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 violation of
In order to establish a prima facie case of discriminatory
discharge under the ADA, Plaintiff must establish that: (1) the
employer is subject to the statute under which the claim is
brought, (2) Plaintiff is
an individual with a disability within the meaning of the statute
in question, (3) Plaintiff could perform the essential functions
of the job, with or without reasonable accommodation, and (4) the
employer had notice of the plaintiff's disability and failed to
provide such accommodation. See Ryan v. Grae & Rybicki,
135 F.3d 867, 869-70 (2d Cir. 1998); Lyons v. Legal Aid Society,
68 F.3d 1512, 1515 (2d Cir. 1995); Bates v. Long Island R. Co.,
997 F.2d 1028, 1035 (2d Cir.), cert. denied, 510 U.S. 992, 114 S.Ct. 550,
126 L.Ed.2d 452 (1993). A plaintiff alleging employment
discrimination under the ADA bears the initial burden of
establishing a prima facie case. See Wernick v. Federal Reserve
Bank of N.Y., 91 F.3d 379, 383 (2d Cir. 1996). There is no
question here with respect to the first prong, as Defendant
regularly employs approximately 375 employees in its air freshner
business. See 42 U.S.C. § 12111(5).
The gravamen of Defendant's argument is that Plaintiff does not
have a disability as defined under the ADA. Defendant further
argues that even if Plaintiff was found to be disabled under the
statute, he was not a qualified individual with a disability —
that is, he could not perform the essential functions of the
Assistant Administrator position, with or without reasonable
accommodation. Lastly, Defendant contends that Plaintiff failed
to notify Defendant that he requested reasonable accommodation,
thus failing to trigger the fourth prong of his claim. Thus, the
Court's initial task is to analyze whether Plaintiff has a
disability as defined under the ADA.
Plaintiff alleges that he has "a disability that is recognized
as a `specific learning disability' under the ADA," Compl. at ¶
7, and, therefore, is automatically placed within a "protected
class" under the ADA. The Court initially notes that Plaintiff's
ADHD likely qualifies as an impairment within the meaning of the
statute. See Bercovitch v. Baldwin School, 133 F.3d 141, 155 (1st
Cir. 1998) (noting that "while ADHD is not a learning disability
per se, it is listed as a "mental disorder" in the American
Psychiatric Association's Diagnostic and Statistical Manual of
Mental Disorders (DSMIV)"); Price v. The National Bd. of Med.
Examiners, 966 F. Supp. 419, 422 (S.D.W.Va. 1997); see also
Kaltenberger v. Ohio College of Podiatric Medicine, 162 F.3d 432,
435-36 (6th Cir. 1998).
"Disability" is defined under the ADA to include: (a) a
physical or mental impairment that substantially limits one or
more of the major life activities of an individual; (b) a record
of such impairment; or (c) being regarded as having such an
impairment. See 42 U.S.C. § 12102(2); Colwell v. Suffolk County
Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998); Francis v. City
of Meriden, 129 F.3d 281, 283 (2d Cir. 1997). Although
Plaintiff's Complaint is silent on which definition of disability
underlies his claim, the papers submitted by the parties touch on
all three definitions. The Court will initially proceed under the
first definition, and determine whether Plaintiff has
demonstrated a triable issue of fact regarding whether his ADHD
substantially limited the major life activities of concentrating,
learning, and working. The Court is cognizant, however, that it
need only consider whether Plaintiff is substantially limited in
working if it finds that Plaintiff is not substantially limited
with respect to any other major life activity. See
29 C.F.R. § 1630.2(j) (1998).
A. Substantially Limits a Major Life Activity
The ADA does not define "major life activities" or "substantial
limit[ation]." However, the regulations promulgated by the EEOC
under the ADA provide some guidance on these terms. See City of
Meriden, 129 F.3d at 283 n. 1 (affording "great deference" to
EEOC interpretation of the ADA). The regulations define "major
life activities" as "functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working." 29 C.F.R.
§ 1630.2(i). As EEOC regulations recognize that this list is not
exhaustive, sitting, standing, lifting, reaching, thinking,
concentrating, and interacting with others are also considered
major life activities. See Martinez v. Labelmaster, American
Labelmark Co., 1998 WL 786391, at *7 n. 8 (N.D.Ill. November 6,
1998) (citing EEOC Compliance Manual § 902.3(b)); Glowacki v.
Buffalo Gen. Hosp., 2 F. Supp.2d 346, 351 (W.D.N.Y. 1998). Here,
Plaintiff's claim is premised on his ability to concentrate,
learn, and work.
The term "substantially limits" is defined in the ADA
regulations as: (i) unable to perform a major life activity that
the average person in the general population can perform; or (ii)
significantly restricted as to the condition, manner, or duration
under a individual can perform a particular major life activity
as compared to the condition, manner, or duration under which the
average person in the general population can perform that same
major life activity. See 29 C.F.R. § 1630.2(j)(1); Colwell, 158
F.3d at 643. The regulations further counsel that other factors
be considered in determining whether an individual is
substantially limited in a major life activity: (i) the nature
and severity of the impairment; (ii) the duration or expected
duration of the impairment; and (iii) the permanent or long term
impact, or the expected permanent or long term impact of or
resulting from the impairment. See id. at § 1630.2(j)(2).
The ADA does not consider every impaired person to be disabled
as defined under the statute. "Although almost any impairment
may, of course, in some way affect a major life activity, the ADA
clearly does not consider every impaired person to be disabled.
See Price, 966 F. Supp. at 422 ("[A] "learning disability" does
not always qualify as a disability under the ADA."). Thus, in
assessing whether a plaintiff has a disability, courts have been
careful to distinguish impairments which merely affect major life
activities from those that substantially limit those activities."
Ryan, 135 F.3d at 870 (citing Roth v. Lutheran Gen. Hosp.,
57 F.3d 1446, 1454 (7th Cir. 1995) ("[N]ot every impairment that
affect[s] an individual's major life activities is a
substantially limiting impairment")); Nweke v. The Prudential
Ins. Co. of America, 25 F. Supp.2d 203 227 (S.D.N.Y. 1998). Thus,
the ADA's requirement that an impairment must substantially limit
a major life activity to constitute a disability emphasizes that
"the impairment must be significant, and not merely trivial."
Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 151
(2d Cir. 1998) (quoting Sutton v. United Air Lines, Inc.,
130 F.3d 893, 898 (10th Cir. 1997) (citation omitted)); Knapp v.
Northwestern Univ., 101 F.3d 473, 481 (7th Cir. 1996) ("Not every
impairment that affects an individual's major life activities is
a substantially limiting impairment."), cert. denied,
520 U.S. 1274, 117 S.Ct. 2454, 138 L.Ed.2d 212 (1997). The determination
of whether an individual is disabled under the ADA is made on an
individualized, case-by-case basis. See Reeves, 140 F.3d at 151;
Ryan, 135 F.3d at 872 ("[T]he determination whether an impairment
`substantially limits' a major life activity is fact specific").
In this regard, the Court's task is to determine "whether the
impairment at issue substantially limits the plaintiff's ability
to perform one of the major life activities contemplated by the
ADA, not whether the particular activity that is substantially
limited is important to him." Reeves, 140 F.3d at 152
(quoting Runnebaum v. NationsBank of Maryland, N.A.,
123 F.3d 156, 170 (4th Cir. 1997) (en banc)). Thus, "the ADA does not
guard against discrimination based upon any physical or mental
impairment but only those impairments that are significant."
Reeves, 140 F.3d at 152; 29 C.F.R. § 1630.2(j).
In light of these well-settled considerations, the Court will
review the nature and severity of Plaintiff's ADHD on the major
life activities of concentrating, learning, and, if necessary,
1. Whether Plaintiff is Substantially Limited in His Ability to
Plaintiff alleges that he is "significantly restricted" in his
ability to concentrate because, "[a]s compared to the average
person, [he] can not concentrate in normal duration or under
normal conditions." Pl. Mem. of Law at 11. In response, Defendant
argues that Plaintiff's allegations are merely conclusory
statements that fail to establish a genuine issue of material
fact whether Plaintiff is substantially limited in his ability to
Here, Plaintiff misconceives the distinction between an
impairment and a "disability" as defined under the statute. By
focusing solely on his impairment, Plaintiff mistakenly leaps to
the conclusion that because he has ADHD, his ability to
concentrate is substantially limited as compared to the average
person. In effect, Plaintiff argues that his condition alone
creates a genuine issue of material fact whether he has a
disability. Significantly, Plaintiff has failed to offer any
proof as to how his ability to concentrate compares with that of
the average person.
The EEOC regulations state that the determination of whether an
individual is substantially limited in a major life activity
necessarily requires comparison to the average person. See
29 C.F.R. § 1630.2(j); 29 C.F.R. § 1630.2(j) ("An individual is not
substantially limited in a major life activity if the limitation
. . . does not amount to a significant restriction when compared
with the abilities of the average person."); see also Colwell,
158 F.3d at 644 ("Colwell's descriptions of his limitations are
marked throughout by hedging and a studied vagueness, so that
there is no support for the idea that his impairments would be
significantly limiting to the average person in the general
Here, Plaintiff merely alleges, in conclusory fashion, that as
compared to the average person, his ADHD "restricts his ability
to screen out distractions . . . which make it more difficult . .
. for him to concentrate." Pl. Mem. of Law at 11. Notably absent
from Plaintiff's allegations are specific facts or evidence
demonstrating that Plaintiff is substantially limited in his
ability to concentrate in comparison to the general population.
However, neither "conclusory statements, conjecture, [n]or
speculation" suffices to defeat summary judgment. Kulak v. City
of New York, 88 F.3d 63, 71 (2d Cir. 1996); see also Cronin v.
Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995) (unsupported
assertions and conclusory statements are not considered on motion
for summary judgment). Because Plaintiff has offered only
conclusory allegations regarding the impact of his condition as
compared to the average person, Plaintiff has failed to carry his
burden in establishing that his impairment substantially limited
his ability to concentrate.
2. Whether Plaintiff is Substantially Limited in His Ability to
Plaintiff expends considerable effort in arguing that his
"[scholastic] achievements later in life came on the heels of
substantial academic and personal struggle dating back to grade
school." Pl. Mem. of Law at 13. Plaintiff attributes much of his
academic success to "self-accommodations" which mitigated many of
the effects of his ADHD. Id. at 14. However, Plaintiff's
allegations regarding the present effect his ADHD had on his
ability to perform in his position at Car-Freshner, in comparison
to the average person, are noticeably absent. Indeed, in a
singular and unsupported reference, Plaintiff states that
"Defendant[ ] confirm[s], Plaintiff's ability to learn the job
and his ability to concentrate on the job were deficient." Id. at
Although the Court "would not expect that [Plaintiff's]
learning-related limitations to have simply ceased" outside an
academic setting, and that Plaintiff's position at Car-Freshner
required him to assimilate and process information, it would be
mere speculation, in the absence of any
specific evidence, to conclude that his impairment necessarily
constituted a substantial impairment. See Davidson v. Midelfort
Clinic, Ltd., 133 F.3d 499, 508 (7th Cir. 1998). As the Seventh
Circuit noted in Davidson:
The lack of evidence that [ADHD] presently limits
Plaintiff's ability to learn is more troubling.
Although we agree with [Plaintiff] that there is
enough evidence concerning her difficulties at school
to permit the inference that she has had difficulty
learning in the past, there is little or no evidence
in the record establishing that [ADHD] presently
inhibits her capacity to learn. There are some
references in the record that arguably could be
construed as evidence that [Plaintiff] had difficulty
getting oriented . . . and that [Plaintiff] asked
more questions than the average person would have
done. . . . But we do not think that these oblique
references [are] enough to establish that [Plaintiff]
has ongoing, substantial limitations on her ability
to learn outside the academic setting.
133 F.3d at 508 (emphasis added).
Here, again, Plaintiff's conclusory statements are insufficient
to create a triable issue of fact whether Plaintiff's ADHD
substantially limited his ability to learn. See Kulak, 88 F.3d at
71; Cronin, 46 F.3d at 203.
3. Whether Plaintiff is Substantially Limited in His Ability to
EEOC regulations provide specific guidance for determining
whether an individual is substantially limited in the major life
activity of working. See 29 C.F.R. § 1630.2(j)(3); Colwell, 158
F.3d at 643. The ability to work is substantially limited if an
individual is "significantly restricted in the ability to perform
either a class of jobs or a broad range of jobs in various
classes as compared to the average person having comparable
training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i). The
regulations further state that "the inability to perform in a
single, particular job does not constitute a substantial
limitation in the major life activity of working." Id.
Additionally, an individual is not substantially limited in his
ability to work if he is either "unable to perform a particular
specialized job or a narrow range of jobs." See
29 C.F.R. § 1630.2(j); Best v. Shell Oil Co., 107 F.3d 544, 548 (7th Cir.