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NEEDLE v. ALLING & CORY

March 28, 2000

GERALD NEEDLE, PLAINTIFF,
V.
ALLING & CORY, INC., DEFENDANT.



The opinion of the court was delivered by: Larimer, Chief Judge.

  DECISION AND ORDER

Procedural Background

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.

Factual Background

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.

DISCUSSION

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 ...


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