating:

I feel I am not in control of myself and cannot be held liable for my actions. It appears that the T.A. wants me to appear downtown. I am incapable of making decisions for myself at this point in time and cannot concentrate. I must request armed security personnel for my safety and the safety of my family due to threats I have received through the previous 2 years.

Despite notice that, pursuant to the collective bargaining agreement, his failure to appear would be deemed abandonment of the grievance process, Pabon did not appear at the scheduled hearing. Based on Pabon's failure to appear his employment was terminated. The next day, however, Pabon's union filed a grievance on his behalf seeking to re-litigate the Transit Authority's “abandonment” finding.

At a hearing held November 17, 2004, an independent hearing officer reopened the record expressly to permit Pabon to provide medical evidence sufficient to excuse his prior failures to appear. Despite the opportunity to provide medical evidence, however, Pabon did not do so. Instead, he appeared in person with his union representative, but claimed not to understand the proceedings. The union represented to the hearing officer that Pabon was under a doctor's care and lacked the capacity to participate in his own defense. Unswayed by Pabon's unsupported allegations of incapacity, the hearing officer held that despite a fair opportunity to submit evidence in his defense, Pabon failed to demonstrate that he had not abandoned the grievance process.

The union again appealed the now affirmed “abandonment” determination on December 23, 2004. On January 4, 2005, a hearing was held in front of an independent Arbitrator who ordered that Pabon should be provided another opportunity to challenge the abandonment finding. Accordingly, the matter was remanded to a preliminary “Step I” abandonment hearing, scheduled for January 25, 2005, with a further arbitration hearing scheduled for February 10, 2005, should Pabon seek to appeal the Step I determination. Notwithstanding these further...