The opinion of the court was delivered by: STEIN
SIDNEY H. STEIN, District Judge.
Sabrina Aquinas, originally represented by counsel but now proceeding pro se, brought this discrimination suit against her former employer, Federal Express Corporation ("FedEx"). Aquinas claims that she was harassed and fired by FedEx because she suffers from a physical disability. She asserts seven causes of action, pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), the New York Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYHRL"), and for breach of contract. Defendant has moved for summary judgment dismissing the complaint pursuant to Fed. R. Civ. P. 56(b). For the reasons set forth below, defendant's motion is granted and the complaint is dismissed.
The facts are not in dispute. Sabrina Aquinas was hired by FedEx as a Customer Service Agent in the fall of 1986, and remained a FedEx employee until she was dismissed six and one half years later. (Amended Complaint at 1.) Approximately one year after Aquinas was hired, her superiors at FedEx became concerned about the frequency of her absences from work. In late 1987 and early 1988 she was "given verbal counselling" about her absenteeism (Def. 3(g) Stmt. at P 6), and in the fall of 1988 she received two written warnings stating her attendance was below the company's minimum acceptable rate. (Pl. Dep. Exh. 8.) In 1989, she sustained an injury on the job, for which she took a four-month medical leave of absence (Def. 3(g) Stmt. at P 12); following her return to work she took off twelve and one-half sick days over an eight-month period. (Pl. Dep. Exh.8) As a result of her absences, Aquinas received a letter from her supervisor at FedEx on April 26, 1990, citing her "excessive absenteeism" and warning her to improve her attendance. (Pl. Dep. Exh.8.) She protested on the ground that, with only a few exceptions, "the days out were due to [the] on-job injury" suffered in 1989 and therefore should not be counted against her. (Id.)
In the summer of 1990, Aquinas was again injured on the job when "one male employee picked her up and physically tossed her to another male employee." (Amended Complaint at 3; Pl. Dep. Tr. at 187-190). She subsequently was diagnosed with "post-traumatic fibrositis/fibromyalgia," the condition that underlies her claim in this litigation. (Vallarino Dep. Exh. 3; Pl. Dep. Tr. at 332-33.) She sought and received payment for this impairment pursuant to the New York workers' compensation program, and was unable to return to work during much of 1990 and most of early 1991. These absences were not counted against her attendance record. (Def. 3(g) Stmt. at P 28.)
Aquinas resumed her job in July of 1991, after being released by her doctor "with no medical restrictions of any kind." (Def. 3(g) Stmt. at P 29.) During the following year, however, she "resumed her previous pattern" of absences, for which she received a written warning in February, 1992. (Def. Mem. of Law at 5-6.) In a performance review on October 10, 1992, FedEx notified Aquinas that she was again below the company minimum, and gave her its "lowest possible rating" for attendance. (Def. 3(g) Stmt. at P 38.) When she protested that many of her absences were related to her shoulder injury, FedEx agreed to amend her score but stressed that all future sick days would be counted against her. (Pl. Dep. Exh. 10; Def. 3(g) Stmt. at P 42.)
Under FedEx's disciplinary policy, employees may be terminated if they receive three written performance reminders within a six-month period. (Def. Notice of Motion at Exh. F.) Aquinas did receive three such notices: the first followed an unscheduled absence in December 1992 (Pl. Dep. Exh. 8 - letter dated Dec. 12, 1992); the second was issued after Aquinas took a series of sick days in late January, 1993 (Pl. Dep. Exh. 8 - letter dated February 3, 1993); and the third and final reminder came after she took two sick days in early April. (Pl. Dep. Exh. 9 - letter dated April 13, 1993.) On April 13, 1993, FedEx Operations Manager Sally Maher fired Aquinas, citing general company policy. (Def. 3(g) Stmt. at P 55.)
Aquinas subsequently filed a charge with the Equal Employment Opportunity Commission alleging unlawful discrimination by FedEx on the basis of her shoulder impairment. (Amended Complaint at 1.) After the EEOC issued a Right to Sue letter on January 24, 1994, Aquinas brought this lawsuit seeking reinstatement, compensatory and punitive damages, and costs. (Amended Complaint at 12-13.) Her complaint alleges that FedEx failed reasonably to accommodate her disability in violation of both the ADA and the NYHRL; that FedEx harassed her and required her to take a postemployment medical examination in violation of both the ADA and the NYHRL; that FedEx wrongfully terminated her because of her disability in violation of both the ADA and the NYHRL; and that FedEx breached its contractual obligations to her by violating the terms of its employee handbook. (Amended Complaint at 5-11.)
FedEx has now moved for summary judgment on several grounds. It argues first that Aquinas is not entitled to sue under the ADA or the NYHRL because she is not "disabled." (Def. Mem. of Law at 10-15.) In addition, FedEx contends that Aquinas is not a "qualified individual" under the ADA, because she has not shown that she can perform the essential functions of her job, with or without a reasonable accommodation. (Def. Mem. of Law at 15-19.) Finally, with respect to the breach of contract claim, FedEx argues that its right to dismiss Aquinas at will was not limited by the policies contained in its employee handbook, and that in any event such policies were fully complied with in this case. (Def. Mem. of Law at 19-21.)
Summary judgment may be granted "only when the moving party demonstrates that 'there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quoting Fed. R. Civ. P. 56(c)); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when 'no reasonable trier of fact could find in favor of the nonmoving party.'" Allen, 64 F.3d at 79 (citations omitted) (quoting Lund's, Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d Cir. 1989)).
No material facts are at issue here. Even granting Aquinas the leeway to which pro se plaintiffs are entitled (see Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972)), no reasonable trier of fact could find in her favor. The evidence presented in this case does not qualify plaintiff for ADA or NYHRL protections, nor does it establish that FedEx was contractually precluded by the terms of its employee handbook from ...