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SARNO v. ELLIMAN-GIBBONS

August 24, 1998

MICHAEL SARNO, Plaintiff, against DOUGLAS ELLIMAN-GIBBONS & IVES, INC., Defendant.

ROBERT L. CARTER, U.S.D.J.


The opinion of the court was delivered by: CARTER

ROBERT L. CARTER, District Court Judge

This is an action arising from defendant's termination of plaintiff's employment, allegedly in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. and the Family and Medical Leave Act (the "FMLA"), 29 U.S.C. § 2601 et seq. Plaintiff and defendant have submitted cross-motions for summary judgement.

 I. Introduction

 Plaintiff Michael Sarno is suing defendant Douglas Elliman-Gibbons & Ives ("DEGI"), a real estate brokerage company, for allegedly violating the ADA by refusing to accommodate plaintiff's alleged disability, terminating plaintiff's employment, and retaliating against and refusing to rehire plaintiff. Plaintiff also alleges that defendant failed to notify plaintiff of his rights and obligations concerning unpaid medical leave in violation of the FMLA.

 Now before the court are defendant's and plaintiff's cross-motions for summary judgment pursuant to Rule 56, F.R. Civ. P. Defendant argues that plaintiff cannot establish a prima facie case of discrimination under the ADA because plaintiff is not "disabled" within the meaning of the ADA. Defendant also argues that plaintiff was properly informed of his rights under the FMLA. Plaintiff disputes defendant's arguments and asserts that he is entitled to judgment as a matter of law. For reasons detailed below, defendant's motion is granted and plaintiff's motion is denied.

 II. Background

 Defendant hired plaintiff as a payroll administrator on or about April 18, 1994. (Cmplt. at 3). His duties included processing the payroll, separating paychecks, entering data into spread sheets, and processing workers' compensation and disability claims. (Id.) Most of plaintiff's work was accomplished in front of a computer or over the telephone. (Id.)

 Plaintiff's physical ailments began on April 21, 1993, when he suffered a hernia after undergoing a gall bladder operation. (Id.) On January 18, 1995, plaintiff had an incision hernia operation which restricted his ability to lift heavy objects, impaired his breathing, and left a permanent scar on his stomach. (Id.)

 Plaintiff exacerbated his injury when he slipped and fell at work on March 31, 1995. (Id.) Plaintiff claims that his fall resulted in increased pain which further restricted his ability to lift anything other than light objects. (Id.) A CAT scan conducted on May 4, 1995, revealed that the plaintiff had a sprained rectus muscle. *fn1" Due to pain from the sprained muscle, plaintiff took a leave of absence from work beginning on May 9, 1998. (Id.) On May 12, 1995, Joyce Sponholz, DEGI's human resources director, stated in a letter to plaintiff that his leave would be unpaid and governed by the FMLA. (See Joyce Sponholz letter, dated May 12, 1995).

 On August 3, 1995, plaintiff spoke with Sponholz and informed her that he could not return to work immediately. *fn2" Defendant terminated plaintiff's employment on August 4, 1995, twelve weeks after plaintiff first went on unpaid leave. (Cmplt. at 4). Plaintiff, through his attorney, subsequently requested re-employment from defendant on several occasions to no avail. (Id.) Plaintiff applied for other jobs and was advised by one such potential employer, Anthony Concrete Supply ("Anthony Concrete"), that they seriously were considering him for a position pending receipt of a positive reference from his prior employer. (Id. at 4, 5). Defendant did not provide a reference and plaintiff was not offered the position at Anthony Concrete. (Id.)

 III. Determination

 Rule 56(c), F.R. Civ. P., provides that summary judgement is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... 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." Rule 56(c), F.R. Civ. P. The moving party carries the initial burden of showing the absence of evidence to support the non-moving party's claim, Pressman v. Estate of Steinvorth, 860 F. Supp. 171, 176 (S.D.N.Y. 1994) (Carter, J.). The burden then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), F.R. Civ. P. While the court is to draw all reasonable inferences in support of the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), the court should not be reluctant to grant summary judgment in cases where an element essential to prove the non-moving party's case is factually unsupported in the record. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

 A. Plaintiff's ADA Claims

 In the instant case, plaintiff brings his first three claims under the ADA which, inter alia, prohibits employment discrimination against individuals with disabilities. *fn3" When analyzing the order and allocation of proof in discrimination claims under the ADA, courts apply the three step burden shifting framework articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). See ...


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