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February 16, 2000


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


This case was referred to Magistrate Judge Carol E. Heckman pursuant to 28 U.S.C. § 636(b)(1), on May 12, 1998. On September 1, 1999, defendant filed a motion for summary judgment. On December 17, 1999, Magistrate Judge Heckman filed a Report and Recommendation, recommending that defendant's motion be granted in part and denied in part.

Plaintiff filed objections to the Report and Recommendation on December 30, 1999. Oral argument on the objections was held on February 9, 2000.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation.

Accordingly, for the reasons set forth in Magistrate Judge Heckman's Report and Recommendation, defendant's summary judgment motion is granted to the extent that it seeks dismissal of plaintiff's claim under the ADA, and is denied in all other respects.



This matter was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report on dispositive motions. Defendant has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, the motion should be granted in part and denied in part.


According to the complaint, plaintiff worked at Uni-Marts for four years prior to her termination. She began suffering from sinusitis in 1995, and at some point in 1995 she was hospitalized for a week because of her severe symptoms. In January 1997, her supervisor criticized her job performance and informed her that she would receive no pay increase pending a 90-day reevaluation. Nonetheless, she received pay increases in February and March 1997. In April 1997, she informed her supervisor that her doctor had recommended surgery to alleviate her sinusitis condition. In May 1997, she again suffered an episode of severe symptoms, and was out of work for a week. She returned to work on May 20, 1997. At that time, she informed her supervisor that her surgery had been scheduled for June 10, 1997, and that she would need to take medical leave. On May 22, 1997, she was discharged from employment. Her supervisor told her that she was being discharged because the store ran out of Newport® cigarettes.

On November 21, 1997, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") and the New York State Division of Human Rights ("NYSDHR"), alleging discriminatory discharge in violation of the ADA (Item 1, Ex. A). On December 4, 1997, the EEOC issued a "Dismissal and Notice of Rights" letter advising plaintiff that her charge had been dismissed for the reason that she "is not a qualified individual with a disability," and that she had 90 days from receipt of the letter to file this action in federal court (id., Ex. B). The action was filed on March 4, 1998.

On September 1, 1999, after discovery, defendant moved for summary judgment dismissing the case on the following grounds:

1. Plaintiff cannot establish a valid claim for disability discrimination under either the ADA or the NYHRL.
2. Plaintiff failed to give her employer 30-day advance notice of her need for medical leave, as required under the FMLA.

3. Plaintiff has not suffered any actual damages.

Each of these grounds is discussed in turn below.


1. Summary Judgment.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Second Circuit has repeatedly noted that, "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988); see also Tomka v. Seiler, 66 F.3d 1295, 1304 (2d Cir. 1995); Nweke v. Prudential Ins. Co. of America, 25 F. Supp.2d 203, 213 (S.D.N.Y. 1998). A fact is "material" only if the fact has some affect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, supra; see also Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).

The Second Circuit has also noted that additional considerations must be taken into account when deciding whether summary judgment should be granted in an employment discrimination action. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997); Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). As explained in Gallo, because direct evidence supporting a claim of intentional discrimination is rarely found among an employer's documents, the affidavits, depositions and other items submitted to the court "must be carefully scrutinized for circumstantial evidence which, if believed, would show discrimination." Gallo, supra, 22 F.3d at 1224.

[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.

Id. Although caution must be exercised in granting summary judgment where motive is genuinely in issue, summary judgment remains available for the dismissal of employment discrimination claims in cases lacking genuine issues of material fact. McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997); see also Gallo, supra; Goenaga v. March of Dimes Birth ...

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