The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM-DECISION & ORDER
Plaintiff Todd DeMar ("DeMar" or "Plaintiff") brought the
instant action on April 10, 1997, pursuant to the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., against his
former employer, Car-Freshner Corporation ("Car-Freshner" or
"Defendant"), alleging employment discrimination. Specifically,
Plaintiff asserts Defendant failed to provide him with reasonable
accommodations after being notified that he was diagnosed with
Attention Deficit Hyperactivity Disorder ("ADHD"), and
subsequently discharged him because of his condition. See Compl.
at ¶¶ 15-20. Plaintiff seeks compensatory and punitive damages,
and attorney's fees.
Presently before the Court is Defendant's motion for summary
judgment pursuant to Fed.R.Civ.P. 56.
Plaintiff has failed to submit a statement in accordance with
Local Rule 7.1(f) which requires "a separate, short and concise
statement of the material facts as to which it is contended that
there exists a genuine issue."*fn1 Accordingly, all material facts
set forth in the Rule 7.1(f) statements served by the moving
parties are deemed admitted. See N.D.N.Y. LOCAL R. 7.1(f);
Costello v. Norton, 1998 WL 743710, at *1 n. 2 (N.D.N.Y. October
Plaintiff was hired by Car-Freshner as an Assistant
Administrator in March 1995. Although Plaintiff initially
inquired into the position of Personnel Director, he subsequently
interviewed for a newly created position working directly for
Defendant's President, Richard Flechtner ("Flechtner"). The
position, which became formally titled Assistant Administrator,
was designed to fill Defendant's severe need for increased
management help and covered a wide range of duties that included,
inter alia, reviewing trademark usage, organizing the filing of
litigation matters and reviewing correspondence and materials
related to pending litigation, reviewing purchase orders,
organizing Defendant's trade show, performing a capacity study in
connection with proposed expansion, and handling Defendant's
warehouse lease. Significantly, Plaintiff was informed that the
position was inherently unstructured and very demanding, and
required him to work independently, with minimal opportunity for
supervision or training. As such, the position did not lend
itself to either a formal job description or defined set of
tasks. Thus, Plaintiff functioned much like a "right-arm" to
Flechtner, requiring him to do "whatever
he was told to do at that time," and reported directly to
Prior to accepting the position of Assistant Administrator at
Car-Freshner, Plaintiff obtained a college degree and completed
his first year of law school. Additionally, Plaintiff operated
his own cable television installation business and worked in a
variety of positions at Car-Freshner.
In October 1995, apparently dissatisfied with Plaintiff's
performance as Assistant Administrator, Flechtner reassigned
Plaintiff to a "product development project" where he worked with
other employees in a team-oriented setting. Although Defendant
had made the decision to remove Plaintiff from his position as
Assistant Administrator around September or October 1995, it did
not formally notify Plaintiff because he was currently reassigned
to another position. It was subsequently decided that Plaintiff,
along with two other managerial employees, would not receive
salary increases due to performance deficiencies.
On November 3, 1995, Plaintiff was diagnosed with ADHD.
Sometime in mid to late November, Plaintiff inquired of Flechtner
regarding his job performance. At this time, however, Plaintiff
had not informed Defendant, nor was Defendant independently
aware, that Plaintiff had been diagnosed with ADHD, or suffered
from a learning disability. During their discussion, Flechtner
informed Plaintiff that he "had some concerns," and that
Plaintiff was very obstinate and inattentive. It was only at this
point that Plaintiff disclosed his condition to Flechtner to
"explain some of Flechtner's concerns." On the next day,
Plaintiff contacted Judy Piarulli, the Personnel Director, and
informed her that he "was claiming protected status under the
ADA." Compl. at ¶ 9. Significantly, prior to his conversation
with Flechtner, Plaintiff did not believe that his condition
negatively affected his job performance, and did not request any
accommodation from Defendant at any time during his employment.
The impetus for Plaintiff's claim arose on January 4, 1996,
when he did not receive a pay raise. The next day, at Plaintiff's
demand, a meeting was held with Flechtner, Jody LaLone, a senior
Vice President at Car-Freshner, and Piarulli. At this meeting,
Flechtner informed Plaintiff that he was not given a pay raise
because his job performance was unsatisfactory, citing specific
deficiencies. Flechtner then informed Plaintiff that although his
performance as Assistant Administrator was lacking, Defendant had
no intention of discharging him, and that he was being considered
for a possible new position. Flechtner told Plaintiff that the
final determination regarding the new position would not be made,
however, until Plaintiff was formally evaluated in his current
position on the yet to be completed product development project.
Apparently displeased that he would need to wait for a decision,
Plaintiff demanded a decision from Flechtner whether he would be
placed in this new position. Although Flechtner repeated that
this decision depended on Plaintiff's evaluation in his current
project, and that the specifics regarding the new position were
not finalized, Plaintiff nevertheless demanded that Flechtner
give him an immediate answer. After Flechtner informed Plaintiff
that compelling him to make a decision at the present time would
result in Plaintiff's discharge, Plaintiff did not relent in his
demand. Unsurprisingly, Flechtner informed Plaintiff that he left
him no other choice than to discharge him.
Subsequent to his employment with Defendant, Plaintiff has
worked as a consultant, business manager, operations manager, and
Director of Operations at Crescent's Pizza, a restaurant chain,
and is also employed as a firefighter for the City of Watertown.
A. The Standard for Summary Judgment
The standard for summary judgment is well-settled. Under
Fed.R.Civ.P. 56(c), if
there is "no genuine issue as to any material fact . . . the
moving party is entitled to a judgment as a matter of law . . .
where the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986); see also Chertkova v. Connecticut Gen.
Life Ins. Co., 92 F.3d 81, 86 (1996). The moving party bears the
initial burden of "informing the . . . court of the basis for its
motion, and identifying those portions of `the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any,' which it believes demonstrate
the absence of a genuine issue of material fact." Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986) (quoting FED. R. CIV. P. 56(c)). The initial burden is to
demonstrate "that there is an absence of evidence to support the
nonmoving party's case." Id. at 325, 106 S.Ct. 2548.
Once the moving party has met its burden, the non-moving party
must come forward with specific facts showing that there is a
genuine issue for trial. See Celotex Corp., 477 U.S. at 322, 106
S.Ct. 2548; Matsushita, 475 U.S. at 585-86, 106 S.Ct. 1348. A
dispute regarding a material fact is genuine if a reasonable jury
could return a verdict for the non-moving party; that is, whether
the non-movant's case, if proved at trial, would be sufficient to
survive a motion for judgment as a matter of law. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). When reasonable minds, however, could not
differ as to the import of the evidence, then summary judgment is
proper. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert.
denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).
Although the trial court must resolve all ambiguities and draw
all inferences in favor of that party against whom summary
judgment is sought, Ramseur v. Chase Manhattan Bank,
865 F.2d 460, 465 (2d Cir. 1989); Eastway Const. Corp. v. City of New
York, 762 F.2d 243, 249 (2d Cir. 1985) cert. denied,
484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987), the motion will not be
defeated by a non-movant who raises merely a "metaphysical doubt"
concerning the facts or who only offers conjecture or surmise.
Delaware & Hudson Ry. Co. v. Consolidated Rail Corp.,
902 F.2d 174, 178 (2d Cir. 1990), cert. denied, 500 U.S. 928, 111 S.Ct.
2041, 114 L.Ed.2d 125 (1991) (quoting Matsushita, 475 U.S. at
586, 106 S.Ct. 1348); see also Western World Ins. Co. v. Stack
Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). Indeed, the
nonmoving party's opposition may not rest on mere allegations or
denials of the moving party's pleading, but "must set forth
specific facts showing that there is a genuine issue for trial."
FED. R. CIV. P. 56(e).
The Court is aware of the dangers of summary judgment in
connection with an ADA claim. "Because direct evidence of . . .
discriminatory intent will rarely be found, `affidavits and
depositions must be carefully scrutinized for circumstantial
proof which, if believed, would show discrimination.'" Schwapp v.
Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quoting Gallo v.
Prudential Residential Services, L.P., 22 F.3d 1219, 1224 (2d
Cir. 1994)). "However, even in the discrimination context, a
plaintiff must provide more than conclusory allegations of
discrimination to defeat a motion for summary judgment." Id.
(citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), cert.
denied 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985)).
It is with these standards in mind that the Court addresses
III. Plaintiff's ADA Claim
Plaintiff claims employment discrimination in ...