times, unacceptable under existing company standards. (Pl. Tr. at 306.) The only remaining question is whether Aquinas can show that she would have been able to achieve an acceptable attendance rate with some reasonable accommodation by FedEx. "Showing that an accommodation is available that would allow the plaintiff to perform the essential functions of her job is an element of the plaintiff's case." Borkowski v. Valley Central School Dist., 63 F.3d 131, 141 (2d Cir. 1995) (discussing identical standards under the Rehabilitation Act). She must present "at least a facial showing," Misek-Falkoff, 854 F. Supp. at 228, that some "effective accommodation exists that would render her otherwise qualified." Borkowski, 63 F.3d at 139.
Aquinas attempts to meet this burden by claiming that FedEx could have provided her with a more flexible work schedule or computed her attendance rate without counting injury-related sick days. (Amended Complaint at 4-5.) As a matter of law, this proposal is not a "reasonable accommodation." Although reasonableness is normally a question of fact, summary judgment may be granted in cases where, as here, the plaintiff's proposed accommodation "would eliminate the essential functions of the job." Borkowski, 63 F.3d at 141. Aquinas's proposal, which amounts to a request for permission to work only when her illness permits, necessarily undermines the policy of regular attendance that is essential to her job. The Court of Appeals for the District of Columbia Circuit considered a similar proposal under the Rehabilitation Act and held that "to require [a government] employer to accept an open-ended 'work when able' schedule for a time-sensitive job would stretch 'reasonable accommodation' to absurd proportions." Carr v. Reno, 306 U.S. App. D.C. 217, 23 F.3d 525, 531 (D.C. Cir. 1994). The same reasoning applies to the private-sector defendant in this case.
In sum, a disabled employee who cannot get to work as often as her employer requires is not "otherwise qualified" for her job under the ADA, and her employer is not required to make allowances for her absenteeism. Kotlowski, 922 F. Supp. at 797; Teahan v. Metro-North Commuter Railroad Co., 80 F.3d 50, 53 (2d. Cir. 1996); Carr v. Reno, 23 F.3d at 530. In view of this principle, Aquinas is legally precluded from claiming the protections of the ADA, and FedEx is entitled to summary judgment on plaintiff's ADA claims.
B. Plaintiff's Claims under New York Law
Because plaintiff's federal claims are being dismissed, the question of whether this Court should exercise its supplemental jurisdiction over plaintiff's state claims is left to the Court's discretion. 28 U.S.C. § 1367(c)(3) (Supp. V 1993); Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994). Here, judicial economy and the close relationship between the federal and state claims warrant retention of jurisdiction over all causes of action. Accordingly, the remaining question is whether summary judgment should be granted to defendant in regard to plaintiff's state claims.
1. Plaintiff's claims under the NYHRL
Aquinas's claims under the New York Human Rights Law essentially mirror her ADA claims, and they fail as a matter of law for the same fundamental reason: plaintiff is not "disabled" within the meaning of the statute. The NYHRL states in relevant part that it shall be an "unlawful discriminatory practice" for an employer, because of the disability of any individual, to "discharge from employment such individual or to discriminate against such individual ... in terms, conditions or privileges of employment." N.Y. Exec. Law § 296(1)(a). The term "disability" is defined as "a physical, mental or medical impairment ... which prevents the exercise of a normal bodily function" and which does not "prevent the complainant from performing in a reasonable manner the activities involved in [her] job or occupation ..." N.Y. Exec. Law § 292(21).
To the extent that this definition of "disability" differs from that under the ADA, it is the more restrictive of the two. It requires "prevention," i.e. complete rather than substantial impairment, of a "normal bodily function," rather than a major life activity. Sweet at *9. As discussed above, Aquinas does not suffer from a substantial impairment of a major life activity; for the same reasons, her fibromyalgia does not prevent the exercise of any "normal bodily function." Her condition limits her endurance for physical labor, but it does not prevent her from working. Accordingly, FedEx is entitled to summary judgment on Aquinas's NYHRL claims.
2. Plaintiff's Claim for Breach of Contract
Aquinas also claims that defendant breached its contract with her by failing to follow the policies contained in its employee handbook. In particular, she alleges that FedEx applied its disciplinary procedures differently to her than to similar, non-disabled employees, in violation of its stated policies against discrimination. (Amended Complaint at 11; Pl. Dep. Tr. at 301, 306.) Presumably she intends to argue that this unequal treatment rendered her termination wrongful under the terms of her employment agreement with FedEx. (See Plaintiff's Response to Motion at P 8.) It is not necessary to reach the merits of this contention, however, because Aquinas has failed to show that the employee handbook constitutes a binding contract.
Pursuant to New York law, an employer retains its traditional right to terminate any employment arrangement at will, unless that right is limited by statute or by contractual provision. Murphy v. American Home Products Corp., 58 N.Y.2d 293, 305, 461 N.Y.S.2d 232, 237, 448 N.E.2d 86, 91 (1983). Aquinas's original employment contract contains no such limiting clause; to the contrary, it provides that her employment "shall be for an indefinite period and may be terminated at any time." (Pl. Dep. Exh. 6 - final page.) Nor has Aquinas presented any evidence to support her claim that the terms of her employment handbook altered her at-will relationship with FedEx. In the first place, she has pointed to no "express limitation" in the manual, see Murphy, at 304; but even if the handbook policies that she has cited are liberally construed to be limiting provisions, they cannot contractually bind FedEx, as a matter of law, in the absence of substantial evidence that FedEx intended to limit its rights and that Aquinas actually relied on the contents of the handbook at the time she was hired. Weiner v. McGraw-Hill, Inc. 57 N.Y.2d 458, 464, 457 N.Y.S.2d 193, 197, 443 N.E.2d 441, 445 (1983); Wexler v. Newsweek, Inc., 109 A.D.2d 714, 487 N.Y.S.2d 330; Skelly v. Visiting Nurses' Ass'n of Capital Regions, Inc., 210 A.D.2d 683, 619 N.Y.S.2d 879 (3d Dept. 1994). Because Aquinas has not met these evidentiary burdens, defendant is entitled to summary judgment on plaintiff's claim of breach of contract.
For the foregoing reasons, defendant's motion for summary judgment is granted and the Clerk of Court is directed to dismiss the complaint with prejudice.
DATED: New York, New York
September 26, 1996
Sidney H. Stein, U.S.D.J.
© 1992-2004 VersusLaw Inc.