responded quickly and brought Rivera a soda to drink. Rivera
recovered and decided to continue working his shift.
Rivera suffered another attack on February 3, 1996, because he
did not eat enough for breakfast. He returned to work after the
attack and completed his shift.
Rivera was aware that he could control his diabetes with
medication and a proper diet, and that a failure to eat properly
could affect his health.
Rivera now alleges that Rios and Bosques harassed him while he
was employed at Apple and Effective because of his diabetes and
poor eyesight, and that they had conspired to get him removed
from the BAT. Rivera complains that Rios and Bosques often made
fun of his physical disabilities, calling him names such as
"Cyclops" and "Freddy Krueger," and making statements like "Yo
Freddie, is it true that diabetics can't get it up?" and "Hey
Freddie! Is it true you're a homo?"*fn4 (Pl.'s Rebuttal of
Def.'s Rule 56.1 Statement ("Pl.'s Rebuttal") at 1, 9-10.)
Indeed, while he was employed by Apple and Effective, Rivera
twice reported to his superiors instances of what he believed to
be harassment. On one occasion, Bosques laughingly told Rivera
that a security officer named Fitzpatrick had called Rivera a
"one-eyed handicap." (Id.) Rivera reported the incident to
Rios, and Fitzpatrick later apologized to Rivera. The second
time, Rivera complained to Giordano that Rios had publicly
remarked that Rivera had erectile dysfunction because of his
diabetes. Giordano told Rivera that he would speak to Rios.
Rivera claims that the next day Rios and Bosques put up a sign
that read, "Freddy Cries For Help." (Id. at 8.)
After Rivera ceased working for Effective, he filed a charge
against Apple with the Equal Employment Opportunity Commission
("EEOC") on April 23, 1996. He amended that charge on October
23, 1996, to include Effective.
In the EEOC charge, Rivera alleged that Rios had harassed him
and made demeaning comments about his physical disabilities. In
addition, Rivera claimed that defendants violated the ADA by
assigning him to the jump tour even though he had specifically
requested an accommodation that he not be assigned to a rotating
shift, and by ultimately terminating him.
The EEOC dismissed Rivera's charge on March 3, 1998. Rivera
then filed this action on April 24, 1998.
Meanwhile, on June 4, 1996, Rivera also applied for Social
Security Disability Insurance ("SSDI"), asserting that as of
April 3, 1996, he had a permanent disability that prevented him
from working. Rivera is currently receiving Social Security
I. Summary Judgment Standard
Summary judgment is appropriate "if 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); accord Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Belfi v.
Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). The Court's
function is not to resolve disputed issues of fact, but only to
determine whether there is a genuine issue to be tried. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986); Vital v. Interfaith Med. Ctr.,
168 F.3d 615, 622 (2d Cir. 1999).
The court is required to view the evidence in the light most
favorable to the nonmoving party, see Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970),
and must construe the pro se plaintiffs claims liberally in
deciding the motion for summary judgment, see Sawyer v.
American Fed'n of Gov't Employees, AFL-CIO, 180 F.3d 31, 36 (2d
Cir. 1999) (citing Haines v. Kerner, 404 U.S. 519, 520, 92
S.Ct. 594, 30 L.Ed.2d 652 (1972)). Nevertheless, the non-moving
party cannot rest on "mere allegations or denials" but must
instead "set forth specific facts showing there is a genuine
issue for trial." Fed.R.Civ.P. 56(e); National Westminster Bank
USA v. Ross, 676 F. Supp. 48, 51 (S.D.N.Y. 1987) ("Speculation,
conclusory allegations, and mere denials are not enough to raise
genuine issues of fact.") No genuine issue exists "unless there
is sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party. If the evidence is merely
colorable, or is not significantly probative, summary judgment
may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505
II. The Americans With Disabilities Act
The ADA provides that no employer "shall discriminate 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 "qualified individual" is "an individual with a disability
who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such
individual holds or desires." 42 U.S.C. § 12111(8). The term
(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 an impairment; or