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January 31, 2002


The opinion of the court was delivered by: Siragusa, U.S. District Judge.


Plaintiff filed suit on March 16, 2001, alleging that defendant violated the Americans With Disabilities Act ("ADA") and New York State Human Rights Law ("HRL") by failing to make a reasonable accommodation for an injury-related disability to his shoulder and rotator cuff and for tendinitis. The case is before the Court on defendant's motion to dismiss the complaint, pursuant to FED. R. CIV. P. Rules12(b)(1) and (6), for lack of subject matter jurisdiction and as barred by the statute of limitations. More specifically, defendant contends that plaintiff's ADA claim must be dismissed because of failure to comply with the 300 day Statute of Limitations and as a result the Court lacks jurisdiction to entertain the state HRL cause of action. After considering the papers filed in support of the motion, and those filed in opposition to it, along with oral argument held on January 29, 2002, the Court denies defendant's motion.


Plaintiff's complaint alleges compliance with the jurisdictional requirements of both the ADA and HRL. In that regard, plaintiff received a Right to Sue Letter from the Equal Employment Opportunity Commission ("EEOC") on or about December 20, 2000. See Complaint at ¶¶ 7-9, and the subject lawsuit was . commenced on March 16, 2001. On August 31, 2001 defendant filed its application to dismiss.

As a procedural matter, on a motion to dismiss under Rule 12, the Court is limited to reviewing the pleadings, documents attached thereto and incorporated into the pleadings, and matters of which the Court may take judicial notice. 2 MOORE'S FEDERAL PRACTICE, § 12.34[2] (Matthew Bender 3d ed.). However, the parties here have both submitted affidavits and letters not a part of the pleadings, obviously with the intent that the Court consider them in deciding defendant's motion to dismiss. When the parties do this in conjunction with a motion under Rule 12(b)(6), the Court must either choose to exclude the additional materials, or convert the motion into one for summary judgment and consider the extraneous papers. See FED. R. CIV. P. 12(c); 2 MOORE'S FEDERAL PRACTICE, § 12.34[3][a] (Matthew Bender 3d ed.). Since counsel for both sides acknowledged during oral argument, that it was indeed their intent that the Court rely on the extraneous papers in resolving defendant's application, the Court will do so, the motion, therefore, is converted to one for summary judgment.


Plaintiff started working for Wegmans on August 1, 1984. On or about April 24, 1997, plaintiff injured himself on the job and was out of work until June 1997 on temporary disability leave. When he returned, he was medically restricted to reduced hours and to a lifting limit. At the time he worked in the Produce Department. He bid for a position that would accommodate his medical restrictions and was accepted into the Fresh Foods Department as a warehouseman. He worked in that position for two years with what he claims was excellent attendance. In the Fall of 1998, however, he was required to be placed on the forced overtime list in the Produce Department. He contends that had he worked such overtime, it would have violated his medical restrictions. However, Gary Yanni, the individual responsible for scheduling Saturday overtime, knew of plaintiff's medical restrictions and left him off the overtime list.

During this time frame, plaintiff spoke with Butch Sailes, the prior manager of the Fresh Foods Department, who informed him that he should have his doctor write a note indicating that plaintiff had a medical restriction on working overtime. Sailes also advised plaintiff to have his doctor renew the restriction every six months to avoid difficulty with the defendant. Plaintiff followed Sailes' advice and obtained from his doctor a medical restriction that "enforced" his previous restriction from June 1997. Complaint at ¶ 19. Plaintiff also planned to see his doctor every six months to have the medical restrictions renewed.

However, in June 1999 Plaintiff left for vacation before he could again see his doctor, and when he returned, he was on the list to work overtime on June 10. Plaintiff obtained a new medical restriction from his doctor dated July 8, 1999. Plaintiff then notified an employee named Hope in defendant's human resources department of the restriction. He also faxed a copy to Gary Yanni, as well as one to defendant's medical department. Assuming that the restriction would take immediate effect, plaintiff did not report for overtime on July 10.

When plaintiff returned to work on July 12, 1999, he was told at approximately 4:00 p.m. by his supervisor, Dave Dzuba, to report to Pam Erb, in defendant's human resources department. He met with her at 4:45 p.m, along with the union steward. Erb told plaintiff she was placing him on worker's compensation immediately and that legally defendant could not have plaintiff working at the warehouse. Erb also informed plaintiff that, "`[f]orced overtime in Produce is part of your [] job and you [] didn't do that. You've managed to side step responsibility that aggravated your injury.'" Complaint at ¶ 28 (apparently quoting Ms. Erb).

Plaintiff left work and hired an attorney to attempt to obtain reinstatement of the previous accommodation that met his medical restrictions. Several pieces of correspondence later, it was not until April 13, 2000, that defendant definitively informed plaintiff's counsel that defendant could not accommodate plaintiff's work restriction. Defendant responded in a letter stating, "Wegmans is unable to accommodate Mr. Conrow's request not to be assigned mandatory overtime in the Produce area of the warehouse" and enclosed a copy of the union's letter objecting to any violation of the seniority rights of other union members. Mary M. McCabe letter to Donna Marianetti (Apr. 13, 2000) at 1 (attached as Exhibit B to Conrow aff.). Plaintiff received reduced earnings payments from defendant between July 12, 1999 and May 15, 2000. See McMullen aff. at ¶ 15.



The law on summary judgment is well settled. Summary judgment may only be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir. 1987) (en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary ...

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