the meaning of the ADA, nonetheless established a prima facie
case under the Human Rights Law based on mental disorder);
Glowacki, supra, at 353 (same).
Once a prima facie case is established, the burden of proof
shifts to the employer to demonstrate that the disability
prevented the employee from performing the duties of the job in a
reasonable manner or that the employee's termination was
motivated by a legitimate, nondiscriminatory reason. Reeves,
supra, at 156. In this case, Defendant has articulated a
legitimate, nondiscriminatory reason for its failure to select
Plaintiff to the positions sought. In correspondence with the
EEOC, Defendant stated that the fact that Mr. Roberts was not
selected was not related, either directly, or indirectly, to his
status as a recovering alcoholic. Letter from Berthlynn Terry to
John Thompson, EEOC Investigator, dated February 1, 1994, Exhibit
J to Plaintiff's Certified Exhibits. Rather, according to
Defendant, "in each case, the selected candidate not only met the
minimal qualifications for the position, but was more qualified
than [Plaintiff], either by way of education or years of
counseling experience." Id. Defendant's legitimate,
non-discriminatory reason is corroborated by the affidavits of
Leslie Becker, Lawrence Friot, Maria Tirone-Curtiss, and Lawrence
Weingartner, all of whom denied having any knowledge of
Plaintiff's alcoholism at the time of his interviewing, or during
the hiring process. Exhibits A, B, D, and E to Defendant's
Declaration in Support of Motion. Becker, Friot, and
Tirone-Curtiss stated that the individual hired to each position
sought by Plaintiff had more counseling-related experience.
Becker Affidavit, ¶ 11-12; Friot Affidavit, ¶¶ 9-11;
Tirone-Curtiss Affidavit, ¶ 8. Based on the record submitted,
Defendant has articulated a legitimate, non-discriminatory reason
for its failure to appoint Plaintiff to the positions he sought.
As the Defendant has met its burden, the third step of the
McDonnell Douglas framework shifts the burden of production
back to the plaintiff. "[T]he Supreme Court tells us that `a
reason cannot be proved to be a "pretext for discrimination"
unless it is shown both that the reason was false, and that
discrimination was the real reason.'" Fisher v. Vassar College,
114 F.3d 1332, 1339 (2d Cir. 1997), cert. denied,
522 U.S. 1075, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998) (quoting St. Mary's
v. Hicks, 509 U.S. 502, at 515, 113 S.Ct. 2742, 125 L.Ed.2d
407(1993)). Other than making a conclusory assertion that
Defendant has known of his alcoholism since November of 1990, and
that each interviewer knew of his alcoholism, Plaintiff has
failed to demonstrate that Defendant's asserted reason for not
selecting him is false — i.e., he has failed to show that the
individuals selected for these positions lacked the basic
qualifications, or that his alcoholism influenced Defendant's
decisionmaking against him. As discussed, Defendant denies that
Plaintiff's alcoholism affected its decisions to hire individuals
other than Plaintiff to the positions sought. Defendant submitted
sworn affidavits by the individuals who interviewed Plaintiff,
denying knowledge of his alcoholism and asserting that in each
case, an individual more qualified than Plaintiff was selected.
The record supports such a conclusion. Regarding the
Corrections Counselor position sought by Plaintiff in October
1992, Larry Roach, the individual selected to the position, had 6
years of experience as Corrections Counselor, compared to
Plaintiff's one year of experience in this position. Exhibit R to
Plaintiff's Certified Exhibits. Laura Wild, the individual
selected to the Corrections Counselor position sought by
Plaintiff in May 1993, had 3 and one half years experience as a
Corrections Counselor, while Plaintiff had two years of such
experience. Id. Kathleen Hermann, the individual selected to
the Corrections Counselor position sought by Plaintiff in June
1993, had 5 years experience as a Corrections Counselor, compared
to Plaintiff's two years of experience. Id.; Friot
Affidavit, ¶ 10. Finally, as to the vacant Corrections Counselor
position filled in February 1994, John McGregor, the individual
hired to the position, had 20 years of professional counseling
experience, and had received recognition for outstanding
achievement within his profession.*fn6 Becker Affidavit, ¶¶ 11,
13. Plaintiff, however, had 14 years of total counseling
experience, and had received no such commendations. Exhibit R to
Plaintiff's Certified Exhibits; Becker Affidavit, ¶¶ 12, 14.
In each instance, the record indicates that an individual with
more experience in the area of Corrections Counseling, or with
regard to McGregor, an extensive counseling background, was
selected to the position sought by Plaintiff. Contrary to
Plaintiff's arguments, Defendant did not have an affirmative duty
to provide him with a job for which he was qualified; Defendant
only had an obligation to treat him in the same manner as it
treated other similarly qualified candidates. School Board v.
Arline, 480 U.S. 273, 289 n. 19, 107 S.Ct. 1123, 94 L.Ed.2d 307
(1987); Wernick, supra, at 384-85. Plaintiff's conclusory
assertions of discrimination on the basis of his alcoholism fail
to outweigh the factual evidence submitted by the parties in this
case. See Meiri, supra, at 998. Viewing the facts in the light
most favorable to Plaintiff, he has failed to submit evidence
sufficient to demonstrate that Defendant's articulated reason for
not selecting him to the positions sought, i.e., the superior
qualifications of the other candidates, was false. Fisher,
supra, at 1339; Glowacki, supra, at 354. Accordingly,
Plaintiff's claim asserting violation of § 296 of the New York
Executive Law by Defendant New York Department of Corrections
Services should be DISMISSED.
Plaintiff's motion for summary judgment (Docket Item No. 19)
should be DENIED. Defendant's motion to dismiss and for summary
judgment (Docket Item No. 26) should be GRANTED.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the
Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be
filed with the Clerk of the Court within ten (10) days of service
of this Report and Recommendation in accordance with the above
statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil
Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to
request an extension of such time waives the right to appeal the
District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct.
466, 88 L.Ed.2d 435 (1985); Small v. Secretary of Health and
Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair
Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to
the attorneys for the Plaintiff and the Defendants.