The opinion of the court was delivered by: SPATT
MEMORANDUM OF DECISION AND ORDER
The plaintiff, Joseph Zuppardo ("Zuppardo" or the "plaintiff") initiated this action against his former employer, the Suffolk County Vanderbilt Museum (the "Museum" or the "defendant") on September 6, 1996 by filing a complaint alleging employment discrimination and retaliatory discharge under the Americans With Disabilities Act ("ADA"), the Rehabilitation Act, and the New York State Human Rights Law ("NYSHRL"). At issue is the defendant's motion for summary judgment dismissing the complaint.
Except where otherwise indicated, the following facts are not in dispute.
The plaintiff was employed at the Museum and held the title of Planetarium Technician Assistant from approximately June 14, 1993 until May 16, 1994, when his employment was terminated. As a Planetarium Technician Assistant, the plaintiff was responsible for maintaining equipment and audio-visual systems, and performing related work as needed.
On or about October 1993, Zuppardo allegedly was in a car accident, as a result of which, he claims, he sustained back injuries that exacerbated a pre-existing problem of one leg being shorter than the other. Thereafter, according to Zuppardo, he began experiencing difficulty walking, sitting, standing, pushing and pulling. He alleges he was unable to walk more than 1/8 of a mile without suffering severe pain and needing to rest. In addition, the anxiety and depression he suffered from prior to the accident grew worse, although the plaintiff concedes that these latter, mental impairments, do not rise to the level of "disabilities" within the meaning of the ADA and related statutes. The Court notes that the plaintiff has not supplied any medical evidence, such as a medical record, hospital record, doctor's report or expert deposition testimony in support of his allegations concerning his physical and mental conditions.
The complaint sets forth five causes of action, which may be summarized as follows. The First Cause of Action, For "Harassment," alleges that the Museum and its staff regarded Zuppardo as suffering from a mental impairment, and created a hostile work environment which discriminated against him based on this perceived disability. Specifically, the plaintiff contends that the Museum conducted unwarranted searches of his desk, failed to provide him with a clean work environment, permitted co-workers to make disparaging remarks about him, and refused to take corrective action when he complained about the alleged harassment. In the Second Cause of Action, for "Denial of a Term or Condition of Employment," the plaintiff claims that the Museum refused to provide Zuppardo with tuition reimbursement, to which he was entitled, because of his actual or perceived disabilities. During oral argument, the plaintiff voluntarily withdrew this cause of action. The Third Cause of Action, for "Failure to Promote," maintains that the Museum twice denied Zuppardo promotions because of his actual and perceived disabilities. The Fourth Cause of Action, for "Wrongful Termination of Employment," alleges that the Museum terminated him because of his actual and perceived disabilities. Under the Fifth Cause of Action, for "Retaliatory Termination of Employment," the plaintiff asserts that the Museum terminated his employment because he had complained of the discriminatory practices and hostile work environment.
A. Summary Judgment: The Standard
Summary judgment is appropriate only where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law. In Re: Blackwood Associates, L.P., 153 F.3d 61, 67 (2d Cir. 1998)(citing Fed.R.Civ.P. 56[c]; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 ). In deciding a summary judgment motion, the district court must resolve all ambiguities and draw all reasonable inferences in the light most favorable to the opposing party. Castle Rock Entertainment, Inc. v. Carol Pub. Group, Inc., 150 F.3d 132, 137 (2d Cir. 1998)(citing Garza v. Marine Transp. Lines, Inc., 861 F.2d 23, 26 [2d Cir. 1988]). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996), cert. denied, U.S. , 117 S. Ct. 1819 (1997); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The trial court's task is "carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." B.F. Goodrich v. Betkoski, 99 F.3d 505, 522 (2d Cir. 1996)(quoting Gallo v. Prudential Residential Servs., Ltd, Partnership, 22 F.3d 1219, 1224 [2d Cir. 1994]), cert. denied sub nom., Zollo Drum Co., Inc. v. B.F. Goodrich Co., U.S. , 141 L. Ed. 2d 694, 118 S. Ct. 2318 (1998).
It is within this framework that the Court addresses the grounds for the Museum's motion for summary judgment.
B. The Americans With Disabilities Act, The Rehabilitation Act and the New York Human Rights Law: The Standards
1. The ADA and Rehabilitation Act
The ADA prohibits an employer from discriminating against an employee "because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).
A plaintiff alleging employment discrimination under the ADA bears the initial burden of establishing a prima facie case. Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869 (2d Cir. 1998)(citing Wernick v. Federal Reserve Bank of N.Y., 91 F.3d 379, 383 [2d Cir. 1996]). To establish a prima facie case of discriminatory discharge, a plaintiff must show that: (1) his employer is subject to the ADA; (2) he suffers from a disability within the meaning of the ADA; (3) he could perform the essential functions of his job with or without reasonable accommodation; and (4) he was fired because of his disability. Ryan v. Grae & Rybicki, 135 F.3d at 870 (citing Bates v. Long Island R.R. Co., 997 F.2d 1028, 1035 [2d Cir. 1993]; Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 [2d Cir. 1994], cert. denied, 513 U.S. 1147, 115 S. Ct. 1095, 130 L. Ed. 2d 1063 ).
The statute defines "disability" as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such impairment. 42 U.S.C. § 12102(2); see also Bragdon v. Abbott, U.S. , 118 S. Ct. 2196, 141 L. Ed. 2d 540 (1998). Regulations promulgated by the Justice Department under Title II of the ADA explain that a "mental impairment" includes "any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities." 28 C.F.R. § 35.104 (at Disability [i][B]). These same regulations define "major life activities" as "functions such as . . . walking, seeing, hearing, speaking, breathing, learning, and working." 28 C.F.R. § 35.104 (at Disability ); see also Bartlett v. New York State Board of Law Examiners, F.3d , 1998 U.S. App. LEXIS 22361, *19, 1998 WL 611730, *6 (2d Cir. Sept. 14, 1998). The Supreme Court recently observed that "The ADA's definition of disability is drawn almost verbatim from the definition of 'handicapped individual' included in the Rehabilitation Act of 1973, 29 U.S.C. § 706(8)(B) (1988 ed.) . . . [and that courts should] construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act." Bragdon v. Abbott, 118 S. Ct. at 2202.
While the ADA does not define "substantial limitation," the regulations promulgated by the EEOC under the ADA explain these terms. These regulations, though not binding, provide guidance in interpreting the ADA. See Francis v. City of Meriden, 129 F.3d 281, 283 n. 1 (2d Cir. 1997) (great deference is owed EEOC regulations interpreting the ADA). Under these regulations, an individual is "substantially limited" when he is:
(i) Unable to perform a major life activity that the average person in the general ...