The opinion of the court was delivered by: Johnson, District Judge.
Adam Simms ("Plaintiff") filed the above-captioned action
under the "Americans with Disabilities Act" (the "ADA"),
42 U.S.C. § 12111 ("Title I" of the ADA) and 12131 ("Title II" of
the ADA), et seq.,*fn1 the Federal Rehabilitation Act,
29 U.S.C. § 794 ("RHA") and New York Human Rights Law, N.Y. Exec.
Law § 292, et seq. ("NYHRL"), against the City of New York,
the Fire Department of the City of New York, and Thomas Von
Essen, Commissioner of the New York City Fire Department
(collectively, "Defendants"). Before this Court are Plaintiffs
motion for partial summary judgment and Defendants' cross-motion
for partial summary judgment, both brought pursuant to
Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated
below. Plaintiffs motion is granted in part and denied in part,
and Defendants' motion is denied in its entirety.
Plaintiff began working as a firefighter with the New York
City Fire Department
(the "Department") in 1989 and was promoted to Lieutenant in
1996. From Plaintiffs date of hire until April 1998, Plaintiff
served as a full duty firefighter in a variety of ladder and
engine companies within the Department. In 1991, Plaintiff was
diagnosed with diabetes mellitus. Plaintiff asserts that since
his diagnosis, he has been in full control of his diabetes
through a careful regimen of diet and medication, prescribed by
Dr. Andrew Drexler. (P1. Mem. at 2.) This regimen consists of
measuring his blood sugar, modifying his diet and medication
schedule, and injecting himself with the proper dosage of
insulin. Plaintiff must engage in this regimen four times each
day, with each session lasting approximately 15 minutes.
Plaintiff did not disclose his medical condition to the
Department upon being diagnosed, rather, the Department learned
of Plaintiffs diabetes after receiving an anonymous letter.
(Defs. Opp'n at 3.) The letter stated that Plaintiff had been
observed "shooting up" while on the job. Id. Shortly
thereafter, on or about April 1, 1998, Plaintiff was interviewed
by Dr. Kerry J. Kelly, the Chief Medical Officer at the
Department's Bureau of Health Services ("BHS"), and was given a
blood test. The Department placed Plaintiff on light desk duty,
until he was able to provide more information regarding his
medical condition and/or alleged drug use.*fn2 The Department
eventually learned that Plaintiff was diabetic and Plaintiff
attended several subsequent appointments with BHS staff,
including reviews conducted by both a three physician review
board and a seventeen physician review board. Although there is
significant disagreement between the parties as to how
thoroughly the Department assessed Plaintiffs condition and its
effect on his ability to engage in full duty firefighting,
Plaintiff was eventually placed on permanent light duty status.
Plaintiff claims that since his transfer to light duty, he has
made twelve requests to return to full duty assignments.
According to Plaintiff, each of these requests, including a
request to transfer to a firefighter instructor position in the
Department's training unit, was denied because of Plaintiffs
diabetes. (P1. Mem. at 3.)
Plaintiff contends that the New York City Fire Department
discriminated against him in violation of the ADA, the RHA, and
NYHRL, by precluding him from engaging in active firefighting
duties because of his diabetes, although Plaintiff claims he was
and remains fully qualified and capable of performing the
essential functions of the active duty fire lieutenant position.
Plaintiff also disagrees with Defendants' assertion that he has
not been harmed because he has retained his title of Lieutenant
along with its base salary and other attendant benefits.
Specifically, Plaintiff argues not only that he has lost many of
the benefits afforded full duty firefighters, including
substantial overtime pay and career advancement, but also that
he suffers from severe emotional distress and loss of self-worth
as a result of the Department's actions. (P1. Mem. at 6.)
I. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
The court need only determine if there is a genuine issue to be
tried rather than resolve disputed issues of fact. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986).
The party seeking summary judgment bears the burden of showing
that no genuine factual dispute exists. See Cronin v. Aetna
Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995). Once the moving
party has made a showing that there are no genuine issues of
material fact to be tried, the burden shifts to the non-moving
party to raise triable issues of fact. Anderson, 477 U.S. at
250, 106 S.Ct. 2505. Mere conclusory allegations will not
suffice. Instead, the non-moving party must present "significant
probative supporting evidence" that there is a factual dispute.
Id. at 249, 106 S.Ct. 2505; Fed.R.Civ.P. 56(e). Moreover, in
considering a summary judgment motion, the court is required to
view the evidence in the light most favorable to the non-moving
party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
Therefore, summary judgment will be entered against a party "who
fails to make a showing sufficient to establish the existence of
an element essential to the party's case, and on which that
party will bear the burden of proof at trial." Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
II. Claims Under the ADA and RHA
The ADA prohibits employers, covered by the Act, from
against a qualified individual with a disability
because of the disability of such individual in
regard to job application procedures, the hiring,
advancement, or discharge of employees, employee
compensation, job training, and other terms,
conditions, and privileges of employment.
42 U.S.C. § 12112(a). A plaintiff alleging employment
discrimination under the ADA or RHA bears the initial burden of
establishing a prima facie case.*fn3 See Ryan v. Grae &
Rybicki, P.C., 135 F.3d 867, 869 (2d Cir. 1998). Specifically,
the plaintiff must show by a preponderance of the evidence that:
(1) he is a disabled person under the ADA; (2) he is otherwise
qualified to perform his job; and (3) he suffered adverse
employment action because of his disability. Id at 869-870.
If the plaintiff satisfies this burden and the defendant
acknowledges that plaintiffs disability was a basis for its
decision, the burden shifts to the defendant "to rebut the
inference that the handicap was improperly considered by
demonstrating that it was relevant to the job qualifications."
Teahan v. Metro-North Commuter Railroad Co., 951 F.2d 511, 515
(2d Cir. 1991), cert. denied, 506 U.S. 815, 113 S.Ct. 54, 121
L.Ed.2d 24 (1992). The plaintiff, however, "bears the ...