sitting. After climbing stairs, raking leaves, doing housework or walking more than five city blocks she is out of breath and must stop and rest. While it is reasonable to conclude from this evidence that plaintiff's obesity affects her ability to engage in everyday activities, these allegations are not sufficient to support the conclusion that her weight substantially limits a major life activity.
Two other district courts which have considered this issue on summary judgment have reached the same conclusion under similar circumstances. In Nedder v. Rivier College, 944 F. Supp. 111, 115-118 (D.N.H. 1996), Nedder, who was 5'6" tall and weighed 380 pounds, claimed that she was fired from her position as an assistant professor because she was obese. In support of her claim that obesity was a disability under the ADA, Nedder argued that her morbid obesity substantially limited her ability to walk. Id. Like Hazeldine, Nedder could not walk long distances and was unable to walk at the same pace as an average person. Id. In addition, Nedder's physician testified at a deposition that Nedder could only engage in physical activity such as housework, shopping, walking, bending and getting in and out of a car with considerable exertion; he classified her as fifty percent disabled. Id. After reviewing this evidence, the court granted summary judgment to the defendants, concluding that Nedder was not substantially limited in the character or degree required to invoke the protection of the ADA. Id.
Similarly, in Stone v. Entergy Services, Inc., 1995 U.S. Dist. LEXIS 8834, 1995 WL 368473, * 2 (E.D. La. 1995), Stone, who had a physical impairment resulting from polio, alleged that he was terminated in violation of the ADA. Similar to Hazeldine, Stone alleged that his impairment substantially limited his ability to engage in various physical activities: he had limited endurance; he had to stop and rest after climbing stairs; he was unable to run; he had limited motion in his body and difficulty bending; and walked significantly more slowly than the average person. Id. at *3. After reviewing this evidence, the court granted the defendant summary judgment, concluding that plaintiff was not substantially limited or significantly restricted. Id. at *4. See also Kelly v. Drexel University, 94 F.3d 102 (3d Cir. 1996) (affirming summary judgment for defendants and holding that plaintiff was not disabled despite evidence he could not jog or walk long distances and had difficulty climbing stairs).
There is no principled difference between the limitations alleged by Hazeldine and those alleged by the plaintiffs in Nedder and Stone. To begin with, Hazeldine's own deposition testimony establishes that her weight condition did not prevent her from carrying out normal physical activities. It is also clear that plaintiff's ability to engage in physical activity was sufficient at the time of her discharge to allow her to carry on her daily life: commuting to work everyday, shopping for herself, caring for herself, and completing household tasks, albeit with some difficulty. At most, plaintiff must pace herself when engaging in such physical activity by stopping and resting after five city blocks or twenty minutes of exertion; but this degree of limitation is far from the "substantial" or "significant" restriction contemplated by the ADA as constituting the rare circumstances in which obesity should be considered a disabling impairment.
Plaintiff's inability to kneel, bend or lift heavy objects does not alter this conclusion. Cf. Nedder, 944 F. Supp. at 117 (plaintiff's inability to bend without considerable exertion does not render her substantially limited); Williams v. Channel Master Satellite Systems, Inc., 101 F.3d 346, 349 (4th Cir. 1996) (affirming summary judgment for defendant and holding as a matter of law that twenty-five pound lifting restriction is not a significant restriction on any major life activity); Howard v. Navistar Int'l Transportation Corp., 904 F. Supp. 922 (E.D. Wis. 1995) (granting summary judgment to defendant because plaintiff's inability to lift over fifteen to twenty pounds is not a substantial limitation on a major life activity). Accordingly, plaintiff has failed to show that her obesity substantially limits one or more major life activities.
In the alternative, plaintiff argues that her obesity is a "cosmetic disfigurement" such that she need not prove that her condition substantially limits a major life activity in order for her to be considered disabled under the ADA. Plaintiff bases this argument on School Board of Nassau County v. Arline, 480 U.S. 273, 283, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987). However, plaintiff's attempt to equate obesity with a cosmetic disfigurement is nothing more than a resurrection of her previously withdrawn claim that she was terminated because defendant "regarded" her as disabled.
Under the ADA, the term "disability" means not only "a physical or mental impairment that substantially limits one or more of the major life activities" of an individual, but also "being regarded as having such an impairment." 42 U.S.C. § 12102(2). Thus, Hazeldine is correct that an individual can be disabled under the ADA even if he or she has an impairment that does not substantially limit any major life activity, such as a cosmetic disfigurement. See 29 C.F.R. § 1630.2(1). As the Supreme Court explained in Arline, "disability" in this situation results from the negative myths or stereotypes of others; an employer may regard a perfectly able individual with a visible physical impairment as substantially limited in the ability to work. 480 U.S. at 283; see also 42 U.S.C. § 12101(2)(C); 29 C.F.R. § 1630.2(1). For an individual to be substantially limited in the ability to work, an employer must consider "the employee's impairment to foreclose generally the type of employment involved." Forrisi v. Bowen, 794 F.2d 931, 935 (4th Cir. 1986).
However, Hazeldine has not presented any evidence that Beverage Media regarded her as disabled, or substantially limited in her ability to work, as a result of her obesity. Cf. Cook, 10 F.3d at 25-26 (holding that jury could have rationally concluded that defendant regarded plaintiff as disabled where evidence showed that defendant believed plaintiff's obesity foreclosed a broad range of employment options); Nedder, 944 F. Supp. 111 at 119-20 (holding that a trier of fact could find that employer regarded obese plaintiff as substantially limited in ability to teach based on evidence that employer believed students perceive obese teachers as less disciplined and less intelligent); Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 624 A.2d 1122 (Vt. 1992) (employer regarded plaintiff with cosmetic disfigurement as substantially limited since employer viewed plaintiff as unfit to work in any position involving customer contact). Hazeldine's testimony that Slone told her she could work harder if she lost weight is not sufficient evidence for a reasonable jury to conclude that Beverage Media regarded her as substantially limited in her ability to work. In addition, Hazeldine has produced no evidence, other than conclusory allegations, that Beverage Media thought she was unfit to work in a position involving customer contact.
In sum, Hazeldine has not presented sufficient evidence for a reasonable jury to find that she is disabled under the ADA, either because her obesity substantially limits a major life activity or because Beverage Media regarded her as disabled. Because she has not established this threshold element of her prima facie case, I need not address the second issue presented by the parties, that is, whether her obesity was the reason for her discharge. See Celotex Corp., 477 U.S. at 323 ("[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."). Accordingly, Beverage Media' summary judgment motion is granted with respect to Count One of plaintiff's complaint.
2. Disability Discrimination under State Law
Plaintiff also asserts that her termination violated New York State Human Rights Law and the Administrative Code of the City of New York. Defendant again argues that both causes of action should be dismissed because plaintiff is not disabled within the meaning of these statutes and cannot prove that she was terminated because of her weight. In response, plaintiff points out that the definition of "disability" under state law is broader than federal law, such that even if the Court determined that she was not disabled within the meaning of the ADA, her state claims are not foreclosed. In addition, plaintiff argues that she has presented enough evidence to support a jury finding that defendant's articulated reasons for her termination were false and that the real reason was her obesity.
Obesity as a Disability under State Law
Under New York State law, an employer is prohibited from discharging an individual because of that individual's disability. N.Y. Exec. Law § 296 (McKinney's Supp. 1997); see also New York Admin. Code § 8-106. "Disability" is further defined as
a physical mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques.
N.Y. Exec. Law § 292(21) (McKinney's Supp. 1997) (emphasis added). Under the New York City Administrative Code, the term "disability" means any "physical, medical, mental, psychological impairment, or a history or record of such impairment." New York Admin. Code § 8-102(16).
Thus, an individual can be disabled under the Executive law if his or her impairment is demonstrable by medically accepted techniques; it is not required that the impairment substantially limit that individual's normal activities. Similarly, under the Administrative Code an individual's impairment need not substantially limit a major life activity, prevent a normal bodily function or even be demonstrable by medically accepted techniques. Compare New York Admin. Code § 8-102(16) with 42 U.S.C. § 12102(2) and N.Y. Exec. Law § 292(21). It is enough that the condition impairs any body system. These definitions are substantially broader than the definition of "disability" under the ADA.
In State Division of Human Rights v. Xerox Corp., 65 N.Y.2d 213, 491 N.Y.S.2d 106, 109, 480 N.E.2d 695 (1985), the New York Court of Appeals emphasized the broad reach of the Executive Law:
[Xerox] urges that the determination [of the Human Rights Commissioner] is not supported by substantial evidence because there is no evidence that [plaintiff's] condition presently places any restrictions on her physical or mental abilities.  These arguments might have some force under typical disability or handicap statutes narrowly defining the terms in the ordinary sense to include only physical or mental conditions which limit the ability to perform certain activities (see, e.g., 29 U.S.C. § 706 [now 7], defining a "handicapped individual" as a person who "has a physical or mental impairment which substantially limits one or more of such person's major life activities"). However in New York, the term "disability" is more broadly defined.