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April 28, 2000


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


Procedural Background

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.

Factual Background

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 pre-fitted shoes.

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 380 (1988).

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 ...

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