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February 19, 1999


The opinion of the court was delivered by: Spatt, District Judge.


The plaintiff, Michael Bonitch ("Bonitch" or the "plaintiff"), initiated this action against his former employer, The Original Honey Baked Ham Company of the East, Inc. ("HBH" or the "defendant"), on July 14, 1997 by filing a complaint alleging employment discrimination under the Americans With Disabilities Act ("ADA") and the New York Executive Law § 290 et seq. (the "Executive Law"). At issue is the defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure seeking dismissal of the plaintiff's complaint.


Except where otherwise indicated, the following facts are not in dispute. The plaintiff was hired at HBH on April 7, 1992 as an assistant manager of the defendant's Commack, New York store. In April 1993, he was promoted to manager of that store. In that position, he was required to hire and train new employees, handle any customer service issues that arose, fill orders for needed supplies and oversee and delegate duties to the other staff employees. In March 1997, the plaintiff was transferred to HBH's Levittown, New York store where he worked until he was discharged on April 7, 1997.

Over the course of his employment, the plaintiff generally received good evaluations, although on certain occasions he was given constructive criticism on ways to better conform with the policies of HBH. For example, the plaintiff received an evaluation on January 20, 1993, wherein he was referred to as a "responsible individual" who should soon be able to manage his own store. Similarly, in June 1993, Bonitch was evaluated and received a positive evaluation for his performance. In April 1994, however, Bonitch's district manager, Steven Gaiser, cautioned him that he needed to make improvements in his job performance including his image, leadership, and appearance.

In September 1995, the plaintiff began to suffer from a thyroid condition. In January 1997, Bonitch was diagnosed with Graves' disease, which is an endocrine disorder that affects the thyroid gland. The common signs of Graves' disease are "(1)goiter; (2) tachycardia; (3) widened pulse pressure; (4) warm, fine, moist skin; (5) tremor; (6) eye signs . . .; and (7) atrial fibrillation." Harris v. H & W Contracting Co., 102 F.3d 516, 522 (11th Cir. 1996) (quoting The Merck Manual of Diagnosis and Therapy [Robert Berkow et al. eds., 15th ed. 1997]). If left untreated or if improperly treated, Graves' disease can cause, in the extreme, "cardiovascular collapse and shock." Id. Bonitch was subsequently diagnosed with ocular myasthenia, a condition which caused him to experience double vision and a lack of control of his eye muscles. As a result, his left eye had a tendency to squint or close, and his right eye would look up and out. In fact, the plaintiff contends that his condition was visible and known to all of the other employees including his supervisors.

On April 8, 1997, Bonitch was discharged without warning. He met with Rick Collard, HBH's operations manager, who informed Bonitch that he was being terminated because the corporation was unhappy with the way that he was managing the store. Collard made reference to several incidents that had been reported on the plaintiff's managerial evaluations, such as an indifferent attitude toward store security and improper placement of the "side dish sampling stations."


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 [1986]; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 [1986]). 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, ...

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