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STUART v. DANKA CORP.

December 12, 1997

ROSS H. STUART, Plaintiff, against DANKA CORPORATION, STEPHEN L. SCHLOSS, and JERRY BLAINE, Defendants.


The opinion of the court was delivered by: WEXLER

 WEXLER, District Judge

 Presently before the Court is defendants' motion for a directed verdict pursuant to Rule 50 of the Federal Rules of Civil Procedure. Plaintiff brought this suit against his former employer, Leslie Supply Company ("Leslie Supply") and Leslie Supply's owners, Stephen L. Schloss and Jerry Blaine, asserting a claim under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and various claims under state law. Plaintiff's ADA claims may be briefly stated. Plaintiff, a salesman and recovering alcoholic, contends that defendants discriminated against him as a recovering alcoholic by requesting him to bribe prospective corporate purchasers to buy copiers from Leslie Supply. Defendants' request, he claims, threatened his sobriety and his refusal to participate in the scheme because of his disability resulted in his constructive termination from his position. Plaintiff further asserts a retaliation claim under the ADA based on the constructive discharge. These ADA claims are asserted only against Leslie Supply

 Plaintiff's state law claims may also be briefly stated. Analogous to his ADA claim, plaintiff asserts that defendants' discrimination based on his alcoholism violates Executive Law § 296 (1)(a), the New York State Human Rights Law (NYSHRL). Plaintiff also alleges that defendants' conduct in asking him to participate in the alleged bribery scheme and subsequently terminating him because of his refusal to do so, constitutes an intentional infliction of emotional distress. Both state law claims are asserted against Leslie Supply, Schloss, and Blaine.

 Before trial, defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This Court reserved decision. At the close of plaintiff's case, defendants renewed their motion for judgment as a matter of law under Rule 50(a), claiming that plaintiff's status as a recovering alcoholic was not a per se disability under the ADA or the NYSHRL. Similarly, defendants contend that no retaliation occurred because plaintiff was not engaged in a protected activity under the ADA. Defendants further contend that, under New York law, there is no basis for his intentional infliction of emotional distress claim, punitive damages claim, or breach of contract claim. For the reasons stated below, the Court grants defendants' Rule 50 motion and dismisses plaintiff's complaint.

 FACTS

 Plaintiff began his employment with Leslie Supply in 1980. In July 1985, he left the company because of gambling and alcohol addiction, but returned in September of that year. In 1989, he voluntarily left Leslie Supply to work for Southern Business Machines in London, England. In 1991, plaintiff returned to Leslie Supply and was appointed sales manager. Later, he was promoted to the position of branch manager. In March 1993, plaintiff asserts that defendants asked him to participate in a bribery scheme, namely, giving kickbacks to certain individuals at Ernst & Young in order to procure that company's business. Plaintiff further states that he refused to participate in this scheme because he believed that committing such a dishonest act would threaten his sobriety as a recovering alcoholic. Plaintiff had been a member of Alcoholics Anonymous since 1984 and, he contends, defendants were aware of his addiction to alcohol as well as gambling. In December 1993, plaintiff's commission points were reduced. Plaintiff's 1993 total compensation amounted to approximately $ 220,000.

 In February 1994, plaintiff was given notice that changes were occurring in the company. On April 15, 1994, plaintiff was informed that he would no longer be branch manager for the New York area. On April 28, 1994, he received a memo directing him to concentrate his efforts on Leslie Supply's copier leasing program, and informing him that his salary would be cut by $ 250 a month. On May 1, 1994, Leslie Supply's accountant sent plaintiff a memo canceling his advance against commissions. Plaintiff eventually left the employ of Leslie Supply and construes the acts of the company as amounting to a constructive termination.

 At some time between April 15 and April 28, 1994, plaintiff retained an attorney, Ed Boyle. Boyle sent a letter to defendants, informing them that he would like to meet to discuss what he termed plaintiff's "constructive termination." On May 3, 1994, Mr. Boyle sent an additional letter to defendants' attorney, asserting plaintiff's protection under the ADA and requesting that defendants reinstate plaintiff's salary and his advance against commission. The following day, plaintiff filed a complaint with the Equal Employment Opportunity Commission, charging defendants with discrimination and retaliation under the ADA. Subsequent to these events, in May 1994, plaintiff, believing he had been constructively discharged, left the company. He currently works for another copier company in the Dallas, Texas area. His 1996 income was approximately $ 69,000. Plaintiff concedes that nothing that Leslie Supply allegedly did to him caused him to resume drinking, and he admits that he has not had an alcoholic drink since 1985.

 DISCUSSION

 I. Standard for Judgment as a Matter of Law

 A defendant may bring a motion for a judgment as a matter of law at the close of the plaintiff's case. Fed. R. Civ. P. 50(a)(1). "The purpose of the rule is to enable the court to determine if there is any question of fact to be submitted to the jury and whether any verdict in favor of the plaintiff would be erroneous as a matter of law." Jones v. Associated Univs., Inc., 870 F. Supp. 1180, 1192 (E.D.N.Y. 1994), aff'd, 71 F.3d 406 (2d Cir. 1995), cert. denied, 136 L. Ed. 2d 73, 117 S. Ct. 123 (1996). Rule 50 "allows the court to take away from the jury cases that the law requires a particular result." Id.

 When presented with a Rule 50 motion, the task of the Court is to determine whether there is a sufficient evidentiary basis for a reasonable jury to find for a party heard at trial. A district court should grant a directed verdict when the evidence, even when viewed in the light most favorable to the non-moving party, is such that a rational juror could reach but ...


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