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May 15, 2002


The opinion of the court was delivered by: Wexler, District Judge.


Presently before the court is the Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion is granted and the case is dismissed.


I. Factual Background

The facts upon which the court relies are those set forth in Plaintiffs complaint as well as in the various depositions and uncontroverted documents submitted to the court in support of and in opposition to the motion.

II. Plaintiff's Complaint

Plaintiffs claim of disability is based upon a hearing impairment, referred to by her physician as a "severe bilateral sensorineural hearing loss." Plaintiff has suffered from this permanent impairment since she was approximately two years of age. To understand what people are saying, Plaintiff utilizes a hearing aid and reads lips.

Although she was hired by Taco Bell when suffering from her hearing impairment, Miller alleges that she was denied a promotion opportunity and ultimately terminated on account of her alleged disability. She further alleges that certain Taco Bell employees created a hostile working environment for her by teasing her about her inability to hear. Plaintiff seeks compensatory and punitive damages as well as an award of costs and attorneys' fees.

III. Defendant's Motion

Defendant seeks summary judgment dismissing Plaintiffs complaint in its entirety. First, judgment is sought on the ground that despite Plaintiffs hearing loss, she is not disabled under the ADA. Assuming Plaintiff suffers from an ADA disability, judgment is nonetheless sought on the ground that Plaintiff has failed to allege facts in support of even a minimal showing of discrimination. Even if such a showing has been made, Defendant contends that it has demonstrated legitimate non-discriminatory reasons for its employment decisions with respect to Plaintiff and Plaintiff cannot show that such reasons were pretextual.


I. Legal Principles

A. Standards For Summary Judgement

A motion for summary judgement is properly granted only if the court determines that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FRCP 56(c); Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking judgment bears the burden of demonstrating that no issue of fact exists. McLee v. Chrysler Corp. 109 F.3d 130, 134 (2d Cir. 1997). However, when the nonmoving party fails to make a showing on an essential elements of its case with respect to which it bears the burden of proof, summary judgment will be granted. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party resisting summary judgment must not only show a disputed issue of fact, but it must also be a material fact in light of substantive law. Only disputed facts that "might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 242, 106 S.Ct. 2505.

In cases alleging employment discrimination, where intent is at issue, summary judgment is approached with caution. Nonetheless, where an employer provides "convincing evidence explaining its conduct, and the plaintiffs case rests on conclusory allegations of discrimination, the court may properly conclude that there is no genuine issue of material fact and grant summary judgment to the employer." Ralkin v. New York City Transit Authority, 62 F. Supp.2d 989, 997 (E.D.N.Y. 1999); see McLee, 38 F.3d at 68; see also Baluta v. Hicksville Union Free School District, 2000 WL 335770 *3 (E.D.N.Y. March 15, 2000).

B. Burden Shifting Analysis

Claims of employment discrimination brought pursuant to the ADA are subject to the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see Heyman v. Queens Village Committee for Mental Health, 198 F.3d 68, 72 (2d Cir. 1999); Rivera v. Apple Industrial Corp., 148 F. Supp.2d 202, 211 (E.D.N.Y. 2001).

Under the McDonnell Douglas analysis, the plaintiff bears the burden of showing a prima facie case of discrimination. The burden of production then shifts to defendant to offer a nondiscriminatory reason for the employment action. Thereafter, it is for the plaintiff to show that the reason offered by defendant is a pretext for discrimination. The plaintiff's final burden is satisfied either by the introduction of additional evidence or by reliance on the evidence submitted in support of the prima facie case. Heyman, 198 F.3d at 72; see Reeves v. Sanderson Plumbing, 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

C. Elements of an ADA Claim

To state a prima facie case of ADA discrimination, a plaintiff must show: (1) that he is an individual with a disability within the meaning of the statute; (2) that his employer is subject to the ADA and had notice of the disability; (3) that he was otherwise qualified to perform the essential functions of his position, with or without reasonable accommodation; and (4) that he was fired or suffered adverse employment action because of the disability. Heyman, 198 F.3d at 72; Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998); Sacay v. Research Foundation of the City University of New York, 44 F. Supp.2d 496, 500 (E.D.N.Y. 1999); see Parker v. Columbia Pictures Indust., 204 F.3d 326, 332 (2d Cir. 2000).

i. Disability Within the Meaning of the ADA

The ADA defines disability as: (1) a physical or mental impairment that substantially limits one or more of an individual's major life activities; (2) a record of such an impairment or (3) being perceived or regarded as having such an impairment. 42 U.S.C. § 12102(2); Sutton v. United Air Lines, Inc., 527 U.S. 471, 478, 119 S.Ct. 2139, 144 L.Ed.2d 450; Schaefer v. State Ins. Fund, 207 F.3d 139, 142 (2d Cir. 2000); Ryan, 135 F.3d at 869; Zuppardo v. Suffolk County Vanderbilt Museum, 19 F. Supp.2d 52, 54 (E.D.N.Y. 1998), affd, 173 F.3d 848 (2d Cir. 1999). Whether ...

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