The opinion of the court was delivered by: GLASSER
In August of 1995, plaintiff informed Greg Cohen that plaintiff's HIV test had proven negative. Upon hearing this information, Cohen allegedly stated: "I used to work in a lab and HIV can live in the body eight years." Am. Compl. P 8. Plaintiff further alleges that thereafter both Cohen and Rothenberg began to harass plaintiff. Such harassment included "informing a caller he no longer worked there, when he in fact did and not providing professional bartending services while threatening Mr. DeFilippo when he attempted to make his drinks for his customer." Am. Compl. P 10. "From August 1995 coworkers of Mr. DeFilippo were encouraged, emboldened, and favored by Mr. Cohen and Mr. Rothenberg to harass, pressure and generally deny the plaintiff his dignity as a human being." Am. Compl. P 12. Plaintiff alleges that this harassment was because of plaintiff's "apparent homosexuality, compounded by Mr. Cohen's and Mr. Rothenberg's fear of HIV." Compl. P 13. When plaintiff complained of this harassment to the regional director for GMRI, he was told, allegedly, that "we don't want to know about your sexual preference." Compl. P 15.
Finally, on November 24, 1995, "a co-worker of Mr. DeFilippo refused to assist him in serving customers as was the generally accepted practice set forth in the Red Lobster 'Job Description' for the job title server . . . . That due to the previous continual harassment, plaintiff Mr. DeFilippo in total exasperation, uttered the word 'Bitch.' This utterance was then perversely labeled a 'profanity', resulting in the termination of Mr. DeFilippo." Compl. PP 16, 17.
Plaintiff, after his termination, pursued GMRI's internal grievance and review procedure, Lobster Peer Review. At this review, plaintiff's termination was reviewed by a group of five panelists, who were randomly selected from other Red Lobster locations in the New York area. Three of these employees were hourly workers and two were managerial employees. On January 3, 1996, the review board denied plaintiff's request for reinstatement.
On April 30, 1996, plaintiff filed a verified complaint with the State Division of Human Rights charging unlawful discriminatory practice relating to employment because of disability. After an investigation, the Division of Human Rights determined that there was no probable cause to believe that GMRI engaged in the unlawful discriminatory practice complained of: "The record indicated that the complainant was terminated for a legitimate, non-discriminatory reason in accordance with company policy."
Plaintiff then filed the present lawsuit claiming a violation of the Americans with Disability Act, a violation of the Rehabilitation Act, and intentional infliction of emotional distress. Defendants now move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure on all claims.
Local Rule 56.1 Requirements
At the outset it must be noted that plaintiff, who is the non-movant in the present action, has failed to provide a 56.1 statement as required by the local rules of this court. Local Civil Rule 56.1 states:
(a) Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.
(b) The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.
(c) All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
(d) Each statement of material fact by a movant or opponent must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e).
Defendants-movants have included a 56.1 "Statement of Uncontested Facts" in their motion for summary judgment. Since plaintiff has not submitted his own 56.1 statement, all of the facts asserted ...