The opinion of the court was delivered by: Sprizzo, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Evelyn Tubens ("Tubens"), a former employee of the
New York City Police Department ("NYPD"), proceeding pro se,
brings the instant action pursuant to the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA") and
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. ("Title VII"). Tubens alleges that the NYPD wrongfully
terminated her employment on the basis of an actual or perceived
physical disability and on the basis of her race and sex.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
defendant moves for summary judgment. For the reasons stated
below, defendant's motion for summary judgment is granted.
Tubens, a Hispanic female, was employed by the NYPD as a
probationary police officer. See Plaintiff's Local Civil Rule
3(g) Statement of Disputed Facts ("Pl.3(g)") ¶ 1; Defendant's
Notice of Motion for Summary Judgment, dated February 7, 1997
("Def.Motion"), Exh. B, Charge of Discrimination ("Charge"). She
commenced training at the Police Academy on June 30, 1992. See
Pl. 3(g) ¶¶ 16, 17. In July 1992, Tubens reported to her gym
instructor, Officer Frank Mazzone, that she was suffering a chest
cold and was not feeling well enough to participate in gym class.
See id. ¶ 19. When Officer Mazzone asked Tubens if anything
else was wrong with her, she responded that she had a heart
condition known as mitral valve prolapse ("MVP"). See id. ¶¶
20, 21. She was thereafter placed on limited duty and was told
that she could not participate in physical training until she
received medical clearance. See id. ¶ 21.
Tubens then visited her own physician, Dr. Alan Engelman. Dr.
Engelman provided Tubens a note stating that she
has aortic insufficiency . . . and need not be
restricted with respect to strenuous aerobic
exercise[,] however, would avoid regular strenuous
isometric exercise, (i.e. regular heavy weight
Id. ¶ 24; Def. Motion Exh. J (emphasis in original). Tubens
presented the note to her gym instructor, who told her that she
would have to report to the district surgeon. See id. ¶ 25. The
district surgeon then referred Tubens to Dr. William Pettite, a
cardiologist. See id. 26. Dr. Pettite examined Tubens and
confirmed that Tubens did in fact have MVP and a slight
enlargement of the heart. See id. ¶ 27.
On August 3, 1992, the commanding officer of the Police Academy
requested that Tubens be reevaluated by the supervising chief
surgeon. Def. Motion Exh. K. The chief surgeon determined, inter
alia, that based on Dr. Engelman's diagnosis, Tubens should
avoid regular strenuous isometric exercises. See Def. Motion
Exh. L, Letter from Supervising Chief Surgeon to Chief of
Personnel, October 28, 1992. According to the chief surgeon, such
isometric exercise would include rapid running, combat training,
climbing stairs rapidly, and carrying an injured person. See
id. The chief surgeon concluded that Tubens was not capable of
performing the physical activities needed to continue police
training or to perform police duties. See id. ¶ 8. The surgeon
recommended that Tubens be dismissed from duty. See id. On
November 13, 1992, Tubens's employment with the NYPD was
terminated. See Pl. 3(g) ¶ 34.
On July 21, 1993, Tubens filed a complaint with the New York
City Commission on Human Rights alleging that the NYPD
discriminated against her in violation of the ADA and Title VII.
See id. ¶ 2; see also Def. Motion Exh. B. Specifically,
Tubens claimed that her employment was terminated because she has
MVP and because she is a Hispanic female. See Pl. 3(g) ¶¶ 3,4;
see also Def. Motion Exh. B. Tubens asserted that she was fully
capable of performing the duties of a police officer and that the
NYPD had shown no justification for her termination. See Pl.
3(g) ¶ 5; Def. Motion Exh. B.
On June 29, 1994, Tubens filed an affidavit with the EEOC in
which she restated and clarified her claims. The affidavit
claimed, inter alia, that the NYPD terminated her employment
either because of an actual disability or because of a
"perceived" disability. See Def. Motion Exh. C. The EEOC
treated this affidavit as an amendment to her original charge of
discrimination. Because she had filed the affidavit more than 300
days after her discharge from the NYPD, the EEOC found the
amendment untimely and dismissed her disability discrimination
claim. See Def. Motion Exh. D. The EEOC also dismissed Tubens's
additional race and sex claims. Id. Tubens thereafter commenced
the instant action.
The parties having completed discovery, the NYPD now moves for
summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. The NYPD argues that (1) Tubens is not an
individual with a disability protected by the ADA; (2) Tubens's
perceived disability claim is time-barred; (3) Tubens fails to
establish a prima facie case with respect to her race and sex
discrimination claims; and (4) even if Tubens has established a
prima facie case, the NYPD has articulated a legitimate
nondiscriminatory basis for its action, and Tubens has offered no
evidence that she was discharged for discriminatory reasons.
Tubens has filed a pro se memorandum in opposition to the
NYPD's motion in which she asserts that (1) she is an individual
with a perceived disability protected by the ADA; (2) her
perceived disability claim was timely filed; (3) she has
established a prima facie case with respect to her Title VII
claims; and (4) the NYPD has not articulated a legitimate
nondiscriminatory reason for her discharge.*fn1
A court may grant summary judgment only if it determines that
there are no genuine issues of material fact based on a review of
the pleadings, depositions, answers to interrogatories,
admissions on file and affidavits. See Fed.R.Civ.P. 56(c). The
moving party bears the burden of demonstrating the absence of a
genuine issue of material fact. ...