2. Regarded as Having an Impairment
Finally, to the extent plaintiffs allegations could be read to
claim a disability within the third meaning of the Act, namely,
that the plaintiff was "regarded" as having an impairment that
substantially limits a major life activity, see Am. Compl. ¶¶
7, 15, such claim also must fail. As the Second Circuit
explains, "whether an individual is `regarded as' having a
disability `turns on the employer's perception of the employee'
and is therefore `a question of intent, not whether the employee
has a disability.'" Colwell 158 F.3d at 646 (quoting Francis
v. City of Meriden, 129 F.3d 281, 284 (2d Cir. 1997)). To that
end, it is insufficient to demonstrate that the employer
regarded the plaintiff as somehow disabled. Id. "The plaintiff
must show that the employer regarded the individual as disabled
within the meaning of the [Rehabilitation Act]." Id. (citing
Francis, 129 F.3d at 285-86) (emphasis original). As such, the
plaintiff must adduce evidence that his employer perceived him
as having an impairment that substantially limited a major life
activity. Id. Plaintiff herein has come forward with no such
evidence on this motion. To the contrary, all evidence points to
the conclusion that the defendant perceived plaintiff as merely
requiring post-operative recovery time following his foot
surgeries between April and June of 1993. As a result, the
evidence is insufficient to permit the inference that the
defendant perceived plaintiff as having an impairment that
substantially limited him in one or more major life activities.
Cf. id., 158 F.3d at 647 (assignment to light duty
insufficient to support inference that employer viewed plaintiff
as disabled). To do so, plaintiff must prove that the defendant
"`perceived [him] to be incapable of working a broad range of
jobs' suitable for persons of [his] age, experience, and
training." Id. at 647 (quoting Ryan, 135 F.3d at 872). No
such showing has been made on this motion.
Accordingly, summary judgment is appropriate on plaintiffs
Rehabilitation Act claim.*fn8
II Retaliation Claim
Section 794a of the Rehabilitation Act expressly adopts the
anti-retaliation provisions of Title VII. 29 U.S.C. § 794a.
Title VII provides that "[i]t shall be an unlawful employment
practice for an employer to discriminate against any of his
employees . . . because [the employee] has opposed any practice
made an unlawful employment practice by [Title VII]."
Fitzgerald v. Henderson, 251 F.3d 345, 358 (2d Cir. 2001)
(quoting 42 U.S.C. § 2000e-3(a)) (brackets original). To survive
a motion for summary judgment, the plaintiff must establish a
prima facie case of discriminatory retaliation. Id. To that
must show that [he] `engaged in protected participation or
opposition under title VII, that the employer was aware of this
activity, that the employer took adverse action against the
plaintiff, and that a causal connection exists between the
protected activity and the adverse action, i.e., that a
retaliatory motive played a part in the adverse employment
action.'" Id. (quoting Sumner v. United States Postal Serv.,
899 F.2d 203, 208-09 (2d Cir. 1990)). See also Quinn v. Green
Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998); Gallagher
v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998); Sands v.
Runyon, 129 F.3d 114 (2d Cir. 1997) (citation omitted); Tomka
v. Seiler Corp., 66 F.3d 1295, 1307 (2d Cir. 1995); Kotcher v.
Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 64 (2d
Cir. 1992) (quoting Johnson v. Palma, 931 F.2d 203, 207 (2d
However, prior to commencing suit under the Rehabilitation
Act, a plaintiff is required to exhaust the administrative
remedies at his disposal. See Downey v. Runyon, 160 F.3d 139,
145 (2d Cir. 1998) (citing Brown v. General Servs. Admin.,
425 U.S. 820, 828-29, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Stewart
v. INS, 762 F.2d 193, 197-98 (2d Cir. 1985); McGuinness v.
United States Postal Serv., 744 F.2d 1318, 1319-20 (7th Cir.
1984); Guice-Mills v. Brown, 882 F. Supp. 1427, 1429-30
(S.D.N.Y. 1995)). "A district court only has jurisdiction to
hear [Rehabilitation Act] claims that either are included in an
EEOC charge or are based on conduct subsequent to the EEOC
charge which is `reasonably related' to that alleged in the EEOC
charge." Butts v. New York Dept. of Housing, Preservation &
Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (citations omitted).
In the Second Amended Verified Complaint, plaintiff alleges
that defendant's denial of his requests for an accommodation,
sick-time, and/or overtime between March and June of 1993,
"occurred in whole or in part as retaliation for Plaintiffs
pursuance of a previous complaint of discrimination." Am. Compl.
¶ 34. Plaintiff timely filed an EEO complaint on June 22, 1993.
Matthews Decl., Ex. 2N. Although plaintiff fails to mark
"retaliation" as a basis of discrimination in the EEO complaint,
plaintiff does allege "retaliation" as a basis of discrimination
in his summary of discriminatory actions attached to his EEO
complaint. Specifically, plaintiff alleges "[r]etaliation for
filing EEO complaint in open admission the day before [June 19,
1993]." Id. Significantly, nowhere in the EEO complaint does
plaintiff identify any discriminatory actions underlying his
charge of retaliation following the filing of his EEO complaint
on June 19, 1993. See id. However, in the Second Amended
Verified Complaint, plaintiff appears to claim that the acts
underlying his claim for discrimination, namely, the denial of
an accommodation, sick time, and/or overtime, between April and
June of 1993 support his claim of retaliation. Yet, on this
motion, plaintiff has produced absolutely no evidence concerning
the filing of a prior EEO complaint. Despite the obvious
procedural flaws in plaintiffs EEO filing, the Court
alternatively dismisses plaintiffs retaliation claim for failure
to state a prima facie case of retaliation.
Although it is undisputed that the filing of an EEO complaint
is a protected activity, plaintiff has failed to establish the
requisite causal connection between plaintiff's participation in
that protected activity and the adverse employment decisions,
here, the denial of an accommodation, sick time and/or overtime.
The alleged discriminatory acts underlying plaintiffs EEO
complaint are the same acts upon which he attempts to bootstrap
his retaliation claim. Under such circumstances, plaintiff
cannot establish the requisite causal connection because the
denial of an accommodation, sick time and/or overtime was the
plaintiffs EEO complaint. See Tone v. United States Postal
Serv., 68 F. Supp.2d 147, 152-53 (N.D.N.Y. 1999), aff'd,
242 F.3d 368 (2d Cir. 2000). Indeed, a "[d]efendant's retaliatory
action cannot take place before plaintiff engaged in a protected
activity. . . ." Id. Accordingly, in the absence of any
evidence demonstrating plaintiffs participation in a prior
protected activity of which the defendant was aware, plaintiff's
retaliation claim must be dismissed.
Accordingly, for all the aforementioned reasons, defendant's
motion for summary judgment is GRANTED in its entirety.
The Clerk of the Court is directed to mark this case as