The opinion of the court was delivered by: Scullin, District Judge.
MEMORANDUM-DECISION AND ORDER
Presently before the Court are two motions. First is the
County's motion for summary judgment on the basis that Plaintiff
cannot, as a matter of law, establish a prima facie case of
disability discrimination. Second is Plaintiff's cross-motion for
summary judgment on the issue of liability.
As an initial matter, the Court notes that at the time the
County's motion for summary judgment was filed, the County as the
moving party was required to prepare a "short and concise
statement of the material facts as to which the moving party
contends there is no genuine issue, with specific citations to
the record where such facts are set forth." Local Rule 7.1(f)
(1998) (emphasis added).*fn1 The County's original statement
contained no cites to the record. Plaintiff took note of this
defect in his brief, and asked the Court to dismiss the motion.
The County however, submitted a corrected version when it filed
the complete summary judgment packet with the Clerk's office. For
this reason, the Court will allow the motion to go forward.
The standard for summary judgment is well known. Such motion
will be granted only if the moving party can show that no genuine
issue of material fact exists for trial. See Fed.R.Civ.P.
56(c). Since Plaintiff carries the burden of proof in this case,
the County can prevail on its motion only if it can point to an
absence of evidence to support an essential element of
Plaintiff's claims. See Consarc v. Marine Midland Bank, N.A.,
996 F.2d 568, 572 (2d Cir. 1993). To defeat the County's motion,
Plaintiff in turn must produce evidence in an admissible form to
support his claims. See Weg v. Macchiarola, 995 F.2d 15, 18 (2d
Cir. 1993). The evidence must be more than colorable, conclusory
or speculative. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For his own
summary judgment motion to succeed, Plaintiff must show, as a
matter of law, that he can establish all elements of his claim by
a preponderance of the evidence and no questions of material fact
exist for a jury to decide. When considering each motion, all
reasonable inferences must be drawn and all ambiguities resolved
in favor of the non-moving party. See Consarc, 996 F.2d at 572.
II. Elements of a Disability Discrimination Claim
To establish a prima facie case, Plaintiff must prove: (1)
his employer is subject to the ADA and the Rehabilitation Act;
(2) he is an individual with a disability; (3) he is otherwise
qualified to perform the essential elements of his job with or
without reasonable accommodation; and (4) he was subjected to
discrimination because of his disability. See Reeves v. Johnson
Controls World Serv., 140 F.3d 144, 149-50 (2d Cir. 1998) (ADA);
Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994)
(Rehabilitation Act). The County argues primarily that Plaintiff
cannot establish he is "disabled" within the meaning of the
A. Whether Plaintiff is an individual with a disability
A "disability" is defined under both the ADA and the
Rehabilitation Act to include:
(A) a physical or mental impairment that
substantially limits one or more of the major life
functions of an individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2); 29 U.S.C.A. § 705(20)(B) (West 1999)
(formerly 29 U.S.C. § 706(2)(B)). Plaintiff argues that under
either subsection (A) or (C), he qualifies as a person with a
1. Physical or Mental Impairment that Substantially Limits One
or More Major Life Functions
The Second Circuit has emulated the three-step approach taken
by the Supreme Court in Bragdon v. Abbott, 524 U.S. 624, 118
S.Ct. 2196, 141 L.Ed.2d 540 (1998), for purposes of determining
whether an individual suffers from an impairment that
substantially limits major life activities. See Colwell v.
Suffolk County Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998).
First to be considered is whether a plaintiff suffers from a
physical or mental impairment. See id. Second, the court is to
identify the activity claimed to be impaired and determine
whether it constitutes a "major life activity" under the
statutes. See id. Finally, the plaintiff must show that his
impairment "substantially limits" the major life activity
identified in the previous step. See id. If a plaintiff fails
to satisfy each of these elements, his discrimination claim must
be dismissed. See id.
a. Physical or Mental Impairment
As noted earlier, Plaintiff suffers from chronic anal fissures.
The County concedes Plaintiff has a physical impairment as
defined under the ADA and the Rehabilitation Act. The question
then becomes whether that impairment ...