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 lead a reasonable trier of fact to find in favor of the
non-movant. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d
To defeat summary judgment, the nonmoving party must go beyond the
pleadings and "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita 475 U.S. at
586, 106 S.Ct. 1348. Rather, it "must come forward with `specific facts
showing that there is a genuine issue for trial.'" Id. at 587, 106 S.Ct.
1348 (quoting FED.R.CIV.P. 56(e)). For a plaintiff in a discrimination
case to survive a motion for summary judgment, he or she must do more
than present "conclusory allegations of discrimination," Meiri v. Dacon,
759 F.2d 989 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88
L.Ed.2d 74 (1985); he or she must offer "concrete particulars" to
substantiate the claim. id., cited in, Duprey v. Prudential Ins. Co.,
910 F. Supp. 879 (N.D.N.Y. 1996).
B. Plaintiff's Disability Discrimination Claim
Courts evaluate disparate treatment employment discrimination claims
using the burden-shifting analysis developed in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),
and later refined in Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 252-253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 506-511, 113 S.Ct. 2742, 125
L.Ed.2d 407 (1993).
The ADA prohibits discrimination in the hiring, advancement, or
discharge of an otherwise qualified employee because of such individual's
disability. 42 U.S.C. § 12112(a). The McDonnell Douglas
burden-shifting analysis is also utilized in analyzing claims based on
the ADA. See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir.
1998); Glidden v. County of Monroe, 950 F. Supp. 73, 75 (W.D.N.Y. 1997).
In order to establish a prima facie case of disability discrimination,
plaintiff must show that: (1) he is "disabled" within the meaning of the
ADA; (2) he is otherwise qualified to perform the essential functions of
his job; and (3) he suffered adverse employment action because of his
disability. Wernick v. Federal Reserve Bank, 91 F.3d 379, 383 (2d Cir.
1996); see also Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-870 (2d
Cir. 1998); Kotlowski v. Eastman Kodak Co., 922 F. Supp. 790, 796
1. Disability Under the ADA
To survive a summary judgment motion, an ADA plaintiff must meet the
threshold burden of establishing that he is "disabled," as that term is
defined under the statute. An individual is considered disabled, within
the meaning of the ADA, if he: (1) has a physical or mental impairment
that substantially limits one or more of the major life activities; (2)
has a record of such an impairment; or (3) has been regarded as having
such an impairment. 42 U.S.C. § 12102(2)(A)-(C).
The Equal Employment Opportunity Commission ("EEOC") has defined a
"physical impairment" under the statute as:
Any physiological disorder, or condition, cosmetic
disfigurement, or anatomical loss affecting one or
more of the following body systems: neurological,
musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular,
reproductive, digestive, genito-urinary, hemic and
lymphatic, skin, and endocrine.
29 C.F.R. § 1630.2(h)(1).