Preview
FILED: SUFFOLK COUNTY CLERK 12/03/2021 09:01 AM INDEX NO. 039764/2010
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/03/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
___---------------_ _ _ _ _-----------. X
PETER MALVICA,
Index No.: 10-39764
Plaintiff,
Hon. Joseph C. Pastoressa
-against-
STATE OF NEW YORK, NEW YORK STATE
DEPARTMENT OF TRANSPORTATION,
MARK HERVAN, STEVEN SCHRAMM, and
DARREL KOST, (Sued in their Individual and Official
Capacities pursuant to NYEL §§290 et seq.) and CHARLES
SCALA (Sued in his Individual Capacity pursuant to
42 U.S.C. §l983),
Defendants.
------------------··------X
DEFENDANTS'
REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
LETITIA JAMES
Attorney Gêñêral of the
State of New York
Attorney for Defendants
300 Motor - Suite 230
Parkway
Hauppauge, New York 11788
(631) 231-2424
PATRICIA M. HINGERTON
JOHN L. BELFORD, IV
OF COUNSEL
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TABLEOF CONTENTS
PRELIMINARY STATEMENT ....................................... ...................................1
ARGUMENT
POINT I: PLAINTIFF'S OPPOSITION IS PROCEDURALLY
DEFECTIVE BECAUSE IT FAILS TO COMPLY WITH THE
NEW UNIFORM RULES FOR THE SUPREME COURT.................................2
POINT H: CERTAIN OF PLAINTIFF'S DISCRIMINATION
AND RETALIATION CLAIMS ARE TIME-BARRED; NO VIABLE
CLAIM HAS BEEN STATED AGAINST SCALA.............................................3
POINT III: PLAINTIFF HAS NOT ESTABLISHED A VIABLE
DISCRIMINATION CLAIM AGAINST THE REMAINING
DEFENDANTS.......................................................................................4
POINT IV: PLAINTIFF HAS NOT ESTABLISHED A VIABLE
RETALIATION CLAIM AGAINST THE REMAINING DEFENDANTS..............6
POINT V: PLAINTIFF'S DISCRIMINATORY AND RETALIATORY
HOSTILE WORK ENVIRONMENT CAUSES OF ACTION FAIL AS
A MATTER OF LAW.............................................................................11
POINT VI: PLAINTIFF'S AIDING AND ABETTING CLAIMS
FAIL AS A MATTER OF LAW... .............................................................13
CONCLUSION ........ ......... ..14
CERTIFICATION.............................................................. ..... .....15
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Defendetsi
submit this memorandum of law in reply to Plaintiff's opposition to the
pending motion for summary judgment.
P_RELIMINARY STATEMENT
Defeñdañts'
Plaintiff's opposition--consisting of a Memorandum of Law in Opposition to
Motion for Summary Judgment, NYSCEF No. 26 ("Opp. Memo") and an Affirmation in
Defendants'
Opposition to Motion for Summary Judgment, NYSCEF No. 27 ("Opp. Affirm."),
with 51 exhibits, NYSCEF Nos. 28-78-should be rejected by this Court as it does not comply
with the new uniform rules for Supreme Court. S_ee Point I, infra. However, even if this Court
chooses to overlook the procedural deficiencies, Plaintiff's submissions do not create, as he claims,
a genuine issue of material fact warranting a trial.
A genuine issue of material fact is one that "might affect the outcome of the suit under the
law" party."
governing and as to which "a reas0ñable jury could return a verdict for the nonmoving
Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986); People ex rel Soitzer v Grasso, 50
A.D.3d 535, 545 (1st Dep't 2008) (quoting Anderson). Here, this standard has not been. As
Defeñdâñts'
discussed in Memo and below, what we have in this case is a Plaintiff who has not
been able to identify a single material adverse action to which he was subjected; constantly
"problematic"
complained about slights and trivialities; and was described as because he "yell[ed]
people" with,"
at and was "hard to get along Pl. Depo., 231, lines 10-18; p.233, lines 5-25.
While Plaintiff attempts to attribute alleged hostility in the workplace to his membership
in a protected class or his protected activity, he fails to provide any evidence to substantiate the
same. In fact, much of the evidence, which consists in large part of self-serving emails and his
I not
Terms otherwise defined herein shall have the meanings ascribed to them in the
Defeñdants'
Memorandum of Law in Support of Motion for Summary Judgmeñt, dated January
("Defendants'
26, 2021, NYSCEF No. 8 Memo").
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own deposition, demonstrates simply that Plaintiff was disliked by many of his co-workers. And
the opposition completely ignores one of the most significant problems with Plaintiff's case-his
own testimony indicating that the unfair treatment to which he was allegedly subjected was due to
factors completely üñrelated to protected categories (e.g., the way he talked, which was aggressive
and nasty; that he was "rough"; that he was not liked because his supervisors were German, and
Defendãñts'
he was not). S_ee Memo, pp.22-23. Since no reasonable juror could find in favor of
Plaintiff on any claim, summary judgment should be awarded to Defendants.
ARGUMENT
POINT 1: PLAINTIFF'S OPPOSITION IS PROCEDURALLY DEFECTIVE BECAUSE IT
FAILS TO COMPLY WITH THE NEW UNIFORM RULES FOR THE SUPREME
COURT
On Decereber 29, 2020, Chief Administrative Judge of the Courts Lawrence Marks issued
Administrative Order AO/270/2020, implementing a variety of changes to the Uniform Rules For
2021.2
the Supsomo Court and County Court, effective as of February 1, As relevant here, this
Administrative Order added a new rule, Section 202.8-b "Length of Papers", imposing word count
limitations and mandatory certification requirements upon motion papers. See 22 NYCRR §
202.8-b(a) ("Unless otherwise permitted by the court: (i) affidavits, affirmations, briefs and
memoranda of law in chief shall be limited to 7,000 words each...."); id. at §202.8-b(c) (stating
that papers "shall include . . . a certification by the counsel who has filed the document setting
forth the ñümber of words in the document and certifying that the document complies with the
word count limit."). The Opp. Memo appears to be well in excess of 7,000 words and, in any
2 Defendants'
original moving papers were served and filed via UPS overnight mail on January
27, 2021, and, therefore, the new rules were not applicable to those papers. Since the new rules
Defendants'
are now in place and limit reply memoranda to 4,200 words, reply will focus on
Plaintiff s primary arguments.
2
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event, lacks an attomey certification as to word count. Likewise, the Opp. Affirm. fails to include
a word count certification. As a result, Plaintiff's opposition should be rejected for failure to
comply with the Uniform Rules.
POINT II: CERTAIN OF PLAINTIFF'S DISCRIMINATION AND RETALIATION
CLAIMS ARE TIME-BARRED; NO VIABLE CLAIM HAS BEEN STATED AGAINST
SCALA
Plaintiff argues that the pre-October 20, 2007 acts he complains of are appropriately
considered on his hostile work environment claims by virtue of the continuing violation doctrine.
S_ee Opp. Memo, pp.4-5. This argument, however, completely misses the mark. That is because
Defendants did not argue that the pre-October 20, 2007 acts were untimely for purposes of
Plaintiff's hostile work environment claims; instead, Defendants argued that these acts were
untimely for purposes of Plaintiff's disparate treatment discrimination and retaliation claims. See
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-18 (2002) (discussing the difference
between discrete acts of discrimination, which are not actioñãble if time-barred, and hostile work
environment claims, which involve repeated conduct). Plaintiff s opposition makes no attempt to
address, much less rebut, this argumeñt. Since discrete acts of discrimination are not actionable
when they occurred more than three years prior to commencement of the action, any alleged
discrete discriminatory/retaliatory act that occurred pre-October 20, 2007 is untimely. See
Defendants'
Memo, Point I.
Defendants'
Plaintiff's opposition also fails to respond to another of arguments i.e., that
no viable claim has been stated against Scala since it is based on nothing other than Plaintiff's
Defendañts'
specületion. See Memo, Point II. In fact, Plaintiff seems to concede as much in that
he does not even mention Scala other than to list him as a Defeiwiait See Opp. Memo, p.1; id. at
3
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p.29 (leaving Scala out of the list of Defendants allegedly subject to individual liability). Scala,
therefore, should be dismissed as a party-Defendant.
POINT III: PLAINTIFF HAS NOT ESTABLISHED A VIABLE DISCRIMINATION
CLAIM AGAINST THE RE_MAINING DEFENDANTS
Plaintiff apparently has abandoned his discrimination claim based upon perceived
homosexuality, as his Opp. Memo focuses solely on why his alleged actual and perceived disability
discrimination claims should not be dismissed. h Opp. Memo, Point VI. Thus, to the extent the
Ameñded CGmplâiat COuld be read to include a discrimination claim based on perceived sexual
orientation, any such claim should be dismissed.
As to the disability discrimiñãtion claim, Plaintiff first argues that in 2009, Paul Goebeler
("Goebeler"), whom Plaintiff characterizes as a supervisor but who has not been named as a
Defendant, "subjected [him] to a discriminatory Section 72 medical evaluation in an effort to have
terminated."
Plaintiff found unfit for duty and Opp. Memo, pp.26-27. This claim cannot survive
summary judgment for several reasons: First, Plaintiff proffers no evidence to show that he
suffered a materially adverse change in the terms and conditions of his employment as a result of
having to undergo the examination. Thus, he did not suffer the required adverse employment
2005).3
action. fleee Baum v. Rockland County, 161 Fed. Appx. 62, 64 (2d Cir.
Even if Plaintiff did suffer an adverse action by being required to undergo the medical
ex-miñation, there were legitimate, non-discrimiratory reasons for the requirement, as evidenced
by the very documents Plaintiff attaches to his opposition. Specifically, the medical examination
3
Plaintiff admits that requiring an employee to undergo a Section 72 examination is generally not
considered materially adverse, but he alleges that an inference of discrimination is created if it was
done to get Plaintiff terminated. h Opp. Memo, p.27. Here, however, there is no evidëñce that
Goebeler sought to get Plaintiff terminated, other than Plaintiff's own self-serving statements of
what he was allegedly told by the examining doctor. And more significantly, Plaintiff was not
terminated in 2009 or at any time thereafter. He retired years later, in 2012. See Demuth Aff., 19.
4
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was sought because Plaintiff had three work-related accidents within a seven-month period and
Goebeler was concerned that Plaintiff may have had depth perception or equilibrium issues as most
of the injuries involved him hitting his forehead or missing a step while dismounting. lee Opp.
Affirm., Exh. 30, NYSCEF No. 57; Exh.29, NYSCEF No.56. And, Plaintiff supplied no evideñce
to show that this reason was false, and that discrimination was the real reason; thus, pretext has
not been established.
2012,"
Plaintiff next claims that he was "forced to retire in March Opp. Memo, p.28, but
the record evidence shows that there was no wrongful discharge as Plaintiff seems to suggest. At
the time of Plaintiff's retirement, he had been on Worker's Compensation leave since June 14,
2011, and in September, he applied for disability retirement. Demuth Aff., 19. On February 27,
Employees'
2012, the New York State Local Retirement System found him "permanently
incapacitated,"
and on March 29, 2012, he was granted disability retirement. Jd. Thus, his
separation from DOT was the result of his inability to perform his job, and for no other reason.
duty,"
While Plaintiff also complains that he requested and was denied so-called "light he
provides no evidence that any such positions were even available-in fact, he concedes he was
told that there was no light duty. Opp. Affirm., ¶210. Moreover, Plaintiff has not provided any
documentary evidence showing that he asked for light duty, such as a written request for
accommodation, nor has be submitted any medical evidence indicating that he was physically
capable of performing other duties. See Opp. Memo, pp.27-28. Although Plaintiff asserts that
duty,"
Hervan and another employee, Glenn Schwartz, were given "light Opp. Affirm., ¶210, he
has not shown-and cannot show-that either of them held the same position as him, and more
significantly, he proffered no evidence demonstrating that they, in fact, requested and received
"evidëñce"
light duty. The cited portions of Plaintiff's deposition, which is the only he relies upon,
5
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simply consist of Plaintiff's statements that Hervan was allowed to work after he had knee surgery,
illegal."
and Schwartz was "allowed to accrue time and charge out time actually, you know, M.
(Exh. 1, p.417). Plaintiff's claim of disparate treatment, therefore, fails on its face, and his
disability discrimination claims cannot survive summary judgment.
POINT IV: PLAINTIFF HAS NOT ESTABLISHED A VIABLE RETALIATION CLAIM
AGAINST THE REMAINING DEFENDANTS
Defendants do not dispute that Plaintiff complained about retaliation, se_e__Opp. Memo,
pp.13-15, but such complaints, unaccompâñied by adverse employment action causally connected
to the protected activity, are not enough, and that is all Plaintiff has.
Plaintiff Suffered No Material Adverse Action. Plaintiff purports to identify so-called
adverse actions on pages 16-18 of the Opp. Memo; however, he does nothing more than list the
same, citing in large part to his own self-serving testimony without cormeeting it to any hard
evidence adduced during discovery. Many of the incidents Plaintiff testified to are trivial on their
face. Obvious exãmples include the following: co-worker Matthei not speaking to Plaintiff, Opp.
Affirm, ¶l 25; unidentified co-workers giving Plaintiff the middle finger, M. at ¶l 47; not being
able to find some personal belongings after returning from a medical leave, id. at 203; Bolk "acting
hostile"
to Plaintiff in an unspecified way, M. at ¶¶l 90-91; Schramm directing questions at
Plaintiff's subordinates instead of going though Plaintiff first, M. at ¶¶l 17-18.
Some of the cited incidents rely only on selected portions of Plaintiff's testimony while
ignoring other parts that give context. For example, Plaintiff complaiñs of receiving a "threatening
call" work,"
that he "better not come to M. at ¶¶79-80, allegedly after he complained of a "penis
decal" "his"
on truck. The truck, however, was not assigned to Plaintiff-others drove it, se_e
Defendants' out"
Memo, pp.5-6 (incident 3)-and the call was to complain that Plaintiff "ratted
his co-workers for sitting around the office and not working hard enough, i4 at p.6 (incident 4).
6
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As another example, Plaintiff complained that his supervisors ordered him to complete a
supervisory course in 2010 even though he had taken one before he became MEMS 1 in 2006, id.
at ¶¶l92-94; Demuth Aff., ¶6, but Plaintiff fails to advise that he never even took the course after
Defendañts'
being directed to do so. See Memo, p.11 (incideñt 30). Likewise, Plaintiff complained
that he was not offered an early retirement incentive when he was out on leave, Opp. Affirm.,
¶l98, but when asked, he testified that he believed he was ineligible for the incentive becãüse he
Preview
FILED: SUFFOLK COUNTY CLERK 12/03/2021 09:01 AM INDEX NO. 039764/2010 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/03/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ___---------------_ _ _ _ _-----------. X PETER MALVICA, Index No.: 10-39764 Plaintiff, Hon. Joseph C. Pastoressa -against- STATE OF NEW YORK, NEW YORK STATE DEPARTMENT OF TRANSPORTATION, MARK HERVAN, STEVEN SCHRAMM, and DARREL KOST, (Sued in their Individual and Official Capacities pursuant to NYEL §§290 et seq.) and CHARLES SCALA (Sued in his Individual Capacity pursuant to 42 U.S.C. §l983), Defendants. ------------------··------X DEFENDANTS' REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION FOR SUMMARY JUDGMENT LETITIA JAMES Attorney Gêñêral of the State of New York Attorney for Defendants 300 Motor - Suite 230 Parkway Hauppauge, New York 11788 (631) 231-2424 PATRICIA M. HINGERTON JOHN L. BELFORD, IV OF COUNSEL 1 of 17 FILED: SUFFOLK COUNTY CLERK 12/03/2021 09:01 AM INDEX NO. 039764/2010 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/03/2021 TABLEOF CONTENTS PRELIMINARY STATEMENT ....................................... ...................................1 ARGUMENT POINT I: PLAINTIFF'S OPPOSITION IS PROCEDURALLY DEFECTIVE BECAUSE IT FAILS TO COMPLY WITH THE NEW UNIFORM RULES FOR THE SUPREME COURT.................................2 POINT H: CERTAIN OF PLAINTIFF'S DISCRIMINATION AND RETALIATION CLAIMS ARE TIME-BARRED; NO VIABLE CLAIM HAS BEEN STATED AGAINST SCALA.............................................3 POINT III: PLAINTIFF HAS NOT ESTABLISHED A VIABLE DISCRIMINATION CLAIM AGAINST THE REMAINING DEFENDANTS.......................................................................................4 POINT IV: PLAINTIFF HAS NOT ESTABLISHED A VIABLE RETALIATION CLAIM AGAINST THE REMAINING DEFENDANTS..............6 POINT V: PLAINTIFF'S DISCRIMINATORY AND RETALIATORY HOSTILE WORK ENVIRONMENT CAUSES OF ACTION FAIL AS A MATTER OF LAW.............................................................................11 POINT VI: PLAINTIFF'S AIDING AND ABETTING CLAIMS FAIL AS A MATTER OF LAW... .............................................................13 CONCLUSION ........ ......... ..14 CERTIFICATION.............................................................. ..... .....15 2 of 17 FILED: SUFFOLK COUNTY CLERK 12/03/2021 09:01 AM INDEX NO. 039764/2010 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/03/2021 Defendetsi submit this memorandum of law in reply to Plaintiff's opposition to the pending motion for summary judgment. P_RELIMINARY STATEMENT Defeñdañts' Plaintiff's opposition--consisting of a Memorandum of Law in Opposition to Motion for Summary Judgment, NYSCEF No. 26 ("Opp. Memo") and an Affirmation in Defendants' Opposition to Motion for Summary Judgment, NYSCEF No. 27 ("Opp. Affirm."), with 51 exhibits, NYSCEF Nos. 28-78-should be rejected by this Court as it does not comply with the new uniform rules for Supreme Court. S_ee Point I, infra. However, even if this Court chooses to overlook the procedural deficiencies, Plaintiff's submissions do not create, as he claims, a genuine issue of material fact warranting a trial. A genuine issue of material fact is one that "might affect the outcome of the suit under the law" party." governing and as to which "a reas0ñable jury could return a verdict for the nonmoving Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986); People ex rel Soitzer v Grasso, 50 A.D.3d 535, 545 (1st Dep't 2008) (quoting Anderson). Here, this standard has not been. As Defeñdâñts' discussed in Memo and below, what we have in this case is a Plaintiff who has not been able to identify a single material adverse action to which he was subjected; constantly "problematic" complained about slights and trivialities; and was described as because he "yell[ed] people" with," at and was "hard to get along Pl. Depo., 231, lines 10-18; p.233, lines 5-25. While Plaintiff attempts to attribute alleged hostility in the workplace to his membership in a protected class or his protected activity, he fails to provide any evidence to substantiate the same. In fact, much of the evidence, which consists in large part of self-serving emails and his I not Terms otherwise defined herein shall have the meanings ascribed to them in the Defeñdants' Memorandum of Law in Support of Motion for Summary Judgmeñt, dated January ("Defendants' 26, 2021, NYSCEF No. 8 Memo"). 3 of 17 FILED: SUFFOLK COUNTY CLERK 12/03/2021 09:01 AM INDEX NO. 039764/2010 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/03/2021 own deposition, demonstrates simply that Plaintiff was disliked by many of his co-workers. And the opposition completely ignores one of the most significant problems with Plaintiff's case-his own testimony indicating that the unfair treatment to which he was allegedly subjected was due to factors completely üñrelated to protected categories (e.g., the way he talked, which was aggressive and nasty; that he was "rough"; that he was not liked because his supervisors were German, and Defendãñts' he was not). S_ee Memo, pp.22-23. Since no reasonable juror could find in favor of Plaintiff on any claim, summary judgment should be awarded to Defendants. ARGUMENT POINT 1: PLAINTIFF'S OPPOSITION IS PROCEDURALLY DEFECTIVE BECAUSE IT FAILS TO COMPLY WITH THE NEW UNIFORM RULES FOR THE SUPREME COURT On Decereber 29, 2020, Chief Administrative Judge of the Courts Lawrence Marks issued Administrative Order AO/270/2020, implementing a variety of changes to the Uniform Rules For 2021.2 the Supsomo Court and County Court, effective as of February 1, As relevant here, this Administrative Order added a new rule, Section 202.8-b "Length of Papers", imposing word count limitations and mandatory certification requirements upon motion papers. See 22 NYCRR § 202.8-b(a) ("Unless otherwise permitted by the court: (i) affidavits, affirmations, briefs and memoranda of law in chief shall be limited to 7,000 words each...."); id. at §202.8-b(c) (stating that papers "shall include . . . a certification by the counsel who has filed the document setting forth the ñümber of words in the document and certifying that the document complies with the word count limit."). The Opp. Memo appears to be well in excess of 7,000 words and, in any 2 Defendants' original moving papers were served and filed via UPS overnight mail on January 27, 2021, and, therefore, the new rules were not applicable to those papers. Since the new rules Defendants' are now in place and limit reply memoranda to 4,200 words, reply will focus on Plaintiff s primary arguments. 2 4 of 17 FILED: SUFFOLK COUNTY CLERK 12/03/2021 09:01 AM INDEX NO. 039764/2010 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/03/2021 event, lacks an attomey certification as to word count. Likewise, the Opp. Affirm. fails to include a word count certification. As a result, Plaintiff's opposition should be rejected for failure to comply with the Uniform Rules. POINT II: CERTAIN OF PLAINTIFF'S DISCRIMINATION AND RETALIATION CLAIMS ARE TIME-BARRED; NO VIABLE CLAIM HAS BEEN STATED AGAINST SCALA Plaintiff argues that the pre-October 20, 2007 acts he complains of are appropriately considered on his hostile work environment claims by virtue of the continuing violation doctrine. S_ee Opp. Memo, pp.4-5. This argument, however, completely misses the mark. That is because Defendants did not argue that the pre-October 20, 2007 acts were untimely for purposes of Plaintiff's hostile work environment claims; instead, Defendants argued that these acts were untimely for purposes of Plaintiff's disparate treatment discrimination and retaliation claims. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-18 (2002) (discussing the difference between discrete acts of discrimination, which are not actioñãble if time-barred, and hostile work environment claims, which involve repeated conduct). Plaintiff s opposition makes no attempt to address, much less rebut, this argumeñt. Since discrete acts of discrimination are not actionable when they occurred more than three years prior to commencement of the action, any alleged discrete discriminatory/retaliatory act that occurred pre-October 20, 2007 is untimely. See Defendants' Memo, Point I. Defendants' Plaintiff's opposition also fails to respond to another of arguments i.e., that no viable claim has been stated against Scala since it is based on nothing other than Plaintiff's Defendañts' specületion. See Memo, Point II. In fact, Plaintiff seems to concede as much in that he does not even mention Scala other than to list him as a Defeiwiait See Opp. Memo, p.1; id. at 3 5 of 17 FILED: SUFFOLK COUNTY CLERK 12/03/2021 09:01 AM INDEX NO. 039764/2010 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/03/2021 p.29 (leaving Scala out of the list of Defendants allegedly subject to individual liability). Scala, therefore, should be dismissed as a party-Defendant. POINT III: PLAINTIFF HAS NOT ESTABLISHED A VIABLE DISCRIMINATION CLAIM AGAINST THE RE_MAINING DEFENDANTS Plaintiff apparently has abandoned his discrimination claim based upon perceived homosexuality, as his Opp. Memo focuses solely on why his alleged actual and perceived disability discrimination claims should not be dismissed. h Opp. Memo, Point VI. Thus, to the extent the Ameñded CGmplâiat COuld be read to include a discrimination claim based on perceived sexual orientation, any such claim should be dismissed. As to the disability discrimiñãtion claim, Plaintiff first argues that in 2009, Paul Goebeler ("Goebeler"), whom Plaintiff characterizes as a supervisor but who has not been named as a Defendant, "subjected [him] to a discriminatory Section 72 medical evaluation in an effort to have terminated." Plaintiff found unfit for duty and Opp. Memo, pp.26-27. This claim cannot survive summary judgment for several reasons: First, Plaintiff proffers no evidence to show that he suffered a materially adverse change in the terms and conditions of his employment as a result of having to undergo the examination. Thus, he did not suffer the required adverse employment 2005).3 action. fleee Baum v. Rockland County, 161 Fed. Appx. 62, 64 (2d Cir. Even if Plaintiff did suffer an adverse action by being required to undergo the medical ex-miñation, there were legitimate, non-discrimiratory reasons for the requirement, as evidenced by the very documents Plaintiff attaches to his opposition. Specifically, the medical examination 3 Plaintiff admits that requiring an employee to undergo a Section 72 examination is generally not considered materially adverse, but he alleges that an inference of discrimination is created if it was done to get Plaintiff terminated. h Opp. Memo, p.27. Here, however, there is no evidëñce that Goebeler sought to get Plaintiff terminated, other than Plaintiff's own self-serving statements of what he was allegedly told by the examining doctor. And more significantly, Plaintiff was not terminated in 2009 or at any time thereafter. He retired years later, in 2012. See Demuth Aff., 19. 4 6 of 17 FILED: SUFFOLK COUNTY CLERK 12/03/2021 09:01 AM INDEX NO. 039764/2010 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/03/2021 was sought because Plaintiff had three work-related accidents within a seven-month period and Goebeler was concerned that Plaintiff may have had depth perception or equilibrium issues as most of the injuries involved him hitting his forehead or missing a step while dismounting. lee Opp. Affirm., Exh. 30, NYSCEF No. 57; Exh.29, NYSCEF No.56. And, Plaintiff supplied no evideñce to show that this reason was false, and that discrimination was the real reason; thus, pretext has not been established. 2012," Plaintiff next claims that he was "forced to retire in March Opp. Memo, p.28, but the record evidence shows that there was no wrongful discharge as Plaintiff seems to suggest. At the time of Plaintiff's retirement, he had been on Worker's Compensation leave since June 14, 2011, and in September, he applied for disability retirement. Demuth Aff., 19. On February 27, Employees' 2012, the New York State Local Retirement System found him "permanently incapacitated," and on March 29, 2012, he was granted disability retirement. Jd. Thus, his separation from DOT was the result of his inability to perform his job, and for no other reason. duty," While Plaintiff also complains that he requested and was denied so-called "light he provides no evidence that any such positions were even available-in fact, he concedes he was told that there was no light duty. Opp. Affirm., ¶210. Moreover, Plaintiff has not provided any documentary evidence showing that he asked for light duty, such as a written request for accommodation, nor has be submitted any medical evidence indicating that he was physically capable of performing other duties. See Opp. Memo, pp.27-28. Although Plaintiff asserts that duty," Hervan and another employee, Glenn Schwartz, were given "light Opp. Affirm., ¶210, he has not shown-and cannot show-that either of them held the same position as him, and more significantly, he proffered no evidence demonstrating that they, in fact, requested and received "evidëñce" light duty. The cited portions of Plaintiff's deposition, which is the only he relies upon, 5 7 of 17 FILED: SUFFOLK COUNTY CLERK 12/03/2021 09:01 AM INDEX NO. 039764/2010 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/03/2021 simply consist of Plaintiff's statements that Hervan was allowed to work after he had knee surgery, illegal." and Schwartz was "allowed to accrue time and charge out time actually, you know, M. (Exh. 1, p.417). Plaintiff's claim of disparate treatment, therefore, fails on its face, and his disability discrimination claims cannot survive summary judgment. POINT IV: PLAINTIFF HAS NOT ESTABLISHED A VIABLE RETALIATION CLAIM AGAINST THE REMAINING DEFENDANTS Defendants do not dispute that Plaintiff complained about retaliation, se_e__Opp. Memo, pp.13-15, but such complaints, unaccompâñied by adverse employment action causally connected to the protected activity, are not enough, and that is all Plaintiff has. Plaintiff Suffered No Material Adverse Action. Plaintiff purports to identify so-called adverse actions on pages 16-18 of the Opp. Memo; however, he does nothing more than list the same, citing in large part to his own self-serving testimony without cormeeting it to any hard evidence adduced during discovery. Many of the incidents Plaintiff testified to are trivial on their face. Obvious exãmples include the following: co-worker Matthei not speaking to Plaintiff, Opp. Affirm, ¶l 25; unidentified co-workers giving Plaintiff the middle finger, M. at ¶l 47; not being able to find some personal belongings after returning from a medical leave, id. at 203; Bolk "acting hostile" to Plaintiff in an unspecified way, M. at ¶¶l 90-91; Schramm directing questions at Plaintiff's subordinates instead of going though Plaintiff first, M. at ¶¶l 17-18. Some of the cited incidents rely only on selected portions of Plaintiff's testimony while ignoring other parts that give context. For example, Plaintiff complaiñs of receiving a "threatening call" work," that he "better not come to M. at ¶¶79-80, allegedly after he complained of a "penis decal" "his" on truck. The truck, however, was not assigned to Plaintiff-others drove it, se_e Defendants' out" Memo, pp.5-6 (incident 3)-and the call was to complain that Plaintiff "ratted his co-workers for sitting around the office and not working hard enough, i4 at p.6 (incident 4). 6 8 of 17 FILED: SUFFOLK COUNTY CLERK 12/03/2021 09:01 AM INDEX NO. 039764/2010 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/03/2021 As another example, Plaintiff complained that his supervisors ordered him to complete a supervisory course in 2010 even though he had taken one before he became MEMS 1 in 2006, id. at ¶¶l92-94; Demuth Aff., ¶6, but Plaintiff fails to advise that he never even took the course after Defendañts' being directed to do so. See Memo, p.11 (incideñt 30). Likewise, Plaintiff complained that he was not offered an early retirement incentive when he was out on leave, Opp. Affirm., ¶l98, but when asked, he testified that he believed he was ineligible for the incentive becãüse he