has prevented the plaintiff from learning of the existence of her cause of action (citation omitted) ... "or in which the plaintiff has relied on incorrect advice concerning the appropriate filing deadlines or the need to file at all." Donnelly-Keller v. H & R Block, Inc., 1992 U.S. Dist. LEXIS 13323, 1992 WL 218282 (N.D.N.Y. 1992). In the instant matter plaintiff has not presented the Court with any recognized justification to equitably toll the limitations period.
Plaintiff simply states that the plaintiff was unaware of the alleged discrimination until March of 1994 and, was not "fully" knowledgeable as to the extent of the wage disparity until engaging in discovery in this action. See Plaintiff's Memorandum Of Law In Opposition To Defendant's Motion To Dismiss, Point II at 7. Plaintiff then argues that as a result of those facts, the defense of the statute of limitations is unavailable to the defendant. Plaintiff points to no action on the part of the defendant that concealed knowledge of his rights, nor does he make a showing of any other factor than unawareness to support a claim that the filing period should be equitably tolled.
As the Court has already set forth, a critical event in the analysis of equitable tolling is the awareness of a claim on the part of the plaintiff, not whether all the facts obtainable in discovery have been made available. see Long, 22 F.3d at 58; see also, Dillman, 784 F.2d at 60. Accordingly, since the plaintiff was aware of his claim in March of 1994, the latest that the plaintiff could have filed a claim with the EEOC, assuming that he filed a claim with the appropriate state agency and counting from the last day in March, would be January 25, 1995.
Thus, since the plaintiff has not yet made any agency filing with respect to this claim, and since he may not make such a filing at this time, the plaintiff's claim pursuant to the ADA is dismissed. The Court need not address the issue of whether the plaintiff falls within the class of individuals covered under the ADA.
C. Plaintiff's Claim Under the Rehabilitation Act
The defendant concedes that the limitations period applicable to a claim brought under § 504 of the Rehabilitation Act is the state limitations period applicable to personal injury actions. See Morse v. Univ. of Vermont, 973 F.2d 122, 127 (2d Cir. 1992) (applying state statute of limitations since no limitations period set forth in the federal statute). The New York statute of limitations for personal injury actions is three years. N.Y. Civ. Prac. L & R § 214(5).
The defendant alleges that the plaintiff knew of the salary increases he received during the time periods relevant to this action. The defendant also alleges that the plaintiff complained to the then Dean at Albany Law School about those raises. The defendant argues that those facts show an awareness of his claim at some point well beyond the limitations period, such that the claim under the Rehabilitation Act should be dismissed.
The Court reiterates that on a summary judgment motion all inferences must be drawn in favor of the non-moving party. See Ramseur, 865 F.2d at 465; see also, Matsushita, 475 U.S. at 586. The defendant would have the Court infer that the expression of dissatisfaction at salary increases was due to a belief that such salary increments were affected by a discriminatory bias. However, the Court finds that a more reasonable inference is simple dissatisfaction. Based on the facts presented in this case, the plaintiff first learned of the alleged discriminatory animus of the defendant in March 1994. Accordingly, the claim under the Rehabilitation Act is timely.
2. Status Of The plaintiff
The Rehabilitation Act provides that "no otherwise qualified individual with a disability ... shall, solely by reason of his ... disability ... be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). In a suit brought under the Rehabilitation Act, the plaintiff "bears the initial burden of establishing a prima facie case under the Act. The burden then shifts to the employer. If the employer asserts a neutral reason, unrelated to plaintiff's handicap, for its employment decision, then its burden is to 'articulate a legitimate nondiscriminatory reason for'" the employment decision. Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 722 (2d Cir. 1994), cert. denied, 130 L. Ed. 2d 1063, 115 S. Ct. 1095 (1995) (citation omitted).
A make out a prima facie case of discrimination under the Act, the plaintiff must show: "1) [he] is a handicapped [or disabled] person under the Act; 2) [he] is otherwise qualified to perform her job; 3) [he] was discharged because of [his] handicap [or disability]; and 4) the employer is a recipient of Federal financial assistance." Id., (citations omitted). The claim must fail if the plaintiff is unable to establish a factual issue as to any of the elements. See Id.; see also, Sedor v. Frank, 42 F.3d 741, 746 (2d Cir. 1994), cert. denied, Sedor v. Runyon, 132 L. Ed. 2d 283, 115 S. Ct. 2279 (1995). The Court's discussion here is limited to the first element.
The Rehabilitation Act defines an "individual with a disability" to mean "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such impairment." 29 U.S.C. § 706(8)(B). Thus this Court first determines whether the plaintiff has, has a record of, or is perceived as having a physical or mental impairment. Then the Court must determine if the plaintiff has shown that such impairment "substantially limits" a major life activity.
a. Physical Impairment
The first area of inquiry when determining if the plaintiff is a disabled person under the Act is whether the plaintiff "has a physical or mental impairment." Sedor, 42 F.3d at 746. Following the lead of the Supreme Court in School Board of Nassau County v. Arline,4 this Circuit has looked to the Department of Health and Human Services regulations for guidance in determining whether a particular plaintiff is disabled within the meaning of the Rehabilitation Act. Heilweil, 32 F.3d at 718. The regulations define "physical impairment" broadly, as "(A) any physiological disorder or condition, ... or anatomical loss affecting one or more of the following body systems (list omitted) ... or (B) any mental or psychological disorder ..." 45 C.F.R. § 84.3(j)(2)(i); 45 C.F.R. § 605.3(j)(2)(i); 29 C.F.R. § 1630.2(h)(1)-(2).
The plaintiff suffered a stroke in January, 1983, which necessitated a medical leave of absence for a number of months. In addition, the plaintiff alleges that he lost all use of the left hand, arm, and leg, and walked with a limp. The Court finds that plaintiff had a physical impairment and/or record of a physical impairment such that the Court must now determine whether there is a material factual issue as to whether such impairment substantially limited a major life activity.
b. Major Life Activity
Under the Department of Health and Human Services regulations, "major life activity" is defined as "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 45 C.F.R. § 84.3(j)(2)(ii); 45 C.F.R. § 605.3(j)(2)(ii); 29 C.F.R. § 1630.2(h)(2)(i). The relevant "major life activity" at issue in this case is "working." The Equal Employment Provisions of the ADA define the term "substantially limits" with respect to working as "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(i).
Looking to the facts of this case, and even construing them in a light most favorable to the plaintiff, the Court can find no material factual issue as to whether the physical impairment of the plaintiff substantially affected the major life activity of working, such that he was significantly restricted in his ability to perform the class of job in which he was engaged, that of law professor. Most telling to the Court are the admissions contained in the complaint and the allegations of those submitting affidavits on the plaintiff's behalf. In particular, Rita Redlich, plaintiff's widow, states, in support of the plaintiff's ability to perform at work, that he was published in three law journals during the relevant time period. Moreover, the plaintiff himself admits in his complaint to teaching a full load of cases and participating in a number of positions relating to faculty governance.
Plaintiff even described his performance as superior during the relevant time period. The plaintiff also admits that there was no impairment of his ability to work as a law professor, after his rehabilitation, much less a substantial impairment. Thus, it is clear to the Court that the plaintiff has raised no material question of fact as to whether his physical impairment substantially affected a major life activity.
c. Regarded As Having An Impairment
Although not raised by the parties, the Court will consider whether there is a material factual issue as to whether the plaintiff was regarded by the defendant as having an impairment. A disabled person may be defined as one who "is regarded as having a [physical or mental] impairment." 45 C.F.R. § 84.3(j)(2)(iv); 45 C.F.R. § 605.3(j)(2)(iv); 29 C.F.R. § 1630.2(g)(3). The regulations define that phrase to mean having "a physical or mental impairment that does not substantially limit major life activities but is treated by [the employer] as constituting such limitation." 29 C.F.R. § 1630.2(l)(1).
There is no question that the defendant knew of the plaintiff's physical impairment. As set forth in the defendant's supporting affidavits, each Dean of Albany Law School stated that he was aware of the basic physical limitations of the plaintiff, i.e., left side impairment and walking with a limp. However, it is also clear that the defendant took no actions to accommodate any allegedly perceived physical impairment, other than to excuse the plaintiff from the graduation procession, and it is also clear that the plaintiff made no such requests.
The Supreme Court has interpreted the relevant language to this discussion to relate to situations where the employee's "impairment might not diminish a person's physical or mental capabilities, but could nevertheless substantially limit that person's ability to work as a result of the negative reactions of others." Arline, 480 U.S. 273, 283, 94 L. Ed. 2d 307, 107 S. Ct. 1123. The Court continued by explaining that it was the intent of Congress to bring within the scope of the statute actions taken based on "myths, fears, and stereotypes" associated with disabilities. Id. at 284. Any inference of such a motivation for allegedly wrongful employment decisions may be rebutted by the employer "articutat[ing] a non-discriminatory reason for the employment action." 29 C.F.R. § 1630 App. § 1630.2(l). This Court notes that "many impairments do not impact an individual's life to the degree that they constitute disabling impairments." 29 C.F.R. Pt. 1630 App. § 1630.2(j). Moreover, "an employer's belief that an employee is unable to perform one task with an adequate safety margin does not establish per se that the employer regards the employee as having a substantial limitation on his ability to work in general." Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993), cert. denied, 128 L. Ed. 2d 61, 114 S. Ct. 1386 (1994); see also, Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989); Forrisi v. Bowen, 794 F.2d 931, 935 (4th Cir. 1986). Finally, in the cases where a court found that an employer had regarded the employee as substantially limited in a major life activity, the pivotal event usually involved the termination of employment. See, e.g., Arline, 480 U.S. 273, 107 S. Ct. 1123, 94 L. Ed. 2d 307.
The defendant has articulated a valid non-discriminatory reason for its employment decisions regarding the incremental salary increases of the plaintiff. Each Dean followed a long-standing procedure. The Albany Law School Board of Trustees set the school's preliminary budget, which included a pool of money to be utilized for faculty salaries. The Dean then determined each faculty member's salary based on an assessment of factors. The factors were set forth in the Faculty Handbook, and included: merit, length of service, rank, seniority, regional living costs, inflation, salaries at comparable schools, and the ability of the institution to pay. Chief among the factors was merit, which included teaching, scholarship, and community service. The Deans who determined the plaintiff's salary during the relevant time period cited a need for better preparation for class, the employment of improved teaching techniques, weak student evaluations, inadequate community service involvement, and insufficient scholarship production. Deans Belsky and Baker ranked the plaintiff in the lower third of all faculty for each year, and his salary increases were in accordance with their assessment of the plaintiff.
Thus, the defendant has presented a reasonable non-discriminatory basis for the employment decisions taken with regard to the plaintiff. Accordingly, the plaintiff has failed to raise a material factual issue as to whether he was regarded by the defendant as substantially limited in a major life activity.
D. State Law Claims
The only remaining claims in this case are based on alleged violations of New York state law. This court may exercise jurisdiction over state law claims if, in its discretion, it decides to exercise supplemental jurisdiction. Pursuant to 28 U.S.C. § 1367(a), the exercise of supplemental jurisdiction is appropriate "in any civil action of which the district courts have original jurisdiction," and wherein the state claims "are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367(a) (1990 & Supp.). A district court, however, "may decline to exercise supplemental jurisdiction over a claim..." for any one of four enumerated exceptions set forth in the statute. 28 U.S.C. § 1367(c).
The relevant exception to the exercise of supplemental jurisdiction in this case is that this court "has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). Thus, since all the federal claims have been dismissed, this court declines to exercise supplemental jurisdiction over the remaining state law claims, and dismisses those claims, without reaching the merits, for lack of subject matter jurisdiction.
In sum, the Court GRANTS defendant's motion for summary judgment as to the claims brought pursuant to the ADA and the Rehabilitation Act, and the Court declines to exercise supplemental jurisdiction as to the plaintiff's state law claims.
IT IS SO ORDERED.
Dated at Binghamton, New York
Oct. 1, 1995
Thomas J. McAvoy
Chief U.S. District Judge