United States District Court, Northern District of New York
November 8, 2001
PHILIP P. HUSKINS, PLAINTIFF,
PEPSI COLA OF ODGENSBURG BOTTLERS, INC.
The opinion of the court was delivered by: Howard G. Munson, Senior United States District Judge.
MEMORANDUM DECISION AND ORDER
Defendant ("the Corporation") is engaged in the business of bottling
of Pepsi Cola products in northern New York State within the confines of
St. Lawrence County. The Corporation has approximately forty employees,
ten of whom are drivers that deliver Pepsi products to the corporation's
Plaintiff became a driver in December, 1993, operating the
Corporation's product delivery vehicles to commercial establishments
within St. Lawrence County, and unloading and arranging the
Corporation's merchandise at each delivery point. He continued in this
position until May, 1995, when he was unable work for a short period due
to a work associated injury to his right shoulder. When the injury
healed, plaintiff returned to work on his regular delivery route until
September 14, 1998, when he sustained a left shoulder injury. Prior to
receiving this injury, plaintiff had been promoted by the Corporation.
Plaintiff returned to work on September 22, 1998, but two days later,
he reinjured the shoulder and stayed out of work until October 19,
1998. Upon undertaking his position as a delivery driver on that date,
he was reinjured anew and again unable to work. On October 20, 1998, the
Corporation met with plaintiff to discuss his status. At the meeting,
the Corporation advised plaintiff that it would attempt to hold his
driver position open as long as it was reasonably possible, but, if he
was unable to work for a protracted time, it would become necessary to
fill the position permanently with another driver. Plaintiff remained
out of work after this meeting, except for a few hours on November 16,
1998, when he started but then was requested to stop because the
Corporation was uncertain if it had received notice of his medical
clearance. On December 2, 1998, the Corporation permanently filled
plaintiff's position because it was not able to ascertain when he would be
available to return to work. Over two months later on February 2, 1999,
plaintiff was medically cleared to return to work without restrictions.
His former position having been filled, he was assigned to an open
position as a Spare Driver/Preseller position. Plaintiff was further
advised that he would be eligible for consideration for other positions,
including his former position, as they opened up. Plaintiff agreed to
return to work knowing that he would not be restored to his former
Plaintiff's first day back on the job was February 8, 1999, and was
assigned, as he had been informed, to a Spare Driver/Preseller position.
On February 16, 1999, after being told by a co-worker that the
Corporation did not intend to return plaintiff to his former route,
plaintiff requested and received a meeting with the Sales Manager Richard
Wright. Corporate Controller Michael Looney was also present at the
meeting. Plaintiff stated that he wanted to return to his previous
position and asked when that would take place. Mr. Wright reminded
plaintiff that his position had been filled and he could not be returned
to this route. He also pointed out that they had previously discussed
this state of affairs, and had agreed that he would be employed as a
Spare Driver/Preseller until a vacancy in a Driver position took place.
Plaintiff became argumentative at this statement, and maintained that
Mr. Wright had promised to return him to his previous position when he
was physically recovered, and called him a liar more than once. Plaintiff
later admitted that Mr. Wright did not specifically promise him that he
would get his old route back, but implied that he would. (Huckins Dep.
55-56, 219). As the parties were in close proximity at this time, Mr.
Looney stepped between them, lightly touching plaintiff in
so doing, and unsuccessfully cautioned plaintiff to control his
insubordinate language. Plaintiff's untoward behavior toward Mr. Wright
resulted in his discharge from employment on February 16, 1999. This was
the second time the Corporation had taken disciplinary action against
plaintiff for an unreasonable exhibition of anger in the workplace. In
1997, plaintiff was given a written disciplinary notice and counseling
concerning an incident during which he had lost his temper, became upset,
and walked off the job.
Subsequent to his discharge, plaintiff filed a disability
discrimination charge with the Equal Employment Opportunity Commission
("EEOC"). The charge was investigated and dismissed on a finding of no
probable cause, and plaintiff was issued a Right to Sue Letter. This
action was commenced on March 2, 2000.
The amended complaint alleges violation of Subchapter I of the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA")
asserting that defendant terminated plaintiff's employment due to his
claimed disability. Plaintiff seeks compensatory and punitive damages,
costs, interest and attorney's fees. Currently before the court is
defendant's motion for summary judgment dismissing the complaint pursuant
to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has
entered opposition to this motion.
Rule 56 of the Federal Rules of Civil Procedure permits summary
judgment where the evidence demonstrates that "there is no genuine issue
of any material fact and the moving party is entitled to judgment as a
matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 1106
S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). Summary judgment is properly
regarded as an integral part of the Federal Rules as a whole, which are
designed "to secure the just, speedy and inexpensive determination of
every action." Celotex Corp. v. Catreet, 477 U.S. 317, 326, 106 S.Ct.
2548, 2554, 91 Ed.2d 265 (1991) (quoting Federal Rule of Civil Procedure
1). In determining whether there is a genuine issue of material fact a
court must resolve all ambiguities and draw inferences against the moving
party. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993. 994, 8
L.Ed.2d 176 (1962) (per curiam). An issue of credibility is insufficient
to preclude the granting of summary judgment. Neither side can rely on
conclusory allegations or statements in affidavits. The disputed issue
of fact must be supported by evidence that would allow a "rational trier
of fact to find for the non-moving party." Mashusita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986). Unsupported allegations will not suffice to create a
triable issue of fact. Goenga v. March of Dimes Birth Defects
Foundation, 51 F.3d 14, 18 (2d Cir. 1995). Nor will factual disputes
that are irrelevant to the disposition of the suit under governing law
preclude the entry of summary judgment. Anderson, 477 U.S. at 247, 106
S.Ct. at 2509.
Summary judgment is appropriate in discrimination cases for, "the
salutary purposes of summary judgment — avoiding protracted,
expensive and harassing trials — apply no less to discrimination
cases than to commercial or other areas of litigation. Meiri v. Dacon,
759 F.2d 989, 998 (2d Cir. 1985). The "impression that summary judgment
is unavailable in discrimination cases is unsupportable." McLee v.
Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994). The Supreme Court has also
recently reiterated that the trial courts should not "treat
discrimination differently from other ultimate questions of
fact." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
147, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000) (quoting St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 524, 113 S.Ct. 2742,
125 L.Ed.2d 407 (1993)).
The portion of the ADA applicable to the case at bar states that [n]o
covered entity shall discriminate against a qualified individual with a
disability because of the disability of such individual in regard to . . .
the discharge of employees . . .," 42 U.S.C. § 12112(a). When
considering a summary judgment motion in a discriminatory discharge
brought under the ADA, the court applies the burden shifting test found
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S.Ct.
1817, 1824-25, 36 L.Ed.2d 668 (1973). The test is composed of three
parts — (1) plaintiff must demonstrate a prima facie of
discrimination; 2) if the prima facie case is established, the burden of
production shifts to the defendant to articulate a legitimate
nondiscriminatory reason for its actions and, (3) if the defendant does
so, the presumption created by plaintiff's prima facie case is removed,
and the plaintiff then must prove the presence of intentional
discrimination by showing by a preponderance of the evidence that the
defendant's proffered reasons are only a pretext for the real motivation
of discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502,
510-11, 113 S.Ct. 2742, 2748-49, 125 L.Ed.2d 407 (1993).
In order to create a prima facie case of discriminatory discharge under
the ADA, a plaintiff must initially show that 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
accommodation, and (4) he was fired because of his disability. Reeves
v. Johnson Controls World Services, Inc., 140 F.3d 144, 149-150 (2d Cir.
1998). An employer is subject to the ADA if it is engaged in an industry
affecting commerce and has 15 or more employees for each working day in
each of 20 or more calendar weeks in the current or preceding calender
year, 42 U.S.C. § 121119(a) and (5)(A). Defendant Pepsi Cola of
Ogdensburg Bottlers, Inc., sells and distributes Pepsi products
throughout St. Lawrence County in northern New York state, it has
approximately 40 employees, and, therefore, is an employer subject to the
A disability within the meaning of the ADA is defined as "a physical
or mental impairment that substantially limits one or more of the major
life activities of [an] individual, 42 U.S.C. § 12102(2)(A). To
ascertain if a plaintiff is disabled for the purposes of ADA, three steps
are taken, (1) decide if the plaintiff is afflicted with a physical or
mental impairment, (2) name the life activity upon which plaintiff relies
and confirm whether it is a major life activity under the ADA and, (3)
determine if plaintiff's impairment substantially limits the major life
activity relied on by plaintiff. Bragdon v. Abbott, 524 U.S. 624,
632-39, 118 S.Ct. 2196, 2002-05, 141 L. Ed.2d 450 (1998).
A disability under the ADA "does not include temporary medical
conditions, even if those conditions require extended leaves of absence
from work" because such conditions are not substantially limiting.
Halpern v. Abacus Technology Corporation, 128 F.3d 191,199
(4th Cir. 1997). "Courts within this circuit and the vast majority of
courts elsewhere which have considered the question, have held that
temporary disabilities do not trigger the protections of the ADA because
individuals with temporary disabilities are not disabled persons within
the meaning of the act." Graaf v. North Shore University Hospital, 1 Fed
Supp.2d 318, 321 (S.D.N.Y. 1998); Davis v. Bowes, 1997 WL 655935
(S.D.N.Y. Oct. 20, 1997) (plaintiff who suffered back injury resulting
in six months absence from work not disabled under ADA where she
recovered fully from the injury); Hamilton v. Southwestern Bell Telephone
Co., 136 F.3d 1047 (5th Cir. 1998) (temporary episode
of post traumatic stress disorder not a disability under ADA); Halpern
v. Abacus Technology Corp.,128 F.3d 191, 199 (4th Cir. 1997) (plaintiff
suffering from temporary back injury not disabled for purposes of ADA
because "it is evident that the term `disability' does not include
temporary medical conditions"); Roush v. Weastec, Inc.,
96 F.3d 840, 843 (6th Cir. 1996) (kidney obstruction
requiring multiple operations and long absences from work not considered
disability because of subsequent recovery); Sanders v. Arneson Products,
Inc., 91 F.3d 1351, 1354 (9th Cir. 1996) (temporary psychological
impairment that lasted less than four months not a disability under the
ADA, "a temporary injury with minimal residual effect cannot be the basis
for an ADA claim"); McDonald v. Commonwealth of Pennsylvania, 62 F.3d 92,
95 (3d Cir. 1995) (plaintiff who required abdominal surgery and an
absence of almost two months was not disabled because of the temporary
nature of the injury); Lester v. Trans World Airlines, Inc., 1997 WL
417814 (N.D.Ill. July 23, 1997) (plaintiff, who suffered from
tuberculosis requiring several weeks hospitalization and a nine month
drug treatment, not disabled where she fully recovered from illness).
In Paragraph 7 of his amended complaint, plaintiff states that he could
not perform the duties of a truck driver temporarily from September 1998
to February 16, 1999, was disabled from performing this type of job or
similar jobs in the National Economy; that he suffered a disability which
substantially limited his major life activities of all employment
requiring lifting his hand above his head, weight lifting above
twenty-five pounds (25), as well as sports and leisure activity.
(Amended complaint ¶ 7). However, plaintiff admits that lifting over
his head was not required for the delivery driver job he had with the
Corporation. (Huckins Dep. 202), and that he was able to fully perform
the job of a delivery driver after February 16, 1999. (Huckins Dep.
143). Furthermore, courts have held, as a matter of law, that a weight
limitation such as plaintiff's when compared to an average person's
abilities, "does not constitute a significant restriction on one's
ability to lift, work or perform any other major life activity." Williams
v. Channel Master Satellite Systems, Inc., 101 F.3d 346, 349 (4th Cir.
1996), cert. denied, 502 U.S. 1240, 117 S.Ct. 1844, 137 L.Ed.2d 1048
(1997); Strassberg v. Hilton Hotels Corp., 1997 WL 53134 (S.D.N.Y. August
28, 1997), aff'd. 173 F.3d 846 (2d Cir. 1999). Courts have also
recognized that the inability to engage in leisure activities and
sports, which require a great deal of physical vigor, does not equate with
the inability to engage in normal everyday activities or job related
duties. Kirkendale v. United Parcel Service,Inc., 964 F. Supp. 106
O'Dell v. Altec Industries, Inc., 1995 WL 611341 (W.D.Mo. Oct. 16, 1995)
Plaintiff injured his shoulder while at work on September 14, 1998, and
was unable to undertake his delivery duties. He returned to work for
brief periods in September and October, but, on each occasion, the
insufficiently rehabilitated shoulder again obliged him to discontinue
his tasks and leave work. Plaintiff stated that he could fully perform
his driver delivery duties on November 16, 1998, but the Corporation
requested further medical information as to his physical condition.
(Huckins Dep. 139). In February 1999, plaintiff returned to work with no
medical restrictions. (Huckins Dep. 139) In his amended complaint
plaintiff admits that his period of disability ran from September 14, 1998
to February 16, 1999, but he was actually physically fit to return to
work on November 16, 1998. (Amended Complaint ¶ 7, Huckins Dep.139).
Plaintiff further admits that he is not now disabled, has been employed
as a beverage delivery driver for Vermont Pure Spring water, and has not
been disabled for the past two years. (Amended complaint ¶ 7,
Plaintiff's Memorandum of Law p. 9). Plaintiff has not established a
prima facie case that he suffered from a disability within the meaning of
the ADA because his disablement was temporary and, also, did not
substantially limit the major life activities of working or lifting.
Moreover, even though plaintiff has not shown that he has a cognizable
ADA claim of discriminatory discharge, the defendant has, nonetheless,
articulated a legitimate non-discriminatory reason for discharging him
— plaintiff's insubordinate behavior toward his supervisor, Richard
Wright, during the February 16, 1999, heated meeting that led to
plaintiff's discharge from employment on that date. Matima v. Celli,
228 F.3d 68, 79 (2d Cir. 2000).
In his papers opposing defendant's summary judgment motion, plaintiff
sets forth for the first time in this action, claims that the defendant
employer perceived him as disabled, failed to accommodate his
disability, and subjected him to a hostile work environment. The court
will not consider these new claims for two reasons. First, the claims
were not administratively exhausted before the EEOC, before being
included in an ADA law suit, and they could not be reasonably expected to
grow out of the initial EEOC charge of disability based employment
discharge. Miller v. International Telephone & Telegraph, 755 F.2d 20, 26
(2d Cir.) cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122
(1985) ("[t]he purpose of the notice provision, which is to encourage
settlement of discrimination disputes through conciliation and voluntary
compliance, would be defeated if a complainant could litigate a claim
not previously presented to and investigated by the EEOC); Stewart v.
United States Immigration and Naturalization Service, 762 F.2d 193, 198
(2d Cir. 1985). Second, because it is "inappropriate to raise new claims
for the first time in submissions in opposition to summary judgment."
Beckman v. United States Postal Service, 79 F. Supp.2d 394, 407
(S.D.N.Y. 2000). Accordingly, defendant's motion for summary judgment is
GRANTED, and the amended complaint is DISMISSED.
IT IS SO ORDERED
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