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May 30, 2001


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


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 312-13, 321-22.

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.

Thereafter, plaintiff and various employees of defendant exchanged several letters regarding the terms of plaintiffs leave. In the course of these exchanges defendant made clear to plaintiff that: 1) he would be required to periodically fill out medical certifications to be eligible for the twenty-six (26) weeks of short-term disability leave available to Hickey-Freeman employees; and 2) his FMLA leave ran concurrently with and would be applied against his first twelve (12) weeks of short-term disability leave. See Weiner Decl., Exhs. B, C; Declaration of Karen Montanarella dated June 29, 2000 ("Montanarella Decl."), Exh. D. Plaintiffs responses to defendant's communiques indicate that plaintiff assumed he would be guaranteed a job of equal responsibility and compensation when he returned from a six-month leave he characterized as a "sabbatical." See Weiner Decl., Exhs. A, D.

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. ...

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