The third element of a prima facie claim under the ADA requires
Barnett to show that he was qualified to perform the essential
functions of his job with or without reasonable accommodation.
Revere cites Barnett's admission that his condition may cause him
to miss work on an occasional basis in the future, and argues
that his prospective absenteeism precludes him from being
considered qualified to perform his job functions. "Except in the
unusual case where an employee can effectively perform all
work-related duties at home, an employee `who does not come to
work cannot perform any of his job functions, essential or
otherwise.'" Tyndall v. Nat'l Educ. Centers, Inc. of
California, 31 F.3d 209, 213 (4th Cir. 1994) (quoting Wimbley
v. Bolger, 642 F. Supp. 481, 485 (W.D.Tenn. 1986), aff'd,
831 F.2d 298 (6th Cir. 1987)). Several circuits and district courts
within this circuit, have held similarly. See, e.g., Nowak v.
St. Rita High School, 142 F.3d 999, 1002-04 (7th Cir. 1998)
(teacher who was absent for 18 months prior to termination was
not "qualified individual" under ADA); Nesser v. Trans World
Airlines, Inc., 160 F.3d 442, 445-46 (8th Cir. 1998) (airline
sales agent not otherwise qualified under ADA where he missed 175
workdays in the year prior to his termination); Carr v. Reno,
23 F.3d 525, 529-30 (D.C.Cir. 1994) (coding clerk at U.S.
attorney's office not otherwise qualified under Rehabilitation
Act where she missed over 460 hours of work in year prior to
dismissal); Bobrowsky v. New York City Bd. of Educ., No.
97CV874, 1999 WL 737919 (E.D.N.Y. Sep. 16, 1999) (teacher who
took 17 absences during school year not otherwise qualified under
ADA); Daddazio v. Katherine Gibbs School, Inc., No. 98 Civ.
6861, 1999 WL 228344 (S.D.N.Y. Apr.20, 1999) (plaintiff who told
employer that he would be incapacitated for "indefinite period of
time" after being hospitalized not otherwise qualified).
As Barnett notes, however, cases such as those cited above
involved plaintiffs with far longer periods of absence that could
only be found by a reasonable fact-finder to have impeded their
ability to effectively perform their essential job functions. In
the present case, by contrast, Barnett was absent only nine times
during a span of one year, and he has stated that at the time of
his discharge he was capable of performing his job "on most days"
(Barnett Aff. ¶ 16). Revere has produced no evidence indicating
that Barnett's past or future need to be absent from work on an
occasional basis will make it impossible for him to perform the
essential functions of his particular job. Absent such a showing,
there is a question of fact as to whether Barnett is otherwise
qualified, and his absenteeism cannot be a basis for summary
Barnett is next required to demonstrate that Revere fired him
because of his disability. To defeat Revere's motion for summary
judgment, Barnett must produce sufficient evidence to support a
rational finding that the reasons proffered by Revere were false,
and that more likely than not, his disability was the real reason
for his discharge. See Woroski v. Nashua Corp., 31 F.3d 105,
110 (2d Cir. 1994) (citing St. Mary's Honor Center v. Hicks,
509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407). In cases
such as the
present one, where the plaintiff's case in entirely
circumstantial, "the pertinent question is whether plaintiff's
main case contains evidence sufficient to permit the trier of
fact to draw an inference that the prohibited motive was a
substantial factor in the adverse employment decision." Burger
v. New York Institute of Technology, 94 F.3d 830, 833 (2d Cir.
1996). At a minimum, for there to be causation, the employer must
have knowledge of the disability. See Hedberg v. Indiana Bell
Telephone Co., 47 F.3d 928, 931-34 (7th Cir. 1995).
As discussed above, there is a question of fact as to whether
Revere knew of Barnett's condition at the time it terminated
Barnett. Moreover, where an employer asserts excessive
absenteeism as a non-discriminatory justification for an
employee's termination, that justification cannot analytically be
considered apart from the alleged disability causing the
absenteeism. See Teahan v. Metro-North Commuter R.R. Co.,
951 F.2d 511, 516 (2d Cir. 1991) (denying summary judgment on
Rehabilitation Act claim on ground that question of fact existed
as to whether employee's absenteeism was caused by his handicap).
Because an issue of fact exists as to whether Barnett's
absenteeism resulted from his heart condition, Barnett has
produced sufficient evidence from which a jury could conclude
that Revere's proffered motive was pretextual.
The Second Circuit has instructed that with respect to
discrimination cases, trial courts are to be cautious about
granting summary judgment to an employer where, as in this case,
the employer's intent is at issue. See Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994).
With this guideline in mind, I deny Revere's motion to dismiss
this claim, as Barnett has made an adequate showing upon which a
reasonable finder of fact could infer that Barnett's discharge
was motivated by an intent to discriminate him based on his heart
The same cannot be said of Barnett's claim against Revere for
failure to accommodate his disability. The term "discriminate,"
as used in the ADA, includes "utilizing standards, criteria, or
methods of administration . . . that have the effect of
discrimination on the basis of disability."
42 U.S.C. § 12112(b)(3)(A). This may include "not making reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability." §
12112(b)(5)(A). The plaintiff bears the burden of showing that a
reasonable accommodation exists, see Stone v. City of Mount
Vernon, 118 F.3d 92, 98 (2d Cir. 1997), although this burden is
not an exacting one. See id. It is sufficient for a plaintiff
to suggest the existence of a plausible accommodation, the costs
of which do not facially exceed its benefits. See id.
On this issue, Barnett has come nowhere near to meeting his
burden. In his Affidavit, Barnett states that he told DeMercurio
and Peet of his desire to transfer to less strenuous positions
prior to his termination. However, he points to no evidence
whatsoever suggesting that such positions were available, or
challenging the testimony of both DeMercurio and Peet that there
were no less physically demanding jobs open at Revere during the
time in which Barnett sought transfer (DeMercurio Dep. at 22-24;
Peet Depo. at 20). Nor has Barnett made any showing whatsoever as
to the relative costs and benefits of his proposed accommodation.
Rather, Barnett makes the bare assertion in his Affidavit that
"Revere failed to accommodate me even though it was aware that I
had difficulties performing the job I was doing at the time as a
result of my disability" (Barnett Aff. ¶ 21). However, knowledge
by the employer, without more, of an employee's disability, does
not give rise to a duty on the part of the employer to transfer
the employee to the employee's desired position. The plaintiff is
required to establish that such a position existed, and that such
accommodation is reasonable.
See Quintana v. Sound Distribution Corp., No. 95 Civ. 0309,
1997 WL 40866, *6 (S.D.N.Y. Feb.3, 1997) (summary judgment for
employer due in part to plaintiff's failure show that alternative
position was reasonable or vacant). Barnett has satisfied none of
these elements.*fn8 Revere's motion with respect to his failure
to accommodate claim is therefore granted.
Finally, apart from his evidentiary shortcomings, Barnett has
no accommodation claim under the Human Rights Law. Unlike the
ADA, the HRL did not impose upon private employers the duty to
"reasonably accommodate" an employee's disability until January
1, 1998, when Section 296 was amended to cover this type of
discrimination. See Muszak v. Sears, Roebuck & Co.,
63 F. Supp.2d 292, 299 (W.D.N.Y. 1999); Hendler v. Intelecom USA,
Inc., 963 F. Supp. 200, 211 (E.D.N.Y. 1997). Because Revere's
alleged failure to accommodate Barnett's disability took place
before this date, he cannot avail himself of the HRL on this
claim. See Muszak 63 F. Supp.2d at 299.
Barnett has also brought various tort claims, including
negligence, interference with contract, and fraud, arising out of
Revere's allegedly false report to Revere's workers comp carrier
that Barnett's shoulder and thumb injuries did not occur while
Barnett was on the job.*fn9 These claims are easily disposed of,
as Barnett has failed to provide evidence sufficient to support
any of them. In fact, Barnett appears to admit as much in his
Brief, where he enumerates the elements of interference with
contract and fraud claims in New York, adding after both,
"Plaintiff must, and will, establish all these facts by a
preponderance of the evidence" (Plaintiff's Brief at 20, 21).
Unfortunately for Barnett, a pledge to make the required showing
is insufficient to withstand a summary judgment motion.
The only evidence to which Barnett points in support of his
tort claims is a portion of the testimony of Marvin Taylor, a
former roommate of Barnett who served as the "lead man" — a type
of peer intermediary between the workers and management at Revere
— at the time of Barnett's injuries. Specifically, Taylor
describes a conversation between himself and Barnett in which
Barnett described an attempt by Lois Cronic and Nurse Sorino to
force Barnett to submit his insurance claim for his shoulder
injury as a disability claim, rather than as a workers
Q. Do you know whether Vince [Barnett] was asked to
sign a note relating to his shoulder injury
indicating that the injury did not occur on the job?