state disability benefits and that this failure constituted intentional infliction of emotional distress. Although we have significant doubts as to the merits of these claims, we decline to assert supplemental jurisdiction over them.
III. Eunice Thomas
Eunice Thomas was hired by Flaghouse in 1987 as a full-time employee. In 1991, she changed her status to part-time so that she could attend college classes. Thomas was discharged on January 10, 1995 because, Flaghouse states, her part-time position as a customer service sales representative was eliminated in favor of a full-time position.
In 1992, Thomas was diagnosed with varicose veins in her left leg. The condition caused her pain, especially when she was standing. Thomas's doctor advised her to wear corrective stockings and to keep her leg elevated when possible. In September 1994, Thomas disclosed her condition to Lynn Nixon, Flaghouse's Director of Human Resources, and told her that surgery might be necessary. By October, her condition has worsened and she was in constant pain and developed a limp. She informed one of her supervisors, Margaret Banks, that climbing the stairs to the other departments was painful.
On October 7, 1994, Thomas advised her supervisors, Banks and Steve Jones, that she would be having surgery for her varicose veins as soon as she received her insurance company's approval. She informed them that she would only be out of work for a day or two.
Thomas stopped working on November 28, 1994 because of increased pain. Flaghouse received a letter, dated that same day, from her doctor informing Flaghouse that Thomas was "suffering from painful progressive varicose veins," that she was "unable to perform her usual work duties" at that time, that she had an appointment with him on December 6, and that she would undergo surgery pending the insurance company's approval. (Letter from Dr. Heshmat Majlessi to Steve Jones, dated Nov. 28, 1994, attached as Exh. M to Pl. Mem.) Following Thomas's December 6 appointment, her doctor wrote a second letter advising Flaghouse that Thomas was "unable to return to work due to pain." (Letter from Dr. Heshmat Majlessi to Steve Jones, dated Dec. 7, 1994, attached as Exh. M to Pl. Mem.)
After receiving insurance company approval, Thomas scheduled surgical procedures for January 13 and 17, 1995. At that time, she informed Lynn Nixon of her surgery schedule and told Nixon that she "would be back to work a day or two after the second surgery." (Thomas Aff. P 14.)
On January 10, 1995 -- three days before the first surgical procedure -- Thomas went to the Flaghouse office to pick up a pay check. At that time, Steve Jones informed her that her position had been eliminated and that she was being discharged.
1. Americans with Disabilities Act
Thomas does not assert that she was actually disabled by her varicose veins. Rather, she contends that she is "disabled" within the meaning of the ADA because Flaghouse "regarded" her condition as substantially limiting a major life activity (presumably walking or working). This argument is without merit.
As explained above, a plaintiff asserting a "perceived disability" theory under the ADA must show that her employer not only knew about her impairment, but also regarded the impairment as substantially limiting a major life activity. Greenberg v. New York State, 919 F. Supp. 637, 641-42 (E.D.N.Y. 1996); see also 29 C.F.R. § 1630.2(l). Although the EEOC guidelines make clear that "temporary, non-chronic impairments of short duration, with little or no long term impact" are not substantially limiting and thus seldom constitute "disabilities," 29 C.F.R. Pt. 1630, App. § 1630.2(h) at 339, an impairment that is not in fact substantially limiting may nevertheless render a person "disabled" under the ADA if her employer regards her as substantially limited. See id. Pt. 1630, App. § 1630.2(l) at 341.
Here, it is undisputed that Flaghouse management was aware of Thomas's varicose vein condition. However, Thomas has offered no evidence that Flaghouse perceived her condition as substantially limiting a major life activity. Thomas herself states that she told Flaghouse that she would be back at work only one or two days after her surgery. (Thomas Aff. PP 8, 14.) Therefore, although Flaghouse knew (based on Thomas's absence from work and her doctor's notes) that Thomas was substantially limited in her ability to work, Thomas gave Flaghouse every indication that this limitation was only temporary and that she could resume working shortly after the surgery.
Accordingly, we find that Thomas was not "disabled" within the meaning of the ADA and grant Flaghouse's motion for summary judgment on Thomas's ADA claim.
2. New York State Human Rights Law
As explained in section II.B.2 of this Opinion, the NYSHRL and ADA are interpreted and analyzed in a virtually identical manner. Mohamed v. Marriott Int'l, Inc., 905 F. Supp. 141, 156 (S.D.N.Y. 1995). Having granted summary judgment with respect to the ADA claim, and exercising our discretion to retain supplemental jurisdiction over this state claim pursuant to 42 U.S.C. § 1367(c), we accordingly grant summary judgment with respect to the NYSHRL claim.
3. Negligence and Intentional Infliction of Emotional Distress
Thomas also asserts pendent state claims for negligence and intentional infliction of emotional distress. She asserts that Flaghouse negligently interfered with her ability to obtain state disability benefits and that its conduct in terminating her three days before her surgery constituted intentional infliction of emotional distress. Although we have significant doubts as to the merits of these claims, we decline to assert supplemental jurisdiction over them.
For the foregoing reasons, we grant defendant Flaghouse's motion for summary judgment with respect to plaintiffs' ADA and pendent NYSHRL claims. We decline to exercise supplemental jurisdiction over the remaining state claims. An appropriate judgment shall be issued by the Clerk of the Court.
Dated: October 16, 1997
White Plains, NY
William C. Conner
Senior United States District Judge