The opinion of the court was delivered by: McAVOY, District Judge.
MEMORANDUM — DECISION & ORDER
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
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).
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.
"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.
"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
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 ...