The opinion of the court was delivered by: PRESKA
LORETTA A. PRESKA, United States District Judge:
Plaintiff brings this action against her former employer and its agents for employment discrimination pursuant to 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981, 29 U.S.C. 621 et seq. (the Age Discrimination in Employment Act ("ADEA")), 42 U.S.C. § 12101 et seq. (the Americans with Disabilities Act ("ADA")), and N.Y. Executive Law § 296, ("NYHRL"), as well as a variety of state law theories including fraud, breach of contract, assault, and intentional infliction of emotional distress. Defendant Local 1199, National Health and Human Services Employees Union ("union"), has moved for summary judgment of these claims pursuant to Fed. R. Civ. P. 56. Individual defendant Steve Frankel has also moved for summary judgment pursuant to Fed. R. Civ. P. 56.
The facts, drawing all justifiable inferences in favor of the non-movant, are as follows: Plaintiff is an Hispanic woman, now in her mid-forties, who has asthma. (Complaint, P 5). She obtained a position with the defendant union in 1986 to work as an organizer. (Castro Dep., February 26, 1996, at 145). Plaintiff's position required that she work both indoors and outdoors. (Castro Dep., February 27, 1996 at 143). Plaintiff spent a majority of her time indoors working at her desk or attending meetings. (Id. at 130-31). As necessary, plaintiff also occasionally led picket lines outdoors. (Id. at 142). Plaintiff's doctor advised her to avoid extreme temperatures because it aggravated her asthma symptoms. (Complaint, at P 54-55). This was the only restriction that plaintiff was required to observe that limited her employment. (Castro Dep., February 27, at 141-42). In her deposition, plaintiff stated, "I was willing and capable of performing my duties. The only accommodation that I got--I wanted was that in extreme cold or heat, that I was not to be standing outside in the cold." (Id.).
Plaintiff's relationship with her employer became strained early on in her employment. (Harris Aff., at 5.) The record is replete with documentation of the various conflicts that arose between plaintiff and the union. (Defendants' Exhibits E-G). Most of the friction between plaintiff and the defendants resulted from her excessive absenteeism. (Defendants' Exhibits B-G). Plaintiff argues that her absences were largely attributable to symptoms resulting from her asthma. Defendants contend, and offer documentation, that plaintiff gave a wide variety of excuses for her absences, of which asthma was not the predominant reason; this documentation includes plaintiff's own memos addressed to upper management regarding her absences in which she offers excuses such as leg pain, back pain, chest pain, stomach pain, gynecological problems, etc. (Defendants' Exhibits B-H). Because her absences had become so frequent, in January 1992, plaintiff agreed to allow the Union to deduct money from her paycheck to make up for the excess. (Harris Aff., at 6).
The first instance plaintiff sets forth as evidence of racial discrimination occurred in December, 1993. At that time, an anonymous sender placed a photograph of plaintiff and the Reverend Jesse Jackson in plaintiff's mailbox at work; the words "you are just a white token" appeared scrawled across the picture. (Complaint, P 64).
On January 10, 1994, plaintiff went on an extended disability leave due to her asthma symptoms. (Id. at P 20). When she returned on April 4, 1994, plaintiff claims that the union refused to allow her to resume her usual position as an organizer and that this was an act fueled by the Union's discrimination against her on a host of bases. (Id. at P 22). On April 8, 1994, at a routine meeting, plaintiff asked her supervisor, Patricia Harris, why she was not assigned to her usual responsibilities. (Castro Dep., August 7, 1995, at 79). Plaintiff claims that Harris was unresponsive to her concerns and that defendant Steve Frankel became upset with plaintiff at this meeting and threatened her.
(Id. at 90).
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on April 13, 1994 on the basis of national origin, age, and disability and then went on disability leave again from April 14, 1994 until May 9, 1994. (Complaint, PP 25-30). Following her return from disability leave, plaintiff claims that she was subject to treatment as a "pariah" and suffered complete ostracism by the union and its agents. (Id. at P 31). Following the filing of her EEOC complaint, plaintiff claims that the defendants made disparaging comments in her presence about age and race. Plaintiff asserts that while in her presence, the defendants commented that the union needed "young blood" and that this is evidence of age discrimination. (Complaint, P 65). In addition, plaintiff claims that her supervisor, defendant Harris, asked plaintiff on a number of occasions to refrain from speaking Spanish in front of non-Spanish speaking employees and that this is evidence of racial discrimination. (Castro Dep., March 25, 1996, at 63).
The tension between plaintiff and the union continued to escalate until June, 1995 when her elected term expired,
and the union terminated her employment at that time. (Castro Dep., February 27, 1996, at 162). Following her dismissal by the Union, plaintiff filed suit with this court alleging employment discrimination based on a host of theories which I address below.
I. Summary Judgment Standard
"A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994); see Fed. R. Civ. P. 56(c). See generally Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party," and facts are material to the outcome of the particular litigation if the substantive law at issue so renders them. Anderson, 477 U.S. at 248.
The burden of establishing that no genuine factual dispute exists rests on the party seeking summary judgment. Chambers, 43 F.3d at 36. "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial," however, "the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); accord Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223-24 (2d Cir. 1994) ("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."). The moving party, in other words, does not bear the burden of disproving an essential element of the nonmoving party's claim.
If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); accord Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). The nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Instead, the nonmovant must "'come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely . . . on the basis of conjecture or surmise.'" Trans Sport v. Starter Sportswear, 964 F.2d 186, 188 (2d Cir. 1992) (citation omitted).
In assessing materials such as affidavits, exhibits, interrogatory answers, and depositions to determine whether the moving party has satisfied its burden, the court must view the record "in the light most favorable to the party opposing the motion" by resolving "all ambiguities and drawing all factual inferences in favor of the party against whom summary judgment is sought." Chambers, 43 F.3d at 36. "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the moving party, summary judgment is improper." Id. at 37 (emphasis added).
In order to state a claim under the ADA, the plaintiff must adequately allege that she suffers from a "disability." Under the statute, a "disability" consists of:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2) (1995). The determination of whether a particular impairment constitutes a disability must be made on a case-by-case basis. See 29 C.F.R. pt. 1630, App. § 1630.2(j). ("The determination of whether an individual has a disability is . . . based . . . on the effect of that impairment on the life of the individual. Some ...