the ADA. Hazeldine v. Beverage Media, Ltd., 954 F. Supp. 697,
703 (S.D.N.Y. 1997). In fact, a physical impairment "may affect
an individual's life without becoming disabling." Id. at 703.
Therefore, plaintiff must demonstrate that the physical
impairment "substantially limits" one or more "major life
activities." It does not appear to me that she has successfully
The ADA does not define "substantially limits" or "major life
activities." However, the regulations promulgated by the EEOC are
instructive. To be substantially limited under the ADA, an
individual must be "[u]nable to perform a major life activity
that the average person in the general population can perform" or
"[s]ignificantly restricted as to the condition, manner or
duration under which an individual can perform a particular major
life activity" as compared to the average person in the general
population. 29 C.F.R. § 1630.2(j)(1)(I)-(ii). "Major life
activities" are defined as "functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working." 29 C.F.R. § 1630.2(i). See
also Sutton v. United Airlines, Inc., ___ U.S. ___, 119 S.Ct.
2139, 2145, 144 L.Ed.2d 450 (1999).
The three factors to be considered when determining whether an
impairment substantially limits a major life activity are: (1)
"[t]he nature and severity of the impairment"; (2) "[t]he
duration or expected duration of the impairment"; and (3) "[t]he
permanent or long term impact, or the expected permanent or long
term impact of or resulting from the impairment."
29 C.F.R. § 1630.2(j)(2)(i)-(iii).
The medical evidence relating to plaintiff's condition while at
Sears was simply that of a lumbar strain which may have presented
some difficulties for her in working, but there is no evidence
and no medical opinion that she was unable to work.*fn5 If the
ADA and Human Rights Law can be read that broadly, anybody with
an injury or back problem could be covered by these statutes, and
I do not believe that to be the case. In sum, Muszak has failed
to demonstrate that she is disabled as defined by the ADA, and,
therefore, has failed to establish a prima facie case.
Even if plaintiff is deemed to have established a prima facie
case, she has not adequately rebutted Sears' stated reasons for
terminating her employment. Sears maintains that it adhered to
its Workplace Violence Policy and terminated plaintiff because of
her involvement in the altercation with Ms. Isgro on January 5,
1997. This explanation appears supported. Plaintiff counters with
nothing but her own suppositions concerning discrimination.
For all of these reasons, Sears' motion for summary judgment on
plaintiff's fifth cause of action is granted, and plaintiff's ADA
claim is dismissed.
2. Refusal to Reasonably Accommodate Under the Human Rights
Unlike the ADA, until 1998, the HRL did not impose upon private
employers the duty to "reasonably accommodate" an employee's
disability. Hendler v. Intelecom USA, Inc., 963 F. Supp. 200,
211 (E.D.N.Y. 1997) (holding that there is no basis in the
statute or case law interpreting the HRL to conclude that a
private employer is required to provide reasonable accommodation
to employees with disabilities). Indeed, no clearer expression of
the absence of any duty for reasonable accommodation under the
HRL may be had than the recent amendment to the HRL providing,
for the first time, that the HRL would
impose an affirmative obligation on private employers to provide
reasonable accommodation to employees. New York Executive Law §
296. Because this amendment did not take effect until January 1,
1998 and because the acts which form the basis of the complaint
in this action all occurred well before that date, Sears' motion
on plaintiff's second cause of action is granted and that cause
of action is dismissed.
C. The Retaliation Claims
1. Title VII
Absent direct proof, "[t]he order and allocation of burdens of
proof in retaliation cases follow that of general disparate
treatment analysis as set forth in McDonnell Douglas Corp. v.
Green . . ." Sumner v. U.S. Postal Service, 899 F.2d 203, 208
(2d Cir. 1990) (citations omitted). To establish a prima facie
case of retaliation under Title VII, a plaintiff must show (1)
"protected participation or opposition under Title VII known by
the alleged retaliator," (2) "an employment action disadvantaging
the person engaged in the protected activity," and (3) "a causal
connection between the protected activity and the disadvantageous
employment action." DeCintio v. Westchester County Medical
Center, 821 F.2d 111, 115 (2d Cir. 1987) (emphasis added),
cert. denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395
(1987); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d
With respect to plaintiff's claim that Sears violated Title VII
because it retaliated against her in response to her request for
an accommodation for her alleged disability, Sears' motion must
be granted for a variety of reasons.
I note initially that a Title VII retaliation claim*fn6 must
be for actions protected by Title VII, and, quite simply (unlike
the ADA that has its own retaliation prohibition*fn7), Title VII
does not protect a request for an accommodation on the basis of
an alleged disability. See Butterfield v. New York, 96-CV-5144,
1998 WL 401533, * 13 (S.D.N.Y. July 15, 1998) (holding that a
plaintiff, alleging a disability, fails to state a claim under
Title VII because he is not a member of a protected class under
Plaintiff belatedly acknowledges these principles, but contends
that her claim is premised upon the ADA, not Title VII although
Title VII was the only cited authority for the claim. Plaintiff's
counsel maintains that the erroneous citation to Title VII should
not defeat the retaliation claim because the amended complaint
also generally alleges that the retaliation was due to
disability. (Amended Complaint, ¶ 69). However, Sears was
entitled to know on which statutes plaintiff relied. Plaintiff
claimed jurisdiction for this claim under Title VII, and never
amended her claim to invoke the ADA's retaliation provision. It
is simply a claim that is not within the ambit of Title VII.
Even if the claim were to survive the foregoing deficiency,
plaintiff fails to state a prima facie case of retaliation.
Plaintiff relies heavily on the proximity between her 1996
request for accommodation and her 1997 termination, because she
has little else on which to rely. However, temporal proximity,
without more, is not necessarily sufficient to raise a triable
question of fact. See Johnson v. Univ. of Wisconsin-Eau Claire,
70 F.3d 469, 480-481 (7th Cir. 1995) (noting that timing alone
does not create a genuine issue of material fact); Hoeppner v.
Crotched Mountain Rehabilitation Ctr., 31 F.3d 9, 17 (1st Cir.
1994) (affirming summary judgment on retaliation claim because
plaintiff's speculation along with merely a scintilla of evidence
of pretext is insufficient); Wrenn v. Ledbetter, 697 F. Supp. 483,
1988) (granting summary judgment where the only evidence of
causal link was the chronology of events), aff'd, 880 F.2d 420
(11th Cir. 1989), cert. denied, 493 U.S. 1075, 110 S.Ct. 1123,
107 L.Ed.2d 1030 (1990). Moreover, by plaintiff's own
allegations, the accidents that led to her disability occurred in
September 1995 and February 1996, many months before her
termination, and she was terminated promptly after the
intervening altercation with Ms. Isgro.
Plaintiff's defense is simply that the assault incident never
happened. Plaintiff contends, therefore, that relying on the
incident was pretextual, and her termination must have been based
on her request for accommodation. Plaintiff's logic is flawed.
Plaintiff's mere denial that the assault occurred does not create
an issue of fact sufficient to defeat Sears' motion. Plaintiff
has failed to show the requisite causal connection between the
protected activity and her subsequent termination.
Lastly, even assuming arguendo that a prima facie case had
been established, Sears has substantially satisfied its burden of
articulating and producing evidence of a legitimate
non-discriminatory reason for its decision to terminate plaintiff
(because of her altercation with Ms. Isgro), thereby vitiating
any inference or presumption of discrimination. In the final
analysis, there is simply no evidence before the court that
Sears' rationale supporting its decision to terminate plaintiff
was pretextual or that the decision was motivated by improper
For all of these reasons, Sears' motion on plaintiff's sixth
cause of action is granted and that cause of action dismissed.
2. The HRL
Plaintiff's claim that Sears violated the HRL because it
retaliated against her in response to her request for an
accommodation for her alleged disability must be dismissed as
well for many of the same reasons that the Title VII claim fails.
In addition, for the reasons outlined in section B(2), supra,
the HRL did not protect a request for an accommodation on the
basis of an alleged disability before January 1, 1998. Therefore,
Sears' motion on plaintiff's third cause of action is granted and
that cause of action dismissed.
Defendant's motion for summary judgment is granted, and the
complaint is dismissed with prejudice.
IT IS SO ORDERED.