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January 14, 1999


The opinion of the court was delivered by: McAVOY, Chief Judge.


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.

I. Background

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 21, 1998).

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 Flechtner.

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.

II. Discussion

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 Defendant's motion.

III. Plaintiff's ADA Claim

Plaintiff claims employment discrimination in ...

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