the plaintiff's causes of action assert that the defendant
discriminated against him on the basis of a disability, namely
Graves' disease, when he was terminated from his employment. On
its part, the defendant argues that the plaintiff is not disabled
within the meaning of either the ADA or the New York Executive
Law, and even if he is, he cannot demonstrate that his claimed
disability was a factor that led to his termination.
A. Summary Judgment
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. See In re
Blackwood Assocs., 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.
See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 764 (2d
Cir. 1998); 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 can 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, 137 L.Ed.2d 1027 (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. ___, 118 S.Ct. 2318, 141
L.Ed.2d 694 (1998).
It is within this framework that the Court addresses the
grounds for HBH's motion for summary judgment.
B. The Americans With Disabilities 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) (1994).
A plaintiff alleging employment discrimination under the ADA
bears the initial burden of establishing a prima facie case of
discriminatory discharge. In order to establish a prima facie
case, the 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) his
disability was a factor that led to his termination. Ryan v.
Grae & Rybicki, P.C., 135 F.3d 867, 869 (2d Cir. 1998) (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
1. Bonitch's "Disability" Claim
The ADA 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 an impairment."
42 U.S.C. § 12102(2) (1994); see also Bragdon v. Abbott,
524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). The Justice
Department promulgated regulations that define "major life
activities" as life "functions such as . . . walking, seeing,
hearing, speaking, breathing, learning and working."
28 C.F.R. § 35.104 (at Disability ) (1998); see also Bartlett v. New York
State Bd. of Law Examiners, 156 F.3d 321, 327-28 (2d Cir. 1998).
The Supreme Court has observed that "[t]he 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 the
term. The 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 population can perform;
(ii) Significantly restricted as to the condition,
manner or duration under which an 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.
29 C.F.R. § 1630.2(j)(1) (1998).
The EEOC further found that to decide whether a particular
disability "substantially limits one or more of the major life
activities," the severity of the impairment, the duration of the
impairment, and the permanent or long term impact resulting from
the impairment must be examined. Therefore, the plaintiff must
demonstrate that his condition: (1) constitutes a physical
impairment; (2) that his physical impairment affects a major life
activity; and (3) that the major life activity is substantially
limited by the physical impairment. In order to determine whether
the plaintiff's condition constitutes a physical impairment, the
Court is guided by the Department of Health and Human Services,
who define "physical or mental impairment" as:
"(A) any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: neurological; musculoskeletal; special
sense organs . . . cardiovascular; reproductive, digestive,
genito-urinary; hemic and lymphatic; skin; and endocrine. . . ."
Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 2198-99, 141
L.Ed.2d 540 (1998) (quoting 45 C.F.R. § 84.3(j)(2)(i) (1997)).
(i) Physical Impairment
Analyzing step one, the Court notes that the plaintiff's
symptoms associated with his condition include the necessity to
frequent the bathroom, fatigue, sweating, shortness of breath,
and a lack of muscle control in and around his eyes. In addition,
Graves' disease affects the thyroid gland, which is a "two-lobed
endocrine gland." Harris, 102 F.3d at 520; Epstein v.
Kalvin-Miller Int'l, Inc., 21 F. Supp.2d 400, 404 (S.D.N.Y. 1998)
(finding that plaintiff's heart disease and type 2 diabetes rose
to the level of a disability within the definition of the ADA).
Therefore, the Court concludes that Graves' disease constitutes a
physical impairment as it affects the endocrine system, and thus
meets the requirements set forth by the Department of Health and
(ii) Major Life Activity
The second step of the Court's analysis in determining whether
Graves' disease is a disability within the meaning of the ADA
requires a determination as to whether the plaintiff's impairment
affects a major life activity. Plaintiff states in his complaint
that he has difficulty seeing when sitting at a computer for a
period of time. In addition, the plaintiff claims to have
experienced shortness of breath and fatigue. Both breathing and
seeing are major life activities, see
45 C.F.R. § 84.3(j)(2)(ii) (1998), and therefore, the Court finds that the
plaintiff has fulfilled the second prong of the test.
(iii) Substantial Limitation
The third prong of the test to determine whether the plaintiff
has a disability within the meaning of the ADA is whether the
major life activity in step two is substantially limited by the
plaintiff's impairment from step one. See Bragdon,
524 U.S. 624,
118 S.Ct. 2196, 141 L.Ed.2d 540. When making this determination,
the Court cannot consider mitigating circumstances such as
medication. See Harris, 102 F.3d at 520; Schaefer v. State
Ins. Fund, No.95 Civ. 0612, 1998 WL 126061 (S.D.N.Y. Mar. 19,
1998) (stating that the effect of medication cannot be considered
when determining if a major life activity is substantially
limited); Epstein, 21 F. Supp.2d at 404 (stating that the
limitation on a major life activity must be determined with
regard to plaintiff's condition without medicine). The Court
notes that while the Second Circuit has not specifically
addressed this issue, the Eleventh Circuit concluded in Harris
v. H & W Contracting Co., 102 F.3d 516 (11th Cir. 1996), that
whether a person with Graves' disease has an impairment which
substantially limits a major life activity is a genuine issue of
material fact that a jury, not the Court, must decide. This Court
agrees with the ruling by the Eleventh Circuit. The Court cannot
conclude that the plaintiff's affliction with Graves' disease
could not substantially limit a major life activity in the
absence of medication, as a matter of law. Thus, a genuine issue
of material fact exists as to whether the plaintiff's condition
substantially limits a major life activity in order to qualify
him as disabled within the meaning of the ADA.
2. Otherwise Qualified
Finally, as previously noted, an essential element of an ADA
claim is an allegation that the plaintiff is "otherwise
qualified" for his particular job. Borkowski v. Valley Cent.
Sch. Dist., 63 F.3d 131, 137 (2d Cir. 1995). To be "otherwise
qualified," the plaintiff must be "able to perform the essential
functions of the job, either with or without a reasonable
accommodation." Id. at 135 (citing School Bd. of Nassau County
v. Arline, 480 U.S. 273, 279, 107 S.Ct. 1123, 94 L.Ed.2d 307
 and Gilbert v. Frank, 949 F.2d 637, 641-42 [2d Cir.
1991]). The plaintiff was clearly otherwise qualified as he had
the ability to appear at work and perform his duties without any
special accommodation. Despite the plaintiff's condition, he was
generally early to work, rarely took vacations, worked long days,
and continued to fulfill his existing responsibilities.
3. Was the Plaintiff's Disability a Factor Leading to his
"The burden of establishing a prima facie case [of
discrimination] is not onerous, and has been frequently described
as minimal." Epstein, 21 F. Supp.2d at 404 (citing Scaria v.
Rubin, 117 F.3d 652, 654 [2d Cir. 1997]). When attempting to
determine whether a genuine issue of material fact exists for
trial regarding whether a plaintiff was discharged because of his
disability, it is important to recognize "that employment
discrimination is often accomplished by discreet manipulations
and hidden under a veil of self-declared innocence." Rosen v.