The opinion of the court was delivered by: Leisure, District Judge.
Plaintiff Allen Epstein brings this action against his former
employer, Kalvin-Miller International, Inc. ("Kalvin-Miller"),
alleging violations of the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12101, et seq., the Age Discrimination in
Employment Act of 1967 ("ADEA"), 29 U.S.C. § 623(a)(1)-(2), and
the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law §§ 290,
On October 15, 1998, the Court denied defendant's motion for
summary judgment on all three statutory causes of action, holding
that material issues of fact existed as to defendant's state of
mind in discharging plaintiff. See Epstein v. Kalvin-Miller
Int'l, Inc., 21 F. Supp.2d 400 (S.D.N.Y. 1998) [hereinafter,
"Epstein I"]. Now before the Court is defendant's renewed
motion for summary judgment on plaintiff's ADA and NYHRL claims.
For the reasons stated below, defendant's renewed motion for
summary judgment is granted in part and denied in part.
The Court has previously discussed the facts of this case in
some detail. See Epstein I, 21 F. Supp.2d at 401-02.
Accordingly, only those facts relevant to the instant motion are
On January 15, 1999, following the Court's denial of
defendant's first motion for summary judgment, the parties
submitted their pre-trial order and this action was marked ready
for trial. Subsequently, on June 29, 1999, defendant sought leave
of the Court to renew its motion for summary judgment in light of
three decisions rendered by the Supreme Court while this case was
awaiting trial. Over plaintiff's objection, the Court granted
defendant leave to renew its motion for summary judgment on
plaintiff's ADA and NYHRL claims. The motion was fully submitted
to the Court on October 19, 1999.
In Epstein I, the Court denied defendant's motion for summary
judgment on plaintiff's ADA claim, finding that plaintiff had
established a prima facie case of discrimination, thus shifting
the burden of production to defendant under McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973). See Epstein I, 21 F. Supp.2d at 403-04. Because there
existed issues of material fact as to defendant's reasons for
terminating plaintiff, the Court denied defendant's motion for
summary judgment. See id. at 405.
Defendant argues that, following the decisions rendered by the
Supreme Court in June 1999, plaintiff can no longer establish a
prima facie case under the ADA. See Albertsons, Inc. v.
Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162, 144 L.Ed.2d 518
(1999); Murphy v. United Parcel Serv., 527 U.S. 516, 119 S.Ct.
2133, 144 L.Ed.2d 484; Sutton v. United Air Lines, Inc.,
527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Having
undertaken a careful review of these recent decisions, the Court
In Epstein I, the Court enumerated the elements of a prima
facie case under the ADA:
Plaintiff must establish that (i) he is a member of a
protected class (i.e., under the ADA, that
plaintiff is disabled . . .); (ii) he is qualified to
perform the essential functions of the employment
position at issue; and (iii) the circumstances of his
discharge from the position give rise to an inference
Epstein I, 21 F. Supp.2d at 402 (citing Reeves v. Johnson
Controls World Serv., Inc., 140 F.3d 144, 149-50 (2d Cir. 1998);
Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir. 1995)).
Defendant argues that, under Albertsons, Murphy, and
Sutton, plaintiff is no longer able to establish the first
element of his ADA claim. In Epstein I, the Court found that
both plaintiff's heart disease and his type 2 diabetes qualified
as disabilities under the ADA, in satisfaction of this first
element. Following the ADA definition of "disability" as "a
physical or mental impairment that substantially limits one or
more of the major life activities of such individual,"
42 U.S.C. § 12102(2), the Court concluded that both ailments were
disabilities. With respect to plaintiff's heart disease, the
Court observed that plaintiff "is required to take a regimen of
medications to treat his heart disease," and that "[f]ailure to
take the medication would, according to plaintiff's treating
physician, have grave, and potentially fatal, consequences for
plaintiff." Epstein I, 21 F. Supp.2d at 403 (citing Affidavit of
Arthur Weisenseel, M.D., at ¶ 11). The Court further noted that,
"even as medically treated, plaintiff's heart disease limits
plaintiff's ability to engage in the major life activity of
walking and to undertake other forms of strenuous activity."
Id. (citing Weisenseel Aff. at ¶ 7). With respect to
plaintiff's diabetes, the Court found that "[f]ailure by
plaintiff to take the necessary medication would have a
significant adverse effect on plaintiff's health and could prove
fatal." Id. at 404 (citing Weisenseel Aff. at ¶ 11).
The Court held that, in determining whether either of
plaintiff's conditions constitutes a disability under the ADA,
the Court "must consider the effect the condition would have on
plaintiff absent medication." Id. (emphasis added). Although
this holding was amply supported by EEOC regulations and other
cases from this District, the Supreme Court has since clarified
that "if a person is taking measures to correct for, or mitigate,
a physical or mental impairment, the effects of those measures —
both positive and negative — must be taken into account when
judging whether that person is `substantially limited' in a major
life activity and thus `disabled' under the Act." Sutton, ...