the meaning of the ADA; (3) he could perform the essential functions of
his job with or without reasonable accommodation; and (4) he was
discharged because of his disability. See Giordano v. City of New York,
274 F.3d 740, 747 (2d Cir. 2001); Ryan, 135 F.3d at 869-70.
In addition, a plaintiff can state a claim for discrimination based
upon his employer's failure to accommodate his disability by alleging
facts showing that (1) his employer is subject to the ADA; (2) he is an
individual with a disability within the meaning of the ADA; (3) with or
without reasonable accommodation, he could perform the essential
functions of the job; and (4) the employer had notice of the plaintiffs
disability and failed to provide such accommodation. See Lyons v. Legal
Aid Society, 68 F.3d 1512, 1515 (2d Cir. 1995).
Under either theory — discriminatory discharge or failure to make
a reasonable accommodation — the first issue before this Court is
whether Covello is disabled within the meaning of the ADA. The ADA
defines a "disability" as either "(A) a physical or mental impairment
that substantially limits one or more of the major life activities of
[an] individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment." 42 U.S.C. § 12102 (2).
Reading the complaint and opposition papers "liberally and interpret[ing]
them to raise the strongest arguments they suggest," McPherson, 174 F.3d
at 280 (quotations omitted), the Court finds that Covello claims that she
is disabled under the first and second definitions of disability, and the
Court will consider each of them in turn.
1. Physical Impairment that Substantially Limits A Major Life Activity
The Supreme Court has articulated a three-step process for evaluating a
claim of "disability" as defined under 42 U.S.C. § 12102 (2)(A). See
Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540
(1998). First, the Court must determine whether the plaintiff suffers
from a physical or mental impairment. Second, the Court must identify the
life activity the plaintiff claims is limited by his impairment and must
determine whether that life activity is "major." Third, the Court
considers whether the impairment substantially limits the major life
The EEOC regulations that implement the ADA define an "impairment" to
include any "physiological disorder, or condition" that affects inter
alia the neurological, musculoskeletal, cardiovascular, respiratory,
reproductive, digestive, and endocrine systems or the special sense
organs. 29 C.F.R. § 1630.2 (h)(1). The degenerative arthritis of
Covello's left ankle, which is mentioned in the two doctors' notes and
the Family Medical Leave Act form, is a condition that affects her
musculoskeletal system. As such, the Court concludes that Covello's
claimed condition is a physical "impairment" as that term is defined in
Reading Covello's papers liberally, the Court determines that Covello
is claiming that her arthritic ankle substantially limits her ability to
work, to walk, and to stand. Although the ADA does not define major life
activities, the Supreme Court has recently held that the phrase "refer[s]
to those activities that are of central importance to daily life." Toyota
Motor Manufacturing v. Williams, 534 U.S. 184, 122 S.Ct. 681, 692-93, 151
L.Ed.2d 615 (2002). In addition, the EEOC regulations provide that "major
life activities" include "caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning and working."
29 C.F.R. § 1630.2 (i). This list is representative, nor exhaustive.
524 U.S. at 638-39, 118 S.Ct. at 2205. Indeed the second Circuit has
identified other "major life activities," including, but not limited to
"sitting, standing, lifting, or reaching." Colwell v. Suffolk County
Police Dept., 158 F.3d 635, 641 (2d Cir. 1998).
Notably, the Supreme Court has not decided the issue of whether working
is a major life activity and recently reiterated earlier skepticism that
working could be considered as such. See Toyota, 122 S.Ct. at 692-93
("Because of the conceptual difficulties inherent in the argument that
working could be a major life activity, we have been hesitant to hold as
such, and we need not decide this difficult question to see Sutton v.
United Air Lines, 527 U.S. 471, 492, 119 S.Ct. 2139, 2150, 144 L.Ed.2d
450 (1999) ("[T]here may be conceptual difficulty in defining `major life
activities' to include work, for it seems to argue in a circle to say
that if one is excluded, for instance, by reason of [an impairment, from
working with others] . . . then that exclusion constitutes an
impairment, when the question you're asking is, whether the exclusion
itself is by reason of handicap.") (quotations omitted). Nevertheless, in
several post-Sutton opinions, the Second circuit has continued to treat
work as a major life activity. See Giordano, 274 F.3d at 747-48; Heyman
v. Queens Village Comm. for Mental Health, 198 F.3d 68, 72-73 (2d Cir.
1999); Muller v. Costello, 187 F.3d 298, 312, 312 n. 5 (2d Cir. 1999).
Accordingly, this court assumes, but does not decide, that work is a
major life activity. Therefore, the Court finds that Covello has
identified three major life activities, working, walking, and standing,
which she claims her physical impairment substantially limits.
The EEOC regulations define the word "substantially" in the phrase
"substantially limits" to mean "unable to perform" or "[significantly
restricted as to the condition, manner, or duration under which an
individual can perform a major life activity." 29 C.F.R. § 1630.2
(j)(1). The Supreme Court recently held that "substantially" suggests
"considerable or to a large degree." Toyota, 122 S.Ct. at 691. The Court
also held that "[t]he word `substantial' . . . clearly precludes
impairments that interfere in only a minor way with the performance of
manual tasks from qualifying as disabilities." Toyota, 122 S.Ct. at 691
(internal citations omitted). Therefore, "to be substantially limited in
performing manual tasks, an individual must have an impairment that
prevents or severely restricts the individual from doing activities that
are of central importance to most people's daily lives. The impairment's
impact must also be permanent or long-term." Id. (citing
29 C.F.R. § 1630.2 (j)(2)(ii)-(iii). To prove disability under this
test, an individual must do more than "merely submit evidence of a
medical diagnosis of an impairment.") Toyota, 122 S.Ct. at 691. Rather,
"the ADA requires those "claiming the Act's protection . . . to prove a
disability by offering evidence that the extent of the limitation [caused
by the impairment] in terms of their own experience . . . is
substantial.'" Toyota, 122 S.Ct. at 691-92 (quoting Albertson's Inc. v.
Kirkingburg, 527 U.S. 555, 567, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999)).
Covello's claim that her degenerative arthritis substantially limits
her ability to walk and stand is without merit. She raises this claim for
the first time in her opposition papers to Depository Trust's motion for
summary judgment, which is not the proper place to amend a complaint.
Moreover, Covello's assertion consists of a single sentence: "The
plaintiff is covered by the ADA because she has a physical impairment that
substantially limits her ability to walk and stand." This claim is
unsupported by a single piece of evidentiary support. The plaintiff
herself testified to the contrary in her deposition, when she
stated that she could, among other things, walk, climb ladders, make a
living, perform manual tasks, do the laundry, take out the garbage, and
clean her home. Further, the doctors notes and medical records that
Covello submitted in support of her opposition papers nowhere mention her
ability to walk or stand much less indicate that she is prevented or
severely restricted in performing either of these activities. Thus, the
Court holds that based on Covello's unsupported assertion made for the
first time in her opposition papers, no reasonable juror could find that
Covello's ability to walk or stand is substantially limited.
The Supreme Court has held that in the context of the major life
activity of working, the phrase "`substantially limits' requires, at a
minimum, that plaintiffs allege that they are unable to work in a broad
class of jobs." Sutton, 527 U.S. at 491, 119 S.Ct. at 2151. Similarly,
the EEOC defines "substantially limits" in the context of the major life
activity of "working" as "significantly restricted in the ability to
perform either a class of jobs or a broad range of jobs in various
classes. . . . The inability to perform a single, particular job does not
constitute a substantial limitation in the major life activity of
working." 29 C.F.R. § 1630.2 (j)(3)(i); see Giordano, 274 F.3d at
747. A plaintiff who is substantially limited in the major life activity
of working is one who is "precluded from more than one type of job, a
specialized job, or a particular job of choice. If jobs utilizing an
individual's skills (but perhaps not his or her unique talents) are
available, one is not precluded from a substantial class of jobs.
Similarly, if a host of different types of jobs are available, one is not
precluded from a broad range of jobs." Sutton, 527 U.S. at 492, 119 S.Ct.
at 2151; see Giordano, 274 F.3d at 748.
This Court's inquiry must focus on whether the plaintiff "is unable to
perform the variety of tasks central to most people's daily lives, not
whether the [plaintiff] is unable to perform the tasks associated with
her specific job." Toyota, 122 S.Ct. at 693. Any other analysis would
render meaningless the Supreme Court's ruling in Sutton, 527 U.S. at
492, 119 S.Ct. at 2151, that a plaintiff must show that she is precluded
from a broad range jobs, "because an inability to perform a specific job
always can be recast as an inability to perform a "class' of tasks
associated with that specific job." Toyota, 122 S.Ct. at 693. In engaging
in this inquiry, the Court is mindful that "the manual tasks unique to
any particular job are not necessarily important parts of most people's
Applying this framework to the facts of this case, the Court concludes
that Covello has failed to demonstrate that she was substantially limited
in her ability to work. Assuming the truth of Covello's claim that she
cannot repeatedly climb ladders, her impairment prevents her only from
working as a COD Clerk or in other jobs for which repetitive and fast
ladder climbing is an essential function. Covello can see, hear, and
speak. She can walk and stand, though not for long periods of time. She
can even climb stairs and ladders, but not repeatedly. In addition,
Covello can care for herself: she can dress and feed herself. She also
performs household chores, including grocery shopping, taking out the
garbage, cleaning the house, and laundering her clothes. Covello can also
write, answer and speak on the telephone, take notes, keep records, file
records, and organize documents.
Clearly, the degenerative arthritis in Covello's left ankle does not
render her "unable to perform the variety of tasks central to most
people's daily lives." Toyota, 122 S.Ct. at 693. The impairment simply
renders her unable to perform a single task integral to her specific
job. See id. Repeatedly
climbing ladder staircases is a manual task unique to Covello's
particular job, not an important part of most people's daily lives. See
id. Moreover, the manual tasks that Covello is able to perform even with
her impairment make her eligible for, not precluded from, a substantial
number of jobs. See id. Many jobs utilize the writing., telephone,
filing, organizing, note-taking, and record-keeping skills Covello still
has. Indeed, by claiming that Depository Trust should have assigned her
to a position that did not involve climbing ladders, Covello seriously
undercuts her argument that her ability to work is substantially
limited. See Scarborough v. Natsios, 190 F. Supp.2d 5, 22 (D.D.C. 2002).
Accordingly, under the standards set forth by the Supreme Court in
Toyota and Sutton Covello's impairment does not preclude her from
performing a substantial class or broad range of jobs. See Toyota, 122
S.Ct. at 693; Sutton, 527 U.S. at 492, 119 S.Ct. 2139. As such, the Court
finds that, as a matter of law, Covello is not disabled under
42 U.S.C. § 12102 (2)(A).
2. A Record of Such Impairment
Even if a plaintiff has failed to allege that his impairment
substantially limits a major life activity, he may still qualify as
disabled if he can provide a record of such impairment. See
42 U.S.C. § 12102 (2)(B). According to the EEOC:
This part of the definition is satisfied if a record
relied on by an employer indicates that the individual
has or has had a substantially limiting impairment.
The impairment indicated in the record must be an
impairment that would substantially limit one or more
of the individual's major life activities.
29 C.F.R. pt. 1630, App. Records that could potentially contain this
information include education, medical or employment records. Id.
However, "[t]he record must be one that shows an impairment that
satisfies the ADA; a record reflecting a plaintiffs classification as
disabled for other purposes or under other standards is not enough."
Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 645 (2d Cir.
Covello argues that her "record of impairment" consists of (1) the form
completed by a doctor following the physical examination that was
conducted prior to and as a condition of her employment at Depository
Trust; (2) the medical history form that Covello completed on September
24, 1987 indicating that she had ankle surgery in January 1987; (3) the
documents submitted to Depository Trust that enabled Covello to receive a
six-week paid leave of absence following her January 1991 surgery; (4)
the August 28, 1997 note of Dr. Bhatia; (5) the October 9, 1987 note of
Dr. Levine; and (6) the Family Medical Leave Act form completed by Dr.
Levine on November 3, 1997.
Reading these documents together and viewing them in the light most
favorable to the plaintiff, the Court finds that the records do not show
a history of a substantially limiting impairment. Instead, they
demonstrate that Covello broke her ankle in 1987 and required surgery
that involved inserting hardware into her ankle and that resulted in
scarring. The records also establish that in 1991, Covello had a second
surgery to remove the hardware, which procedure required her to take a
six-week leave of absence from work. The 1997 doctors notes and Family
Medical Leave Act form demonstrate that Covello suffers from degenerative
arthritis in her left ankle, is unable to climb ladders, and should avoid
climbing both stairs and ladders. The records do not describe an
impairment that involves a greater degree of limitation of Covello's
ability to work than the impairment described in the amended complaint.
Therefore, Covello's claim based on a record of impairment fails for the
same reasons stated by the Court as to her claim of disability based on
the substantial limitation of a major life activity. See Colwell, 158
F.3d at 645.
Because the Court has found that Covello is not disabled under either
Section 12102(2)(A) or (B), as a matter of law, the motion by Depository
Trust for judgment as a matter of law is granted, and the first and
second causes of action are dismissed.
D. The LMRA
Covello's third cause of action alleges that Local 153 violated the
LMRA by breaching its duty to fairly represent her in the grievance
procedure brought against Depository Trust. In particular, Covello argues
that the failure by Local 153 to file a written statement of grievance
pursuant to Step 3 of the grievance procedure outlined in the CBA resulted
in the dismissal of her grievance against Depository Trust.
Local 153 concedes that it did not file a written statement of
grievance and that their failure resulted in the dismissal of Covello's
grievance. However, Local 153 argues that this conduct amounts to mere
negligence, which it asserts is an insufficient basis for the plaintiffs
claim. Local 153 states that it had a good faith belief that it was not
required to file a Step 3 written statement of grievance because at a
January 7, 1998 meeting with Depository Trust, the company's
representative agreed that Covello's grievance would proceed to
arbitration. The Union argues that, therefore, its failure to file the
Step 3 written statement of grievance was mere negligence which does not
amount to a breach of the duty of fair representation.
In support of their argument, Local 153 offers the following evidence:
(1) the arbitrator's written opinion and award, dated May 12, 1999; and
(2) Covello's deposition testimony. The arbitrator's opinion describes
the testimony of one Mike Thompson ("Thompson") Local 153's Senior
Business Representative at the March 10, 1999 hearing. The opinion states
that: (1) Thompson could not remember many important details regarding
the January 7, 1998 meeting but did recall that the Depository Trust
representative had not mentioned a procedural problem in regard to
Covello's grievance; (2) Thompson stated that the Step 3 statements were
merely pro forma and their absence did not preclude an employee from
arbitrating her claim; and (3) Local 153 did not request Depository
Trust's written consent to waive a timely Step 3 submission because
Thompson did not believe the waiver was necessary.
In an attempt to authenticate Thompson's hearing testimony for the
purpose of this motion, Local 153 offers the following questions and
answers from Covello's deposition:
Q. Starting on page 3, going over to page 4, there's a
paragraph where the arbitrator summarizes Mr.
Thompson's testimony at the hearing. If you would read
that paragraph, please starting on page 3 and ending
in the middle of page 4. Tell me if there's anything
in there that's incorrect as far as what Mr.
Thompson's testimony actually was?
A. To the best of my knowledge it's correct. . . .
Q. This is a summary of his testimony?
Q. Is there anything in this recounting by the
arbitrator that you would read and say, no, that's not
what Thompson testified about, that's wrong?
A. No. I would say that's an overall correct view.