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March 30, 1998

ROBERT DIPOL, Plaintiff,

The opinion of the court was delivered by: JOHNSON

 JOHNSON, District Judge:

 Robert DiPol ("DiPol" or "Plaintiff") filed the present action under the "Americans with Disabilities Act" (the "ADA"), 42 U.S.C. ยงยง 12101, et seq. and New York state law against the New York City Transit Authority ("Defendant" or the "NYCTA"). Before this Court is Plaintiff's motion for partial summary judgment against Defendant pursuant to Rule 56 of the Federal Rules of Civil Procedure on Plaintiff's ADA claim. According to Plaintiff, the material facts in this case are not in dispute and constitute proof of discrimination under the ADA, thus warranting a judgment as a matter of law on such claim. For the reasons stated below, Plaintiff's motion is granted.


 For approximately 40 years, including the period of Plaintiff's employment with the NYCTA, Plaintiff has had a diabetic condition. (Affidavit of Paul L. Dashefsky, Esq. "Dashefsky Aff" P 5). Despite this condition, Plaintiff contends that his job performance was always evaluated as satisfactory by Frank Asnes, one of Plaintiff's supervisors, and that Asnes never found the Plaintiff to pose or create any risk at his job or to his co-workers. Id. at P 8(b).

 In July 1993, Plaintiff applied for a commercial driver's license in connection with a particular promotional opportunity sought by Plaintiff with the NYCTA. Id. at P 6. Pursuant to NYCTA regulations, in order to obtain such a license, applicants must submit to a physical examination with the NYCTA. (Pl.'s Amended 3(g) Statement P 5). Upon examination of Plaintiff at pre-employment, it was observed that Plaintiff was in poor control of his diabetes and that there was a problem with his vision. (Deposition of Michelle Alexander, "Alexander Dep." at 27). Without any further information on Plaintiff's condition, Defendant placed Plaintiff on a "no-work" status on July 13, 1993. Id.

 One week later, on July 20, 1993, NYCTA physician Michelle Alexander assessed that, although Plaintiff could work, his duties should be restricted as a result of his diabetic condition. Id. at 28. Such restrictions were placed on Plaintiff by Defendant without any knowledge of whether he displayed any symptoms which have and/or might affect his job performance. Id. at 30. Dr. Alexander contends that Plaintiff had to be placed on restricted duty until further medical information could be obtained about him. Id. at 33.

 Thereafter, in August of 1993, Plaintiff was examined by NYCTA physician Alan Genser who found that Plaintiff was in "fair control" of his diabetes at that time. Deposition of Alan Genser "Genser Dep." at 44). Furthermore, Dr. Genser did not find any problems with Plaintiff's vision. Id. at 45. Nevertheless, Dr. Genser still recommended that Plaintiff's duties be restricted. Id. at 43.

 The restrictions placed on Plaintiff included not being allowed to work in situations in which there were heights or hazardous conditions. (Alexander Dep. at 28). In addition, he could not "operate any [NYCTA] vehicle and off tracks and structures." Id. As a result of these restrictions, there were very few duties Plaintiff could perform. (Deposition of Marvin Lederman "Lederman Dep." at 26). Thus, according to Plaintiff, his duties and hours were greatly diminished. (Pl.'s Amended 3(g) Statement at P 6). Defendant concedes that "Plaintiff lost a considerable amount of work time because his subdivision could not find assignments for him consistent with the medical restrictions noted by the NYCTA physicians." (Def.'s Mem. of Law at 4). Ultimately, Plaintiff was restored to full duty status in October of 1993.

 Plaintiff contends that the NYCTA discriminated against him in violation of the ADA. (Pl.'s Verified Complaint and Jury Demand at P 14). He maintains that since July 13, 1993, when the NYCTA learned of his diabetes and placed him on "no-work" status, the NYCTA has engaged in a course of conduct through which he was allegedly harassed and discriminated against because of his disability. Id. at P 10. Plaintiff claims that he was denied promotions for which he met the requirements, was subjected to excessive and unreasonably frequent physical examinations, and he was deemed medically unqualified for a job which he was qualified to perform. Id. As a result, in addition to his ADA claim, Plaintiff brings a claim for intentional infliction of emotional distress under New York state law.


 I. Summary Judgment Standard

 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The court need only determine if there is a genuine issue to be tried rather than resolve disputed issues of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In ruling on a motion for summary judgment,

[a] judge must ask himself . . . whether a fair-minded jury could return a verdict for the [non-movant] on the evidence presented. The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].

 Wernick v. Federal Reserve Bank of NY, 91 F.3d 379, 382 (2d Cir. 1996) (quoting Anderson, 477 U.S. at 252).

 The party seeking summary judgment bears the burden of showing that no genuine factual dispute exists. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995). Once the moving party has made a showing that there are no genuine issues of material fact to be tried, the burden shifts to the non-moving party to raise triable issues of fact. Anderson, 477 U.S. at 250. Mere conclusory allegations will not suffice. Instead, the non-moving party must present "significant probative supporting evidence" that there is a factual dispute. Id. at 249; Fed. R. Civ. P. 56(e).

 Moreover, in considering a summary judgment motion, the court is required to view the evidence in the light most favorable to the non-moving party. See Anderson, 477 U.S. at 255. However, Fed. R. Civ. P. 56(c) "mandates the entry of summary judgment . . . against a party who fails to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Further, summary judgment should be granted where the non-moving party's evidence ...

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