The opinion of the court was delivered by: Larimer, Chief Judge.
In his complaint in this employment discrimination action, Gerald
Needle ("Needle" or "plaintiff"), a former employee of defendant Alling
and Cory, Inc. ("Alling & Cory" or "defendant"), alleges disability
discrimination in violation of the Americans with Disabilities Act of
1990, 42 U.S.C. § 12101 et seq. ("ADA") ("First Count"), and
intentional infliction of emotional distress ("Second Count.")*fn1.
Alling & Cory has counterclaimed for the reimbursement of certain COBRA
benefits it provided Needle. Presently before the Court are Alling &
Cory's motions for summary judgment, under FED.R.CIV.P. 56, and
sanctions, under FED.R.CIV.P. 11.
Plaintiff began his employment with Alling & Cory in 1976. For over
twenty years, he worked in various positions, most recently as a Level II
Warehouse Associate in the Receiving Department.
In June 1996, plaintiff took a disability leave due to complications
related to his diabetes, from which he had long suffered. After the
amputation of three toes, he returned to work in December 1996. Shortly
thereafter, he again went out on disability in February 1997, and the
remaining toes on his right foot were amputated. By May 1997, plaintiff's
physicians advised defendant that plaintiff would be permanently partially
disabled, and that he would be restricted in his ability to walk, stand,
lift, and squat.
Unfortunately, plaintiff's former position required heavy lifting and
other physical effort. The applicable job description provided: "Moderate
physical effort required. May occasionally need heavy exertion [sic] for
lifting." His job also required walking, standing, and squatting. Alling
& Cory considered such physical exertion essential functions of the
job*fn2, and even plaintiff conceded during his deposition that a range of
physical effort was required to perform his job.
Margaret Supinski, Alling & Cory's Vice-President of Human Resources,
discussed the matter with plaintiff twice in May 1997, and sent him a
letter, dated May 14, 1997, requesting any information he had about his
ability to perform his job. Plaintiff never responded to Ms. Supinski's
letter to him. Although plaintiff claims to have spoken to Merit
Wilkinson, Alling & Cory's General Manager in Rochester, about the
matter, plaintiff admitted in his deposition that he told both Supinski
and Wilkinson that he could not perform all of the functions of his job.
Ms. Supinki testified that plaintiff stated in their second conversation
that month that he had no other skills which defendant should consider in
attempting to locate another position for him, and Ms. Supinski's notes
of her conversation support that testimony. In fact, plaintiff never
applied for any vacant positions, and never requested reassignment to any
vacant position. Alling & Cory maintains that it searched for a vacant
position consistent with plaintiff's skills, but none existed at that
time. Plaintiff admitted in his deposition that he was unable to identify
any vacant positions in May 1997 for which he was qualified.
The record further reflects that in his 1997 application for vocational
services from the New York Office of Vocational and Educational Services
for Individuals with Disabilities ("VESID"), plaintiff stated that he
left Alling & Cory because he: ". . . could no longer do job." Because
plaintiff never requested any accommodation that would have allowed him to
perform the essential functions of his position as a warehouse associate,
and because no appropriate vacancies existed, plaintiff was terminated in
May 1997. An EEOC charge, and this action followed.
Contentions of the Parties
In support of its motion for summary judgment, defendant contends that
plaintiff cannot establish a prima facie case of disability discrimination
because: (1) plaintiff is not a qualified individual with a disability
under the ADA; (2) there was no accommodation which would enable him to
perform the essential functions of his job; and (3) no vacant position
consistent with his skills existed to which he could have been
reassigned. Defendant also asserts that plaintiff is estopped from
claiming that he could have been accommodated because of the prior
representations he made to his employer and to others that he was
disabled and unable to perform his job. Lastly, Alling & Cory moves for
sanctions under Rule 11, asserting that this is a frivolous suit.
Plaintiff maintains that there are questions of fact that preclude
summary judgment. He asserts that: (1) he could have performed some
aspects of his former position; (2) he could have been reassigned to the
Converting Department, or retrained for a computer data entry position;
and (3) he has now discovered that there was a "mechanical device" that
would have assisted him in performing the functions of his job. While
plaintiff has failed to file any formal cross-motion, he does request in
his memorandum of law that Alling & Cory's counterclaim for its payment
of COBRA benefits be dismissed.
A. Summary Judgment — General Standards
On a motion for summary judgment, "a court's responsibility is to
assess whether there are any factual issues to be tried." Coach
Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991)
(citing Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.
1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762
(1987)). Summary judgment will be granted if the record demonstrates that
"there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." FED. R.CIV.P. 56(c);
Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). A
genuine issue of material fact exists only if the record, taken as a
whole, could ...