judgment and directs the Clerk of the Court to enter judgment
dismissing the complaint.
*fn2 Excerpts from the plaintiff's deposition, conducted on
October 17, 1997, November 7, 1997 and November 13, 1997, are
attached to Valentine's Affidavit in Support of his Opposition to
Defendant's Motion for Summary Judgment and to the Affidavit of
Lawrence Peikes in Support of Defendant's Motion for Summary
Judgment at Tab 1.
*fn3 S & P's publications and electronic services, which
provided stock information to brokers, investors and securities
firms, included Industry Surveys, Stock Reports, Outlook and
Marketscope. (Temme Aff. ¶¶ 7, 10, 12.)
*fn4 Plaintiff claims that he first informed Sanborn of his
mental illness in September 1985 when plaintiff abruptly quit his
job and then returned to S & P. (Pl.'s Dep. at 429-30.)
*fn5 Attached to the Affidavit of Lawrence Peikes at Tab 3 are
documents introduced as exhibits to the deposition of plaintiff.
*fn6 Plaintiff's exhibits include a memorandum to file by Natale
suggesting that this meeting may have taken place on September
16, 1995. The precise date of this meeting, however, is not
material, because there is no dispute as to what occurred.
(Valentine Aff., Exh. E at 95.)
*fn7 The full deposition of Dr. Bruce Braverman conducted on
April 9, 1998, is attached as Exhibit D to Valentine's Affidavit
in Support of his Opposition to Defendant's Motion for Summary
Judgment. Excerpts from the same deposition are attached to the
Affidavit of Lawrence Peikes in Support of Defendant's Motion for
Summary Judgment at Tab 2.
*fn8 To protect the privacy of the co-worker, who is not a party
to this action, a pseudonym is used for the investment company
which hired the co-worker.
*fn9 Plaintiff's mother died in 1987 and "the addition of the
dea[th] of [his] grandmother the following summer and the
disappearance of [his] sister in March 1989 while traveling in
Sri Lanka on her round-the-world trip added to the trauma that
[he] was experiencing." Pl.'s Mem. at 7 (citing Valentine Aff.,
Exh. E at 40-57). Moreover, plaintiff alleges that in August 1990
he was informed by the Sri Lankan government that his sister "had
been murdered by a serial killer." Id.
*fn10 A written warning is the first step toward being
discharged for poor performance under the terms of the Guild's
collective bargaining agreement with S & P. (Pl.'s Dep. at
*fn11 Plaintiff explains that although the review discriminated
against him on the basis of both his sexual orientation and
mental illness, he chose formally to pursue only the sexual
orientation claim. Plaintiff alleges that after his review, he
met with several union officials including Donna Flower, the
attorney for his local guild. He claims that Flower informed him
that charging S & P with discrimination on the basis of his
mental illness would be a "dead end" because the ADA had not yet
been tested in court. (1st Am. Compl. ¶ 8 at 5; Pl.'s Dep. at
554-55.) In addition, plaintiff was not certain that the ADA,
which became effective in July 1992, covered the six month review
period, ending on June 30, 1992.
*fn12 Plaintiff submits three letters from Rich Dubroff, the
producer of Wall Street Week With Louis Rukeyser, dated October
25, 1989, April 24, 1990 and October 3, 1990. (Valentine Aff.,
Exh. E at 58-60.) The October 25, 1989 letter thanked plaintiff
for his note dated October 18, and stated that although the
producer was not interested in producing a program on toy stocks
that year, plaintiff should contact him again next year in
September. The April 24, 1990 letter thanked plaintiff for
sending a tape and stated that although the producer was unlikely
to produce a program about toys for at least six months,
plaintiff should stay in touch. Finally, the letter dated October
3, 1990 thanked plaintiff for his letter dated September 26 and
stated "[d]ue to the uncertain economic climate this year, we
have decided to produce a program on the entire retailing
industry, instead of just focusing on the toy industry, but I
appreciate your continuing interest and enthusiasm, and hope
you'll keep in touch in hopes of appearing on the program,
perhaps in the Fall of 1991." (Id.)
*fn13 It is undisputed for the purpose of this motion that S & P
is an employer covered by the ADA and that Valentine is an
individual with a disability afforded statutory protection.
*fn14 The Second Circuit has held that, sometimes, the prima
facie case of discrimination alone may be sufficient to withstand
summary judgment. See Fisher, 114 F.3d at 1343. Once defendant
has produced a nondiscriminatory explanation for the discharge,
however, "the prima facie case loses its capacity to support the
(previously presumed) inference of illegal discrimination, other
than by whatever intrinsic force the constituent evidence may
have." Id. at 1342. Forms of evidence such as "a statistical
showing that a pattern of employment practices affect members of
a protected class in a disparate manner" or a "showing of
invidious comments made towards members of the class" that are
presented in plaintiff's prima facie case may create an inference
of discrimination more directly. Hawkins, 1998 WL 142134, at *6
(citations omitted). "The inference of discrimination which
arises from this type of evidence is not dispelled merely by the
offering of a legitimate reason for the discharge, and its
intrinsic force thus remains available to support plaintiff's
ultimate burden on summary judgment." Id. (internal quotations
omitted); cf. Hollander v. American Cyanamid Co., 172 F.3d 192
(2d Cir. 1999) (affirming summary judgment where no reasonable
jury could infer from statistical evidence that employer
discriminated against employee because of age).
*fn15 Terms common to the regulatory schemes under the ADA and
the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (the
"Rehabilitation Act"), are to be interpreted the same way. See
42 U.S.C. § 12117(b) (federal agencies administering federal
disability statutes are to avoid subjecting employment
discrimination claims to "inconsistent or conflicting
standards"); 29 U.S.C. § 794(d) (Rehabilitation Act is to be
interpreted in accordance with the standards applied under the
*fn16 If plaintiff's disability prevented him from being able to
fulfill an essential function of his position, the ADA clearly
requires an employer to reasonably accommodate plaintiff's
physical or mental limitations, unless the accommodations would
impose an undue hardship on the employer.
42 U.S.C. § 12112(b)(5)(A); Wernick v. Fed. Reserve Bank of New York,
91 F.3d 379, 384 (2d Cir. 1996) ("[u]nder the disability acts, the
failure to make reasonable accommodations for one who is disabled
can constitute discrimination"). However, the original burden of
demonstrating that an accommodation is available rests with the
plaintiff and plaintiff has made no such showing. See
Borkowski, 63 F.3d at 136; Serrano, 1997 WL 167042, at *5.
*fn17 Although plaintiff now disputes whether the message was
threatening, his present characterization of the message is not
material for the purpose of this motion. To the extent that
plaintiff's own characterization is material, the pertinent issue
is how plaintiff characterized the message in the days leading up
to his termination, since S & P's action was based on its
assessment of plaintiff's conduct at that time. It is undisputed,
that plaintiff admitted to S & P a few days prior to his
termination that the message was threatening and, thus, S & P had
a good faith basis for viewing the message as a threat to a
fellow co-worker. See Shiflett v. GE Fanuc Automation Corp.,
960 F. Supp. 1022, 1030 (W.D.Va. 1997) ("it is irrelevant whether
in fact plaintiff was guilty of such conduct; it matters only
that the employer subjectively believed that this was so").
*fn18 S & P's motion papers do not address plaintiff's
allegation of retaliation.
*fn19 Even though plaintiff's disability discrimination claim
cannot be sustained, the record supports plaintiff's "good faith,
reasonable belief that [S & P] stood in violation of the law" and
thus his filing of the EEOC charge is a protected activity.
Quinn, 159 F.3d at 769.
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