quotations omitted). To meet his burden under this definition of
disability, plaintiff must show that defendant regarded him as
disabled within the meaning of the ADA. See id. Plaintiff must
therefore show that defendant perceived plaintiff as
substantially limited in the major life activity of working.
Hence, Mr. Kramer must prove "that [defendant] perceived [him]
to be incapable of working in a broad range of jobs suitable for
persons of [his] age, experience, and training." Id. at 647.
Plaintiff has failed to make such a showing.
First, the Court cannot accept that defendant's offer to grant
plaintiff a leave of absence itself proves that defendant
regarded plaintiff as disabled. According to plaintiff,
employers only offer medical leave to employees they view as
substantially limited in a major life activity. The United
States Court of Appeals for the Second Circuit has not
determined whether placing an employee on medical leave is, by
itself, sufficient evidence to create an issue of material fact
regarding whether an employer regarded that employee as
disabled. However, like other courts that have addressed this
question, the Court finds that to accept plaintiffs argument
would "discourage employers from taking such preliminary or
temporary steps to keep their employees happy for fear that
showing concern for an employee's alleged medical problems could
draw them into court facing an ADA claim based on a perceived
disability." Mobley v. Board of Regents of the Univ. Sys. of
Georgia, 924 F. Supp. 1179, 1188 (S.D.Ga.), vacated on other
grounds, 26 F. Supp.2d 1374 (S.D.Ga. 1996); accord Cody v.
CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 598-99 (8th
Cir. 1998); Johnson v. Boardman, 923 F. Supp. 1563, 1568-69
In short, plaintiff fails to explain how an offer of medical
leave such as the one made to him demonstrates that defendant
perceived him as substantially limited in a "broad range of jobs
suitable for persons of [his] age, experience, and training."
Indeed, no rational jury could find that defendant perceived
plaintiff as disabled because, subsequent to 1992 when plaintiff
allegedly told Mr. Hand of his bi-polar disorder, 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. See Weiner Depo. at 51; Montanarella
Exh. A, Pl. Resp. at ¶ 70. It follows that his claims under the
ADA are hereby dismissed.
Plaintiffs allegations under the FMLA are similarly without
merit. Despite his strong protestations to the contrary,
plaintiff cannot rebut the evidence showing that his twelve (12)
weeks of FMLA leave ran concurrently with, and expired after,
his first twelve (12) weeks of leave under Hickey-Freeman's
short-term disability policy. In particular, defendant made
clear in a July 21, 1997 letter to plaintiff that his twelve
(12) weeks of FMLA leave began to run on the first day of his
leave of absence in May and were concurrent with his short-term
disability leave. See Montanarella Decl. at Exh. D. Certainly,
having been so informed, plaintiff cannot now reasonably claim,
as he does, that it was unclear whether his termination on
September 24, 1997 occurred in the midst of his FMLA leave. Such
an argument defies credulity and no rational jury could accept
it. Thus the Court rejects plaintiffs claim pursuant to the
Lastly, having denied plaintiffs federal causes of action, the
Court declines to exercise its discretion to consider plaintiffs
state law claim of intentional infliction of emotional distress.
See 28 U.S.C. § 1367(c). The Court therefore dismisses
this claim without prejudice to being renewed in the appropriate
state court venue.
For the foregoing reasons the Court grants defendant's motion
for summary judgment and dismisses all of plaintiffs claims. The
Clerk of the Court is hereby directed to close the
It is SO ORDERED.