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November 30, 2000


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



In January 1999, Defendant determined that it had openings for both a full-time and part-time receptionist at the company's Albany location. On or about January 18, 1999, Plaintiff sent a letter to Defendant expressing her interest in the position. Plaintiff went through a series of interviews during which time she met with Assistant Manager Dana Pratt and Retail Operations Manager Kristine Scotto ("Scotto"). On February 28, 1999, Plaintiff interviewed with the new incoming General Manager, Steven Coons ("Coons"). Scotto then spoke with Regional Operations Manager Edward Audi ("Audi"), who authorized Scotto to hire Plaintiff. Defendant determined that Plaintiff would be hired for the part-time receptionist position.

On March 1, 1999, Coons contacted Plaintiff and extended her an offer for the part-time position. On March 2, 1999, Plaintiff accepted the offer. On March 3, 1999, Plaintiff went to Defendant's place of business in Colonie, New York to fill out certain post-hire paperwork, including a post-hire medical questionnaire (the "medical questionnaire" or the "questionnaire"). On the form Plaintiff indicated, among other things, that she suffered from bipolar disease for which she takes medication and had twice been hospitalized. Plaintiff did not, however, completely fill out the medical questionnaire. Plaintiff failed to complete the question asking whether she ever had a workers' compensation injury or illness or collected short-term disability benefits due to a non-work related injury or illness. According to Plaintiff, she did not complete this section because she had collected workers' compensation for her bipolar disorder and was afraid that such information would be used against her by Defendant. Plaintiff also failed to check a box indicating that she did not suffer from any of eleven listed diseases, although she claims that she did not see that question. The parties dispute whether Plaintiff completed the substance abuse notification and consent form.*fn1 Coons recognized that Plaintiff had not fully completed the medical questionnaire and advised her that it would have to be completed at a later time.

The questionnaire was sent to the company nurse, Susan Jenner ("Jenner"), who reviewed it. In addition to the incomplete information, Jenner found what she believed to be an inconsistency. In response to the question whether Plaintiff had been treated by a physician within the past twelve months, Plaintiff stated that she had not, although she had been treated by a psychiatrist and was taking medication.*fn2

Defendant scheduled Plaintiff to commence work on March 9, 1999, at which time she was to complete the medical questionnaire. On the morning of March 9, 1999, Plaintiff went to work and filled out the questionnaire. The questionnaire was then sent to Jenner for review. Jenner noticed that Plaintiff again failed to check the "none" box after the list of diseases. Jenner continued to question whether Plaintiff could be taking medications without being under the continuing treatment of a physician. Otherwise, the questionnaire was fully completed, including the section regarding any prior workers' compensation injuries.

Jenner was concerned about the missing information and apparent inconsistencies and, therefore, brought the questionnaires to the attention of Beverly Manning ("Manning"), Human Resources Coordinator. Manning, in turn, brought the questionnaires to Audi. This was the first time Audi had ever been provided with Plaintiff's medical information. Because Audi was busy at the time, he instructed that Plaintiff be sent home from work that day and that they would get back to her. Audi then determined that, based on the discrepancies and omissions, Plaintiff had responded untruthfully and incompletely on the medical questionnaires. Audi, therefore, decided to terminate her employment. Plaintiff was then informed that her employment had been terminated. According to Plaintiff, Defendant told her that the position no longer existed.

Plaintiff then filed a charge of discrimination with the New York State Division of Human Rights ("DHR"). Ultimately, the DHR dismissed the charge for administrative convenience. Plaintiff then commenced the instant litigation claiming that she was discriminated against on account of her disability in violation of the ADA and the HRL. Presently before the Court is Defendant's motion for summary judgment pursuant to FED. R. CIV. P. 56 seeking dismissal of the Complaint in its entirety on the grounds that: (1) Plaintiff does not have a disability within the meaning of the ADA; and (2) she is unable to establish that she was terminated because of her alleged disability.


A. Summary Judgment Standard

The Court has set forth the appropriate summary judgment standard in employment discrimination cases in several reported cases and will apply that same standard to Defendant's motion. See Roman v. Cornell Univ., 53 F. Supp.2d 223, 232-33 (N.D.N Y 1999); Phipps v. New York State Dep't of Labor, 53 F. Supp.2d 551 (N.D.N.Y. 1999); Riley v. Town of Bethlehem, 44 F. Supp.2d 451, 458 (N.D.N.Y. 1999).

B. Right to Sue

The evidence before the Court reveals that Plaintiff filed a charge of discrimination before the DHR that contained a federal charge number, thereby suggesting that a charge of discrimination was also filed with the Equal Employment Opportunity Commission ("EEOC"). Upon Plaintiff's request, the DHR dismissed the charge of discrimination on grounds of administrative convenience so Plaintiff could pursue her state HRL claim in court. There is no indication, however, that Plaintiff ever received a right to sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1); 42 U.S.C. § 12117(a). Accordingly, had the issue been raised by Defendant, the Court would have found the instant action to be premature and dismissed the matter without prejudice for failure to exhaust administrative remedies. See Criales v. American Airlines, Inc., 105 F.3d 93, 95 (2d Cir. 1997), cert. denied, 522 U.S. 906, 118 S.Ct. 264, 139 L.Ed.2d 190. Because, however, Defendant failed to raise this issue, it has been waived. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Arroyo v. WestLB Admin., Inc., 213 F.3d 625, 2000 WL 562425, at *1 (2d Cir. 2000); Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 n. 5 (2d Cir. 2000). The Court will, therefore, turn to the merits of Defendant's motion.

C. The ADA Scheme

"As the Supreme Court recently reiterated, `[t]he ADA prohibits discrimination by covered entities, including private employers, against qualified individuals with a disability. Specifically, it provides that no covered employer "shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . [the] discharge of employees. . . ."'" Heyman v. Queens Village Comm. for Mental Health for Jamaica Community Adolescent Program, Inc., 198 F.3d 68, 71 (2d Cir. 1999) (quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 2144, 144 L.Ed.2d 450 (1999) (quoting 42 U.S.C. § 12112(a))). In analyzing an ADA claim, courts apply the familiar McDonnell Douglas burden shifting analysis. See id.; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Briefly stated, under that scheme, Plaintiff has the burden of demonstrating a prima facie case of disability discrimination. If she does so, the burden of production shifts to Defendant to articulate a legitimate, non-discriminatory reason for its actions. The burden then reverts to Plaintiff to prove, by a preponderance of the evidence, that the adverse employment action was taken because of her disability. Plaintiff may do this by demonstrating that Defendant's proffered reason is a pretext for unlawful discrimination, which might suggest that discrimination was the real reason for the employment action, or by relying upon the evidence establishing her prima facie case. See Heyman, 198 F.3d at 72.

1. The Prima Facie Case

"To establish a prima facie case of discrimination under the ADA, plaintiff must show by a preponderance of the evidence that (1)[her] employer is subject to the ADA; (2)[s]he was disabled within the meaning of the ADA; (3)[s]he was otherwise qualified to perform the essential functions of [her] job, with or without reasonable accommodation; and (4)[s]he suffered adverse employment action because of [her] disability." Id.

Here, Defendant concedes it is subject to the ADA. Thus, the next question is whether Plaintiff is disabled within the meaning of the ADA.

a. Whether Plaintiff has a Disability Within the Meaning of the ADA

Defendant argues that, taking into consideration Plaintiff's ameliorative measures (her medication and therapy), she is not substantially limited in any major life activity. Defendant points to ...

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