Watson v. Metro. Transit Auth.

1

2023 NY Slip Op 34077(U)

MYLES WATSON, Plaintiff, v. METROPOLITAN TRANSIT AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, Defendants.

Index No. 516086/2022

Supreme Court, Kings County

November 14, 2023

Unpublished Opinion

DECISION AND ORDER

INGRID JOSEPH, JUDGE

At an IAS Part 83 of the Supreme Court of the State of New York held in and for the County of Kings at 360 Adams Street Brooklyn, New York, on the 14th day of November, 2023.

The following e-filed papers considered herein:

NYSCEF Doc. Nos.

Notice of Motion/Affirmation in Support/Memorandum of Law/ Exhibits Annexed ...................

5-20

Memorandum of Law in Opposition/Exhibits Annexed ........................

23-24

Memorandum of Law in Reply .....................

25

Defendants Metropolitan Transportation Authority (s/h/a Metropolitan Transit Authority ("MTA")) and New York City Transit Authority ("NYCTA") (collectively "Defendants") move for an order, pursuant to CPLR 3211(a)(I), (a)(5) and (a)(7) to dismiss Plaintiff Myles Watson's ("Plaintiff') complaint. Plaintiff opposes the motion on the grounds that Defendants have failed to accommodate or even engage in cooperative dialogue to determine whether Plaintiff could be accommodated to use medical marijuana.

On or about April 2015, Plaintiff was appointed by NYCTA as a Telephone Maintainer, a title subject to Department of Transportation, Federal Transit Administration drug and alcohol testing regulations (a "Covered Title"). The title Telephone Maintainer is represented by Transport Workers Union of America, Local 100 ("TWU"). NYCTA and TWU are parties to a collective bargaining agreement which incorporates Federally-mandated controlled substances testing requirements. Upon his appointment, Plaintiff received an information package that included two documents related to drug and alcohol rules and testing. One of these documents warned that those with a Covered Title would be removed from their duty following a positive test and dismissed after a second positive test. In March 2019, Plaintiff underwent a random drug test and tested positive for marijuana. Plaintiff was suspended and required to attend a drug counseling program, which he completed and was allowed to return to work. In October 2020, Plaintiff failed a second drug test by testing positive for marijuana.^[1]As a result, NYCTA issued a disciplinary notification seeking Plaintiffs dismissal. Subsequently, N YCTA, TWU and Plaintiff entered into a Stipulation and Agreement (the "Disciplinary Agreement"), wherein Plaintiff agreed to waive any and all claims associated with the disciplinary grievance. In addition, the Disciplinary Agreement provided that Plaintiff would be "dismissed with the right to restoration to an available budgeted non safety sensitive position." Following completion of an Employment Assistance Program, Plaintiff returned to work at NYCTA as a Cleaner, a non-Covered Title.

Plaintiff commenced this action against Defendants alleging that he has a disability and with a medical marijuana accommodation could have performed the work of a Telephone Maintainer. Since Defendants allegedly did not engage Plaintiff in a cooperative dialogue and arbitrarily rejected his request for a reasonable accommodation, Plaintiff asserts that he has suffered economic damages, pain and suffering, and psychological injuries. In his complaint, Plaintiff includes eight causes of action: (1) disability discrimination in violation of New York State Executive Law ("Executive Law") § 296; (2) hostile work environment in violation of Executive Law § 296; (3) disability discrimination in violation of New York City Administrative Code ("Administrative Code") § 8-107; (4) hostile work environment in violation of Administrative Code § 8-107; (5) failure to engage in cooperative dialogue in violation of Administrative Code § 8-107; (6) strict liability in violation of Administrative Code § 8-107 (13) (b); (7) failure to provide reasonable accommodation in violation of New York Health Law §3369, New York City Administrative Code § 8-101 et seq. and New York State Executive Law § 296 et. seq.; and (8) violation of Administrative Code § 8-502 (a).

Defendants now move to dismiss Plaintiffs complaint on three grounds: (a) pursuant to CPLR 3211 (a)(1) and (5), Plaintiffs claims arise from the disciplinary grievance process and are thus barred by the release in the Disciplinary Agreement; (b) pursuant to CPLR 3211 (a)(7), failure to state a cause of action since (i) state law does not protect those that require an accommodation that prevents them from meeting an essential job requirement and (ii) the complaint does not establish the requisite level inference of discrimination; and (c) complaint should be dismissed as against MTA because it is not Plaintiff's employer and thus, is an improper party.

In opposition, Plaintiff argues that he could have performed the essential functions of his employment with a medical marijuana accommodation. Moreover, Plaintiff contends that Defendants have not argued that it would create a hardship on them to accommodate Plaintiff s disability. Plaintiff alleges that Defendants' documentary evidence is inadmissible because it was not properly authenticated. Plaintiff further argues that the waiver or release in the Disciplinary Agreement is unenforceable because Plaintiff was forced to sign it without consulting an attorney and was under the impression that if he did not sign it, he would be terminated. In addition, Plaintiff asserts that since most of his claims continue to date, it would not be covered by the waiver.

The Court addresses the portion of Defendants' motion seeking dismissal under CPLR 3211 (a)(1) and (5). Pursuant to CPLR 3211(a)(1), a complaint will only be dismissed if there is documentary evidence that "utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law" (Granada Condo, III Ass'n v Palomino, 78 A.D.3d 996, 996 [2d Dept 2010]). For evidence to be considered documentary, it must be unambiguous, authentic and undisputed (Fontanetta v Doe, 73 A.D.3d 78, 86 [2d Dept 2010] [internal citation omitted]). Where a motion to dismiss under CPLR 3211(a)(5) is based on a release, it will be denied where fraud or duress in its procurement is alleged (Farber v Breslin, 47 A.D.3d 873, 877 [2d Dept 2008]; Seff v Meltzer, Lippe, Goldstein & Schlissel, P.C., 55 A.D.3d 592, 593 [2d Dept 2008]).

Here, Plaintiff argues that Defendants' documentary evidence, including the collective bargaining agreement and Disciplinary Agreement should not be considered. The crux of Plaintiff s argument is that Defendants failed to properly authenticate them. As to the collective bargaining agreement, Defendants indicate that it should be considered as it is referenced in Plaintiffs complaint and is publicly available. The Court agrees (see All. Network, LLC v Sidley Austin LLP, 43 Misc.3d 848, 852 n 1 [Sup Ct, NY County 2014] [documents referenced in complaint can be considered]; 265 W. 34th St., LLC v Chung, 47 Misc.3d 1219[A] [Sup Ct, NY County 2015] [records referenced in the complaint may be used in CPLR 3211 [a] [7] motion]), adhered to on reargument sub nom. 265 W. 34th St., LLC v Joon Sik Chung [Sup Ct, NY County 2015]). As to the Disciplinary Agreement, the Court finds Plaintiffs argument unpersuasive (see Phillips v Taco Bell Corp., 152 A.D.3d 806, 807 [2d Dept 2017] [documentary evidence includes contracts, "the contents of which are essentially undeniable"]; Thierry v BAM GO Devs., LLC, 59 Misc.3d 12O3[A] n 2 [Sup Ct, NY County 2018] [rejecting argument that contract should not consider contract that was not authenticated where, in part, it was not shown to be inaccurate, incomplete or defective]).

The Court next addresses whether the Disciplinary Agreement bars the claims in Plaintiff s complaint. The Disciplinary Agreement contains a waiver and release provisions wherein Plaintiff "waives any and all claims associated with this Grievance" and Plaintiff and his union TWU releases N YCTA "from any and all claims, whether at law, in equity or arising by virtue of contract which they may have or which they may have had heretofore in connection with [the] underlying" disciplinary proceeding. Plaintiff argues that the Disciplinary Agreement is ambiguous and unrelated to the claims in Plaintiffs complaint, is unconscionable because of unfair bargaining power, was...