of said action with prejudice. See McIntosh Aff. P 27.
On September 20, 1993, plaintiff notarized an administrative charge in the office of the New York City Commission on Human Rights alleging disability discrimination against the defendant. See id. P 37, Ex. F. The New York City Commission on Human Rights did not mark this charge as filed until October 19, 1993, and then waived this charge to the Equal Employment Opportunity Commission ["EEOC"] pursuant to its contract agreement with the EEOC governing cases "when the last date of allegation and the date of notarization are between 240-300 days old." McIntosh Aff. Ex. G (correspondence from New York City Commission on Human Rights to EEOC, dated Dec. 17, 1993). In this regard, the Court notes that the date of notarization of September 20, 1993 is 273 days after the date that plaintiff was informed that her employment had been terminated (i.e., December 21, 1992), while the date of filing of October 19, 1993 is 302 days after such date. Following the EEOC's issuance of a right-to-sue letter, plaintiff commenced this action.
Pending before the Court is defendant's motion to dismiss plaintiff's complaint, or in the alternative for summary judgment. Because plaintiff has not objected to the treatment of the instant motion as one for summary judgment, and moreover has proffered her own affidavits in opposition to defendant's application, the Court will regard defendant's motion as seeking summary judgment. In addition, plaintiff has not requested a continuance for further discovery, pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, as a basis to deny defendant's application.
Defendant sets forth three separate arguments in support of its motion for summary judgment. First, defendant contends that there is no issue of fact concerning the plaintiff's failure to comply with the statutory requirements governing the timely filing of an ADA claim with the EEOC. Second, defendant argues that plaintiff fails to make out a prima facie case under the ADA because she has not presented any evidence to establish that her hypertension was more than a transitory condition. Finally, defendant asserts that even assuming that plaintiff succeeds in establishing a prima facie case under the ADA, plaintiff fails to raise a triable issue of fact that the hospital's reason for terminating her employment was pretextual.
On June 18, 1996, counsel for both parties appeared for oral argument. At oral argument, plaintiff's counsel conceded that there was no proof in the record that plaintiff's condition of hypertension existed for a substantial period of time. The Court thereupon instructed plaintiff's counsel to submit medical evidence of plaintiff's alleged disability by July 3, 1996.
On July 1, 1996, plaintiff filed an affidavit of her treating physician, S.N. Sinha, M.D. In his affidavit, Dr. Sinha testifies "that from November 23, 1992, to March 1993 Ms. McIntosh [had] uncontrolled hypertension," Sinha Aff. P 3, during which period "her blood pressure was elevated but fluctuating." Id. P 4. According to Dr. Sinha, plaintiff's blood pressure presently is "elevated but is somewhat under control." Id. P 5. Dr. Sinha's affidavit, however, does not address what restrictions, if any, plaintiff's hypertension placed upon her ability to work. Furthermore, Dr. Sinha does not contradict his prior doctor's notes which stated that as of December 7, 1992 and December 21, 1992 respectively, plaintiff had recovered sufficiently from her hypertension to enable her to return to work without any restrictions. See McIntosh Aff. Exs. B, C.
I. Standards Governing Motion for Summary Judgment
Under the law of the Second Circuit, a district court must weigh the following considerations in evaluating whether to grant a motion for summary judgment with respect to a particular claim:
First, summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed. R. Civ. P. 56(c). Second, the burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists. In considering that, third, all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. Fourth, the moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper. . . . Finally, the trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.
Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (internal case citations omitted). In evaluating the above considerations, a court must be mindful of whether the purported factual dispute is material, because "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
II. Timeliness of Plaintiff's Charge Filed with the EEOC
Defendant contends that summary judgment should be granted dismissing this action because plaintiff failed to file a timely charge of discrimination with the EEOC.
The enforcement provisions of Title VII of the Civil Rights Act of 1964, as amended, are applicable to actions brought under the ADA. See 42 U.S.C. § 12117(a); Bent v. Mount Sinai Medical Center, 882 F. Supp. 353, 355 (S.D.N.Y. 1995). Under the ADA, a plaintiff in a "deferral state" such as New York, as a prerequisite to suit, must file a charge of discrimination with the EEOC "within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier. . . ." 42 U.S.C. § 2000e-5(e)(1) (emphasis added). In addition, no charge may be filed with the EEOC "before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated . . . ." 42 U.S.C. § 2000e-5(c).
The defendant asserts that plaintiff filed her administrative charge with the EEOC at least two days too late, and argues that the plaintiff's notarization of her administrative charge before the New York City Commission on Human Rights prior to the expiration of the 300-day limitations period is irrelevant under the statutory scheme. The Court disagrees with the defendant's contention. Although the 300-day requirement is a statutory prerequisite to suit which generally may not be avoided absent misleading conduct on the part of the defendant, see Crossman v. Crosson, 905 F. Supp. 90, 93-94 (E.D.N.Y. 1995), aff'd, 1996 U.S. App. LEXIS 11339, No. 95-9215, 1996 WL 280096 (2d Cir. May 15, 1996), plaintiff has made a sufficient showing of compliance with this statutory requirement for purposes of the present motion for summary judgment. Specifically, the New York City Commission on Human Rights, in a letter to the EEOC dated December 17, 1993, itself acknowledged that pursuant to a contract agreement with the EEOC, plaintiff's charge was timely filed because the date that plaintiff notarized her administrative complaint before the New York City Commission on Human Rights (i.e., September 20, 1993) was less than 300 days after the date of the alleged discriminatory conduct. Construing this correspondence as a waiver of jurisdiction to the EEOC retroactive to the date of notarization,
it follows that a genuine issue of fact is presented as to whether plaintiff timely filed her administrative charge with the EEOC. Accordingly, defendant's contention that summary judgment should be granted on the ground that plaintiff failed to file a timely charge with the EEOC is rejected.
III. Establishment of a Disability within the Meaning of the ADA
The defendant next contends that plaintiff's ADA claim must be dismissed because the record does not establish that plaintiff's high blood pressure substantially limited one or more of her major life activities so as to constitute a disability within the purview of the ADA. Specifically, defendant asserts that the record fails to disclose that the plaintiff's episode of high blood pressure was anything more than a transitory condition brought about by the excitement of the incident that occurred on November 21, 1992, and directs the Court's attention to plaintiff's own affidavit which shows that, just a few weeks later, she was able to return to work without any restrictions. In response to defendant's contention, the plaintiff principally asserts that because Brookdale Hospital was on notice, as a result of its own tests upon the plaintiff, that plaintiff's blood pressure was elevated during the one-month period that preceded her termination, a reasonable jury could find that plaintiff was terminated, at least in part, because the hospital regarded her as having a disability within the meaning of the ADA.
The ADA provides that "no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . discharge of employees . . . ." 42 U.S.C. § 12112(a). The term "discriminate" is defined to include, inter alia, "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an . . . employee . . . ." 42 U.S.C. § 12112(b)(5)(A).
In order to make out a prima facie case of discriminatory discharge under the ADA, a plaintiff must produce some evidence tending to establish: (a) that she has a "disability" within the meaning of the ADA; (b) that with or without reasonable accommodation, she can perform the essential functions of the employment position that she holds (i.e., that she is a "qualified individual with a disability" under 42 U.S.C. § 12111(8)); and (c) that she has been discharged from her employment because of the disability or because of the need to make reasonable accommodation for such disability. See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1318 (8th Cir. 1996); see also Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994) (case under Rehabilitation Act, 29 U.S.C. § 701 et seq.),
cert. denied, 130 L. Ed. 2d 1063, 115 S. Ct. 1095 (1995).
Of central concern to the case at bar is the ADA's definition of the term "disability." Under the ADA, a person can meet this threshold requirement by showing either that she has (A) "a physical or mental impairment that substantially limits one or more of [her] major life activities;" or (B) that she has "a record of such an impairment;" or (C) that she is "regarded as having such an impairment." 42 U.S.C. § 12102(2). In the instant case, plaintiff asserts that she has presented triable issues of fact with respect to the first and third categories of disability set forth in 42 U.S.C. § 12102(2).
The Court will address each of these categories in turn.
A. Physical or Mental Impairment That Substantially Limits One or More Major Life Activities
At the outset, the Court notes that the record supports the inference that plaintiff had a physical impairment, i.e., hypertension, and that the phrase "major life activities" is defined in the ADA Regulations to include "working." 29 C.F.R. § 1630.2(i). Accordingly, the issue before the Court with respect to this prong of the disability analysis crystallizes to whether a reasonable jury could find that plaintiff's hypertension substantially limited her ability to work. See 42 U.S.C. § 12102(2).
As interpreted in the ADA Regulations, an impairment "substantially limits" a major life activity when a person is:
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.