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MOHAMED v. MARRIOTT INT'L

October 30, 1996

AHMED MOHAMED, Plaintiff, against MARRIOTT INTERNATIONAL, INC. and MARRIOTT CORP., Defendants.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 Defendants Marriott International, Inc., and Marriott Corporation (collectively, "Marriott") have moved for summary judgment, pursuant to Fed. R. Civ. P. 56, to dismiss the complaint of Plaintiff Ahmed Mohamed ("Mohamed") under the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. (Supp. V 1993), ("ADA") and the New York State Human Rights Law, N.Y. Executive Law § 290 et seq. (McKinney 1993) on the grounds that Mohamed should be judicially estopped from asserting an ADA claim because of his application to the Social Security Administration ("SSA") for Social Security Disability Insurance Benefits ("SSDI") under the Social Security Act, 42 U.S.C. §§ 423 et seq. (1994).

 For the reasons set forth below, the motion is denied and the action will proceed to trial on November 17, 1996 or as soon thereafter as possible.

 Prior Proceedings

 On April 1, 1994, Mohamed filed the original complaint in this action, alleging that his discharge by Marriott violated, inter alia, the ADA and state human rights statutes.

 Motions directed to the pleadings and for summary judgment were determined by the prior opinions of the Court, familiarity with which is assumed. See Mohamed v. Marriott International, Inc., 905 F. Supp. 141 (S.D.N.Y. 1995); Mohamed v. Marriott International, Inc., 1996 U.S. Dist. LEXIS 2788, No. 94 Civ. 2336, 1996 WL 103838 (S.D.N.Y. March 8, 1996). In denying Marriott's prior motion for summary judgment, this Court determined that there were genuine issues of material fact on the question of whether Mohamed was "a qualified individual with a disability." 905 F. Supp. at 150-51.

 Since the resolution of the prior substantive motions, discovery has proceeded, and a trial date was set.

 On July 12, 1996, Marriott filed the instant motion. Oral argument was heard on October 9, 1996, and submissions were received by the Court until October 21, 1996, at which time the matter was deemed fully submitted.

 The Parties

 Mohamed was born in Egypt, came to the United States in 1985, and is now a resident of New York City. He is profoundly deaf and lacks the power of intelligible speech. Mohamed's primary mode of communication is American Sign Language (ASL). He can read English at a level sufficient to comprehend magazines and employment advertisements in newspapers. He can write using English vocabulary and ASL grammar and syntax in a manner somewhat intelligible to English readers, particularly those accustomed to reading Mohamed's written English.

 Defendant Marriott International, Inc., is a Delaware corporation licensed to do business in the State of New York. Defendant Marriott Corporation was a Delaware corporation licensed to do business in New York through October 7, 1994. Marriott International operates the Marriott Marquis (the "Hotel"), a hotel at 1535 Broadway in New York City formerly managed by Marriott Corporation.

 Facts

 In deciding a motion for summary judgment, "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Cronin v. Aetna Life Ins. Co., 46 F.3d 196 (2d Cir. 1995); Chambers v. TRM Copy Centers Corp., 43 F.3d 29 (2d Cir. 1994); Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (Brennan, J., dissenting). The facts as presented here are construed accordingly, and they are limited to this motion.

 A complete recitation of the facts may be found in the Court's opinion of October 24, 1995. Mohamed v. Marriott International, Inc., 905 F. Supp. at 146-48. A brief synopsis of facts relevant to this motion is set forth below.

 Mohamed began working for Marriott on April 6, 1988. After working as a steward and subsequently in the housekeeping department, Mohamed transferred to the engineering department. On October 1, 1993, Marriott accused Mohamed of taking property of a Hotel customer, in violation of company policies relating to property found on Hotel premises. Mohammed was initially interrogated with the assistance of a Marriott employee who understood some ASL. Later that day, he was granted a hearing with a qualified ASL interpreter and discharged by Marriott. The conduct of the pre-termination proceedings gave rise to Mohamed's ADA claim of failure to provide reasonable accommodations.

 On July 22, 1994, Mohamed applied for SSDI benefits. He signed a computer generated form that included the statement: "I became unable to work because of my disabling condition on October 01, 1993." In his application, Mohamed stated that his disability was "Total Deafness." In response to an item on the SSDI application ...


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