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February 26, 2001


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

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 (1986).

II. Claims Under the ADA and RHA

The ADA prohibits employers, covered by the Act, from discriminating:

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 ...

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