(Klem Dep. 83:18-23) -- offer any basis for inferring that Goodman or Popular perceived Klem's headache to restrict significantly her ability to perform "a class of jobs or range of jobs in various classes." At best, these comments suggest only that Goodman believed Klem's headache affected her ability to perform her particular job as well as she had in the past, and not that he perceived her headache as disqualifying her from a "class of jobs or a broad range of jobs in various classes." In this respect, Goodman's perception is confirmed by Klem's own description of the effects she perceived her headache to have had on her job: The pain was distracting, she had to work harder to focus, certain things took longer, and she tried to compensate in different ways. See Klem Dep. 99:5-7, 101:17-19. While Klem had difficulty concentrating and could not "work to her full potential" (Klem Aff. P10), she concedes that her headache's symptoms were merely "the regular physical things of a headache" (Klem Dep. 25:9-13, 100:14-22, 14:12-18). She also acknowledges that her headache did not affect her ability to walk, breathe, hear, care for herself, or learn, and it did not render her incapable of performing the essential functions of her job. Klem Dep. 14:19 - 15:19.
Thus, Klem's testimony plainly suggests that she and Goodman shared the same perception of her headache's negative effect on her work performance: she was not able to perform her duties as well as she had before the headache. There is simply no evidence here that could support an inference that defendants regarded her headache as "significantly restricting" her ability to perform either "a class of jobs or a broad range of jobs in various classes."
Moreover, Klem's "conjecture or surmise" about defendants' perceptions and motives for discharging her are also insufficient to create a genuine issue of material fact as to whether defendants regarded her headache as a "disability." Goenaga v. March of Dimes Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)(holding that a summary judgment motion cannot "be defeated merely on the basis of conjecture or surmise."); accord Russell v. Acme-Evans Co., 51 F.3d 64, 70-71 (7th Cir. 1995)(Posner, C.J.)(observing in Title VII case that, with respect to evidence of discriminatory intent, plaintiff must come forward with something "other than what comes out of his own mouth" in order to resist properly supported motion for summary judgment).
Accordingly, because Klem has not come forward with evidence sufficient to support her claim that her headache was a "perceived disability," she has not established the first and most fundamental element of her prima facie case: membership in the protected class of employees with a "disability." Consequently, there is no need to address defendants' other arguments here -- namely, that given the admittedly minor effect Klem's headache is alleged to have had on her ability to work and perform the other chores of daily living, her headache should be deemed a commonplace affliction that fails to rise to the level of an "impairment" under the ADA. See Forrisi, 794 F.2d at 934; Stevens v. Stubbs, 576 F. Supp. 1409, 1414 (N.D. Ga. 1983)(Rehabilitation Act case holding that, "whatever the precise delineations of the term 'impairment,' the court is unconvinced that it encompasses transitory illnesses which have no permanent effect on the person's health."). Although there are no doubt many persons who suffer disabling headaches over an extended period of time, there appears to be at the very least a serious question here as to whether Klem's headache is among those non-disabling maladies that were the object of the "myths and fears" ( Arline, 480 U.S. at 284), or "archaic attitudes [and] erroneous perceptions" ( Wooten, 58 F.3d at 385), that Congress sought to combat by including in the ADA the "regarded as" definition of "disability" (42 U.S.C. § 12102(C)).
2. The Retaliation Claims
Klem's first retaliation claim concerns a putatively adverse employment reference defendants provided to a prospective employer. Specifically, Klem filed an administrative complaint with the EEOC on January 6, 1995 (Am. Compl. P24), and subsequently, while looking for work in the spring of 1995, she alleges that Goodman "intentionally, knowingly and maliciously made various false, misleading and negative statements about Klem in order to discourage . . . potential employers from hiring Klem" (id. at P38). While Klem has not introduced any evidence concerning what Goodman said to prospective employers and has no personal knowledge of his discussions with such employers (Klem Dep. 68:21 to 74:8), she infers retaliation from the fact that personnel officers (whose names she cannot recall) at two prospective employers, a Buick and a Ford dealership, allegedly told her that she "had the job" subject to verification of her employment with Popular, and that after contacting Popular, they declined to hire her (id.). Goodman disputes Klem's account, stating that he spoke with only one prospective employer, and that he told this employer that he had no comment respecting Klem's employment because of ongoing litigation of an unspecified nature. Goodman Aff. P8; Goodman Dep. 32:21 - 33:5. He testified at his deposition that he believed this was the best response to give, since "I felt that anything I said could be construed any which way, and I felt no answer was the best answer at that point." Goodman Dep. 33:15-17.
A. ADA Retaliation Claims
The ADA's retaliation proscription, 42 U.S.C. § 12203 (1996), is nearly identical to the one found in Title VII, 42 U.S.C. § 2000e-3 (1996). The ADA proscription states that:
No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.
42 U.S.C. § 12203(a). Thus, a prima facie case of retaliation is established by showing that: (1) plaintiff engaged in a protected activity; (2) plaintiff's former employer took employment action that was adverse to plaintiff; and (3) a causal connection exists between the protected activity and the adverse action. United States v. New York City Transit Auth., 97 F.3d 672, 677 (2d Cir. 1996)(Title VII case).
If an employee succeeds in establishing his or her prima facie case, the burden of production then shifts to the employer, who must articulate a legitimate, non-discriminatory reason for the adverse action. Id. If the employer meets its burden of production, the employee then bears the burden of establishing that the proffered reason for the action is a pretext for discrimination, "either because the pretext finding itself points to discrimination or because other evidence in the record points in that direction -- or both." Fisher v. Vassar College, 1997 U.S. App. LEXIS 20979, No. 94-7737, slip op. at 9785-86 (2d Cir. June 5, 1997)(en banc).
B. Declining to Supply an Employment Reference
Klem arguably succeeds in establishing a prima facie case of retaliation with respect to Goodman's employment reference. She clearly engaged in a protected activity: filing a complaint with the EEOC. While she fails to come forward with any evidence to support her allegation that Goodman "intentionally, knowingly and maliciously made various false, misleading and negative statements about Klem in order to discourage . . . potential employers from hiring Klem" (Am. Compl. P38), Goodman concedes that he declined to discuss her employment with another car dealership, and this action is sufficiently "adverse" to satisfy the second element of Klem's prima facie case. See Pantchenko v. C. B. Dolge Co., Inc., 581 F.2d 1052, 1055 (2d Cir. 1978)(holding that a refusal to provide post-employment references, when motivated by retaliation for filing an EEOC action, could amount to actionable retaliation under Title VII). The third element of her prima facie case, a causal connection between the protected action and the adverse employment action, can be inferred from the fact that the retaliatory act here, the refusal to provide an employment reference, occurred shortly after Klem instituted EEOC proceedings. See Dortz v. City of New York, 904 F. Supp. 127 (1995)(observing that temporal proximity between employee's protected activity and employer's retaliatory act can be sufficient circumstantial evidence to support an inference that the latter was caused by the former).
Nonetheless, "reasonable defensive measures do not violate [an] anti-retaliation provision . . . even though such steps are adverse to the charging employee and result in differential treatment." New York City Transit Auth., 97 F.3d at 677 (Title VII claim). Thus, in New York City Transit Auth., the Second Circuit held that the City's policy of directly referring discrimination complainants to its law department, rather than first directing them to an internal EEO Division, was not discriminatory. Id. The differential treatment effectuated by this policy was explained as the consequence of a "reasonable defensive measure" -- i.e., centralizing the City's authority to respond to discrimination suits -- that would not support an inference of retaliatory motive. Id. In so holding, the Second Circuit offered the following observation:
It seems obvious that the commencement of litigation or administrative proceedings would galvanize the employer to seek legal counsel or otherwise to shift tactics. This phenomenon does not support an inference of retaliation. Legitimate and ordinary defensive interests furnish all the cause and effect needed to account for it.