The opinion of the court was delivered by: Sprizzo, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Barry Kramer ("Mr. Kramer" or "plaintiff") brings
this action against his former employer, defendant
Hickey-Freeman, Inc.("Hickey-Freeman" or "defendant") alleging
disability discrimination against plaintiff in violation of the
Americans with Disabilities Act ("ADA"), denial of unpaid leave
in violation of the Family and Medical Leave Act ("FMLA"), and
intentional infliction of emotional distress. Defendant now
moves for summary judgment against plaintiff pursuant to
Rule 56 of the Federal Rules of Civil Procedure. For the reasons that
follow, the Court grants defendant's motion.
Plaintiff has bi-polar disorder, which is also known as manic
depression. Plaintiff was first diagnosed with this disorder in
1960, and he received his first lithium treatment for it in
1971. See Declaration of Susan Schenkel-Savitt in Support of
Defendant's Motion for Summary Judgment dated July 7, 2000
("Savitt Decl."), Exhibit ("Exh.") 4, Deposition of Barry
Kramer, May 11, October 14, and December 9, 1999 ("Kramer
Depo.") at 50; Savitt Decl., Exh., 3, Plaintiffs Response to
Defendant's First Request for Admissions dated April 21, 2000
("Pl.Resp.") at ¶¶ 1-3. Plaintiff has maintained his lithium
treatment from 1971 until today, including the entire period of
his employment at Hickey-Freeman. See Pl. Resp. at ¶ 7.
Lithium has effectively controlled and regulated plaintiffs
bi-polar disorder and all of its symptoms. See id. at ¶ 9.
Plaintiffs lithium regimen allowed him to perform all of his
duties while employed by defendant. See Kramer Depo. at
Plaintiff began working as the Northeast Sales Manager for
Hickey-Freeman, a wholly owned subsidiary of Hartmarx
Corporation ("Hartmarx"), on or about September of 1991. See
Pl. Resp. at ¶¶ 50-51. Plaintiff had worked as a salesperson for
another Hartmarx subsidiary from approximately 1980 to 1986 and
was supervised during that time by Howard Zenner. See Savitt
Decl., Exh. 10, Declaration of Howard Zenner dated June 29, 2000
("Zenner Decl.") at ¶ 3. After Mr. Zenner left the Hartmarx
family of companies to work for Aquascutum in 1987, plaintiff
successfully solicited a job from Mr. Zenner as a salesperson at
Aquascutum. See Pl. Resp. at ¶¶ 40-42; Zenner Decl. ¶ 4. In
1991, both Howard Zenner and plaintiff left Aquascutum and
returned to Hartmarx. See Pl. Resp. at ¶¶ 47, 50; Savitt Decl.,
Exh. 7, Deposition
of Howard Zenner, September 29, 1999 ("Zenner Depo.") at 29. Mr.
Zenner, who had recommended that plaintiff be hired by Hartmarx,
ultimately became plaintiffs supervisor when plaintiff joined
Hickey-Freeman in or about March 1993. See Zenner Depo. at
31-32, 51-52, 55-56. After his return to Hartmarx in 1991,
plaintiff excelled in his position at Hickey-Freeman; in fact,
defendant named him the 1993 Salesman of the Year, gave him the
1994 "World Class Award" for outstanding sales, and Messrs. Hand
and Zenner even recommended plaintiff for a promotion to a Vice
President's position. Sec Weiner Depo. at 51; Montanarella
Exh. A, Pl. Resp. at ¶ 70.
Beginning sometime in 1995, plaintiff became unhappy with his
treatment at the hands of Mr. Zenner. See Affidavit of
Plaintiff dated October 12, 2000 ("Pl.Affidavit") at ¶ 3. This
unhappiness caused plaintiff to seek the assistance of a
psychologist in July of 1995, and ultimately plaintiff was
prescribed Ativan in February of 1997 to help him with the
anxiety allegedly induced by Mr. Zenner. See id. By April 9,
1997 plaintiff had become so unsatisfied with his work
conditions that he wrote Hartmarx's Chairman and CEO, Elbert
Hand, asking that Mr. Hand either transfer plaintiff to a job
that didn't report to Mr. Zenner or arrange for plaintiff to
receive a severance package. See Savitt Decl., Exh. 12,
Declaration of Elbert Hand dated July 5, 2000 ("Hand Decl.") at
Exh. A. Mr. Hand indicated that plaintiff should raise his
concerns with both Steven Weiner, who was then the Chief
Operating Officer of Hickey-Freeman, and Howard Zenner;
plaintiff then met with the two men on May 5, 1997. See Pl.
Resp. at ¶¶ 23-24; Hand Decl. at ¶ 4; Savitt Decl., Exh. 11,
Declaration of Steven Weiner dated June 30, 2000 ("Weiner
Decl.") at ¶ 5; Savitt Decl., Exh. 9, Deposition of Steven
Weiner, December 13, 1999 ("Weiner Depo.") at 59-60. At that
meeting, Messrs. Zenner and Weiner suggested to plaintiff that
he take some time off from work. See Weiner Tr. at 59-60.
Plaintiff agreed and ultimately decided that he would begin his
leave of absence from work that day.
Plaintiff alleges that before his leave of absence both Mr.
Hand and Mr. Weiner were aware that plaintiff suffered from
bipolar disorder. See Pl. Affidavit at ¶ 5. Plaintiff
indicates that he told Mr. Hand about his bi-polar disorder for
the first time around 1992. See Kramer Depo. at 207, 318. He
claims to have told Mr. Weiner at the above-described May 5,
1997 meeting before Mr. Zenner entered the room. See Pl.
Affidavit at ¶ 5. Mr. Hand, Mr. Weiner and Mr. Zenner all deny
that they were aware of plaintiffs condition prior to the
initiation of this lawsuit. See Deposition of Elbert Hand,
March 23, 2000 ("Hand Depo.") at 23; Zenner Depo. at 101-02;
Weiner Decl. at ¶ 7. In accordance with the Court's duty to give
the non-moving party the benefit of every rational inference in
his favor, the Court will presume for the purposes of this
motion that Mr. Hand was aware of plaintiffs disorder in 1992
and that Mr. Weiner was aware of it as of May 5, 1997.
Despite reminders sent to plaintiff regarding his continuing
duty to submit a medical certification every thirty (30) days,
plaintiff submitted only one such certification during his
nearly four (4) months of leave. See Montanarella Decl. at ¶¶
12, 19, Exh. D; Pl. Resp. at ¶¶ 112-14. Plaintiff also failed to
submit any certification indicating that he was medically fit to
return to full-time duty. See Montanarella Decl. at ¶ 19; Pl.
Resp. at ¶¶ 50-54. On or about September 24, 1997 defendant sent
plaintiff a letter terminating him and indicating that his
termination resulted from plaintiffs failure to comply with
defendant's leave policy and other performance related issues.
See Weiner Decl. at Exh. E. Due to difficulties with delivery,
plaintiff did not receive this letter until October 7, 1997.
See Pl. Resp. at ¶ 189. Prior to his receipt of such
termination notice, plaintiff sent a letter to defendant
indicating that he expected to return to work in November and
that he did not wish to work for Mr. Zenner upon his return.
See Weiner Decl. at Exh. F.
Mr. Kramer filed the instant suit on December 7, 1998. In it
plaintiff claims that his termination was based on an
impermissible discriminatory purpose that violates the ADA.
Plaintiff further alleges that he was terminated prior to the
expiration of his FMLA leave. Defendants respond that they were
unaware of plaintiffs bi-polar disorder until the filing of the
instant suit and therefore could not have possessed the
discriminatory intent required under the ADA. Moreover,
defendants respond that plaintiffs FMLA leave ran concurrently
with the first twelve (12) weeks of his short-term disability
leave and that his FMLA leave therefore expired in July of 1997.
A court may grant summary judgment only if it determines that
there are no genuine issues of material fact based on a review
of the pleadings, depositions, answers to interrogatories,
admissions on file and affidavits. See Fed.R.Civ.P. 56(c). The
moving party bears the burden of demonstrating the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
When ruling on a summary judgment motion, a court must
construe the facts in the light most favorable to the nonmoving
party and must resolve all ambiguities and draw all reasonable
inferences against the moving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). If no genuine issue as to any material fact exists, the
moving party is entitled to summary judgment as a matter of law.
See Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
A plaintiff alleging employment discrimination under the ADA
bears the initial burden of establishing a prima facie case.
See Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869 (2d Cir.
1998). In order to establish a prima facie case of
discriminatory discharge, a 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 reasonable
accommodation; and (4) he was fired because of his disability.
See id. at 869-70. ...