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April 15, 1997

STEPHEN HENDLER, Plaintiff, against INTELECOM USA, INC., Defendant.

The opinion of the court was delivered by: SEYBERT

 SEYBERT, District Judge:

 The instant action was commenced by plaintiff Stephen Hendler claiming that defendant Intelecom U.S., Inc. ("Intelecom") unlawfully discriminated and retaliated against him because of his disability, in violation of both the Americans with Disabilities Act ("ADA") and the New York Human Rights Law. Pending before the Court is Intelecom's motion for summary judgment. For the reasons set forth below, the Court denies in part and grants in part Intelecom's motion.


 The following facts are not in dispute.

 Plaintiff Stephen Hendler ("Hendler") was diagnosed with asthma at age five and has been under treatment ever since that time. Clifford Aff. P 3. His asthma has and continues to restrict his ability to breathe normally. Hendler is required to take several prescription medications to control his asthma, including Beclovent, Ventolin, Azmacort, Serevent and Prednisone. Moreover, the condition is worsened by exposure to second-hand smoke, especially prolonged exposure, which results in difficulty in breathing and increased need for asthma medication. Hendler Aff. P 1, 4-5, 8-9. Despite this condition, with medication, Hendler is able to lead "a normal life style" and to exercise regularly on a Nordic Track. Deft's 3(g) Stmt. P B; Hendler Dep. at 129, 266-68. In addition, Hendler was able to hike at most two or three miles while at Intelecom. Deft's 3(g) Stmt. P B; Hendler Dep. at 267-68.

 Intelecom is a New York corporation with its principal place of business in Ronkonkoma and a former principal place of business in Medford, New York. The company was started in 1993 by William Mich, the company's president and co-owner with his wife, Kathleen Mich. At the time Hendler was interviewed for his position at Intelecom, he informed William Mich, President of Intelecom, that he suffered from severe asthma and that he would have to have a smoke-free environment. Mich then hired Hendler on July 29, 1994 as Senior Vice President of Marketing and assured him that he would have a smoke-free environment. Hendler Aff. P 8, 11. Hendler started his job on September 1, 1994 at a salary of $ 120,000/year. Deft's 3(g) Stmt. P II.A.

 Once at Intelecom, Hendler was given his own office with a door between him and other workers, a door to the outside and a window. Deft's 3(g) Stmt. P B. The outside door, however, was always locked and Hendler was told by a co-worker that he was not supposed to open it. Hendler Dep. at 212.

 Hendler saw his treating physician, Dr. Eileen Korpi, only once during his time at Intelecom. Deft's 3(g) Stmt. P B; Korpi Aff. at 2. In March, 1995, Hendler sent a letter to Korpi complaining that the second-hand smoke at work was increasing his breathing difficulties. In addition, Hendler had contacted Dr. Clifford in the fall of 1994, requesting a prescription for Prednisone to combat breathing difficulties from the tobacco smoke at work. Clifford Aff. at 5.

 Hendler routinely complained to Mich that both Mich and the other employees smoked tobacco products in his presence and that the tobacco smoke was causing him to suffer breathing difficulties. Hendler Aff. P 9. Hendler specifically requested that Mich and other employees not smoke in common areas, in Hendler's office and during director's meetings. Mich ignored these requests and stated on one occasion that "We have solved the smoking problem, Scott, Phil and Steve [Hendler] will start smoking." Mich also told Hendler to "cut it out with the smoking . . . Just get through it. Grow up." On other occasions, a co-worker named Jay Morin told Hendler that he was a "pain in the ass non-smoker" and a "smoking Nazi." Hendler Aff. P 9-12; Deft's 3(g) Stmt. at 9. Hendler never complained to anyone about these comments and admits that he responded to and took these comments as if they were jokes. Deft's 3(g) Stmt. at 9. In addition, Hendler asked another co-worker to keep her door closed when she smoked, to which she agreed. Id. at 9; Hendler Dep. at 373-75. Another co-worker referred to complaints about cigarette smoke as "stupid" and that "secondhand smoke didn't affect anyone." Deft's 3(g) Stmt. at 10; Hendler Dep. at 376-77.

 On December 27, 1994, Hendler claims he contacted the Suffolk County Department of Health and complained about the tobacco smoke at Intelecom. The DOH, however, has no record of any such complaint. Deft's 3(g) Stmt. at p. 6. Rather, it appears that the phone call was simply a request for information as to what smoking regulations exist and plaintiff concedes he never filed a formal complaint. Id. at 7. Moreover, at his deposition, Hendler admitted that he did not know if Intelecom knew of the call and conceded further that "I don't know for a fact if anyone most specifically tagged that call and said Steve Hendler made this call." Id. at 8; Hendler Dep. at 291. Mich, Intelecom's president, denies having notice of such a telephone call until after Hendler filed his complaint with the EEOC. Mich Aff. P 4.

 On January 16, 1995, Hendler's employment with Intelecom was terminated, purportedly on the basis of Hendler's poor performance and poor attitude. Plaintiff claims, however, that his work was never criticized and that he was able to attract substantial business opportunities relating to the development of a debit card project with the Utah Jazz as well as other valuable business assets to Intelecom. Moreover, Hendler received a bonus less than one month prior to his termination. Hendler Aff. P 13-14.

 After receiving a right to sue letter from the EEOC, Hendler instituted this action on June 14, 1995 by summons and complaint, alleging that he had been discriminated against on the basis of his disability, in violation of both the ADA and the New York State Human Rights Law. Specifically, Hendler claims that Intelecom violated the ADA by failing to make reasonable accommodations for his disability, by terminating his employment on the basis of his disability and further by creating a hostile work environment on account of his disability. Under the New York Human Rights Law, Hendler complains that Intelecom failed to make reasonable accommodation and later discharged him because of his need for a reasonable accommodation and because of his disability. Hendler further alleges in the complaint that he was terminated in retaliation for both his phone call to the Suffolk County DOH and his repeated requests for a reasonable accommodation of his disability, in violation of both the ADA and the Human Rights Law.

 Plaintiff seeks: (1) declaratory judgment that Intelecom's conduct violated his rights under the ADA and the Human Rights Law; (2) a permanent injunction preventing Intelecom and its officers and agents from engaging in any conduct in violation of plaintiff's rights under the ADA and the Executive Law; (3) compensatory damages; (4) punitive damages; (5) lost earnings and benefits, with prejudgment interest, and reinstatement; and (6) attorneys' fees.



 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). Under the law of the Second Circuit, a district court must weigh several considerations in evaluating whether to grant a motion for summary judgment with respect to a particular claim. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (internal case citations omitted). First, the moving party carries the burden to demonstrate that no genuine issue respecting any material fact exists. Id. (citations omitted). Second, all ambiguities and inferences must be resolved in favor of the non-moving party. Id. Third, the moving party may obtain summary judgment by showing that no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight. Id. Finally, the trial court's duty is confined to issue-finding and does not extend to issue-resolution. Id.

 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).


 A. General Considerations Regarding the ADA

 The ADA prohibits an employer from discriminating against an employee "because of the disability of such individual in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment." 42 U.S.C. ยง 12112(a). As defined by the ADA, "discrimination" includes, inter alia:

not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless . . . [the employer] can demonstrate that the accommodation would impose an ...

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