The opinion of the court was delivered by: Larimer, Chief Judge.
In his amended complaint in this employment discrimination
action, Rosario Cavallaro ("Cavallaro" or "plaintiff"), a former
employee of defendant Corning Incorporated ("Corning" or
"defendant"), alleges disability discrimination and retaliation
in violation of the Americans with Disabilities Act of 1990,
42 U.S.C. § 12101 et seq. ("ADA"). Presently before the Court is
Corning's motion for summary judgment.
Plaintiff was employed as a carpenter and maintenance
associate at Corning's Erwin, New York manufacturing facility
("the Erwin facility") from 1989 until 1995. On March 25, 1994,
the Occupational Safety and Health Administration ("OSHA")
published a standard that requires all covered companies to
conduct plant-wide hazard assessments to determine employees'
exposure to head, face, hand and foot injuries.
29 C.F.R. § 1910.132. Later that year, Corning retained an outside
consultant, the Julius Kraft Company, to conduct a plant-wide
safety audit at the Erwin
facility. In conjunction with that audit, the Julius Kraft
Company identified the need for tradespersons to wear safety
shoes at the Erwin facility. Corning thereupon implemented a
rule, effective March 15, 1995, requiring steel-toed foot
protection for all carpenters and maintenance persons working at
its Erwin facility.
Corning arranged for a vendor to fit employees for safety
shoes at the Erwin facility, and it also provided each of its
employees subject to the rule a seventy dollar benefit to
purchase the shoes. Cavallaro obtained a pair of safety shoes
from Corning's vendor. However, he stopped wearing the shoes
after two to three days because of pain in his right foot that
he attributed to the safety shoes. Cavallaro returned to street
shoes without the permission of Corning management. Only after
Cavallaro's supervisor, Ron Resue, observed plaintiff without
his safety shoes, did Cavallaro complain of any discomfort. In
response to Cavallaro's complaints, Resue instructed plaintiff
to procure a more comfortable pair of shoes from another vendor
of plaintiffs choice, and that Corning would pay for them.
Plaintiff purchased a second pair of safety shoes, but
plaintiff claimed that they too were uncomfortable. After one
day, plaintiff returned to wearing street shoes at work. On
April 10th, Resue again discovered plaintiff in violation of the
safety shoe rule. On this occasion, plaintiff told Resue that he
would not wear safety shoes at work. As a result, Resue
suspended plaintiff indefinitely for insubordination. The
suspension was subsequently reduced to a one day suspension
provided that plaintiff comply with the safety shoe rule.
Corning's personnel manager informed plaintiff that wearing
steel-toed shoes was a condition of employment, but that
plaintiff would be permitted to wear company-provided toe caps
until plaintiff obtained a pair of safety shoes that he found
comfortable. Once again, Corning informed plaintiff that it
would pay for another pair. Corning also offered to pay for a
custom-molded pair of safety shoes, if plaintiff was unable to
find a comfortable pair from the standard suppliers of
Plaintiff obtained a third pair of safety shoes, at Corning's
expense, but he wore them for only two days. Plaintiff found the
fourth pair he obtained unsatisfactory after four days. His
fifth pair was custom-made by Creative Prosthetics, but he wore
those for less than five minutes.
In late July 1995, plaintiffs supervisor once again observed
plaintiff wearing his street shoes at work. After a brief time
when plaintiff wore steel-toed shoes, plaintiff removed himself
from work on August 10, 1995, alleging that the shoes forced him
to take a disability leave. Plaintiff has refused to return to
work unless he is excused from wearing safety shoes. Corning
maintains that it discharged plaintiff thereafter for his
failure to follow company rules.
An EEOC charge, and this action followed.*fn1
Contentions of the Parties
In support of its motion for summary judgment, defendant
contends that: (1) plaintiffs disability discrimination and
retaliation claims are time-barred because he filed his charge
more than 300 days after he knew of Corning's allegedly unlawful
conduct; (2) plaintiffs newly asserted disparate impact claim is
beyond the scope of the charge he filed and (3) plaintiff cannot
establish a prima facie case of disability discrimination
because plaintiff is not a
qualified individual with a disability under the ADA.
Plaintiff*fn2 maintains that there are questions of fact,
and, therefore, summary judgment should be denied. In
particular, plaintiff asserts: (1) plaintiff has satisfied all
administrative prerequisites for suit; (2) he has alleged a
continuing violation; (3) his disparate impact claim is an
alternative theory upon which relief may be granted; (4) he is
disabled under the ADA; and (5) Corning's employment decision
was based upon discriminatory "myth, fear, or stereotype."
A. Summary Judgment — General Standards
The standard for deciding summary judgment motions is well
established. Rule 56(c) provides that a motion for summary
judgment shall be granted if the pleadings and supplemental
evidentiary materials "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." Under the rule, the burden is on
the moving party to inform the court of the basis for its motion
and to demonstrate the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986). After the moving party has carried
its burden, the non-moving party "must do more than simply show
that there is some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[T]he
non-moving party 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)).
"Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no
`genuine issue for trial.'" Id. at 587, 106 S.Ct. 1348. When
perusing the record to determine whether a rational fact-finder
could find for the non-moving party, however, all reasonable
inferences must be drawn in favor of the non-moving party. See
Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d
Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 391, 102 L.Ed.2d
The general principles underlying a motion for summary
judgment fully apply to discrimination actions. Although courts
should be cautious about granting summary judgment in cases
where motive, intent or state of mind are at issue, Dister v.
Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988);
Montana v. First Federal Savings and Loan Association of
Rochester, 869 F.2d 100, 103 (2d Cir. 1989), "the salutary
purposes of summary judgment — avoiding protracted, expensive
and harassing trials — apply no less to discrimination cases
than to commercial or other areas of litigation." Meiri v.
Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied,
474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985) (summary judgment rule
would be rendered sterile if mere incantation of intent or state
of mind would act as a talisman to defeat an otherwise valid
motion). Consequently, once the moving party has met its burden,
the non-moving party in a discrimination action must come
forward with evidence upon which a rational factfinder could
return a verdict in his favor. 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. The Applicable Periods of Limitation
From the outset, it is evident that plaintiffs claims suffer
from the fatal procedural infirmity that plaintiffs claims are
untimely. Even without this infirmity, however, summary judgment
would still be warranted for reasons that will be discussed.
In essence, plaintiff claims that he was discriminated against
based on his inability to wear safety shoes. It is
well-established that any discrimination claim he may have would
accrue when he knew or had reason to know of the injury serving
as the basis for his claim. See, e.g., Harris v. City of New
York, 186 F.3d 243, 247-249 (2d Cir. 1999); Cornwell v.
Robinson, 23 ...