range of jobs. Id. at 645. The court stated that, without
specific evidence about the kinds of jobs from which an
individual with his claimed limitations would be disqualified, a
jury could not find him substantially limited in his ability to
Here, Tubens has failed to make a sufficient showing that the
NYPD perceived her as unqualified to perform a class of jobs or a
broad range of jobs. Tubens has demonstrated at most that the
NYPD perceived her as substantially limited in performing only a
narrow range of jobs — those requiring regular strenuous
isometric exercise. Nor has Tubens provided specific evidence
about the kinds of jobs for which she alleges the NYPD perceived
her to be disqualified. Because Tubens cannot show that the NYPD
perceived her as substantially limited in her ability to perform
a class or a broad range of jobs, she fails to establish a prima
facie case of perceived disability discrimination. The Court
therefore grants defendant summary judgment on Tubens's claim
under the ADA.
Tubens's Title VII Claim
A plaintiff in a Title VII action bears the initial burden of
establishing a prima facie case. See McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973). This burden, however, is a light one. See Chertkova v.
Connecticut General Life Insurance Co., 92 F.3d 81, 87 (2d Cir.
1996). A plaintiff establishes a prima facie case by showing
(1) that she is a member of a protected class; (2) that she was
qualified for the position she held; (3) that she was discharged;
and (4) that the position remained open and the employer
continued to seek applicants with the plaintiff's qualifications.
See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. A
plaintiff who establishes a prima facie case has set forth
sufficient facts upon which a finding of discrimination by the
employer can be predicated. See St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407
(1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
The burden then shifts to the defendant to "articulate some
legitimate non-discriminatory reason for the employee's
rejection." Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (quoting
McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d
668). If the defendant carries this burden, then the plaintiff
must prove that the action taken against her was the result of
unlawful discrimination, a burden she may discharge by
establishing by a preponderance of the evidence that the
legitimate reason offered by the defendant is merely a pretext
for the employer's actual discriminatory reasons for terminating
the plaintiff's employment. See id.
Assuming without deciding that Tubens has established a prima
facie case, no rational finding of discrimination could be
sustained on the facts presented here. The NYPD claims that
Tubens was discharged because of her physical limitation, and
this reason is supported by undisputed evidence before the Court
on the motion. She was allowed to participate in physical
training until she approached her gym instructor and mentioned
that she suffered from MVP. She then was instructed that in order
to continue training she would be required to obtain medical
clearance. Tubens's own physician determined that she should
avoid strenuous isometric exercise and regular heavy lifting. The
NYPD surgeon concluded that, based on the diagnosis of Tubens's
own physician, she could not perform the physical activities of a
police officer, whereupon Tubens was dismissed.
Moreover, Tubens has presented no evidence that the reason
advanced by the NYPD for her dismissal was merely a pretext to
conceal discrimination. In fact, Tubens admitted in her
deposition that the only basis for her claims of race and sex
discrimination was that she was the only woman in her class and
that she had heard
some racist remarks from classmates. See Def. Motion Exh. I,
Deposition of Evelyn Tubens, February 26, 1996, at 62-63. When
asked if she knew of anyone in a supervisory position who
displayed discriminatory behavior, she answered "No." Id. at
63. Although Tubens does allege that a male classmate who was
also asked to have heart tests refused to submit to an
examination and was not terminated, she fails to offer any
evidence regarding the nature of his condition or the limitations
his heart condition imposed upon him. Id. at 74-75. It follows
that Tubens could not establish by a preponderance of the
evidence at trial that the NYPD terminated her employment on the
basis of her race or sex or perceived disability.
For all of the foregoing reasons, the Court grants defendant's
motion for summary judgment. The Clerk of Court is directed to
enter Judgment accordingly and to close this action.
It is SO ORDERED.