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June 1, 1999


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


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
  lifting)occasional, O.K.

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. ...

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