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March 22, 2001


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


Plaintiff Nicholas Usala brings this action against his former employer, Consolidated Edison Company of New York, Inc. ("Con Edison"). The plaintiff alleges that the defendant discriminated against him on the basis of his disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. The defendant now moves pursuant to Fed. R.Civ.P.56 for summary judgment.


The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). "In considering the motion, the court's responsibility is not to resolve disputed issues of fact, but to assess whether there are factual issues to be tried." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986).


There is no genuine dispute as to the following facts except where noted. The plaintiff was employed in the Construction Department of Con Edison from 1970 until June 30, 1999, when he voluntarily retired. (See Def.'s 56.1 Stmt. ¶ 1; Pl.'s 56.1 Stmt. ¶ 1; Deposition of Nicholas Usala ("Usala Dep.") at 20, 108-09.) From 1986 to 1997, the plaintiff worked as a Construction Inspector in Con Edison's Capital Improvement Section. (See Def.'s 56.1 Stmt. ¶¶ 3, 4; Pl.'s 56.1 Stmt. ¶ 2, 3.) Construction Inspectors and Construction Representatives, the next highest title in the Capital Improvement Section, are required to inspect and review work done by contractors on behalf of defendant at various locations throughout the city. (See Def.'s 56.1 Stmt. ¶ 4, Pl.'s 56.1 Stmt. ¶ 10.) Starting in 1993, all Construction Inspectors and Construction Representatives working the day shift in the Capital Improvement Section were required to drive to work daily and drive their personal cars to and from the various job sites they inspected, which was known as being "on mileage." (See Def.'s 56.1 Stmt. ¶ 5; Pl.'s 56.1 Stmt. ¶ 13; Usala Dep. at 32-34.)

The plaintiff chose to work primarily the night shift in the Capital Improvement Section from 1987 until 1994, although he occasionally worked the day shift. (See Def.'s 56.1 Stmt. ¶ 8; Usala Dep. at 13-14.) The plaintiff was not "on mileage" while working the night shift, although he sometimes drove to work sites using a company vehicle. (See Def.'s 56.1 Stmt. ¶ 9; Pl.'s 56.1 Stmt. ¶ 12.) The plaintiff alleges that he could not drive for more than thirty minutes at a time due to two heel spurs, which were diagnosed in 1985 and 1994. (See Pl.'s 56.1 Stmt. ¶ 8; Usala Dep. at 45-46.) He claims that he could drive during the night shift because the reduced traffic at night rarely required him to drive more than thirty minutes at a time. (See Usala Dep. at 47-48.)

Beginning in the spring of 1994, the plaintiff began to work more day shifts as a Construction Inspector because New York City reduced the number of permits issued for night work. (See Def.'s 56.1 Stmt. ¶ 11; Usala Dep. at 48.) The plaintiff was still not "on mileage," however, and he mainly used public transportation to get to and from work. (See Usala Dep. at 54-55.) In October of 1994, the plaintiff took and passed the test to be promoted to Construction Representative. (See Def.'s 56.1 Stmt. ¶ 14; Pl.'s 56.1 Stmt. ¶¶ 15, 16.) The plaintiff was not promoted at that time, however, because he was not "on mileage." (See Def.'s 56.1 Stmt. ¶ 15; Pl.'s 56.1 Stmt. ¶ 18.) The plaintiff was finally promoted in February 1997, retroactive to January 1996. (See Def.'s 56.1 Stmt. ¶ 16; Pl.'s 56.1 Stmt. ¶ 19.)

At some point in 1997 after the plaintiff's promotion, the defendant offered the plaintiff the opportunity to return to the night shift in the Capital Improvement Section, where he would not be required to be "on mileage"; the plaintiff declined because he hoped to retire in six or seven months. (See Def.'s 56.1 Stmt. ¶ 18; Usala Dep. at 249.) On November 7, 1997, the plaintiff was transferred to the Public Improvement Section of the Construction Department, where there was no "on mileage" requirement. (See Def.'s 56.1 Stmt. ¶ 21; Pl.'s 56.1 Stmt. ¶ 22.) While the plaintiff kept the same title and salary and performed similar functions (See Def.'s 56.1 Stmt. ¶ 2; Usala Dep. at 224), he alleges that he lost overtime because there was less overtime available in the new position. (See Pl.'s 56.1 Stmt. ¶ 23; Usala Dep. at 224.)

In September 1998, the plaintiff filed a complaint with the EEOC asserting that his transfer to the Public Improvement Section was discrimination in violation of the ADA. (See Def.'s 56.1 Stmt. ¶ 23; Ex. A to Declaration of Manuel M. Salazar dated July 18, 2000 ("Salazar Declaration").) The EEOC dismissed the plaintiff's complaint and issued a right to sue letter on May 11, 1999. (Ex. B to Salazar Declaration.)


In his complaint, the plaintiff asserts that two actions constituted violations of the ADA: his lateral transfer to the Public Improvement Section and the delay in his promotion to Construction Representative.*fn1 (See Pl.'s 56.1 Stmt. ΒΆΒΆ 20, 23.) The defendant moves for summary judgment with respect to both employment actions on two grounds. First, the defendant argues that the plaintiff's claims are barred by the applicable statute of limitations; and second, the defendant ...

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