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July 14, 1997

MAUREEN A. KLEM, Plaintiff, against POPULAR FORD SALES, INC., and BRIAN GOODMAN, Defendants.

The opinion of the court was delivered by: KORMAN


 This is a disability discrimination case. Plaintiff Klem was a "Biller" and "Title Clerk" for Popular Ford Sales, Inc. from March 1992 through October 1994. She was responsible for, among other things, compiling license and registration material and forwarding it to Lipsco Ltd., a contractor Popular used to submit such material to the concerned Departments of Motor Vehicles. Errors and omissions in this paperwork sometimes caused Lipsco to return it to Popular for corrections, but Klem claims that she was not responsible for most of these problems. See Pl. Counterstatement P4.

 Brian Goodman was Klem's supervisor at Popular. On several occasions prior to August 1994, he spoke to her about errors she made in entering data into a computer and counseled her at least once for being abrasive to a car salesman -- although Klem contends that the salesman elicited such abrasiveness by first yelling and screaming at her. Goodman Aff. P5; Klem Aff. PP2-6; Klem Dep. 65:6-16. At some point, whether before or after August 1994 is not clear, Goodman also told Klem that he would not continue to tolerate errors in the Lipsco paperwork. Klem Dep. 39:9-19; Goodman Aff. PP4, 6.

 In late August or early September 1994, Klem came down with a severe and unusually persistent headache that did not ultimately subside until January or February 1995. *fn1" Klem Dep. 17:14. Klem claims that her headache pain was "constant[,]" "unbearable" and "stabbing" -- although it "was not a throbbing [pain] . . . just a constant pressure on the head," and thus was properly characterized "as more of a dull pain than a sharp pain[.]" Klem Dep 16:23 - 17:14, 98:16-22, 99:21-25, 100:2-5. The headache affected her ability to concentrate and limited her ability to work as hard or as quickly as she had in the past. Klem Dep. 98:16 - 101:19; Klem Aff. P10.

 While no conclusive diagnosis can be gleaned from the record, and although Klem cannot recall when the cause of her headache was first diagnosed (or even if a cause had been determined as of her termination date), a letter from a Dr. Bruining, dated October 25, 1994, suggests that Klem's headache likely was caused by persistent tension or perhaps chronic meningitis. Klem Aff. Exh. C p. 2. Apparently other diagnostic tests were necessary, however, as Klem took off work on Thursday, October 27 and Friday, October 28, so that she could visit her doctors for more testing, including an MRI examination. *fn2"

 Based on the foregoing allegations, Klem claims that her discharge violated the Americans with Disabilities Act of 1990 ("ADA" hereinafter), codified at 42 U.S.C. §§ 12101-12213 (1996). Specifically, although she does not allege that she was in fact disabled by her headache, she claims that she was discharged because defendants perceived that she suffered from a "disability." Klem also claims that in retaliation for filing an administrative complaint with the Equal Employment Opportunity Commission ("EEOC" hereinafter), she was given an adverse reference to a prospective employer and caused a "poison pen" letter to be created that disparaged her performance at Popular, entitling her to additional damages under the ADA's anti-retaliation provisions. Popular Ford Sales, Inc. and Brian Goodman, who are the named defendants, move for summary judgment on both the discharge and retaliation claims.


 1. The Discharge Claim

 The ADA is a close cousin of both the Rehabilitation Act of 1973, 29 U.S.C. §§ 790-794a (1996), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1996). See Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 542 (7th Cir. 1995)("The employment provisions of the Act [ADA] merely generalize to the economy as a whole the duties, including that of reasonable accommodation, that the regulations under the Rehabilitation Act imposed on federal agencies and federal contractors."); Mohamed v. Marriott Internat'l, Inc., 905 F. Supp. 141, 154 (S.D.N.Y. 1995)("The new legislation [ADA] is also, however, based closely on Title VII[:] The employment title of the ADA adopts the powers, procedure, and remedies of parts of Title VII[;] much of the wording of the two statutes is the same[;] [and] courts in interpreting this provision have been quick to apply precedent set under Title VII.")(internal quotations and citations omitted). Thus, Rehabilitation Act and Title VII precedent is also controlling with respect to ADA claims.

 Pursuant to the ADA, "no covered entity shall discriminate against a qualified individual with a disability 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. § 12112(a) (1996). A plaintiff has the burden of proving that she is a "qualified individual with a disability." See Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 383 (2d Cir. 1996)(ADA and Rehabilitation Act case). Indeed, this is the first element of a plaintiff's prima facie case, the other two elements of which are that the plaintiff has suffered an adverse employment action, and that a causal connection exists between the adverse employment action and the disability. See id. at 383; Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994)(Rehabilitation Act case).

 A. "Disabilities" Under the ADA

 By extending the ADA's protections to the last category of employees -- i.e., those with "perceived" disabilities -- Congress "intended to combat the effects of 'archaic attitudes,' erroneous perceptions, and myths that work to the disadvantage of persons with or regarded as having disabilities." Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995); accord School Board of Nassau Co. v. Arline, 480 U.S. 273, 284, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987)(observing in a Rehabilitation Act case that, "society's accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment.").

 In this case, Klem does not claim that her headache was actually disabling. She claims only that defendants regarded her headache as a "disability." Under the ADA, whether an employee has such a "perceived disability" is determined in two stages:

First, the Court must determine if the plaintiff is perceived to have a physical or mental impairment. Second, if so, the Court must determine whether the impairment is perceived to substantially limit one or more of that person's major life activities.

 Greenberg v. New York State, 919 F. Supp. 637, 641-42 (E.D.N.Y. 1996); accord Wernick, 91 F.3d at 383 (applying two-stage test to both ADA and Rehabilitation Act claims).

 With respect to the first stage, the EEOC's implementing regulations define a "physical or ...

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