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EPSTEIN v. KALVIN-MILLER INTERN.

June 21, 2000

ALLEN EPSTEIN, PLAINTIFF,
V.
KALVIN-MILLER INTERNATIONAL, INC., DEFENDANT.



The opinion of the court was delivered by: Leisure, District Judge.

OPINION AND ORDER

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, et seq.

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.

BACKGROUND

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 recited herein.

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.

DISCUSSION

I. Plaintiff's ADA Claim

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 agrees.

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 of discrimination.

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, ...


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