MAURICE MORRIS,
Plaintiff,
- against -
CITY OF NEW YORK
and HOWARD SAFIR, as Commissioner
of the
New York City Police Department,
Defendants.
99 Civ. 9813 (DC)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
NEW YORK
153 F. Supp. 2d 494, 2001 U.S.
Dist. LEXIS 11208
August 6, 2001, Decided
August 6, 2001, Filed
DENNY CHIN, United States District Judge.
[*496]
MEMORANDUM DECISION
In this action, plaintiff
Maurice Morris, a police officer employed by the New York City Police
Department (the "NYPD"), sues defendants the City of New York and
Howard Safir, the former Police Commissioner (in his official capacity), for
discrimination on the basis of disability. Plaintiff alleges that he was denied a promotion to the
rank of sergeant because of his record of a disability. Plaintiff sues under
the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the
"ADA"), and the New York State Human Rights Law, N.Y. Exec. §
290 et seq. (the "NYSHRL").
Defendants move for summary
judgment pursuant to Fed. R. Civ. P. 56 on the ground that plaintiff has failed
to establish a prima facie case of discrimination under the ADA and the NYSHRL,
or in the alternative, on the ground that plaintiff cannot prove that
defendants' stated reason for denying plaintiff a promotion is a pretext for
discrimination. For the reasons set forth below, defendants' motion is denied.
BACKGROUND
A. Facts
Construed in the light most
favorable to plaintiff, the facts are as follows:
1.
Plaintiff's Employment and Medical History
Plaintiff, a police officer
with the NYPD since January 25, 1982, was injured on March 7, 1990, when a
prisoner he was guarding struck him on the head with a pipe. (Compl. PP 9,
12-15; Pl. Ex. A). Plaintiff was treated for multiple injuries [*497] including
facial contusion and head trauma. (Compl. P 15; Pl. Ex. B). He missed work for
approximately six weeks, and upon return, was assigned to light-duty or
clerical work. (Morris Dep. at 12, 13-14).
For several years after the assault, plaintiff
occasionally suffered from dizziness, blackouts, headaches, and seizures.
(Morris Dep. at 17-19; Pl. Ex. C-J). On at least one occasion, co-workers
witnessed plaintiff suffering a blackout while on duty. (Pl. Ex. G). Plaintiff
was diagnosed as having post-concussive syndrome, seizure disorder, and/or
post-traumatic epilepsy. (Pl. Ex. F, H, and V). From March 1990 until December
1996, he took the drug Dilantin to control seizures. (Morris Dep. at 17-18).
From March 1990 until November 1997, plaintiff also took daily prescription
pain medication, which made him drowsy and diminished his capacity to work at
times. (Morris Dep. at 20-22).
At the direction of an NYPD
surgeon, plaintiff was placed on restricted duty from July 1990 to December
1996. (Pl. Ex. JJ at 1618; Markman Dep. at 13, 30).
Between March 1990, when
plaintiff suffered his injury, and January 2000, plaintiff missed work a total
of 431 days. (Def. Ex. J; Pl. Ex. JJ at 1617). The majority of these absences
were reported by plaintiff as having resulted from his injury. (Pl. Ex. JJ;
Markman Dep. at 41-42). Under NYPD policy, an NYPD surgeon must review medical records or conduct a medical exam for
all absences exceeding two days. (Markman Dep. at 42).
Plaintiff no longer takes
anti-seizure medication. (Compl. P 21).
2. Plaintiff's Work Performance
By 1999, plaintiff had received
two Excellent Police Duty Awards. (Def. Ex. J). In recommending plaintiff for
departmental recognition, plaintiff's supervisor noted his "extraordinary
bravery." (Pl. Ex. A).
Plaintiff's evaluations
included ratings of "competent" and "meets standards." (Pl.
Ex. II). He was described as "an experienced, seasoned officer who works
well with others and has good rapport with everyone that he comes in contact
with," "diligent and persistent in carrying out his police duties,"
"a very competent and conscientious police officer," and "a
service oriented officer who has good career potential." (Pl. Ex. II at
1574, 1586).
In December 1999, plaintiff's commanding officer
recommended that plaintiff be promoted to sergeant and noted that despite plaintiff's
"excessive sick record," "all agree that [plaintiff] is a calm,
careful and serious individual who is a competent police officer and one who
has the potential to be an effective supervisor[.] " (Pl. Ex. HH PP 1, 9).
His supervisor further noted that plaintiff's attendance had improved markedly
over the past year. (Pl. Ex. HH P 6).
3.
Plaintiff's Disciplinary History
In April 1990 while on sick
report, plaintiff twice violated NYPD policy by leaving his residence without
permission. (Def. Rule 56.1 Statement PP 7-8; Def. Ex. C).
In January 1997, plaintiff refused
to comply with an NYPD surgeon's direct order to return to full duty even
though he complained of headaches. Following a disciplinary hearing, he was
placed on probation for one year. (Morris Dep. at 27-28, 32-33; Def. Ex. D, F).
The written decision described plaintiff's seizure disorder, use of Dilantin,
and "extensive sick record." (Def. Ex. D at 6-7, 10). Plaintiff
satisfactorily completed his probation on December 11, 1999. (Pl. Ex. HH P 6;
Def. Ex. J). [*498]
4.
Denial of Promotion to Sergeant
Plaintiff passed the Civil
Service Exam for promotion to the rank of sergeant in October 1996, and was
passed over for promotion in 1998 and 1999. (Morris Dep. at 37; Compl. PP 23,
28-30; Def. Ex. I; Def. Rule 56.1 Statement P 20).
When plaintiff was again
considered for promotion to sergeant in January 2000, the Career Advancement
Review Board ("CARB") recommended that he not be promoted. (Def. Rule
56.1 Statement P 21; Pl. Resp. P 1; Def. Ex. J). The CARB was chaired by
Michael A. Markman, then Chief of Personnel. (Def. Ex. J).
In addition to interviewing
plaintiff, the three members of the CARB reviewed documents that included
plaintiff's performance evaluations, disciplinary record, medical history
report, and sick record. (Markman Dep. at 18-28). The documents also included
the 1997 disciplinary decision and the
promotion recommendation by plaintiff's commanding officer. (Markman
Dep. at 21, 24).
The CARB reviewed an employment summary that indicated that
plaintiff had been absent 538 days. (Def. Ex. J). The summary also listed the
reason for holding the CARB review as: "Performance: [Plaintiff] was placed
on Dismissal Probation . . . as a result of a failure to comply with a said
order from the Medical Division to return to duty. . . . [Plaintiff] averages
4.2 days per year Line of Duty and 27.4 days per year Non Line of Duty [on sick
report] ." (Def. Ex. J).
The medical history report
provided to the CARB included the reason given by plaintiff for each sick day,
such as "dizziness," "convulsions," and "post
concussion syndrome." (Pl. Ex. JJ; Markman Dep. at 23).
At deposition, Markman
testified that the CARB may have discussed plaintiff's sick record, restricted
and limited duty status, and anti-seizure medication. (Markman Dep. at 53-54).
After the review, Markman
issued a memorandum on behalf of the CARB that listed "performance" as
the reason for the promotion denial. (Def. Ex. J, K). Markman's contemporaneous
notes on the promotion decision included the comment "sick leave
abuse." (Def. Ex. J). At deposition, Markman testified that the word
"performance" referred to plaintiff's disciplinary charges and that
he based his decision on plaintiff's disciplinary record. (Markman Dep. at 55,
71).
B. Procedural History
On May 19, 1999, plaintiff
filed a complaint with the Equal Employment Opportunity Commission
("EEOC") against defendants, alleging discrimination based on
disability. (Compl. P 5; Def. Ex. M). The EEOC issued plaintiff a right-to-sue
letter, dated June 22, 1999.
On August 11, 1999, within
ninety days after receipt of the right-to-sue letter, plaintiff commenced this
action in New York State Supreme Court, New York County, alleging that
defendants denied him a promotion to the rank of sergeant based on a perceived
disability or record of perceived disability, n1 in violation of the ADA and
the NYSHRL (Compl. PP 30-32). The action was removed to this Court on September
17, 1999.
n1 In plaintiff's complaint, he alleges that defendants discriminated
against him based on "a perceived disability and/or a record of treatment
for a perceived disability." (Compl. PP 31-32). In his opposition brief,
however, plaintiff alleges discrimination on the basis of a record of
disability. (Pl. Opp. Br. at 2). For the purposes of this motion, I consider
plaintiff's claim to involve discrimination on the basis of a record of disability.
This motion followed.
[*499]
DISCUSSION
A. Applicable Law
1.
Summary Judgment
Summary judgment will be
granted when "there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law." Fed. R.
Civ. P. 56(c); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 585-87, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Accordingly, the
Court's task is not to "weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S.
Ct. 2505 (1986). Summary judgment is inappropriate if, resolving all
ambiguities and drawing all inferences against the moving party, there exists a
dispute about a material fact "such that a reasonable jury could return a
verdict for the nonmoving party." Id. at 248; see Bay v. Times Mirror
Magazines, Inc. 936 F.2d 112, 116 (2d Cir. 1991). A factual issue is genuine if
it can reasonably be resolved in favor of either party. Anderson, 477 U.S. at 250. A fact is
material if it can affect the outcome of the action based on the governing
law. Id. at 248.
To defeat a motion for
summary judgment, the nonmoving party must do more than raise "some
metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586;
see Fleurcius v. Short Line Hudson Transit Bus, 2000 U.S. Dist. LEXIS 18261, at
*10-11, No. 99 Civ. 2754 (S.D.N.Y. Dec. 20, 2000). There is no issue for trial
unless there exists sufficient evidence in the record favoring the party
opposing summary judgment to support a jury verdict in that party's favor. Anderson, 477 U.S. at 249. As the Court
stated in Anderson, "if the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted." Id. at 249-50
(citations omitted).
The Second Circuit has held
that the same summary judgment standard applies in a discrimination case. Fisher v. Vassar Coll., 114 F.3d 1332, 1347
(2d Cir. 1997) ("As in any other type of case, the judge must analyze the
evidence, along with the inferences that may be reasonably drawn from it, and
decide if it raises a jury question as to whether the plaintiff was the victim
of discrimination."), abrogated on other grounds, Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 L. Ed. 2d 105, 120 S. Ct. 2097 (2000).
Courts should be "particularly cautious about granting summary judgment to
an employer in a discrimination case when the employer's intent is in
question." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997); see
also Cobian v. New York City, 2000 U.S. Dist. LEXIS 17479, at *25-26, No. 99
Civ. 10533 (S.D.N.Y. Dec. 6, 2000) (citing to same standards for an ADA claim).
2.
Discrimination on the Basis of Disability
Plaintiff alleges that he was
denied a promotion as a result of his record of disability in violation of the
ADA and the NYSHRL. n2 For the purposes of this motion, analysis of plaintiff's
claims under the [*500] ADA and the NYSHRL is identical. n3 See Parker v.
Columbia Pictures, 204 F.3d 326, 332 n.1 (2d Cir. 2000) (citing Micari v.
Transworld Airlines, Inc., 43 F. Supp. 2d 275, 279 (E.D.N.Y. 1999)); Barnett v.
Revere Smelting & Ref. Corp., 67 F. Supp. 2d 378, 388 (S.D.N.Y. 1999).
n2 In plaintiff's opposition
brief, he raises for the first time a claim under 42 U.S.C. § 1983 and the
Fourteenth Amendment. Because "it is inappropriate to raise new claims for
the first time in submissions in opposition to summary judgment," the
Court will not consider such claims. Bonnie & Co. Fashions, Inc. v. Bankers
Trust Co., 170 F.R.D. 111, 119 (S.D.N.Y. 1997); see also Beckman v. United
States Postal Serv., 79 F. Supp. 2d 394, 407-08 (S.D.N.Y. 2000).
n3 The Second Circuit has held that the NYSHRL provides a broader
definition of "disability" than does the ADA. See Reeves v. Johnson
Controls World Servs., Inc., 140 F.3d 144, 154-56 (2d Cir. 1998). Defendants,
however, do not challenge plaintiff's qualification for coverage under the ADA;
accordingly, this distinction between the two statutes is not relevant for
purposes of this motion.
The ADA prohibits employment
discrimination against "a qualified individual with a disability because
of the disability of such individual in regard to job application procedures,
the hiring, advancement or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment." 42
U.S.C. § 12112(a); see also Buckley v. Consolidated Edison Co., 155 F.3d 150,
153-54 (2d Cir. 1998). A "disability" within the meaning of the ADA
includes: (1) a physical or mental impairment that substantially limits a major
life activity; (2) a record of such an impairment; or (3) a perceived
impairment. 42 U.S.C. § 12102(2).
To state a claim under the
ADA, a plaintiff must first establish a prima facie case by showing that: (1)
his employer is covered by the ADA; (2) he suffers from a disability within the
meaning of the ADA; (3) he was qualified to perform the essential functions of
his job, with or without reasonable accommodation; and (4) he suffered an
adverse employment action because of his disability. See Reeves, 140 F.3d at
149-50 (citing Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir.
1998)).
To satisfy the fourth
element, the causal relationship between the disability and the adverse
employment decision need not be direct, and a plaintiff may establish that the
decision was motivated by his disability by demonstrating that "the
disability caused conduct that, in turn, motivated" the employer's
decision. Sedor v. Frank, 42 F.3d 741,
746 (2d Cir. 1994); see also Greene v. New York, 1998 U.S. Dist. LEXIS 7650, at
*16, No. 95 Civ. 6580 (S.D.N.Y. May 22, 1998). Moreover, the Second Circuit has
held that to establish a prima facie case of discrimination based on
disability, a plaintiff need not prove that disability was the sole but-for
cause for the employer's decision. See Parker, 204 F.3d at 336-37. Instead, a
plaintiff "must show only that disability played a motivating role in the
decision." Id. at 337.
In adjudicating ADA claims,
the Second Circuit applies the same burden-shifting framework for federal
discrimination claims set out by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). See
Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998) (applying
McDonnell Douglas framework in ADA case). If the plaintiff meets his burden of
establishing a prima facie case, a rebuttable presumption of discrimination
arises and the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the employment decision. Reeves, 530 U.S. at 142.
As the Supreme Court has noted, "this burden is one of production, not
persuasion." Id.
Next, if the employer
articulates a nondiscriminatory reason for its actions, the presumption of
discrimination is rebutted and it "simply drops out of the picture."
St. Mary's Honor Ctr. v. Hicks, [*501] 509 U.S. 502, 510-11, 125 L. Ed. 2d 407,
113 S. Ct. 2742 (1993); see James v. New York Racing Ass'n, 233 F.3d 149, 154
(2d Cir. 2000). The burden then shifts back to the plaintiff to show, without the
benefit of any presumptions, that more likely than not the employer's decision
was motivated, at least in part, by a discriminatory reason. See Parker, 204
F.3d at 336-37; Connell v. Consolidated Edison Co., 109 F. Supp. 2d 202, 207
(S.D.N.Y. 2000). The "ultimate issue . . . is whether the plaintiff has
sustained [the] burden of proving that the adverse action was motivated by an
impermissible reason." Fields v. New York State Office of Mental
Retardation & Developmental Disabilities, 115 F.3d 116, 119 (2d Cir. 1997).
To meet this burden, the
plaintiff may rely on evidence presented to establish his prima facie case as
well as additional evidence. It is not sufficient, however, for a plaintiff
merely to show that he satisfies "McDonnell Douglas's minimal requirements
of a prima facie case" and to put forward "evidence from which a
factfinder could find that the employer's explanation was false." James,
233 F.3d at 157. Instead, the key is whether there is sufficient evidence in the
record from which a reasonable trier of fact could find in favor of plaintiff
on the ultimate issue, that is, whether the record contains sufficient evidence
to support an inference of discrimination. See id. at 156; Connell, 109 F.
Supp. 2d at 207-08.
As the Second Circuit noted
in James: "the way to tell whether a plaintiff's case is sufficient to
sustain a verdict is to analyze the particular evidence to determine whether it
reasonably supports an inference of the facts plaintiff must prove --
particularly discrimination." 233 F.3d at 157; see Lapsley v. Columbia
Univ., 999 F. Supp. 506 (S.D.N.Y. 1998) (advocating elimination of McDonnell
Douglas test in favor of simplified approach focusing on ultimate issue of
whether sufficient evidence exists to permit jury to find discrimination).
B. Application
Defendants argue that
plaintiff is unable to establish the fourth element of the prima facie case:
that he was denied a promotion because of his record of disability. In the alternative,
defendants assert that even if plaintiff is able to establish a prima facie
case, he is unable to show that their proffered reason for the promotion
decision is a pretext for discrimination on the basis of disability.
Here, I address defendants'
arguments in the context of examining the entire record in considering the
"ultimate question": whether the record contains sufficient evidence
from which a reasonable jury could find discrimination. I evaluate first plaintiff's evidence, then
defendants' evidence, and finally the record as a whole, keeping in mind the elusiveness
of proof of discrimination and the principle that the jury is "entitled to
view the evidence as a whole." Stern v. Trustees of Columbia Univ., 131
F.3d 305, 314 (2d Cir. 1997).
1.
Plaintiff's Evidence
To support his discrimination
claim, plaintiff offers the following evidence: his seizure disorder and
related record of disability; his absences from work resulting from his medical
condition; the performance of his work in a more than satisfactory manner as
confirmed by positive performance evaluations, departmental recognition, and
the recommendation of his commanding officer; the denial of plaintiff's
promotion to sergeant; the CARB's review of documents detailing his medical
history, sick record, use of anti-seizure medication, and history of limited or
restricted duty; the CARB's review of [*502] internal NYPD documents that
referred to plaintiff's sick record as "excessive" and "extensive";
the CARB's recommendation that plaintiff not be promoted because of
"performance"; the employment summary defining the word
"performance" to include plaintiff's average number of sick days per
year; and Markman's contemporaneous notes listing "sick leave abuse" as
a reason for the decision.
Plaintiff's evidence suggests that his sick record may
have been a motivating factor in defendants' decision not to promote him. Under
the ADA, an employee's absenteeism may be a permissible motive for an adverse
employment decision where it interferes with the employee's ability to perform
the essential functions of the job. See, e.g., Mescall v. Marra, 49 F.
Supp. 2d 365, 374 (S.D.N.Y. 1999) (finding school guidance counselor not
qualified because she missed forty-one days over two-and-a-half year period);
Daddazio v. Katharine Gibbs School, Inc., 1999 U.S. Dist. LEXIS 5408, at
*14-15, No. 98 Civ. 6861 (S.D.N.Y. April 20, 1999) (finding plaintiff not
qualified because he never returned to work after being hospitalized);
Kotlowski v. Eastman Kodak Co., 922 F. Supp. 790, 798 (W.D.N.Y. 1996)
("ADA does not require an employer to accommodate an employee who cannot
get to work"). Of course, an employee who is excessively absent is not
performing the essential functions of his job.
In determining what
constitutes "the essential functions" of the job, "consideration
shall be given to the employer's judgment. " 29 C.F.R. § 1630.2(n)(1). An
employer's own policies may be considered in determining whether an employee's
attendance record rendered the employee not qualified for the job. See Gantt v.
Wilson Sporting Goods Co., 143 F.3d 1042, 1044, 1047 (6th Cir. 1998) (finding
plaintiff not qualified where she violated company policy limiting medical
leave to twelve months); Kolovos v. Sheahan, 1999 U.S. Dist. LEXIS 18821, at
*25, No. 97 C 4542 (N.D. Ill. Nov. 29, 1999) (noting that employer may enforce
a neutral policy against extended absences, such as disciplining employee for
absences that exceed a time limit set out by the employer); Aquinas v. Federal
Express Corp., 940 F. Supp. 73, 78 (S.D.N.Y. 1996) (finding excessively absent
employee not qualified where employer expressly informed employees that daily
attendance was "imperative").
Where the employer was aware that an employee's absences
were related to a disability, however, the employee's attendance record may be
an impermissible pretext for the employee's disability. See Hypes v.
First Commerce Corp., 134 F.3d 721, 726 (5th Cir. 1998) (stating that excessive
absence may be "a pretext or even a proxy" for plaintiff's
disability); Kolovos, 1999 U.S. Dist.
LEXIS 18821, at *18-26 (discussing absenteeism as potential pretext for
discrimination based on disability, in case involving denial of promotion);
Barnett, 67 F. Supp. 2d at 392 ("excessive absenteeism . . . cannot
analytically be considered apart from the alleged disability causing the
absenteeism"); Greene, 1998 U.S. Dist. LEXIS 7650, at *22-23 (finding
basis for inference of discrimination where employer made overt reference to
employee's illness as motive for termination and supervisors knew employee's
absences were closely related to disability).
In the instant case,
defendants do not dispute that at the time of the CARB review, plaintiff was
qualified to perform the essential functions of the job of sergeant. (Def. Mem.
at 9). Plaintiff received uniformly positive performance evaluations, won two
departmental awards for excellent police work, passed the sergeant's exam, and
received a recommendation from his commanding officer. Plaintiff's attendance
record had improved dramatically during the year before the [*503] CARB review,
as noted in his supervisor's recommendation. With the exception of the January
1997 disciplinary incident, there is no evidence to suggest that plaintiff's
sick days were not approved by the NYPD, or not medically documented as
required by NYPD policy. Further, the record contains no evidence that
plaintiff's absences had exceeded any fixed NYPD policy delineating the number
of sick days that would disqualify a candidate from promotion to sergeant. See
Kolovos, 1999 U.S. Dist. LEXIS 18821 at *25 (finding triable issue as to
whether absenteeism was a pretext for discrimination where "there does not
appear to have been any kind of written or otherwise fixed policy about the
amount of absenteeism that would disqualify a [promotion] candidate"). The
members of the CARB had access to information relating to plaintiff's medical
history, seizure disorder, anti-seizure medication, and history of limited and
restricted duty. Given
these facts, defendant's overt reference to "sick leave abuse" as a
reason for the decision, coupled with defendants' knowledge that plaintiff's
absences were closely related to his disability, could reasonably provide a
basis for an inference of discrimination. In other words, a reasonable jury
could conclude, on this record, that although plaintiff had suffered from
excessive absenteeism in the past, he had fully recovered from his ailment, but
the NYPD declined to promote him because of continued, unfounded concerns about
his ability to perform the functions of a sergeant.
Thus, plaintiff has presented
concrete evidence from which a reasonable jury could find that defendants made
an impermissible decision not promote him because of his record of disability.
2.
Defendants' Evidence
Defendants' central argument
is that the decision not to promote plaintiff was based not on his disability
but on his disciplinary record, and that an employee's disciplinary record,
inappropriate behavior, or misconduct is a legitimate, non-discriminatory
reason for an adverse employment decision. See, e.g., Connell, 109 F. Supp. 2d
at 210-11 (finding harassment of coworker legitimate justification for
dismissal of employee); Evans v. Golub Corp., 29 F. Supp. 2d 194, 205-06
(S.D.N.Y. 1998) (discussing termination based, in part, on disobeying a direct
order).
In support of their
contention, defendants argue that Markman's use of the phrase "sick leave
abuse" referred to plaintiff's violations of NYPD sick leave policies:
leaving his residence while on sick report in April 1990 and failing to comply with a direct order from
an NYPD surgeon to return to full duty in January 1997. Defendants also point
to Markman's deposition testimony that the word "performance"
referred to plaintiff's disciplinary charges and not his sick record.
Defendants note that Markman further testified that plaintiff's disciplinary
record, and not his disability, was the basis for his decision.
Defendants further argue that
plaintiff's 1997 disciplinary violation, the refusal to obey a direct order, is
a particularly serious infraction in a paramilitary organization such as the
NYPD, citing Baron v. Meloni, 556 F. Supp. 796, 799-800 (W.D.N.Y. 1983)
("By their very nature, police . . . departments require discipline and
obedience to commands of departmental hierarchy."), aff'd 779 F.2d 36 (2d
Cir. 1985).
3.
Record as a Whole
Considering the evidence as a
whole, resolving all conflicts in the evidence and drawing all reasonable
inferences in plaintiff's favor, I conclude that a reasonable jury could find
that defendants denied [*504] plaintiff's promotion, at least in part, because
of his record of a disability.
Ultimately, the case turns on
the conflicting evidence of the meaning of the terms "sick leave
abuse" and "performance" as bases for the promotion decision,
the credibility of Markman's testimony, and whether defendants' stated reasons
for their decision not to promote plaintiff are pretextual. While defendants
contend that the terms "sick leave abuse" and "performance"
refer exclusively to plaintiff's disciplinary charges and not to his sick
record, other evidence in the record suggests otherwise. It is not up to the
Court to resolve these questions of fact. Given defendants' overt references to
plaintiff's sick record, evidence of defendants' knowledge that plaintiff's
sick days were closely related to his disability, the fact that one of
plaintiff's two disciplinary charges was more than eight years old at the time
of the promotion decision, and the record as a whole, a jury might reasonably
infer that defendants' decision not to promote plaintiff was motivated, at
least in part, by discrimination on the basis of a record of disability.
CONCLUSION
For the reasons set forth above, defendants' motion for
summary judgment is denied. The parties shall appear for a pre-trial
conference on August 24, 2001, at 11:30 a.m., at Courtroom 11A, Daniel Patrick
Moynihan United States Courthouse, 500 Pearl Street, New York, New York.
SO ORDERED.
New York, New York
August 6, 2001
DENNY CHIN
United States District Judge