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June 24, 1998


The opinion of the court was delivered by: KAHN


 Plaintiff is employed by the defendant New York State Office of Alcoholism and Substance Abuse Services ("OASAS"). She alleges that she has suffered discrimination on account of her sensitivity to tobacco smoke and perfume in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 1201 et seq. Presently before the Court is defendant's motion for summary judgment. In the alternative, defendant moves in limine for a ruling barring any expert testimony regarding the existence or nature of the condition referred to as Multiple Chemical Sensitivity. For the reasons discussed below, the motion for summary judgment is GRANTED and the in limine motion is therefore DENIED as moot.

 I. Background

 In 1988, plaintiff Charla Keck ("Keck") was hired by an agency of the State of New York known as the Division of Substance Abuse Services ("DSAS"). Soon thereafter, Keck began experiencing health problems caused by exposure to tobacco smoke and perfume. These problems included soreness in her throat, difficulty breathing, headaches, nausea and the inability to concentrate. In 1989, she sought medical treatment and received a variety of diagnoses including Multiple Chemical Sensitivity, Environment Tobacco Sensitivity and perennial allergic rhinitis. Because of these problems, plaintiff was permitted, as an accommodation, to work at the office only after normal working hours or on weekends (when fragrances would not be a problem). During this time, smoking was prohibited on the floor on which she was working. Initially, plaintiff worked seventy percent of a normal work schedule. At some point, this was increased to eighty percent and remained eighty percent at all times thereafter. Under this arrangement, plaintiff worked in her position as a budget analyst for roughly three and a half years.

 Around March of 1994, the DSAS was merged with another agency known as the Division of Alcoholism and Alcohol Abuse ("DAAA") to form the defendant New York State Office of Alcoholism and Substance Abuse Services ("OASAS") and on March 24, 1994, Keck was moved into a new building. There, she was provided with a private office per her request and continued to work after hours. On several occasions shortly after the transition, she smelled smoke which she believed to be coming from a co-worker's office down the hall. On one occasion, she discovered him smoking. She also smelled smoke escaping from the designated smoking room, which was on the same floor as her office. Officers of the defendant attempted to deal with these problems, using additional measures to prevent smoke escaping from the smoking room, and directing the co-worker not to smoke in his office.

 On July 18, 1994, plaintiff left work in response to a memorandum dated July 15, 1994 which stated that the office would have a temporary smoking policy which allowed smoking in private rooms and the designated smoking room on the fourth floor. She did not return to work thereafter. Plaintiff was subsequently offered an office on the fifth floor, which was allegedly smoke free. She rejected the offer having heard that smoking still occurred there under the interim policy and because she would still have to go to the fourth floor to retrieve necessary files. She was offered a position at a smoke-free agency but rejected it because she feared having to work during regular hours which would expose her to fragrances. By letter dated September 26, 1994, plaintiff was informed of a new smoking policy prohibiting smoking in private rooms during regular hours and was subsequently directed to return to work in the day-time. She declined because of her sensitivity to perfume. Keck alleges that on July 17, 1995, she made an attempt to return to work but was directed to leave the premises. Plaintiff has remained on an extended leave of absence without pay.

 In sum, it is alleged that plaintiff's sensitivities have two consequences. First, she cannot work during any period of time when persons are allowed to smoke either on her floor or on floors she requires access to in order to perform her duties. Second, she cannot in any case work during regular hours due to the likelihood of exposure to perfumes and fragrances during that period. Thus, to be accommodated, plaintiff must be able to work after regular hours and be assured that no persons will be smoking in her work area. In her amended complaint, she seeks compensatory and punitive damages but not reinstatement.

 II. Discussion

 A. Standard of Proof

 Federal Rule of Civil Procedure 56(c) provides in relevant part: "the judgment sought shall be rendered forthwith if . . . there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." A dispute of material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In reviewing the motion, the court must "resolve all ambiguities and draw all inferences in favor of the non-moving party." Repp & K & R Music, Inc. v. Webber, 132 F.3d 882, 889 (2d Cir. 1997). However, conclusory allegations by the non-moving party will be insufficient to create a material issue of fact. Id. "To defeat such a motion, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for trial." R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). With this standard in mind, the Court turns to the substance of defendant's motion.

 B. Failure to Exhaust Administrative Remedies

 Defendant first argues that the Court should grant summary judgment on so much of Keck's claim as relates to her sensitivity to perfume because Keck did not refer to a perfume sensitivity in the charge which she filed with the Equal Employment Opportunity Commission ("EEOC"). It is well-established that a plaintiff must file a charge of discrimination with the EEOC and obtain a right to sue letter from them before proceeding in federal court. See 42 U.S.C. 42 U.S.C. § 12117(a) (incorporating the exhaustion requirements of Title VII under 42 U.S.C. § 2000e-5). "A district court only has jurisdiction to hear [ADA] claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is 'reasonably related' to that alleged in the EEOC charge." Butts v. City of New York Dept. of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993). As noted in Butts, the "exhaustion requirement is an essential element of Title VII's statutory scheme." Id. Its purpose is to "encourage settlement of discrimination disputes through conciliation and voluntary compliance." Id.

 A review of the EEOC charge reveals that allegations that defendant failed to reasonably accommodate a sensitivity to perfume were not included in the charge. See Avent Aff. Exh. EE. Although it does allege generally that Keck suffers from multiple chemical sensitivities, the only discriminatory treatment alleged is in connection with her tobacco smoke sensitivity. The Court must therefore determine whether the failure to accommodate her perfume sensitivity is "reasonably related" to her EEOC charge.

 It must first be noted that despite the Second Circuit's use of the word "subsequent," it is established that conduct may be "reasonably related" to the allegations of the charge even if it occurred prior to the filing of the charge. Cable v. New York State Thruway Authority, 4 F. Supp. 2d 120, 1998 U.S. Dist. LEXIS 7678, *14, 1998 WL 261558, *6 (N.D.N.Y. 1998). Specifically, claims are "reasonably related" where (1) they would fall within the scope of the EEOC investigation which reasonably could be expected to grow out of the charge of discrimination; (2) the new claim alleges that the employer is retaliating against plaintiff for filing the original EEOC charge; or (3) the plaintiff "alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Butts, 990 F.2d at 1402-03.

 The Court finds that the discrimination claim based on sensitivity to perfume falls within the scope of the EEOC investigation which could reasonably be expected to grow out of the charge of disability discrimination on the basis of smoke sensitivity. Both claims are for disability discrimination and are based on very similar disabilities. Compare Spurlock v. NYNEX, 949 F. Supp. 1022, 1030 (W.D.N.Y. 1996) (ADA claim unalleged in EEOC charge was not reasonably related to race discrimination claim). More importantly, the claims of discrimination based on her smoke sensitivity and perfume sensitivity are essentially inseparable; they arise out of the same set of actions and decisions involving what accommodations should be provided for plaintiff to enable her to work. Therefore, plaintiff is not barred from alleging discrimination on the basis of sensitivity to perfume.

 C. Failure to Allege an ADA Claim

 Defendant also argues that plaintiff has not presented evidence sufficient to establish a prima facie case of disability discrimination under the ADA. The ADA provides that "no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . discharge of employees . . . ." 42 U.S.C. § 12112(a). A plaintiff who raises a disability discrimination claim under the ADA bears the initial burden of establishing a prima facie case. See Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 383 (2d Cir. 1996). In order to satisfy this burden, the plaintiff must show: (1) that the employer is subject to the ADA; (2) that plaintiff is an individual with a disability within the meaning of the ADA; (3) that, with or without a reasonable accommodation, she could perform the essential functions of the job; and (4) that the employer had notice of plaintiff's disability and failed to provide such accommodation. Lyons v. Legal Aid Society, 68 F.3d 1512, 1515 (2d Cir. 1995). It is not disputed that the defendant is an employer subject to the ADA, but the defendant argues that plaintiff is not disabled within the meaning of the ADA and that she has not offered a reasonable accommodation under which she can perform the essential functions of her job.

 1. Is Plaintiff Disabled Within the Meaning of the ADA?

 The ADA defines "disability" as

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.

 42 U.S.C. § 12102(2).

 Plaintiff argues that she satisfies all three definitions. However, with regard to the definitions of disability as being "regarded" as having a disability or having a "record" of such a disability, the Court notes that plaintiff must also demonstrate that she was fired because of her disability. Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 149 (2d Cir. 1998). Plaintiff has made no showing that she was discriminated against because of how she was regarded or because of her record of disability. Rather, she was not allowed to return to work because of her unwillingness to work under certain conditions. Further, there clearly can be no claim of discrimination based on failure to accommodate a disability where there is no actual disability. Thus, even if plaintiff could establish disability under provisions (B) and (C), she would not establish the basis for an ADA claim. The Court therefore addresses whether she has raised a question of fact as to the first definition of disability, whether Keck has a genuine physical or mental impairment that substantially limits one or more major life activities.

 The terms "major life activities" and "substantial limitation" are defined in EEOC regulations. While these regulations are not binding, they provide the Court with guidance and are generally given considerable deference. Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 870 (2d Cir. 1998).

 The regulations define "major life activities" as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § ...

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