The opinion of the court was delivered by: Robert L. Carter, District Judge.
This action arises from defendants' termination of plaintiff's
employment, allegedly in violation of the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"), and the
New York State Human Rights Law, N.Y.Exec.Law § 290 et seq. (the
"NYSHRL"). Now before the court is defendants' motion for summary
Defendant Charles Van Nostrand ("Van Nostrand"), president of
co-defendant Samuel French, Inc. ("Samuel French"), hired
plaintiff Henry M. Wallengren ("Wallengren") as his assistant in
March, 1992. Samuel French is a publisher and licensor of
dramatic and musical plays. Wallengren's responsibilities as Van
Nostrand's assistant included corresponding with authors, and
with agents, individuals, and organizations seeking to license
plays that Samuel French publishes, and generally responding to
questions from employees, agents, writers, theaters, and others
about a wide variety of matters relating to the company.
In May, 1994, during a bout with PCP pneumonia, Wallengren
learned that he had AIDS. Prior to this time, he was not aware
that he was HIV positive. In January, 1995, Wallengren informed
Van Nostrand that he had AIDS after Van Nostrand inquired about
recent illness-related absences. Allegedly, Van Nostrand's
immediate reaction to plaintiff's disclosure was, in substance:
"This could cost the company a lot of money." (Wallengren Aff. ¶
4). According to Wallengren, this statement was the beginning of
Van Nostrand's subtle yet undeniably discriminatory behavior
toward him due to his disclosed AIDS condition. While his duties
as assistant remained the same, Wallengren asserts that his
relationship with Van Nostrand substantially deteriorated.
(Wallengren Aff. ¶ 7). Van Nostrand no longer confided in
Wallengren, nor solicited his opinions on broader matters
regarding the operation and direction of Samuel French.
(Wallengren Aff. ¶ 7). Wallengren was no longer invited to
meetings that he had previously attended. (Wallengren Aff. ¶ 7).
Furthermore, Wallengren and Van Nostrand no longer attended
dinner and theater together every Wednesday night, as they had
since the beginning of Wallengren's employment in 1992; such
occasions were reduced to
three times, or often two times, a month. (Wallengren Aff. ¶ 7).
However, while his role at Samuel French may have diminished,
Wallengren continued to receive pay raises, one increasing his
salary from $49,530 to $54,483 in March, 1995 and another
increasing his salary to $59,943 in October, 1995, and bonuses,
totaling approximately $10,000 for 1995. (Van Nostrand Aff. ¶
In light of Van Nostrand's allegedly discriminatory treatment
following the disclosure of his AIDS condition, Wallengren began
to explore the possibility of other employment opportunities,
including opportunities with Samuel French competitors.
(Wallengren Dep. at 167). On Thursday, February 15, 1996, Van
Nostrand became aware of Wallengren's exploration of other
employment while opening all Samuel French mail when he opened a
letter by Heather MacDonald ("MacDonald"), some of whose plays
are published by Samuel French, addressed to Wallengren. In the
letter, MacDonald stated: "Yes, I'm interested in where you are
going as far as another publishing house." (Van Nostrand Aff.Ex.
6). Van Nostrand confronted Wallengren with the letter that same
morning, and asked whether plaintiff was going to join a
competitor. Wallengren responded, in essence: "I'm not stealing
your authors, because I have no place to steal them to. I'm
working for you. I'm not working elsewhere." (Wallengren Dep. at
166, 167). Wallengren asserts that he and Van Nostrand met again
that day, at which time Van Nostrand accused Wallengren of having
a poor attitude, and claimed that he had heard from unidentified
sources that Wallengren was "rude" and "unhelpful." (Wallengren
Aff. ¶ 11). Additionally, Wallengren claims that Van Nostrand
commented that he did not know whether to attribute Wallengren's
poor reputation and attitude to Wallengren's "medication or
illness." (Wallengren Aff. ¶ 6).
Regardless, Wallengren and Van Nostrand agreed to meet again to
discuss the matter on Tuesday, February 20, 1996, the next day
that both were scheduled to be in the office. Van Nostrand
alleges that in the intervening days between February 15 and
February 20, he was informed by multiple sources that Wallengren
had scheduled a meeting at Music Theater International ("MTI"), a
Samuel French competitor, with the purpose of proposing that MTI
establish a non-musical play division. (Van Nostrand Aff. ¶ 6).
Van Nostrand states that upon learning of this meeting and of
Wallengren's disloyalty to Samuel French, he decided to fire the
plaintiff. (Van Nostrand Aff. ¶ 20). Van Nostrand personally
fired Wallengren, effective immediately, on February 20, 1996
without a verbal or written explanation as to cause. (Wallengren
Aff. ¶ 16).
Wallengren does not deny that he had discussions with MTI about
the possibility of establishing a non-musical play division.
Indeed, defendants have submitted several documents written by
Wallengren in December 1995 and January 1996 concerning the
proposal; many of those documents contain disparaging remarks
about Samuel French and Van Nostrand. (Van Nostrand Aff.Ex.
13-16). However, Wallengren vigorously contests Van Nostrand's
claim that Van Nostrand knew about the proposal on the day
Wallengren was fired. Wallengren contends that Van Nostrand's
knowledge of the MTI proposal came to fruition some time after
his termination, perhaps through discovery.
Wallengren filed a charge of discrimination with the U.S. Equal
Employment Opportunity Commission ("EEOC") on March 29, 1996,
which Van Nostrand responded to in April, 1996. Wallengren
subsequently received a Notice of a Right to Sue letter from the
EEOC on December 9, 1996, and filed a complaint in this court on
January 24, 1997. Wallengren alleges that he was terminated on
the basis of disability, namely, his AIDS condition, in violation
of the ADA and the NYSHRL. Van Nostrand denies that Wallengren's
AIDS condition had any influence in his decision to
terminate, and asserts that he properly fired plaintiff due to
his disloyalty to Samuel French. Accordingly, defendants now move
for summary judgment pursuant to Rule 56, F.R.Civ.P.
I. Summary Judgment Standard
Under Rule 56(c), F.R.Civ.P., summary judgment is rendered when
"the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law."
"[T]he substantive law will identify which facts are material . .
. [and] [o]nly disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the
entry of summary judgment." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The
burden of showing that no genuine issue of material fact exists
rests on the party seeking summary judgment. See Chambers v. TRM
Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994). Furthermore,
all ambiguities must be resolved and all inferences drawn in
favor of the party against whom summary judgment is sought. See
Gallo v. Prudential Residential Services, 22 F.3d 1219, 1223 (2d
Cir. 1994). Thus, "not only must there be no genuine issue as to
the evidentiary facts, but there must also be no controversy
regarding the inferences to be drawn from them." Donahue v.
Windsor Locks Bd. of Fire Commissioners, 834 F.2d 54, 57 (2d
Cir. 1987). On a motion for summary judgment, a court "cannot try
issues of fact; it can only determine whether there are any
issues to be tried." Chambers, 43 F.3d at 36-37 (quoting
Donahue, 834 F.2d at 58).
Additional considerations should be taken into account when
deciding whether summary judgment is appropriate in an employment
discrimination case. See Gallo, 22 F.3d at 1224. When an
employer's intent, motivation, or state of mind is at issue,
summary judgment should be granted sparingly. See Dister v.
Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988);
Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (summary
judgment is "ordinarily inappropriate where an individual's
intent and state of mind are implicated."). Nevertheless, the
plaintiff must offer "`concrete evidence ...