factors rather than a decisive consideration in itself. The
complexities of the law are such that a lawyer who has little or
no experience in this area, is no more competent to deal "with
the vagaries of Title VII and its jurisdictional . . .
requirements" than a layman. Tarr, 958 F. Supp. at 794; see
Harrington, 2 F. Supp.2d at 478 (where error in EEOC filing made
by "retained counsel whose practice is limited to labor and
employment law"). Where, as here, there is a clear "identity of
interest" between the individuals named in the EEOC complaint and
the Senate, and where the Senate suffered no prejudice from the
failure of plaintiff to undertake the futile gesture of naming it
in the EEOC complaint, a dismissal of this civil rights action is
II. The ADEA Claim
Manzi's ADEA claim is close, but genuine issues of material
fact bar dismissal. The ADEA, 29 U.S.C. § 623 et seq., makes it
unlawful for an employer to fail or refuse to hire, discharge, or
otherwise discriminate against an individual with respect to
compensation, terms, conditions, or privileges of employment
because of that individual's age. The Second Circuit analyzes
ADEA and Title VII claims under the same burden-shifting
framework. See Fisher v. Vassar College, 114 F.3d at 1335-37.
The defendants concede for purposes of this motion that Manzi can
establish her prima facie case. (Defendants' Mem. at 19). The
defendants have offered a non-discriminatory explanation, budget
cuts, for Manzi's termination. The burden now returns to Manzi to
demonstrate that the proffered explanation is a pretext, and that
she "was likely injured by the defendant's illegal
discrimination." Fisher, 114 F.3d at 1346.
The defendants point out that, of the three people who were not
rehired in February 1995, only the plaintiff was over the age of
40. The other two were 28 years old (Charisse Renzi) and Lorie
Pizzola (age 27). (DiCarlo Aff. ¶¶ 19, 20; Defendants' Exhibits E
& R). During the remainder of 1995, Faye Davis (age 65) was the
only member of the protected class whose employment was not
continued. (The others were Shane Brody, age 22, and Andrea
Sabatella, age 25.) Ms. Davis stated that she resigned from her
position to pursue other interests and spend more time with her
husband. (Davis Dep. at 68-69). She also stated that she was
never discriminated against by anyone while working in Senator
DiCarlo's office. (Id. at 130-31).
In fact, Manzi herself was a member of the protected age group
when she was hired. Although she was originally hired by Chris
Mega, at the age of 59, it was DiCarlo who got her that position.
(DiCarlo Aff. ¶ 4; Manzi Dep. at 23 ("Q. How did you obtain a
position in Senator Mega's office? A. . . . Robert DiCarlo was
nice enough to get me the position.") She was 60 years old when
DiCarlo promoted her and gave her a salary raise. (Sloan Aff. ¶
18; Defendants' Exhibits E & R). She was 61 years old in December
1994, when DiCarlo recommended her continued employment for the
January 1, 1995 to February 22, 1995 period. (Id.).
The Second Circuit has noted that "when the person who made the
decision to fire was the same person who made the decision to
hire, it is difficult to impute to her an invidious motivation
that would be inconsistent with the decision to hire. This is
especially so when the firing has occurred only a short time
after the hiring." Grady v. Affiliated Central, Inc.,
130 F.3d 553, 560 (2d Cir. 1997). Accord Brown v. CSC Logic, Inc.,
82 F.3d 651, 658 (5th Cir. 1996) (recognizing this inference);
Buhrmaster v. Overnite Trasp. Co., 61 F.3d 461, 463 (6th Cir.
1995); Rand v. CF Indus., Inc., 42 F.3d 1139, 1147 (7th Cir.
1994) (plaintiff hired at age 47 and fired by the same person two
years later failed to establish a claim for age discrimination);
Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 175 (8th Cir.
1992) ("it is simply incredible, in light of the weakness of
evidence otherwise, that the company officials who hired him at
age fifty-one had suddenly developed an aversion to older people
less than two years later"); Proud v. Stone, 945 F.2d 796, 797
(4th Cir. 1991); Brennan v. Bausch & Lomb, 950 F. Supp. 545,
551-52 (E.D.N.Y. 1997) (applying same actor inference and
dismissing ADEA claims where plaintiff was member of protected
class at time of hiring, rehiring, and firing over less than
3-year period); Ali v. Tribune Entertainment Co., No. 93 Civ.
1398, 1996 WL 384913, at *8 (S.D.N.Y. 1996) (weighting same actor
inference as factor in mixed-motive case, and granting summary
judgment); Alexander v. Burke Rehab. Ctr., No. 92 Civ. 6574,
1995 WL 293963, at *9 (S.D.N.Y. 1995). This inference has
generally been applied only where it bolstered the employer's
legitimate reason for the adverse action. See Padilla v. Buffalo
State College Foundation, Inc., 958 F. Supp. 124, 127-28
(W.D.N.Y. 1997) and cases cited therein; Tanzini v. Marine
Midland Bank, 978 F. Supp. 70, 76-77 (N.D.N.Y. 1997).
Against these arguments, Manzi's strongest support for her
claim are the comments by DiCarlo and Manzi, combined with the
hiring of Anthony Canade at the same time she was terminated.
Manzi alleges that DiCarlo allegedly told her, "I want to fire
Faye [Davis] because she is getting on. She doesn't have
patience." (Manzi Dep. at 101). Annarummo allegedly complained
about Lucille Griffin walking too slowly and looking old. Griffin
was fired shortly thereafter. (Manzi Dep. at 233-35). Annarummo
also described Austen Canade as "over the hill," and Eugene Russo
as "stale" and "old." (Manzi Dep. at 233-35; Davis Dep. at 21).
(Canade and Russo were still employed at the office in 1996.
(Defendants' Mem., Addendum 2)). Moreover, Renzi claims to have
been fired for opposing the alleged discrimination against Manzi,
(Renzi Dep. I at 13), and Davis stated that the "young blood"
comments in the office made her uncomfortable, and that "it was a
matter of time before [she] would be let go anyway." (Davis Dep.
While comments of this kind attributed to the defendants
DiCarlo and Annarummo may not alone be sufficient to get a
discrimination case to a jury, where "other indicia of
discrimination are properly presented, the remarks can no longer
be deemed `stray,' and the jury has a right to conclude that they
bear a more ominous significance." Danzer v. Norden Systems,
Inc., 151 F.3d 50, 56 (2d Cir. 1998). The "other indicia of
discrimination" that tips the balance here in favor of a jury
resolution of the ADEA claim is evidence of the hiring of Anthony
Canade on February 15, 1995 as a case-specialist, at a salary of
$20,000 per year. (Mussman Aff. Ex. 2, 3). Plaintiff alleges
that, notwithstanding her job description as a scheduling
coordinator, she was actually performing the duties of a
case-specialist at the identical salary. Since the hiring of Mr.
Canade coincided with the firing of plaintiff, plaintiff contends
that her replacement by a younger person supports her claim that
the "reduction in force explanation" for her termination was
Other than arguing over whether plaintiff has introduced
sufficient evidence to show that Mr. Canade had taken "over some
of her duties," (March 6, 1999 Tr. at 34), this argument has not
been sufficiently addressed by the defendants. Indeed, even if
Mr. Canade did not assume all of plaintiff's responsibilities,
his addition to the payroll at the same time plaintiff was
terminated for budgetary reasons, is sufficient to create an
issue of fact as to whether the reason advanced for plaintiff's
discharge was pretextual and whether age was a substantial
motivating factor in plaintiff's dismissal.*fn2
While I have assumed for present purposes that plaintiff is an
employee who enjoys the protection afforded by the ADEA, the
issue is far from clear. The ADEA excludes from the definition of
protected employees the "personal staff" of any person "elected
to public office in any State or any political subdivision of any
State." 29 U.S.C. § 630(f). Plaintiff was described by her
attorney as one of the "core of people that actually worked
within the Senator's office and that was Manzi, Renzi [and]
Davis." (March 6, 1998 Tr. at 14). Senator DiCarlo was her
appointing authority and she served at his pleasure. While she
was technically an employee of the Senate and her appointment by
Senator DiCarlo was subject to ratification by the Senate
Majority Leader, (Sloan Aff. ¶ 8), it is arguable whether this
formal mechanism alters the nature of the relationship between a
Senator and his personal staff. Indeed, I overlooked this
formality in concluding that the State Senate did not have to be
named on the EEOC complaint. Nevertheless, because this ground
was not asserted as a basis for summary judgment, and because
"the highly factual nature of the inquiry necessary to the
determination of the `personal staff' exception does not lend
itself well to disposition by summary judgment," Teneyuca v.
Bexar County, 767 F.2d 148, 152 (5th Cir. 1985), I merely note
this issue without deciding it.
III. The ADA Claim
Pursuant to the ADA, "[n]o covered entity shall discriminate
against a qualified individual with a disability 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). The ADA is a
close cousin of both the Rehabilitation Act of 1973, 29 U.S.C. § 790-794a
(1996), and Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. (1996). See Vande Zande v. Wisconsin
Dep't of Admin., 44 F.3d 538, 542 (7th Cir. 1995) ("[T]he
employment provisions of the . . . Act [ADA] merely generalize to
the economy as a whole the duties, including that of reasonable
accommodation, that the regulations under the Rehabilitation Act
imposed on federal agencies and federal contractors."); Mohamed
v. Marriott Internat'l, Inc., 905 F. Supp. 141, 154 (S.D.N Y
1995) ("The new legislation [ADA] is also, however, based closely
on Title VII[:] The employment title of the ADA adopts the
powers, procedure, and remedies of parts of Title VII[;] [m]uch
of the wording of the two statutes is the same[;] [and] [c]ourts
in interpreting this provision have been quick to apply precedent
set under Title VII.") (internal quotations and citations
omitted). Thus, Rehabilitation Act and Title VII precedent is
also controlling with respect to ADA claims.
To establish a prima facie case of disability under the ADA, a
plaintiff has the burden of proving that she is a "qualified
individual with a disability," Wernick v. Federal Reserve Bank
of New York, 91 F.3d 379, 383 (2d Cir. 1996) (ADA and
Rehabilitation Act case), that she has suffered an adverse
employment action, and that a causal connection exist between the
adverse employment action and the disability. See id. at 383;
Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994)
(Rehabilitation Act case).
In order to establish the first element of her prima facie case
— i.e., that she is a "qualified individual with a disability" —
Manzi must show that her arthritis constituted a "disability,"
which the ADA defines 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 impairment; or (C) being regarded as having
such an impairment." 42 U.S.C. § 12102(2) (1996) (emphasis
added). By extending the ADA's protections to the last category
of employees — i.e., those with "perceived" disabilities —
Congress "intended to combat the effects of `archaic attitudes,'
erroneous perceptions, and myths that work to the disadvantage of
persons with or regarded as having disabilities." Wooten v.
Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995); accord School
Board of Nassau Co. v. Arline, 480 U.S. 273, 284, 107 S.Ct.
1123, 94 L.Ed.2d 307 (1987) (observing in a Rehabilitation Act
case that, "society's accumulated myths and fears about
disability and diseases are as handicapping as are the physical
limitations that flow from actual impairment").
In this case, Manzi does not allege that her arthritis
substantially limits her major life activity of working or
performing manual tasks.*fn3 In fact, Manzi testified to the
contrary: "[B]asically I could perform. I could type. I didn't
have any problem with anything, except I can't lift things."
(Defendants' Exhibit P; Manzi Dep. at 112). Even after her
termination by DiCarlo, Manzi was subsequently able to work for
John Gangemi (DiCarlo's successful opponent in the 1996 primary),
as a supervisor, six to seven days a week, from May to October,
1996. (Defendants' Exhibit F; Manzi Dep. at 75; DiCarlo Aff. ¶
5). A condition which only prevents a claimant from working one
particular job or in one particular location is not a disability
under the Act. Heilweil, 32 F.3d at 723 ("An impairment which
disqualifies a person from only a narrow range of jobs is not
considered a substantially limiting one."); Daley v. Koch,
892 F.2d 212, 214-16 (2d Cir. 1989); Aquinas v. Federal Express
Corp., 940 F. Supp. 73, 78 (S.D.N.Y. 1996) (employee diagnosed
with condition in left shoulder that caused her to have trouble
lifting packages at work was not disabled under the ADA because
there was no evidence that there was a restriction on employment
generally); Hazeldine v. Beverage Media, Ltd., 954 F. Supp. 697,
703-04 (S.D.N.Y. 1997) (inability to shovel snow, engage in
strenuous physical exercise, lift and carry more than ten pounds,
kneel, or bend does not constitute a substantial limitation on a
major life activity).
The analysis does not change if the disability plaintiff claims
relates to her ability to perform manual tasks rather than her
ability to work. As Judge Goetell recently summarized the
[C]ourts have held that plaintiffs must show they are
substantially limited in performing a broad range of
manual tasks, rather than demonstrating that they are
limited in performing one job-related task. See
Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726
(5th Cir. 1995) (finding that a plaintiff was not
substantially limited in any major life activity
other than working because she could engage in the
normal activities of daily living such as feeding
herself, driving a car, carrying groceries, washing
dishes, vacuuming, and picking up trash); Khan v.
Cook County, No. 96 Civ. 1113, 1997 WL 370199, at
**5-7 (N.D.Ill. June 27, 1997) (finding that a
plaintiff, who could not lift more than fifteen
pounds, write for more than fifteen to twenty minutes
without pain, tie his shoes, carry groceries, or take
out the garbage, was not substantially limited in
performing manual tasks); Ouzts v. USAir, Inc.,
Civ. No. 94-625, 1996 WL 578514, at *13 (W.D.Pa. July
26, 1996) (holding that a plaintiff was not
substantially limited in performing manual tasks even
though she could not carry items weighing only a few
pounds or do any tasks, such as opening doors,
dusting, vacuuming, or stirring with a spoon, because
the plaintiff had testified
she could prepare her own meals, bathe, grocery shop,
drive, clean, do laundry, and take out the trash),
aff'd, 118 F.3d 1577 (3d Cir. 1997).
Zarzycki v. United Technologies Corp., 30 F. Supp.2d 283, 288-89
Plaintiff did not offer any medical evidence that her arthritic
condition affected her ability to perform a broad range of manual
tasks. The two reports from her treating physician, one of which
is contemporaneous (a few days after she was fired) and one of
which was prepared two years later, describe plaintiff's
condition with the extensive use of medical jargon. (See Dr.
Baum's Medical Report, Mussman Aff. Ex. 7 ("On examination the
patient has tenderness over the carpometacarpal joints of both
thumbs. . . . There is prominence here, and there is crepitation
on motions of these joints.")). Dr. Baum's contemporaneous notes
only speak to her ability to perform manual tasks in its
concluding paragraph which suggests that plaintiff "had a
permanent disability since her job requires considerable typing."
(Id.). Indeed, Dr. Baum's later report (a narrative letter)
indicates that plaintiff's symptoms, which presumably worsened in
the two years since she was fired, "will wax and wane over time"
and that "at times [she] will be relatively asymptomatic and at
other times in severe pain." (Dr. Baum's February 14, 1997 Letter
at 2-3, Mussman Aff. Ex. 7). Like his earlier note, Dr. Baum
concludes by stating that plaintiff "is permanently disabled,
since her job requires significant typing activity." (Id. at
3.). The letter is unclear as to which job he is referring.
Plaintiff testified at her deposition, however, that with the
exception of the filing project, she "basically . . . could
perform" her job, that she "could type" and that she didn't have
any problem with anything, except she "can't lift things." (Manzi
Dep. at 112). She also submitted an affidavit here that says
"[w]hile working for State Senator DiCarlo I was able to perform
my essential duties, including typing." (Manzi Dep. ¶ 4).
Moreover, at the oral argument on the motion for summary
judgment, plaintiff's counsel conceded that plaintiff was "able
to perform other jobs [she had with Senator DiCarlo] with a
reasonable accommodation of not assigning her things like the
filing project. She is able to perform the basic function, the
essential functions of her job." (March 6, 1998 Tr. at 53).
These admissions, made personally and by her attorney, are
sufficient to override whatever benefit plaintiff would have
otherwise derived from the medical assessments she has submitted,
and they do not provide a basis for a jury to find that plaintiff
was terminated because she could not work or because she was
limited in performing a broad range of manual tasks. On the
contrary, at the oral argument on the motion for summary
judgment, plaintiff's counsel stated that the cause of action
relating to her firing "would be based on the fact that they [the
defendants] perceived her has [sic] having a disability."
(March 6, 1998 tr. at 54) (emphasis added).
Simply stated, although Manzi is concededly not disabled under
the ADA, she argues that she was "regarded as having such an
impairment." 42 U.S.C. § 12102(C)(2); 29 C.F.R. § 1630.2. Under
the ADA, whether an employee has such a "perceived disability" is
determined in two stages. First, the court must determine if she
is perceived to have a physical impairment. Second, if so, the
court must determine whether the impairment is perceived to
substantially limit one or more of that person's major life
activities. Greenberg v. New York State, 919 F. Supp. 637,
641-42 (E.D.N.Y. 1996); accord Wernick, 91 F.3d 379, 383 (2d
Cir. 1996) (applying two-stage test to both ADA and
Rehabilitation Act claims); Klem v. Popular Ford Sales, Inc.,
975 F. Supp. 196, 200 (E.D.N.Y. 1997). "The mere knowledge of
symptoms alone is not sufficient proof [to survive summary
judgment] that an employer regarded an employee as disabled."
Id. at 201 (citation
omitted). Here, there is no evidence that DiCarlo or Annarummo
regarded Manzi's arthritis as substantially limiting her ability
to "perform either a class of jobs or a broad range of jobs in
various classes." 29 C.F.R. § 1630.2(j)(3).
At best, Manzi claims that "[o]thers confirmed that, on more
than one occasion, DiCarlo and Annarummo referred to older staff
members as `cripples' and `invalids'. . . ." (Manzi Mem. at 18).
In fact, the cited portions of the deposition transcripts refer
only to the single invalid/cripple comment by DiCarlo when he
first saw Manzi's cast. There is no reference to any such
comments by Annarummo. Moreover, Manzi first started wearing her
cast in early 1994. At the end of 1994, however, DiCarlo still
recommended that she continue employment into early 1995. Under
these circumstances, DiCarlo's comment, while unfortunate, cannot
be reasonably construed to reflect a perception on his or
Annarummo's part that Manzi's arthritis substantially limited her
ability to work or to perform a broad range of manual tasks.
Plaintiff did file a claim for Workers' Compensation in 1994,
of which notice was sent to Senator DiCarlo's district office,
and Clarise Renzi, plaintiff's immediate supervisor, was aware of
it and provided a statement to the State Insurance Fund on May
19, 1994. (See Mussman Aff. Ex. 5). The statement did not
suggest that plaintiff could not work or type, although it did
indicate "she has complained of arthritis symptoms several times"
and on one occasion (January 28, 1994) said that "she had pain in
her hands and joints." (Id.). As of February 7, 1995, the only
decision made by the State Insurance and communicated to Senator
DiCarlo was an inconclusive finding that the "[c]ase is
continued." (Id.). There is simply nothing in the Workers'
Compensation papers that supports the claim that the defendants
were aware of, or perceived that, plaintiff was suffering from a
physical impairment that substantially limited one or more of her
life activities, and that this was a motivating factor in their
decision to fire plaintiff.
While the foregoing discussion suggests that plaintiff cannot
prevail on her ADA cause of action, that cause of action arises
out of a common nucleus of fact as the ADEA cause of action that
must be tried; it also involves the resolution of the common
issue of why plaintiff was fired. Under these circumstances, the
more prudential course of action is to defer ruling on the ADA
claim until after trial. If one of a number of integrally related
causes of action have to be tried, it makes no sense to grant
summary judgment as to one or more of them, as it may prove
necessary to hold yet another trial in the event that it is
determined on appeal that summary judgment was improperly
granted. As observed by Judge Clark in an analogous context:
[T]here seems no question that in the long run
fragmentary disposal of what is essentially one
matter is unfortunate not merely for the waste of
time and expense caused the parties and the courts,
but because of the mischance of differing
dispositions of what is essentially a single
Audi Vision Inc. v. RCA Mfg. Co., 136 F.2d 621, 625 (2d Cir.
1943). Accordingly, defendant's motion for summary judgment is
denied without prejudice.
IV. Retaliation Claims
A. The ADA and ADEA Claims
The ADA's retaliation proscription, 42 U.S.C. § 12203 (1996),
is nearly identical to the one found in Title VII,
42 U.S.C. § 2000e-3 (1996). The ADA proscription states that: "No person
shall discriminate against any individual because such individual
has opposed any act or practice made unlawful by this chapter or
because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under this chapter." 42 U.S.C. § 12203(a).
The ADEA contains an identical provision. See
29 U.S.C. § 623(c).
Thus, a prima facie case of retaliation pursuant to the ADA and
the ADEA is established by showing that: (1) plaintiff engaged in
a protected activity; (2) plaintiff's former employer took
employment action that was adverse to plaintiff; and (3) a causal
connection exists between the protected activity and the adverse
action. United States v. New York City Transit Auth.,
97 F.3d 672, 677 (2d Cir. 1996) (Title VII case). If an employee succeeds
in establishing his or her prima facie case, the burden of
production then shifts to the employer, who must articulate a
legitimate, non-discriminatory reason for the adverse action.
See Id. If the employer meets its burden of production, the
employee then bears the burden of establishing that the proffered
reason for the action is a pretext for discrimination, "either
because the pretext finding itself points to discrimination or
because other evidence in the record points in that direction —
or both." Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d
Cir. 1997) (en banc). The word "discrimination" is used to
articulate a retaliation claimant's burden of proof because the
language of 42 U.S.C. § 12203(a) provides that "[n]o person shall
discriminate" against an employee "because" she engaged in a
protected activity. Id.; see New York City Transit Auth.,
97 F.3d 672, 677 (2d Cir. 1996).
Plaintiff alleges that the defendants violated the ADEA and the
ADA by retaliating against her for protesting discriminatory
acts. She alleges a similar claim of retaliation under the
NYSHRL. These claims arise out of action taken by Senator DiCarlo
in June, 1995 with respect to Austin Canade and Yolanda
Cavalieri. These two employees had both taken early retirement
effective April 20, 1995, "which was the last date for early
retirement under early retirement incentive legislation." (Sloan
Aff. ¶ 35 (filed in 95 Civ. 3583)). Nevertheless, they could
continue to work at a capped salary, and they continued to do so.
On June 13, 1995, Senator DiCarlo requested an increase in his
budget. His stated reason for requesting the increase was "so
that I can retain my present level of staffing, since I have been
advised it is not likely that Yolanda Cavalieri and Austen Canade
would be receiving further paychecks." (Sloan Aff. (filed in 95
Civ. 3583) Ex. H). Senator DiCarlo concluded his request by
noting that "it is essential to me that both be retained."
In July 1996, the additional funding was granted and the two
employees (Ms. Cavalieri, who was 67, and Mr. Canade, who was
61)*fn4 were rehired retroactive to April 24, 1996. The combined
annual salary for the two employees was 21,200, slightly more
than plaintiff earned. Plaintiff claims that she was not rehired
(although she never asked to be) because she filed a complaint
before the EEOC.
The plaintiff here has failed to show a causal connection
between the filing of her EEOC complaint and the failure of the
plaintiff to sua sponte rehire her. This is not a case in which
employees laid off in a reduction of force were recalled en
masse. Instead, Senator DiCarlo was able to keep on his staff two
elderly employees. Although the two employees were technically
"rehired," they never left, and Senator DiCarlo was able to
obtain enough money to keep them on. Indeed, because they were
both in their sixties, it is unclear why the plaintiff would want
to press this tenuous cause of action based on conduct that would
seem to undermine her more viable age discrimination claim.
B. The First Amendment Claim
Plaintiff also claims that she was not rehired, because she
made "statements to various members of the press regarding her
charge of discrimination against defendants [that were] published
in newspapers and aired on the radio." (Pl.Amend. Compl. ¶ 42).
The statements were made a
day after she filed her EEOC complaint.*fn5 I agree with the
defendants that this claim fails because plaintiff's complaints
were personal in nature and generally related to her own
situation. See Saulpaugh v. Monroe Community Hospital,
4 F.3d 134, 143 (2d Cir. 1993), cert. denied, 510 U.S. 1164, 114 S.Ct.
1189, 127 L.Ed.2d 539 (1994). While the result could arguably be
otherwise under the analysis in Judge Newman's concurring opinion
in Saulpaugh, that analysis (as he recognized) is not
consistent with prevailing Second Circuit law.
V. The Section 1983 Claims
Because the State of New York is the only proper defendant in
the ADEA and ADA causes of action, and because the defendants
pressed a possibly viable motion to dismiss for failure of
plaintiff to exhaust her administrative remedies, plaintiff has
defensively pleaded causes of action under 42 U.S.C. § 1983
against DiCarlo and Annarummo. Plaintiff alleges that these
defendants violated the Equal Protection Clause by discriminating
against her because of age and disability. The Equal Protection
Clause only requires a rational basis for discrimination based on
age and disability, see Vance v. Bradley, 440 U.S. 93, 99 S.Ct.
939, 59 L.Ed.2d 171 (1979) (Age); City of Cleburne v. Cleburne
Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313
(1985) (Disability); see also Kilcullen, 33 F. Supp.2d 133, 140
(N.D.N.Y. 1999), and would arguably not be violated by an
employer who declined to undergo the burden and expense of
accommodating an employee's disability. See Welsh v. City of
Tulsa, 977 F.2d 1415, 1420 (10th Cir. 1992) (holding that "an
employer does not act irrationally by choosing an applicant who
does not need any special accommodation over one who does");
Kilcullen, 33 F. Supp.2d at 145.
Nevertheless, it is unnecessary to explore these issues at any
length. Nor is it necessary at this point to resolve the issue
whether ADEA actions are permitted under § 1983. See Zombro v.
Baltimore City Police Dept., 868 F.2d 1364, 1369 (4th Cir.
1989), cert. denied, 493 U.S. 850, 110 S.Ct. 147, 107 L.Ed.2d
106 (1989); Lafleur v. Texas Dept. of Health, 126 F.3d 758, 760
(5th Cir. 1997); Ray v. Nimmo, 704 F.2d 1480, 1485 (11th Cir.
1983). Plaintiff's § 1983 cause of action based on age and
disability discrimination, which must be tried in any event,
parallels her claims pursuant to the NYSHRL. Under these
circumstances, for reasons similar to those warranting the denial
of the motion to dismiss the ADA cause of action, the motion for
summary judgment as to these claims is also denied without
In summary, for the foregoing reasons, the motion for summary
judgment is granted with respect to plaintiff's sixth, seventh
and eighth causes of action. The motion for summary judgment with
respect to the first, second, fourth and fifth causes of action
is denied. The motion to dismiss the third cause of action is
premised on the assumption that defendant is entitled to summary
judgment on all of the federal causes of action. Because
plaintiff's cause of action under the ADEA is sufficient to
survive a motion for summary judgment, I retain pendent
jurisdiction over plaintiff's third cause of action which alleges
age and disability discrimination under the NYSHRL, Executive Law