Wagner v. Inter-Con Security Systems, Inc.

278 F. Supp. 3d 728
CourtDistrict Court, S.D. New York
DecidedSeptember 29, 2017
DocketNo. 15-cv-9858 (TPG)
StatusPublished
Cited by3 cases

This text of 278 F. Supp. 3d 728 (Wagner v. Inter-Con Security Systems, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wagner v. Inter-Con Security Systems, Inc., 278 F. Supp. 3d 728 (S.D.N.Y. 2017).

Opinion

OPINION

Thomas P. Griesa, U.S. District Judge

In this employment discrimination action, the parties have filed cross-motions for summary judgment and partial summary judgment on plaintiffs claims under [731]*731the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101 (2012), and under the New York City Human Rights Law (“NYCHRL”), N.Y. City Admin. Code § 8-107(l)(a). Because the evidence in this case presents genuine issues of material fact, summary judgment is precluded. Accordingly, the court denies defendant’s motion for summary judgment and denies plaintiffs motion for. partial summary judgment.

BACKGROUND

Defendant Inter-Con Security Systems, Inc. (“Inter-Con”), is a global provider of physical security services for both public and private entities! ECF No. 45, at 1. In November 2013, Inter-Con began providing security services to the United States Marshall Service (“USMS”) for the Second Judicial Circuit. ECF No, 43, at 1; ECF No. 45, at 1. Inter-Con employs Court Security Officers (“CSO”) who are responsible for ensuring that the courthouse remain a safe environment for the judiciary, attorneys, court personnel, and the general public. ECF No. 43, at 1; ECF No. 45, at 1.

I. CSO Annual Medical Examinations

Because “[t]he medical condition of the CSO workforce is critical to the overall safety of the judiciary,” the contract between Inter-Con and USMS requires that Inter-Con’s CSOs meet medical standards and physical requirements set by USMS. ECF No. 45, at 2. This makes necessary, among other things, vision and hearing examinations, and testing of the cardiovascular, respiratory, gastrointestinal, nervous, and endocrine systéms. ECF No. 45, at 2. One of Inter-Con’s responsibilities is to ensure that each CSO undergo an annual medical review, which starts with an initial -examination by Inter-Con physicians. ECF No. 43, at 1; ECF No. 45, at 3.

The Inter-Con physician completes a packet called Form 229, which includes a physical exam, an EKG, lab work, and vision and hearing tests, and then sends Form 229 to Inter-Con. ECF No. 43, at 1. Inter-Con then transmits the results to USMS, who, in turn, submits them to Federal Occupational Health (“FOH”), an agency within the Department of Health and Human Services, for review by their physicians. ECF No. 43, at 2; ECF No. 45, at 3. Upon review, FOH issues a decision as to whether the CSO is medically qualified for duty or, alternatively, defers this decision pending the submission of additional documentation or testing. ECF No. 43, at 2; ECF No, 45, at 3.

To request such additional information, FOR sends USMS a Medical Review Form (“MRF”). ECF. No. 45, at 3. USMS then sends the MRF to Inter-Con, for transmission back to the CSO, ECF No. 43, at 2. USMS permits CSOs sixty days.to collect the requested material. ECF. No 43, at 2. When the CSO has done so, the CSO furnishes Inter-Con with the relevant documentation, .Inter-Con sends it back to USMS, and USMS sends it back to FOH. ECF No. 43, at 2. Ultimately, FOH renders its decision based on its review of the initial examination and any additional requested material. ECF No. 43, at 2.

II. Plaintiffs Employment as a CSO

Plaintiff Robert Wagner was hired as a CSO in September 2013. ECF No. 43, at 2. The essential functions required by his position included: (1) working extended hours; (2) working alone while armed;' (3) working under stress; (4) stopping, questioning, or detaining individuals; (5) having the ability to physical subdue attackers; and (6) having the ability to respond to an emergency with unplanned strenuous physical activity. ECF No. 45, at 5.

Plaintiff underwent the Form 229 medical examination in April 2013, which was conducted pursuant to USMS’s predeces[732]*732sor contract with Akal Security Services, ECF No. 43, at 3; ECF No. 45, at 5. The exam identified no disqualifying medical issues, ECF No. 43, at 3. These results were then sent to USMS and transmitted to FOH for review. ECF No. 45, at 5. While the parties disagree as to who from FOH made the subsequent request for additional information,. it is undisputed that in July 2013, an FOH physician sought additional documentation related to plaintiffs diabetic condition.1 ECF No. 43, at 3; ECF No. 45, at 5. Defendants do not dispute plaintiffs contention that in making this request, the FOH physician stated, based on a blood sugar reading of 231, that plaintiffs diabetes was “not well controlled” and that he was at risk for sudden incapacitation. ECF No. 43, at 3. The physician included a request for additional lab tests and the disclosure of plaintiffs prescribed medications, hypoglycemic episodes, and any other complications related to plaintiffs diabetic condition. ECF No. 43, at 4.

The parties agree that following this request, plaintiff provided and FOH' received additional documentation, but disagree as to the adequacy of that submission. ECF No. 43, -at 43-45; ECF No. 45-, at 6. Plaintiff contends that he fully complied with the request and heard nothing for six months after he submitted the supplemental. documentation, ECF No. 43, at 4; ECF No. 52, at 3. Defendants contend that plaintiff did not fully respond to the request, as evidenced by the fact that FOH issued another MRF in November 2013. ECF No. 45, at 6. Defendants do not dispute, however, that while Inter-Con received the MRF in early December, it did not make plaintiff aware of the FOH request until February 14, 2014—“one day before the supplemental information was due back- to USMS.” ECF No. 43, at 5. Plaintiff submitted additional material to Inter-Con on February 18,'2014. ECF No. 43, at 5; ECF No. 45, at 6.

Two months later, on April 23, 2014, Inter-Con received an email from USMS Occupational Health Nurse, Barbara Hayes, stating that plaintiff was. to be “removed from performing CSO duties until the requested supplemental medical information is received, reviewed and it is determined that he meets the CSO medical standards.” ECF No. 45, .at 7. More specifically, FOH stated that plaintiff was to be removed from duty “due to insufficient information about the stability and control of the diabetic condition.” ECF No. 43, at 5. The email also stated:

According to FOH this is the 3rd request for this information (prior requests were made on 7/9/13 and 11/28/13). Failure to submit the information in its entirety within 60 days of this notification may result in disqualification by the Contractor or by the US Marshals Service for contract non-compliance (Sections C.9.3.6 and C.9.3.7). This information is due no later than 6/28/14.

ECF No. 45, at 7,2 As a result of this exchange, Inter-Con certified plaintiff for a medical leave of absence under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq„ based on a “serious health [733]*733condition.” ECF No. 43, at 6; ECF No. 45, at 7. .

During plaintiffs unpaid leave of absence, he submitted to Inter-Con additional medical documentation in connection with the list of requested materials the FOH issued in late April. ECF No. 43, at 7; ECF No. 45, at 8. It is undisputed that Inter-Con received this submission, but the parties disagree as to how Inter-Con handled plaintiffs files. ECF No. 43, at 7.

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278 F. Supp. 3d 728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-inter-con-security-systems-inc-nysd-2017.