§ 2000e — 5(e); Van Zant v. KLM Royal Dutch Airlines,
80 F.3d 708, 712 (2d Cir. 1996).
The plaintiff in this case filed his original administrative
charge with the EEOC on September 3, 1998. (See Affidavit of
Nicholas Usala sworn to February 13, 2001 ("Usala Affidavit") at
¶ 4.)*fn3 Thus, only events that occurred during the 300-day
period prior to filing — events that occurred on or after
November 7, 1997 — are actionable under the ADA.
Using this calculation, both the failure to promote and the
lateral transfer are time-barred. According to the plaintiff, the
alleged "delay in promotion" began in 1995. The plaintiff was
eventually promoted in February 1997, well before November of
that year. He could have brought a charge before the EEOC at any
time after that date, but failed to do so within 300 days. The
claim is therefore time-barred.
The lateral transfer claim is also time-barred. The Court of
Appeals has explained that "[i]t has long been settled that a
claim of employment discrimination accrues for statute of
limitations purposes on the date the employee learns of the
employer's discriminatory conduct." Flaherty v. Metromail
Corp., 235 F.3d 133, 137 (2d Cir. 2000). See also Delaware
State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 66
L.Ed.2d 431 (1980) (holding that the statute of limitations
period began to run once a tenure decision was made and
communicated); Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir.
1994) (stating that employment discrimination claims accrue once
an employee "knows or has reason to know of the injury which is
the basis of his action"); Miller v. Int'l Tel. & Tel. Corp.,
755 F.2d 20, 23 (2d Cir. 1985) (explaining that in a case of
discriminatory discharge, the statute of limitations "starts
running on the date when the employee receives a definite notice
of the termination, not upon his discharge").
While the plaintiff was physically transferred on November 7,
1997, it is clear that he was notified before that date that he
would be transferred. In his deposition, the plaintiff testified
that he was informed of his impending transfer at a meeting on
October 17, 1997. (See Usala Dep. at 227.) Accordingly, because
the plaintiff learned of the defendant's allegedly discriminatory
transfer prior to November 7, 1997, his claim regarding that
transfer is also time-barred.
The plaintiff argues that his ADA claims are timely because the
discriminatory treatment he was subjected to by the defendant
constituted a "continuing violation" of the ADA. Under the
continuing violation doctrine, if a plaintiff files a
discrimination charge with the EEOC "that is timely as to any
incident of discrimination in furtherance of an ongoing policy of
discrimination, all claims and acts of discrimination under that
policy will be timely even if they would be untimely standing
alone." Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir.
1993); see also Connecticut Light & Power Co. v. Secretary of
the United States Dep't of Labor, 85 F.3d 89, 96 (2d Cir. 1996);
Cornwell, 23 F.3d at 703-04; O'Malley v. GTE Serv. Corp.,
758 F.2d 818, 821-22 (2d Cir. 1985). The continuing violation
doctrine typically applies to situations where there are specific
discriminatory seniority policies
or mechanisms, such as discriminatory seniority lists or
employment tests. See Van Zant, 80 F.3d at 713; Cornwell, 23
F.3d at 704; Lambert, 10 F.3d at 53. Ordinarily, "multiple
incidents of discrimination, even similar ones, that are not the
result of a discriminatory policy or mechanism do not amount to a
continuing violation." Lambert, 10 F.3d at 53; see also Van
Zant, 80 F.3d at 713. A continuing violation may be found in the
absence of a formal discriminatory mechanism, however, "where
specific and related instances of discrimination are permitted by
the employer to continue unremedied for so long as to amount to a
discriminatory pattern or practice." Cornwell, 23 F.3d at 704;
see also Van Zant, 80 F.3d at 713; Anatsui v. Food Emporium,
No. 99 Civ. 1137, 2000 WL 1239068, at *4 (S.D.N.Y. Sept. 1,
2000). "Completed acts such as a termination through discharge or
resignation, a job transfer, or discontinuance of a particular
job assignment, are not acts of a `continuing' nature."
Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir.
1997) (citing Malarkey v. Texaco, 559 F. Supp. 117, 121
In the present case, the alleged failure to promote and the
lateral transfer were both distinct and completed acts. The
plaintiff has raised no genuine issue of material fact that
suggests any acts after those events occurred within the statute
of limitations and were part of a continuing violation with the
events that occurred outside the statute of limitations. The
plaintiff could have filed his charge with the EEOC at any time
after the delay in promotion or the notification of his lateral
transfer; his failure to do so cannot be saved under the
continuing violation doctrine. Each of the alleged incidents of
discrimination is therefore time-barred.
The defendant also argues that it is entitled to summary
judgment because the plaintiff cannot establish his claim of
discrimination under the ADA. To establish a prima facie case of
discrimination under the ADA, the plaintiff must show that: "(1)
his employer is subject to the ADA; (2) he suffers from a
disability within the meaning of the ADA; (3) he could perform
the essential functions of his job with or without a reasonable
accommodation; and (4) he was [discriminated against] because of
his disability." Reeves v. Johnson Controls World Srvs., Inc.,
140 F.3d 144, 149-50 (2d Cir. 1998); see 42 U.S.C. § 12112(a);
Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir.
1998). The defendant contends that summary judgment should be
granted because the plaintiff cannot show that he is "disabled"
within the meaning of the ADA.
The ADA defines a "disability" with respect to an individual
"(A) a physical or mental impairment that
substantially limits one or more of the major life
activities of such individual;
(B) a record of such impairment; or
(C) being regarded as having such an impairment."
42 U.S.C. § 12102(2). The plaintiff claims that he has heel spurs
which qualify as a disability under subsection (A) of the
definition of "disability." In Bragdon v. Abbott, 524 U.S. 624,
631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998), the Supreme Court
set forth a three-part test for a "disability" under subsection
(A) of the statute. First, the plaintiff must show that he
suffers from a physical or mental impairment. Id. Second, the
plaintiff must show that the impairment affects a "major life
activity." Id. Third, the plaintiff must show that the physical
or mental impairment "substantially limited the major life
activity." Id. "In order to be eligible to prevail upon a
further showing of discrimination, a plaintiff must satisfy each
of the three prongs." Colwell v. Suffolk County Police Dep't,
158 F.3d 635, 641 (2d Cir. 1998).
The plaintiff contends that he suffered from heel spurs that
substantially limited a major life activity. In his initial
papers the plaintiff contended that his heel spurs substantially
limited the allegedly major life activity of "driving." In his
supplemental papers, the plaintiff shifted to the argument that
his heel spurs substantially limited the major life activity of
"working." While the plaintiff must meet each of the three prongs
explained in Bragdon to establish his claim, it is clear that
he cannot show a "major life activity" was "substantially
limited" by his alleged impairment.*fn4 Consequently, he does
not suffer from a disability covered by the ADA.
The agency responsible for enforcing the ADA, the EEOC, has
issued regulations defining both "major life activities" and
"substantially limits." While the EEOC's regulations are not
binding, in this Circuit the EEOC's interpretation of the statute
is accorded great deference. Bartlett v. N.Y. State Bd. of Law
Exam'rs, 226 F.3d 69, 79 (2d Cir. 2000); Heyman v. Queens Vill.
Comm. for Mental Health for Jamaica Cmty. Adolescent Program,
Inc., 198 F.3d 68, 72 (2d Cir. 1999); Ryan, 135 F.3d at 870.
The EEOC regulations specifically identify various activities,
including working, as major life activities. See
29 C.F.R. § 1630.2(i) (defining "major life activities" as "functions
such as caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working"). While this
list is "illustrative, not exhaustive," Bragdon, 524 U.S. at
639, 118 S.Ct. 2196, the Court of Appeals has noted that "`major
life activity,' by its ordinary and natural meaning, directs us
to distinguish between life activities of greater and lesser
significance." Reeves, 140 F.3d at 151. In addition to the
activities listed in the EEOC regulations, the Court of Appeals
has identified "sitting, standing, lifting, or reaching" as
"major life activities." Colwell, 158 F.3d at 642 (citing
Ryan, 135 F.3d at 870). To determine whether an activity is a
"major life activity," the court must ask "whether that activity
is a significant one within the contemplation of the ADA, rather
than whether that activity is important to a particular
plaintiff." Colwell, 158 F.3d at 642.
The EEOC regulations implementing the ADA define "substantially
limits" to mean that an individual is:
(i) Unable to perform a major life activity that the
average person in the general population can perform;
(ii) Significantly restricted as to the condition,
manner or duration under which an individual can
perform a major life activity as compared to the
condition, manner or duration under which the average
person in the general population can perform that
same major life activity.
29 C.F.R. § 1630.2(j)(1). In determining whether an individual is
substantially impaired in a major life activity, the regulations
provide that the following factors should be considered: "(i) the
nature and severity of the impairment; (ii) the duration or
expected duration of the impairment; and (iii) the permanent or
long term impact, or the expected permanent or long term impact
of or resulting from the impairment." Id. § 1630.2(j)(2). This
is "fact-specific." Ryan, 135 F.3d at 872; see also Colwell,
158 F.3d at 643.
With respect to his initial claim that his heel spurs
"substantially limit" the "major life activity" of driving, the
plaintiff has established neither a major life activity nor a
substantial limitation. The Court of Appeals has held that
driving is not a "major life activity" under the ADA. Colwell,
158 F.3d at 643 (stating that plaintiff "also identified a number
of activities that cannot reasonably be deemed major league, such
as driving . . ."). In response, the plaintiff urges that the
Court of Appeals was in error and that this Court should not
follow the holding of the Court of Appeals. The argument has no
merit and Colwell is controlling.
Moreover, the evidence establishes without any genuine dispute
that the plaintiff was not "substantially limited" in the
activity of driving. He is not unable to drive, nor is he
"significantly restricted" in his ability to drive. The plaintiff
can drive for as many as thirty minutes at one time (see Usala
Dep. at 238), and if he uses cruise control on his car he can
drive for much longer. (See Usala Dep. at 172.) Indeed, the
plaintiff is able to drive all the way to Maine. Id. Although
the heel spurs many affect the plaintiff's ability to drive in
some respects, he has failed to show that they "substantially
limit" his driving.
With respect to the plaintiff's supplemental allegation that
his heel spurs substantially limit the major life activity of
"working," there is no question that "working" is a major life
activity specifically identified in the EEOC regulations. See
29 C.F.R. § 1630.2(i). However, the evidence is clear without any
genuine dispute that the plaintiff was not "substantially
limited" in the major life activity of working. The Court of
Appeals has noted that the EEOC regulations "give guidance for
determining whether an individual is substantially limited in the
major life activity of `working.'" Colwell, 158 F.3d at 643.
The regulations provide that the ability to work is substantially
limited if the plaintiff "is significantly restricted in the
ability to perform either a class of jobs or a broad range of
jobs in various classes as compared to the average person having
comparable training, skills, and abilities."
29 C.F.R. § 1630.2(j)(3)(i). Accordingly, "the inability to perform in a
single, particular job does not constitute a substantial
limitation to the major life activity of working." Id.
In the present case, the evidence establishes without genuine
dispute that the plaintiff's heel spurs have not "substantially
limited" his ability to work. Although the plaintiff's ability to
drive may have been somewhat limited (see Usala Dep. at 238),
he has presented no evidence suggesting that this "significantly
restricted" his ability to perform a class or range of jobs. The
plaintiff was transferred to another position with the same title
and salary, and he was also offered the exact same job on the
night shift that he was performing before his transfer. There is
no evidence that the plaintiff was unable to perform these jobs.
Thus, the plaintiff was not restricted in his ability to perform
any class or range of jobs. In fact, the plaintiff testified at
his deposition that his heel spurs did not inhibit his ability to
work. (See Usala Dep. at 189.) This testimony is supported by
the fact that the plaintiff performed a variety of jobs for Con
Edison and continued to work there until his voluntary retirement
in 1999. (See Usala Dep. at 20, 108-09.)
Because the plaintiff has failed to show that he was
substantially limited in the major life activity of working, he
has not met the second prong of the test for disability explained
by the Supreme Court in
Bragdon, 524 U.S. at 631, 118 S.Ct. 2196. Accordingly, he has
not established the second element of a prima facie case under
the ADA — that he suffers from a disability under that statute.
Reeves, 140 F.3d at 149-50.
For the reasons explained above, the defendant's motion for
summary judgment dismissing the plaintiff's ADA claims is
granted. The Clerk of the Court is directed to enter judgment
dismissing the complaint and closing this case.