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
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
REPORT AND RECOMMENDATION
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
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.
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
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 ...