¶ 24.) Moreover, plaintiff's injuries have "resulted in sciatica, which leaves his right leg and left foot numb." ( Id. ¶ 21.) Plaintiff's injuries have also affected his ability to sleep and plaintiff has had to adjust his method of sleeping, placing pillows under his neck and back, and on his side, in order to alleviate the pain. at 78:22-23.) As a result of plaintiff's chronic pain, plaintiff is on a daily regimen of pain medication, which "hinders his dexterity, as well as his ability to operate heavy machinery and drive." (Pl. at 83:25-84:3.) Plaintiff has described how "sometimes ha very bad days and sometimes the days aren't as bad." ( Id. Dep.") at 83:16-21.), and that while he can bend somewhat at the waist, he cannot "touch toes or bend down to like a 90-degree angle." ( Id. Plaintiff has testified that his injury limited his ability to bend "as much as what somebody else may be able to do," (Ozgu Decl., Ex. ¶¶ 14-21.) As a result, immediately following the accident plaintiff was placed on medical leave until he returned to work on Octoon a so-called "limited duty assignment." ( Id. ¶¶ 13-14.) Specifically, plaintiff suffered a herniated disc in the cervical and lumbar areas, which has caused him constant pain in varying degrees and limited his dexterity, his abilities to operate heavy machinery and drive an automobile. On July 12, 2004, shortly after leaving work and pulling out of the DOT parking lot, plaintiff was involved in an automobile accident in which he sustained injuries to his neck and back. ¶ 12.) Moreover, plaintiff had never had any charges filed against him by his employer, nor was he ever reprimanded for any reason. Prior to sustaining the injuries pertinent to the present litigation, throughout his career at DOT plaintiff had always remained in good standing and received satisfactory employment evaluations. ¶ 8.) The union pick contract provides that TDMs with a satisfactory job evaluation desiring a reassignment to a specific unit or job skill can submit a transfer request form in which the TDM may bid for up to three positions. 56.1 Stmt.") ¶ 10.) The assignment of TDMs is handled pursuant to contractual rules established through a memorandum of agreement signed between the City of New York and the plaintiff's union, District Council 37, AFSCME, AFL-CIO ("union pick contract"). Plaintiff's assignment as a TDM was to the Facilities Management Unit of the Parking Division, where his primary, but not exclusive, duty was painting. (Declaration of Michael Greco *594 in Support of Defendants' Motion for Summary Judgment ("Greco Decl.") ¶ 5.) 56.1 Stmt.") ¶ 5.) TDMs generally perform a variety of duties depending on their assignments. Plaintiff commenced employment with DOT on Octoas a civil service Traffic Device Maintainer ("TDM"). The facts pertinent to this motion, either undisputed or, where disputed and supported by competent evidence, taken in a manner most favorable to plaintiff, are as follows. For the reasons set forth below, defendants' motion is granted and plaintiff's Complaint is dismissed in its entirety. ¶¶ 4, 7, 8E, 9.)Īfter completing discovery, defendants move for summary judgment and seek dismissal of plaintiff's action pursuant to Federal Rule of Civil Procedure 56. Mem.") at 19.) Plaintiff alleges that DOT discriminated against him because of his disability, namely his herniated disc in his cervical-lumbar areas, failed to promote him, failed to provide a reasonable accommodation, and retaliated against him for registering a discrimination charge with the New York State Division of Human Rights. 41-27, 41-28, Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment dated ("Pl. at 2 (asserting "any related claims under New York law") see also ECF Nos. 1, Complaint ("Complaint" or "Compl.") at 1.) In addition, for the first time in his opposition to defendants' motion for summary judgment, plaintiff asserts that he intended to raise claims specifically under the New York State Executive Law Section 296 ("NYSHRL") and the New York City Human Rights Law ("NYCHRL"). McDonald ("plaintiff" or "McDonald") brings this action against the City of New York and the New York City Department of Transportation ("DOT") (together, "defendants") alleging employment discrimination and retaliation on the basis of his disability in violation of the Americans with Disabilities Act, as amended, 42 U.S.C. Andersen, Pinar Ozgu, New York City Law Department, New York, NY, for Defendants. Roche, Assad Ali Bhatti, The Law Office of Assad Bhatti, P.C., Westbury, NY, for Plaintiff. *592 William Roche, Law Office of William A. McDONALD, Plaintiff,ĬITY OF NEW YORK and New York City Department of Transportation, Defendants.
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