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April 23, 2002


The opinion of the court was delivered by: Robert L. Carter, United States District Court Judge.


On July 22, 2001, plaintiff Gennedy Glozman filed an amended complaint against defendants Retail, Wholesale & Chain Store Food Employees Union, Local 338 ("Local 338" or the "Union"), Zabar's & Co., Inc. ("Zabar's"), and Saul Zabar ("Zabar"), president of Zabar's, alleging that, in connection with his termination as a Zabar's employee, defendants violated the Americans with Disabilities Act, 42 U.S.C.A. § 12101 et seq. ("ADA"); the New York State Human Rights Law, N.Y. Exec. L. § 296 and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 (collectively, "NYHRL"); and that Local 338 breached its duty of fair representation under the Labor Management Relations Act, 29 U.S.C. § 185 ("LMRA"). (Am. Cplt. ¶ 1.) Defendants now move for summary judgment pursuant to Rule 56, F.R. Civ. P. For the reasons set forth below, the court grants their motion in its entirety.


The following facts are undisputed.*fn1 Plaintiff Gennedy Glozman was hired to work as a deli clerk in Zabar's in 1989. As a deli clerk, Glozman was responsible for slicing and weighing meats, cleaning, stocking, and serving customers. (Zabar Defs.' Rule 56.1 Stmt. ¶¶ 8-9.) Plaintiff remained in the deli department until October, 1996 when he was transferred to a position in housewares accepting deliveries of merchandise and loading it into elevators. (Id. at ¶¶ 17, 22.) Subsequently, Glozman was again transferred, this time to Zabar's bread department. (Id. at ¶ 26.) Plaintiff worked in the bread department until roughly the end of 1998, when he was, yet again transferred, this time to the sanitation department, where he had limited contact with customers and other employees. (it at ¶¶ 29, 30.) In sanitation, Glozman was responsible for collecting cardboard and other refuse from the store's departments and bringing it to the compactor room either on handcarts or by dragging. (Id. at ¶ 32.) Unsatisfied with this position, plaintiff made an unsuccessful attempt at the conclusion of 1998 to return to his previous job in the deli department. (Id. at ¶ 38.)

In early 1999, Glozman complained, for the first time, that some items were too heavy and requested assistance in carrying them. (Id. at ¶¶ 40, 41.) Zabar's asked Glozman to provide a doctor's note detailing his condition and any limitations on his ability to work. (Id. at ¶ 43.) On March 10, 1999, Glozman's doctor sent a letter to Zabar's listing plaintiff's limitations which Zabar's found satisfactory. (Id. at ¶ 47.)

On March 12, 1999, Glozman injured his back while lifting a bag of garbage and was taken to the emergency room at St. Luke's Roosevelt Hospital. (Id. at ¶¶ 48, 49.) Glozman subsequently filed a worker's compensation claim asserting his inability to work. (Id. at ¶ 50.) Plaintiff remained on disability leave for close to one year.

On February 23, 2000, Glozman sought to return to work. (Id. at ¶ 56.) Glozman was informed that to do so he would need a doctor's note. (Id. at ¶ 59.) Several days later, Glozman provided an "Updated Narrative Report" (the "Narrative Report") that appeared to have been signed by his treating physician, Dr. Krementsov. (Id. at ¶ 60.) The Narrative Report was originally prepared for the worker's compensation proceedings and stated, in pertinent part, that plaintiff:

still has not demonstrated full and completed (sic) recovery, and he is not fully able to perform many tasks at his previous capacity, as prior to the accident. Patient reports presence of headaches aggravated by stress and emotional tension. He is easily fatigable and often requires long periods of rest during the day. He still complains of pain in the lower back and always (sic) aggravated by cold, extreme movement and physical activity. He still can not lift, pull, push or carry heavy object (sic) as before the accident. Also, standing or sitting for long periods of time in one position is difficult without aggravating his condition. This to some degree interferes with his usual and customary activity of daily living.

(Id. at ¶ 67.)

On March 10, 2000, at a meeting with Saul Zabar, Glozman and his union representative were informed that the Narrative Report did not specify what jobs Glozman was capable of performing. (Id. at ¶ 88; Zabar Aff. ¶ 3.) Glozman promised to try to secure additional documentation from his doctor relating to what work he could do. (Id. at ¶ 89.) Glozman did not indicate that obtaining such a letter would pose a problem and, in fact, stated that he would visit his doctor on March 14, 2000.*fn2 (Id. at ¶¶ 90, 91.)

As of March 23, 2000, Zabar's had not received a new medical note from Glozman nor had Glozman contacted anyone at Zabar's to state that he could not obtain such a note. (Id. at ¶¶ 96, 97.) Plaintiff never produced any additional medical documentation specifying what jobs he could do and what accommodations he needed. (Id. at ¶ 99.) On March 31, 2000, a letter was sent to Glozman informing him that he had been terminated. It also stated that Glozman had been observed working at a pizza parlor while he was out on medical leave, and that such behavior may have constituted abandonment of his job at Zabar's. (Id. at ¶¶ 100, 101.)

Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") after his discharge and, on January 11, 2001, the EEOC issued a right-to-sue letter. (Id. at ¶ 127a.*fn3) On June 25, 2000, plaintiff also filed a charge with the City of New York Commission on Human Rights against Zabar's and Saul Zabar alleging disability discrimination. (Id. at ¶ 126a.) Finally, on July 22, 2001, Glozman filed an amended complaint against, inter alia, Zabar's and Saul Zabar, alleging discrimination based on disability and retaliatory discharge. (Id. at ¶ 128.; Am. Cplt. ¶¶ 31-38, 65-68.)

With regard to Local 338, the following facts are undisputed. While at Zabar's, plaintiff was a member of Local 338 and was covered by a collective bargaining agreement between Zabar's and Local 338 which allowed employees to retain seniority for up to one year of absence due to injury. (Local 338 Def.'s Rule 56.1 Stmt. ¶¶ 3, 6, 25.) During his Zabar's tenure, plaintiff had contacted Local 338 on several occasions to complain about working conditions, hours, or compensation. (Id. at ¶ 13.)

In February, 2000, after nearly a year of disability leave, plaintiff contacted Sidney Blumgold, his union representative, to inform him that he was prepared to return to work. (Id. at ¶ 29.) Blumgold emphasized to plaintiff that, as a condition of his return, he had to present Zabar's with a letter from his doctor stating that he could resume his normal duties. (Id. at ¶ 31.) Glozman told Blumgold that he did not foresee any difficulty in getting the letter. (Id. at ¶¶ 32, 33.) Subsequently, Glozman contacted Blumgold to inform him that, despite giving Saul Zabar such a letter, Zabar refused to let him return to work. (Id. at ¶ 37.) Blumgold contacted Saul Zabar and scheduled a meeting for March 10, 2000 to discuss Glozman return to work. (Id. at ¶ 38.)

On March 10, 2000, Blumgold met with Glozman and Zabar to discuss plaintiff's situation. (Id. at ¶ 43.) During the meeting, Zabar requested another, more detailed letter from Glozman doctor. (Id. at ¶ 44.) Blumgold did not hear plaintiff make any request, at this time, for an accommodation to perform his job duties. (Id. at ¶ 47.) Right after the meeting, Blumgold met separately with Glozman and asked him repeatedly if he could obtain the additional medical documentation requested by Saul Zabar, to which Glozman replied that he could and assured Blumgold that he would contact him when he did. (Id. at ¶ 48.) After that conversation, however, Glozman never spoke with Blumgold again. (Id. at ¶ 49.)

After plaintiff's failure to produce the necessary letter and failure to timely contact the Union following his termination, the Union determined that any effort to arbitrate would be futile. (Id. at 61.) Approximately three months after his termination, Glozman's attorney sent a letter, dated June 28, 2000, requesting an arbitration hearing. (Id. at ¶ 62.) By letter, dated June 30, 2000, plaintiff also asked the Union to file a grievance contesting his termination. (Id. at ¶ 63.) However, Local 338 did not respond to either request. (Id. at ¶ 64.)

Plaintiff filed an unfair labor practice charge against Local 338 with the National Labor Relations Board ("NLRB") on June 30, 2000. (Id. at ¶ 65.) In an October 24, 2000 decision, the NLRB refused to issue a complaint against the Union. (Id.) Plaintiff appealed the decision and, in a January 31, 2001 letter, the NLRB denied the appeal. (Id.) The EEOC's right-to-sue letter is directed to Zabar's only since plaintiff did not file any claim against Local 338 with the EEOC or any state or local agency. (Id. at ¶ 67.)


A court may grant summary judgment only if "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Rule 56(c), P.R. Civ. P. To the moving party falls the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In deciding a motion for summary judgment, the court must construe the facts in the light most favorable to the nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and all reasonable inferences and ambiguities must be resolved against the moving party. Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001). Nor will the typically fact-intensive nature of discrimination cases preclude a grant of summary judgment. Abdu-Brisson v. Delta Air Lines, 239 F.3d 456, 466 (2d Cir. 2001), cert. denied 122 S.Ct. 460 (2001); see also Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000).

(1) Plaintiff's Discriminatory Discharge Claim Against Zabar's

Under the ADA, an employer is prohibited from discriminating "against a qualified individual with a disability because of [his] disability . . . ." 42 U.S.C. § 12112(a). An ADA plaintiff carries the initial burden of establishing a prima facie case of discrimination. See Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 383 (2d Cir. 1996). To establish such a prima facie case, an employee 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 was capable of performing the essential functions of his job with or without reasonable accommodation; and 4) he was terminated because of his disability. §. See Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998); Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001).

For the purpose of its summary judgment motion, Zabar's does not dispute that it is an employer subject to the ADA. (Zabar Defs.' Mem. of Law in Supp. of Summ. Judg. at 12.) However, Zabar's does hotly contest each of the remaining elements necessary for a prima facie case, starting with Glozman claim that he suffers from a disability within the meaning of the ADA. (Id. at 13-16.)

(a) Disability Within Meaning of the ADA

The ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C.A. § 12102(2). Glozman does not claim to have had a record of impairment. (Pl.'s Mem. of Law in Opp'n to Zabar Defs.' Mot. for Summ. Judg. at 3-7.) As a result, to prove he has a disability under the ADA, Glozman must show: 1) that his back injury substantially ...

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