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United States District Court, Southern District of New York

March 28, 2003


The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge


Eric Weiss ("Plaintiff") brings this action pro se against the City of New York*fn1 ("Defendant"), alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq., for failure to accommodate Plaintiff's disability when Plaintiff was employed by Defendant, and alleging retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. This matter comes before the Court on Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331(West 2002).

The Court has considered thoroughly all submissions related to this motion. For the reasons stated below, Defendant's motion for summary judgment is granted.


The facts and procedural history of the case are set forth in a Report and Recommendation issued by Magistrate Judge Dolinger on May 4, 2001, and adopted by this Court on August 23, 2001 (the "Report"). Familiarity with the Report is assumed. The only evidence that has subsequently been provided to the Court are portions of the transcript of a deposition of the Plaintiff, taken on July 24, 2002; portions of the transcript of Plaintiff's workers' compensation hearing, on October 24, 1996; and documents from Defendant relating to Plaintiff's employment and termination.


Summary Judgment

Standard Summary judgment shall be granted in favor of a moving party where 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). The moving party bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). When considering a motion for summary judgment, the Court does not engage in fact-finding or weighing of credibility, but determines whether any material questions of fact are in dispute after resolving all ambiguities and drawing all justifiable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 250; Carlton v. Mystic Transportation Inc., 202 F.3d 129, 133 (2d Cir. 2000). Conclusory allegations, conjecture and speculation will not, however, create a genuine issue of fact. Kerzer v. Knigly Manufacturing, 156 F.3d 396, 400 (2d Cir. 1998). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; Converse v. General Motors Corp., 893 F.2d 513, 514 (2d Cir. 1990). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is inappropriate. Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). However, the non-moving party must offer "concrete particulars" to defeat the motion; it cannot succeed "by offering purely conclusory allegations of discrimination." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).

Because Plaintiff is proceeding pro se, the Court liberally construes his arguments, and judges his pleadings on "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). The Court has an obligation to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment. " Valentine v. Standard & Poor's, 50 F. Supp.2d 262, 280 (S.D. N.Y. 1999). Even if proceeding pro se, "the non-moving party must provide this Court with some basis to believe that his `version of relevant events is not fanciful.'" Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Christian Dior-New York, Inc. v. Koret, Inc., 792 F.2d 34, 37-39 (2d Cir.1986)).

Burden-Shifting Analysis

Claims of violations of the ADA are analyzed within the burden-shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). According to this analysis, the plaintiff must initially come forward with facts sufficient to establish a prima facie case of discrimination. Id. If and when the plaintiff meets this burden, it creates a presumption that the defendant discriminated unlawfully. Id. The burden of production then shifts to the defendant, who must proffer a legitimate, non-discriminatory reason for its actions in order to rebut the presumption. Id. If the defendant furnishes such a reason, the presumption of unlawful discrimination is eliminated, and the plaintiff bears the ultimate burden to prove that the employer's proffered explanation is merely a pretext for unlawful discrimination. Id.

Defendant argues that Plaintiff has failed to meet his burden at the first step of the McDonnell Douglas analysis by not establishing a prima facie case of disability discrimination or retaliation, and asserts that it is entitled to summary judgment on that basis. The Court, therefore, considers whether Plaintiff has met its initial burden of establishing a prima facie case of disability discrimination or retaliation. As explained below, the Court finds that the Plaintiff has not met his burden with respect to either of his claims. Summary judgment in favor of Defendant is thus appropriate.

Failure to Accommodate Claim

Failure to make reasonable accommodations for a disabled employee constitutes discrimination under the ADA. 42 U.S.C.A. section 12112(b)(5)(A) defines discrimination to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." (West 1995.)

To establish a prima facie case of discrimination under the ADA, an employee must demonstrate that (1) he is disabled within the meaning of the ADA; (2) he was capable of performing the essential functions of the job, with or without reasonable accommodation; and (3) he was discriminatorily treated by his employer on account of his disability. Report at 11; see also Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 383 (2d Cir. 1996); Lyons v. Legal Aid Society, 68 F.3d 1512, 1515 (2d Cir. 1995).

Defendant argues that the first two prongs are not met in this case. It claims that Plaintiff is not disabled within the meaning of the ADA and also that Plaintiff was not capable of performing the essential functions of his job.

Plaintiff alleges that he is permanently disabled and receives Social Security disability benefits. (Pl. Memo. at ¶ 1). That Plaintiff considers himself disabled and receives Social Security benefits is not disputed; however, this does not necessarily mean that Plaintiff's condition constitutes a disability within the meaning of the ADA.

Reviewing the facts as set forward in the light most favorable to Plaintiff, Plaintiff has not brought forth sufficient facts to demonstrate that he is disabled within the meaning of the ADA. He therefore has not met the first requirement for a prima facie case of discriminatory discharge. In determining disability within the meaning of the ADA, courts look to whether (1) the plaintiff suffers from a physical or mental impairment; (2) the impairment affects a "major life activity" under the ADA; and (3) the impairment "substantially limits" such major life activity. Colwell v. Suffolk County Police Department, 158 F.3d 635, 641 (2d Cir. 1998)*fn2.

Plaintiff claims, at different points in his deposition, the following health problems: problems with head and brain functions, lung and respiratory problems, permanent eye damage, hearing damage, a pulmonary problem, brain and motor coordination problems, a diagnosis by a gastroenterologist that such problems affected all his other body functions, decreased strength, increased tiredness during hot weather, headaches, asthma, hand and arm problems, knee problems, and inability to take a lot of stress. (Deposition of Plaintiff, Ex. C to DiChiara Aff., at 90, 91, 92, 94, 97, 99.) For purposes of this motion, Defendant concedes that Plaintiff's alleged respiratory, sinus and eye problems constitute impairments. (Def. Memo. at 4, 5.)

"Major life activities" include "functions such as . . . performing manual tasks, walking, seeing, . . . breathing, learning, and working." Colwell, 158 F.3d at 642. Plaintiff asserts that his vision and breathing are impaired and that he is limited in carrying out the functions of his occupation. (Pl. Dep., Ex. C to DiChiara Aff., at 99, 121.) Although these functions qualify as major life activities, the Plaintiff must further demonstrate that one or more of these major life activities are substantially limited because of his disability. Plaintiff has proffered insufficient evidence to meet this requirement. "Substantially limits" means unable to perform, or significantly limited as to the condition, manner or duration or performance of, a major life activity as compared with the average person in the general population. Colwell, 158 F.3d at 643. Factors courts have considered include "(i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." Id. "[I]f a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures . . . must be taken into account when judging whether that person is `substantially limited' in a major life activity and thus `disabled' under the Act." Sutton v. United Air Lines, 527 U.S. 471, 482 (1999).

Here, Plaintiff has not provided evidence that any of the conditions of which he complains substantially limits any of his major life activities. Plaintiff's vision problems are corrected by eyeglasses (Pl. Dep., Ex. C to DiChiara Aff., at 99); thus his vision problem is not considered a disability that substantially limits the major life activity of seeing. Plaintiff also claims breathing problems and asthma. Although asthma has been recognized as a physical impairment under the ADA, Bellom v. Neiman Marcus Group, Inc., 975 F. Supp. 527, 533 (S.D.N.Y. 1997), and "one can easily infer how chronic conditions such as asthma [and] sinusitis . . . might inhabit major life activities," Hellgren v. Bell Atlantic Corporation, No. 99 Civ. 11937 (CM), 2000 WL 726496, *1 (S.D.N.Y. May 30, 2000), Plaintiff has not demonstrated that his breathing problems or asthma substantially limit his performance of major life activities.

Plaintiff has also not demonstrated that his alleged disabilities substantially limit his ability to work. "When referring to the major life activity of working, the EEOC defines `substantially limits' as: `significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.'" Murphy v. United Parcel Service, 527 U.S. 516, 523 (1999) (citations omitted). "Thus, to be regarded as substantially limited in the major life activity of working, one must be regarded as precluded from more than a particular job." Id. at 523. One of Plaintiff's doctors testified that "if there is a disability [in the Plaintiff] it is partial only. . . . I think as a mechanic he could do another type of job" and opined that Plaintiff "should be able to" work as an automobile mechanic with a face mask and if he is not exposed to heavy toxic vapors and fumes. (Workers Compensation Hr'g, Test. of Dr. George Braun, Ex. F to DiChiara Aff., at 37). Plaintiff himself asserted that "I can't be inside of a shop working with hazardous chemicals and hazardous vehicles, as hazardous stuff like that you breathe in. If I was put in a clean environment, I probably could do another job." (Pl. Dep., Ex. C to DiChiara Aff., at 98.)

Further, Plaintiff acknowledged that "I'm not incapable of doing mechanics to a certain extent. It's just bad for my health to be indoors and doing it [working as a mechanic] every day and breathing in their chemicals and toxic smells." (Pl. Dep., Ex. C to DiChiara Aff., at 120.) If wearing a face mask allowed Plaintiff to work as a mechanic, as his doctor suggested, Plaintiff would not be prohibited from working as a mechanic. Even if, as Plaintiff suggested, he cannot work full-time as an indoor mechanic, he has not demonstrated that he is precluded from "more than a particular job." Plaintiff has provided no evidence, other than his conclusory and somewhat contradictory statements, to show the Court that he is precluded from working as a mechanic with a face mask, much less that he is precluded from working in an entire class of jobs. Plaintiff, therefore, has not met the burden necessary to survive summary judgment here.

As Plaintiff has failed to demonstrate that he has any physical impairments that "substantially limit" major life activities, he has not set forth a prima facie case of disability discrimination. Summary judgment in favor of the Defendant is thus appropriate with respect to the failure to accommodate claim.

Retaliation Claim

Plaintiff asserts that Defendant retaliated against him for filing a Title VII charge of employment discrimination against Defendant in 1991. (See EEOC Charge of Discrimination, Ex. A to DiChiara Aff.) To succeed on such a claim, Plaintiff must prove "(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) adverse employment action; and (4) a casual connection between plaintiff's protected activity and the adverse employment action." Gordon v. New York City Board of Education, 232 F.3d 111, 113 (2d Cir. 2000). Defendant does not dispute that the first three elements may be met in this case; however, Defendant correctly asserts that Plaintiff has not shown a causal connection between the filing of Plaintiff's Title VII charge and the adverse employment action of which Plaintiff now complains. "Proof of causation can be shown either (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus." Id. at 117. Plaintiff did not demonstrate direct causation; his complaint, EEOC filings, and deposition are bereft of any suggestion of retaliatory animus by Defendant. Neither did Plaintiff proffer evidence sufficient to demonstrate indirectly that the Title VII charge and adverse employment action were causally related. More than three years lapsed between the time Plaintiff filed the Title VII charge (in 1991) and the alleged adverse employment action (i.e., the Defendant's alleged refusal to give Plaintiff his requested accommodation and the termination of Plaintiff's workers compensation pay after his March 1994 accident). There is thus too long a time lapse to support an inference of causation. See Morris v. Lindau, 196 F.3d 102, 113 (2d Cir. 1999) (when two years elapsed between employee's protected speech and adverse employment action, no inference of causation was justified).

As Plaintiff's evidence is insufficient to establish a necessary element of his retaliation claim, summary judgment is appropriate in favor of the Defendant on that claim.


For the foregoing reasons, Defendant's motion for summary judgment is granted in its entirety.


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