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September 4, 1998


The opinion of the court was delivered by: KAPLAN


 LEWIS A. KAPLAN, District Judge.

 Plaintiff Douglas Parker brings suit against his former employer under the Americans With Disabilities Act *fn1" ("ADA"), the New York Human Rights Law *fn2" ("NYHRL"), and the Family and Medical Leave Act *fn3" ("FMLA"). Parker alleges that he was discriminated against in violation of these statutes because his employer, Sony Pictures Entertainment, Inc. ("SPE"), and two of its affiliates fired him after he had been absent from his job for six months following a back injury that occurred at SPE's facility. Parker contends also that the defendants later retaliated against him when they refused to rehire him for his former position. The defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and Parker cross-moves to amend his complaint to state a contract claim against the defendants.


 Parker Employed by SPE

 Parker began work at SPE's Film and Tape Operations facility ("FTO") located in Inwood, New York, in April 1993. The FTO division prepares and services film elements and videotape for use in creating finished movie and television products requested by SPE customers. *fn4" Parker served as an at-will employee in the position of Executive Director, Technical Services of the FTO division. *fn5" His job required him to supervise a process by which master tapes of television programs or movies were built to customer specification. *fn6" Parker managed a staff of up to thirty-one individuals and was responsible for training, supervising and meeting with them on a regular basis. *fn7" His job was a demanding one and involved frequent meetings and almost constant interaction with both his staff and his own supervisors. *fn8" Parker's position required also "constant running around" to check on his staff's progress and to meet with others at the facility such as researchers and expediters. *fn9" And Parker reviewed much of his staff's work product on monitors located at the video facilities at Inwood. *fn10"

 Parker Injured at Work

 On Thursday, March 16, 1995, Parker was involved in an accident at the Inwood facility. While he and others were searching through boxes in the warehouse section of the facility, some cartons fell on top of Parker, causing an injury to his back. *fn11" Parker came to work the next day, but on the following Monday, March 20, he worked only for a couple of the hours in the morning before leaving to seek medical attention. *fn12" Parker never returned to the Inwood facility to work.

 Parker's doctors initially recommended a treatment of muscle relaxants, anti-inflammatories, epidurals and rest. *fn13" As his condition failed to improve, however, it became apparent that Parker required surgery. *fn14" In mid-May 1995, Parker notified SPE that he had a serious health condition which required him to remain out of work and that he needed to have "major surgery" on his pelvic area. *fn15"

 After receiving verbal notice from Parker in mid-May that he would not be able to return to work for some time, SPE's human resources department sent Parker a note dated May 19, 1995 and a letter dated May 22, 1995 notifying him of his rights and obligations under FMLA and under SPE's short-term disability policy. *fn16" The FMLA notification specified that his "requested leave would be counted against your [FMLA] and New York State Family Rights Act ('FRA') entitlement" and that, as "set forth in the Company policy, you will be required to substitute paid leave for unpaid FMLA leave." *fn17" Parker was provided also with a FMLA medical certification form for his physician to submit to SPE. *fn18"

 The letter relating to SPE's short-term disability policy contained a description of the company's short-term disability benefits and reiterated to Parker that, based on the duration of his employment, he was entitled to six-months of leave, whether paid or unpaid. *fn19" According to the letter, SPE's policy requires an employee who is absent from work to provide a note from his or her physician certifying the illness every thirty days during the employee's absence and another note releasing the employee to return to work prior to or at the time of the employee's return. *fn20"

 On May 31, 1995, Dr. Jafar J. Jafar performed surgery on Parker's back after which Parker was hospitalized for three days. *fn21" On June 21, 1995, Dr. Jafar sent a fax to SPE informing the company that he had performed the surgery and that it was "undetermined" when Parker would return to work. *fn22" Parker's treating physician, Dr. Nancy L. Mueller, also certified in June that Parker then was "unable to perform work of any kind" due to his "serious health condition," that the duration of Parker's condition was "undetermined," that he had undergone surgery and would receive other treatment, and that it would be necessary for Parker to work on a reduced or intermittent schedule for some period, depending on his response to treatment. *fn23" On July 27, 1995, Dr. Mueller updated SPE by fax that Parker suffered from "lumbosacral polyradiculopathy" and that the prescribed treatment plan was medication and "no work." *fn24" On August 23, 1995, Dr. Mueller again sent a note with the same diagnosis and treatment plan -- "no work." *fn25" And yet again on August 24, 1995, Dr. Mueller found that Parker was "unchanged since last visit" and that the treatment plan included physical therapy six times per week. *fn26" Finally, on September 8, 1995, Dr. Mueller sent SPE a note that her findings were "unchanged since last visit." *fn27"

 At no time did any of Parker's doctors notify SPE that Parker was able to return to work. *fn28"

 Parker Terminated from SPE

 On or about September 11, 1995, Parker received a call from Mary Cipolla of SPE's human resources department advising him that, as would be indicated in a forthcoming letter, his employment with SPE would be terminated as of September 15, 1995. *fn29" The letter stated that Parker's disability coverage began on March 17, 1995, that he had "exhausted the maximum period of paid disability benefits as well as FMLA benefits," and that his employment with SPE would terminate effective September 15, 1995. *fn30"

 On September 13, 1995, Parker applied for long-term disability benefits. *fn31" In his application, Parker stated that he was unable to work because he was "completely incapacitated" and "disabled" and that it was unknown when he expected to return to work. *fn32" Two of Parker's physicians submitted statements in support of his application. Dr. Mueller certified that Parker suffered from "lumbosacral polyradiculopathy" and "radiculitis," that he was "unable to sit, stand, walk for an (sic) long periods of time," and that it was "undetermined" when any fundamental changes in Parker's medical condition would occur. *fn33" Parker's chiropractor, Dr. Joseph DeFazio, confirmed that Parker should not engage in "extended periods of sitting, no lifting, no pulling or pushing of objects," and that Parker could not "lift, push or pull any object with any weight, bend at the waist more than 20 degrees, turn or rotate the torso in any direction over 10 degrees, limited activities of daily living." *fn34" Dr. DeFazio's prognosis was "extremely guarded," and he also was "unable to assess" when any fundamental changes in Parker's medical condition could be expected. *fn35" As a consequence of Parker's application, he received long-term disability benefits from September 1995 through January 1996. *fn36"

 In October 1995, Parker applied for social security disability benefits. Parker stated in his application that he "became unable to work because of my disabling condition on March 16, 1995" and that he was "still disabled." *fn37" He stated that his disability prevented him from working because he had "problems sitting, standing and walking for sustained periods" and he had "constant pain in right leg from groin to heel." *fn38" He averred that he was "not able to lift much weight" and has "limitations in my mobility." *fn39"

 Parker went on to describe his job at SPE as involving walking, standing, sitting, bending and reaching several hours a day. *fn40" Parker affirmed also that his position required him to lift and carry "video tapes, 35 mm film prints, magnetic trks., negative film elements . . . from vault to screening room or work station" and that these items weighed up to 50 pounds on occasion and "frequently" up to 25 pounds. *fn41" Parker affirmed under penalty of perjury that all of the information contained in the application was true. *fn42"

 Although Parker swore to the Social Security Administration ("SSA") in October 1995 that he was totally disabled, he asserts that he sought to be reinstated to his job during October and November 1995. *fn43" He claims that he phoned his former boss, Bill Theis, and Theis' successor, Brunella Lisi, to tell them that he "was fully ready to come back to work" but that his efforts were spurned. *fn44"

 Parker Files EEOC Complaint

 In March 1996, Parker filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging that he was terminated from his job because of disability. *fn45" The EEOC determined after an investigation that Parker was not a "qualified individual with a disability" in that he was "unable to perform the essential functions of his position, with or without a reasonable accommodation, and in fact applied for long term disability benefits prior to the date he was terminated." *fn46" In consequence, the EEOC determined that "it [was] not likely that further investigation will result in a finding of a violation against [Parker]" and thus dismissed the complaint and issued a "Notice of Right to Sue." *fn47"

 Parker Applies to SPE for Position of Director of Technical Services

 At some point, SPE reorganized its FTO division. Several months before Parker's injury, he began reporting to Lisi on some matters rather than to his former boss, Bill Theis. *fn48" By memo dated September 14, 1995, Lisi proposed a further reorganization of the Technical Services and Asset Management area, indicating that the job of Executive Director of Technical Services -- Parker's former job title -- was "to be determined." *fn49"

 Ultimately, however, a lower-level employee, the Director of Technical Services, departed the company, and SPE sought to fill that position, which carried a smaller salary than the executive director position formerly held by Parker. *fn50" SPE placed an advertisement in a trade publication, Broadcasting & Cable, for the director position, *fn51" and Parker submitted his resume on June 4, 1996. *fn52" In addition to the resume, Parker included a letter in which he stated that the position advertised was "the same position -- or close to it" that he had held until September 1995 and that he had "now recovered well enough to return to work full-time." *fn53"

 SPE did not rehire Parker. By letter dated August 1, 1996, SPE informed Parker that "since the time [he] responded to the advertisement, the company has, based on business considerations, re-evaluated its need for that position" and that it had "determined not to fill the [director] position at this time or in the near future." *fn54" SPE contends that Parker's former position at FTO never was filled, *fn55" but Parker maintains that ultimately the ...

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