Mulligan v. Verizon New York Inc.

Background

Steven J. Mulligan worked for Verizon as a lineman. He was on light duty because of a back injury from 2008 through 2014. Verizon’s medical vendor determined in February 2014 that he qualified for the company’s Health Impairment Plan, which gave employees with long-term medical restrictions 90 days to find another position they could perform. Mulligan later provided medical documentation stating that he had no work restrictions as of May 14, 2014. The medical vendor determined that he could return to full duty.

James Melchione, Mulligan’s supervisor, remained concerned that Mulligan might not safely perform the physical requirements of the lineman job without retraining. Mulligan completed a functional-capacity evaluation in August 2014 and returned to the full duties of a lineman. Verizon did not deem him fully qualified until August 10, 2016. The parties disputed whether he received on-the-job training during that period. Mulligan claimed that his lack of fully qualified status reduced his opportunities to earn overtime.

Mulligan complained internally about disability discrimination and harassment in April 2016. He later complained to Human Resources about Melchione bypassing him for overtime and accusing him of violating Verizon’s smoking policy. In September 2016, Mulligan was suspended and terminated based on Melchione’s account that Mulligan had threatened him during an August incident. Mulligan denied those allegations. His union later negotiated an agreement with Verizon that resulted in his return to his lineman position.

Mulligan asserted claims under the Americans with Disabilities Act, the New York State Human Rights Law, and Title VII of the Civil Rights Act of 1964. The defendants sought summary judgment, which asks the court to rule without a trial when the evidence shows no genuine dispute over a fact important to the outcome. Mulligan sought partial summary judgment on his state-law failure-to-accommodate claim.

Court’s Analysis

ADA failure to accommodate. The court dismissed Mulligan’s ADA failure-to-accommodate claim as time-barred. A charge generally must be filed with the Equal Employment Opportunity Commission within 300 days of the challenged employment practice. Mulligan filed his charge in October 2016, while he acknowledged that the accommodation period ended by May 14, 2014. The court therefore held that the claim was untimely.

Disability discrimination. The court denied summary judgment on the ADA and New York disability-discrimination claims concerning Mulligan’s lost overtime from December 12, 2015, through August 10, 2016. The court concluded that a reasonable jury could find that Mulligan was qualified to perform the lineman job after his medical clearance, functional-capacity evaluation, and return to full duty. Although the defendants offered safety concerns and the need for remedial training as legitimate, nondiscriminatory reasons for delaying his fully qualified status, Mulligan disputed whether he received the claimed training. That dispute created a genuine issue of fact about whether the defendants’ explanation was a pretext for disability discrimination.

The court treated the ADA and New York-law discrimination claims under the same analysis. It found that claims based on the earlier functional-capacity evaluation and garage-sweeping assignment were time-barred because those events occurred before December 12, 2015. Other discrimination allegations raised in the amended complaint but not addressed in Mulligan’s opposition were treated as abandoned.

Hostile work environment. The court granted summary judgment on Mulligan’s ADA hostile-work-environment claim. The timely allegations included Verizon’s delay in deeming him fully qualified, three instances in which Melchione bypassed him for overtime, an accusation that he smoked inside a company vehicle, an accusation that he threatened Melchione, and Verizon employees’ alleged misuse of handicapped parking spaces. The court held that these allegations were not sufficiently severe or pervasive to create a hostile work environment.

Retaliation. The court denied summary judgment on the ADA and New York retaliation claims to the extent they concerned Melchione’s August 2016 complaint about Mulligan and Mulligan’s resulting termination. Mulligan relied on his communications with Human Resources as protected activity. The court found that the alleged adverse actions could discourage a reasonable worker from making a discrimination complaint and occurred close enough in time to support causation. The defendants offered Mulligan’s alleged violation of Verizon’s Code of Conduct as a nondiscriminatory reason, but evidence that Verizon itself had concerns that Melchione might be retaliating created a triable factual issue about pretext.

The court rejected the retaliation theory based on Verizon’s communication with Mulligan’s union representative after Mulligan filed his Equal Employment Opportunity Commission charge. Mulligan offered no evidence that Verizon’s stated reason for the communication was a pretext for retaliation.

Title VII and remaining state claims. The court dismissed Mulligan’s Title VII retaliation claim because Title VII does not apply to disability claims. The court also declined to exercise supplemental jurisdiction—the court’s discretionary authority to hear related state-law claims—over state claims that did not correspond to federal claims remaining in the case. Those state claims were dismissed without prejudice.

Disposition

The court denied Mulligan’s motion for partial summary judgment. It denied in part and granted in part the defendants’ motion for summary judgment. Specifically, it denied the defendants’ motion as to Mulligan’s ADA and New York disability-discrimination claims concerning lost overtime from December 12, 2015, through August 10, 2016, and as to his ADA and New York retaliation claims concerning Melchione’s August 2016 complaint and Mulligan’s termination. Otherwise, the court granted the defendants’ motion, including as to the untimely ADA accommodation claim, the ADA hostile-work-environment claim, the Title VII retaliation claim, and the retaliation theory based on the communication with Mulligan’s union representative. The court dismissed the remaining state-law claims without prejudice. Judge Andrew L. Carter, Jr. directed the Clerk of Court to terminate the pending motions.