Dipinto v. Westchester County

Background

Phillip Dipinto sued Westchester County, Thomas Lauro, and Jeffrey Bryant over his employment at the Yonkers Joint Wastewater Treatment Plant. His Second Amended Complaint asserted nine claims, including claims under the Americans with Disabilities Act (ADA), the New York State Human Rights Law, and 42 U.S.C. § 1983. Earlier orders dismissed Lauro, several state-law claims, and the § 1983 claims. Dipinto later discontinued the remaining state-law claims, and Bryant was terminated as an individual defendant. The remaining claims were ADA discrimination, ADA retaliation, and ADA hostile work environment claims against the County.

Dipinto was hired as a temporary employee in October 2014 and received a contingent probationary appointment as a wastewater treatment plant operator effective September 14, 2015. His work included monitoring pumps, taking samples, and walking between plant facilities while carrying samples stored in five-gallon containers. On February 5, 2016, a heavy metal rod fell across both of his feet at work. He filed an incident report, declined hospital treatment, continued working that shift, and did not take time off for the injury. He was terminated in August 2016 after a performance review rated his performance as requiring improvement and Bryant recommended that his probation not be approved.

Dipinto first sought medical attention for the injury in November 2016. A December 2017 medical report stated that he had a 20% permanent loss of use of his right foot and ankle. Dipinto also testified that he had pain while driving, walking long distances, and running; had a limp; and could not perform certain exercises. He claimed that he requested work requiring less walking and later objected to being assigned to the Samples shift.

Summary-judgment standard

The County moved for summary judgment under Federal Rule of Civil Procedure 56. Summary judgment is appropriate when the evidence shows no genuine dispute about a fact that could affect the outcome and the moving party is entitled to judgment under the law. The court does not decide disputed facts at this stage; it determines whether a reasonable jury could find for the nonmoving party.

ADA discrimination

The court granted summary judgment on Claim 1. To establish disability discrimination under the ADA, Dipinto had to show, among other things, that he had an ADA-covered disability or was regarded as having one, was qualified for the job, and suffered an adverse employment action because of the disability. For a failure-to-accommodate claim, he also had to show that the County knew about his disability, that he could perform the job with a reasonable accommodation, and that the County refused to provide one.

The court held that Dipinto had not shown that he had an ADA-covered disability during the relevant period. The only medical evidence was the December 2017 report, prepared more than a year after his termination, and Dipinto did not seek medical care until nearly nine months after the injury and three months after his termination. The court also found that the report did not adequately describe work-related limitations or needed accommodations. His testimony about pain, a limp, and difficulty with certain activities was likewise insufficient to show that the injury substantially limited a major life activity during the relevant period.

The court separately rejected Dipinto’s “regarded as” theory. A person regarded as disabled may pursue a discrimination claim, but the ADA does not require an accommodation for someone covered only by that theory. The court also found insufficient evidence that the County terminated Dipinto because it regarded him as disabled. The alleged comments by Bryant about Dipinto’s foot were not connected to the termination decision, and Bryant was not the final decisionmaker. The court also rejected Dipinto’s theory that Bryant caused Scarlato to give him a negative review because the supporting testimony was hearsay and speculation.

ADA retaliation

The court granted summary judgment on Claim 2. Dipinto argued that the County retaliated against him by assigning him disproportionately to the Samples shift and terminating him after he requested a transfer and work requiring less walking.

The court held that Dipinto’s March 2016 transfer letter was not protected activity because it did not mention his injury, a disability, discrimination, or harassment. The court considered his alleged requests for work involving less walking or removal from the Samples shift as the only possible protected activity, while noting that it was not persuaded these requests clearly informed the County that he was complaining about unlawful discrimination.

Even assuming Dipinto could establish protected activity and the other initial elements of retaliation, the court held that the claim failed because the County gave a legitimate, nondiscriminatory reason for terminating him: unsatisfactory performance during his probationary employment. Dipinto relied only on the timing between his accommodation requests, negative performance review, and termination. The court held that this timing alone did not provide enough evidence for a reasonable jury to find that the County’s stated reason was a pretext for retaliation.

ADA hostile work environment

The court granted summary judgment on Claim 3. Because Dipinto had not shown that he was disabled under the ADA, the court held that he could not establish the required protected status for an ADA hostile work environment claim.

Disposition

The court granted the County’s motion for summary judgment. It dismissed the Second Amended Complaint, directed the Clerk to terminate the pending motion, and directed the Clerk to close the case.