considered "disabled"); Ingles v. Neiman Marcus Group,
974 F. Supp. 996, 1003 (S.D.Tex. 1997) (plaintiff with "limited
walking abilities" and special footwear not disabled as matter
of law); Horth v. General Dynamics Land Sys., Inc.,
960 F. Supp. 873, 878 (M.D.Pa. 1997) (plaintiff who could not sit or
stand for more than two hours without difficulty and had trouble
walking could not show limitations were more than moderate
restrictions and thus, was not disabled). The undisputed facts
in this case demonstrate that Cavallaro was not substantially
limited in the major life activity of walking. See Brower v.
Continental Airlines, Inc., 62 F. Supp.2d 896, 904 (E.D.N.Y.
Although he does not claim it in his amended complaint,
Cavallaro now also claims that he has an impairment that limits
him in the major life activity of working. When an individual,
such as Cavallaro, makes such a claim, he must prove that he is
"significantly restricted in the ability to perform either a
class of jobs or a broad range of jobs in various classes as
compared to the average person having comparable training,
skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i).
Here, plaintiffs alleged impairment is that he cannot wear
steel-toed shoes. Since wearing such shoes was a requirement of
his job as a carpenter at Corning's Erwin facility, he was
unable to perform his job. The inability to perform a single,
particular job, however, does not constitute a substantial
limitation in the major life activity of working.
29 C.F.R. § 1630.2(j)(3)(i). "[T]he impairment must substantially limit
employment generally." Byrne v. Board of Educ., 979 F.2d at
565; Castro v. Local 1199, 964 F. Supp. 719 (S.D.N.Y. 1997).
See also, Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 723-24
(2d Cir. 1994); Daley v. Koch, 892 F.2d 212, 215 (2d Cir.
1989); Gittens v. Garlocks Sealing Technologies, 19 F. Supp.2d 104,
110 (W.D.N.Y. 1998); Sharp v. Abate, 887 F. Supp. 695, 699
(S.D.N.Y. 1995) ("[a]n impairment that limits an employee's
ability to perform only one job is not a disability under the
ADA") (citations omitted).
Further, when the major life activity at issue is the ability
to work, the court may consider the following three additional
factors in determining whether an individual is substantially
limited: (1) "[t]he geographical area to which the individual
has reasonable access"; (2) "[t]he job from which the individual
has been disqualified because of an impairment, and the number
and types of jobs utilizing similar training, knowledge, skills
or abilities, within that geographical area, from which the
individual is also disqualified because of the impairment (class
of jobs)"; and/or (3) "[t]he job from which the individual has
been disqualified because of an impairment, and the number and
types of other jobs not utilizing similar training, knowledge,
skills or abilities, within that geographical area, from which
the individual is also disqualified because of the impairment
(broad range of jobs in various classes)."
29 C.F.R. § 1630.2(j)(3)(ii)(A)-(C).
On a number of occasions, plaintiff has stated that he can
work as a carpenter if he is not required to wear steel-toed
shoes. He has also testified that he is qualified to work as a
pipefitter, tinworker, and millwright, and that he "can do
anything with glass." Plaintiffs Dep., pp. 910, 22. His
inability to wear steel-toed shoes does not substantially limit
his opportunities for employment generally. See Talk v. Delta
Airlines, Inc., 165 F.3d at 1025 (inability to wear steel-toed
shoes in a single position did not render plaintiff
substantially limited in the major life activity of working).
Even if plaintiff is deemed to have an impairment, presumably,
he would still be qualified to work as a carpenter, pipefitter,
tinworker, and millwright in those jobs in his immediate
geographical area which do not require that employees wear
steel-toed shoes. Cavallaro was not substantially limited in the
major life activity of working.
Even though plaintiff has not shown that he suffers from an
substantially limits a "major life activity" within the meaning
of the ADA, he may still be considered "disabled" for purposes
of the statute if he could show that he was "regarded as having
such an impairment." 42 U.S.C. § 12102(2)(C). The EEOC
regulations define "is regarded as having such an impairment" as
(1) Has a physical or mental impairment that does not
substantially limit a major life activity but is
treated by a covered entity as constituting such
(2) Has a physical or mental impairment that
substantially limits major life activities only as a
result of the attitudes of others toward such
(3) Has none of the impairments defined [by the EEOC
regulations] but is treated by a covered entity as
having a substantially limiting impairment.
29 C.F.R. § 1630.2(1).
Plaintiff does not allege that his impairment substantially
limits a major life activity only because of "the attitudes of
others toward [his] impairment." Id., § 1630.2(1)(2). Nor does
he assert that he was treated by Corning as "having a
substantially limiting impairment." Id., § 1630.2(1)(3).
Rather, he invokes 29 C.F.R. § 1630.2(1)(1) (and charges that
Corning based its decision to require safety shoes on its
"concern for liability and, inferably [sic], workers'
compensation costs.") From that he posits that Corning
discriminated against plaintiff individually because, according
to plaintiff, it regarded him as disabled. Plaintiffs
Memorandum, Dkt. # 29, p. 35. This leap is illogical and
Corning does not dispute that it knew of plaintiffs foot
problem before he was dismissed. However, "the mere fact that an
employer is aware of an employee's impairment is insufficient to
demonstrate either that the employer regarded the employee as
disabled or that that perception caused the adverse employment
action." Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir.
1996); see also Talk v. Delta Airlines, Inc., 165 F.3d at 1025
(finding that employer did not regard plaintiff as disabled
notwithstanding employer's admission that plaintiff could not
work in certain department because of her inability to wear
steeltoed shoes). Plaintiff must show that defendant perceived
his impairment as substantially limiting the exercise of a major
life activity. Because he has presented no evidence tending to
show that Corning perceived it as such, plaintiff has failed to
meet this burden. Reeves v. Johnson Controls World Services,
Inc., 140 F.3d at 153.
In sum, plaintiff has failed to establish a prima facie case
on a variety of levels. However, even if plaintiff is deemed to
have established a prima facie case, he has not rebutted the
legitimate nondiscriminatory reasons articulated by Corning for
terminating his employment — that plaintiff refused to abide by
Corning's safety rules.*fn8 It is particularly instructive
that Corning's safety shoe policy was precipitated by its
laudable attempt both to comply with OSHA regulations and to
insulate its employees from injury in the workplace. Plaintiff
was not treated any differently than any other employee who
performed similar work at the Erwin facility.*fn9 As
plaintiff concedes, the safety shoe policy required "all"
employees to wear safety shoes. Plaintiffs Memorandum,
Dkt.# 29, p. 4. Such uniform treatment cannot give rise to a
disparate treatment claim.
Plaintiff has put forth no credible evidence showing that
disability discrimination was more likely than not the real
reason that motivated Corning to act as it did with respect to
plaintiff. In other words, plaintiffs speculations are
insufficient to establish pretext.*fn10 See Hicks, 509 U.S.
at 509-511, 113 S.Ct. 2742 (the plaintiff retains the ultimate
burden of proving that the proffered rationale is pretextual and
that the employer was discriminatorily motivated); Duclair v.
Runyon, 166 F.3d 1200 (2d Cir. 1998) (unpublished opinion)
("the Supreme Court has made clear, as have numerous opinions
from this court, that the burden of persuasion — the obligation
to prove his or her case — is at all times borne by the
plaintiff") (Title VII case).
E. The Retaliation Claim
Absent direct proof, "[t]he order and allocation of burdens of
proof in retaliation cases follow that of general disparate
treatment analysis as set forth in McDonnell Douglas Corp. v.
Green . . ." Sumner v. U.S. Postal Service, 899 F.2d 203, 208
(2d Cir. 1990) (citations omitted). To establish a prima facie
case of retaliation under the ADA, a plaintiff must show (1)
"protected participation or opposition . . . known by the
alleged retaliator," (2) "an employment action disadvantaging
the person engaged in the protected activity," and (3) "a causal
connection between the protected activity and the
disadvantageous employment action." See DeCintio v. Westchester
County Med. Center, 821 F.2d 111, 115 (2d Cir. 1987), cert.
denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987)
(Title VII case); see also Tomka v. Seiler Corp.,
66 F.3d 1295, 1308 (2d Cir. 1995).
Drawing all factual inferences in plaintiffs favor, I do not
find that Cavallaro has established a prima facie case here.
Cavallaro has not established any causal connection between any
protected activity and any disadvantageous employment action.
Defendant's motion for summary judgment (Dkt.# 20) is granted,
and the complaint is dismissed with prejudice.
IT IS SO ORDERED.