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June 10, 2003


The opinion of the court was delivered by: Whitman Knapp, Senior District Judge


Plaintiff William Sussle ("Plaintiff") brings this action against his former employers, Defendants Sirina Protection Systems Corp. ("Sirina Protection Systems") and Sirina Fire Protection Corp. ("Sirina Fire Protection") (collectively the "Defendants"), alleging violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., the New York State Human Rights Law ("NYHRL"), N.Y. Exec. Law § 296, and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107. He contends that the Defendants unlawfully discriminated against him on the basis of his disability when they failed to provide him with reasonable accommodations and thereafter terminated his employment. He also contends that the Defendants unlawfully retaliated against him when he asked for reasonable accommodations. The Defendants now move for summary judgment. For the reasons that follow, we GRANT their motion for summary judgment.


I. The Plaintiff's Medical History Prior To His Employment With The Defendants
The following facts are undisputed unless otherwise stated. Sometime between 1994 and 1997, the Plaintiff began feeling tired. (See 7/10/02 Deposition of William Sussle ("Sussle Depo.") 33:25, 34:2-14.) His symptoms of fatigue led him to consult with Dr. Frank Karpowicz ("Dr. Karpowicz"). (See Sussle Depo. 34:15-18; see also Declaration of Saul D. Zabell ("Zabell Decl."), Ex. G.). Dr. Karpowicz diagnosed the Plaintiff with Hepatitis C. (See Sussle Depo. 113:14-18; see also Zabell Decl., Ex. G.)

Although the Plaintiff does not remember the exact date on which he learned of that diagnosis, he acknowledges that he had been informed of the diagnosis by 1997. (See Pl.'s Opp'n Statement Pursuant to Local Rule 56.1 ("Pl.'s Opp'n Statement") ¶ 56; Defs.' Statement Pursuant to Local Rule 56.1 ("Defs.' Statement") ¶ 56.) In other words, he knew that he suffered from Hepatitis C before he began to work for the Defendants. (See Sussle Depo. 100:8-16.)

II. The Plaintiff And Sirina Fire Protection

Defendant Sirina Fire Protection is a private business that installs automatic sprinklers, fire and detection systems, and fire suspension equipment. (Defs.' Statement ¶ 1; Pl.'s Opp'n Statement ¶ 1.) On January 6, 1998, the company hired the Plaintiff as a Sales Representative for its sprinkler division. (Defs.' Statement ¶ 2; Pl.'s Opp'n Statement ¶ 2.) As a Sales Representative, the Plaintiff was responsible for selling installation and maintenance contracts, renewing existing contracts, and generating new business leads and sales. (Defs.' Statement ¶ 3; Pl.'s Opp'n Statement ¶ 3.)

The Plaintiff and the Defendants have different views about his performance as a Sales Representative at Sirina Fire Protection. The Plaintiff attests that he successfully generated some new sales for Sirina Fire Protection and that no manager ever complained to him about his sales performance. (Declaration of William Sussle ("Sussle Decl.") ¶ 3.) The Defendants, however, contend that the Plaintiff failed to close a single deal or to sign a single new contract for Sirina Fire Protection. (Defs.' Statement ¶ 4.)

III. The Plaintiff And Sirina Protection Systems

Anthony Florez, the president and owner of Sirina Fire Protection, also owns several other companies, including Defendant Sirina Protection Systems. (See Deposition of Anthony Florez ("Florez Depo."), annexed as Exhibit A to the Declaration of Daniel J. Kaiser ("Kaiser Decl."), 5:12-25, 6:2-9, 7:20-25, 8:2-25, 9:2.) Sirina Protection Systems is involved in the business of fire alarms. (Florez Depo. 13:2-4.)

Sirina Fire Protection transferred the Plaintiff to Defendant Sirina Protection Systems in September 1998. (Defs.' Statement ¶ 5; Sussle Decl. ¶ 4.) His responsibilities at the latter company were similar to the ones he previously faced at Sirina Fire Protection; as a Sales Representative for Sirina Protection Systems, the Plaintiff was responsible for selling installation and maintenance contracts, renewing existing contracts, and generating new business leads and sales. (Defs.' Statement ¶ 7; Pl.'s Opp'n Statement ¶ 7.)

According to the Defendants, Sirina Fire Protection transferred the Plaintiff to Sirina Protection Systems's fire alarm sales and maintenance division in an effort to provide him with another opportunity to be successful. (Defs.' Statement ¶ 5.) At Sirina Protection Systems, he reported to Thomas Boyle ("Boyle"), a vice-president in charge of operations. (Florez Depo. 7:18-25, 9:23-25, 27:6-16.) Boyle supposedly told the Plaintiff that his transfer to Sirina Protection Systems represented his final opportunity to improve his sales performance. (Defs.' Statement ¶ 6.)

The Plaintiff disputes much of this account. (See Pl.'s Opp'n Statement ¶¶ 4-6; Sussle Decl. ¶¶ 3-4.) He contends that Boyle never told him that the transfer would be his last opportunity to improve his sales performance. (See Sussle Decl. ¶ 4) Rather, the Plaintiff thought that he was transferred because of his business contacts in Manhattan. (See id.)

The parties also disagree about the Plaintiff's work performance at Sirina Protection Systems. According to the Defendants, the Plaintiff continued to register dismal sales results while working at Sirina Protection Systems and exhibited inappropriate and objectionable behavior with potential clients. (Defs.' Statement ¶ 8.) Boyle recounts a series of incidents and reprimands, which occurred between September 1998 and June 1999, where, among other things: (a) customers and competitors complained about the Plaintiff's sales tactics, attitude, demeanor, and unprofessional behavior; (b) Boyle consistently needed to warn the Plaintiff about his interpersonal skills and the manner in which he interacted with others; and (c) Boyle reprimanded or otherwise spoke to the Plaintiff about his unacceptably low activity levels, his poor work performance, his failure to qualify customer leads in order to discover legitimate customer opportunities, his failure to prepare for a sales meeting, and his intolerable conduct (such as his effort to tape record a customer meeting). (See Affidavit of Thomas Boyle ("Boyle Aff.") ¶¶ 7-25.) Boyle memorialized the Plaintiff's performance problems in a series of Interoffice Memoranda which he prepared for the Plaintiff's personnel file. (See Zabell Decl., Ex. N.)

On June 29, 1999, Boyle met with the Plaintiff to discuss his dissatisfaction with the Plaintiff's performance. (Boyle Aff. ¶ 26; cf. Sussle Depo. 172:17-19, 173:2-8.) At that meeting, Boyle advised the Plaintiff that he would make a decision regarding the Plaintiff's tenure with Sirina Protection Systems by the end of July 1999. (See Boyle Aff. ¶ 27.) On July 20, 1999, the Plaintiff was terminated from his employment with Sirina Protection Systems. (See Boyle Aff. ¶ 28; see also Sussle Decl. ¶ 23.)

The Plaintiff disputes Boyle's account and describes a different experience altogether. He contends that Boyle's memoranda regarding his poor work performance history were not true. (Sussle Decl. ¶ 11.) For example, according to the Plaintiff, he never missed a sales meeting and was never late or took a day off. (Id.) To the contrary, the Plaintiff indicates that he worked "extra-late" on many occasions to complete assignments. (Sussle Decl. ¶ 12.) Moreover, the Plaintiff states that he "was very responsive to sales leads" and successfully developed leads "which led to sales while he was there and after he left." (Sussle Decl. ¶ 13.) From the Plaintiff's perspective, Boyle was often "unresponsive" to the leads he generated and this frustrated or otherwise delayed the Plaintiff's sales. (See Sussle Decl. ¶ 14.)

The Plaintiff also explains that none of Boyle's memoranda were shared with him. (See Sussle Decl. ¶ 10.) For that matter, the Plaintiff contends that he was never criticized for his interactions with clients or potential clients and that none of the alleged work concerns about him were ever discussed with him. (See Sussle Decl. ¶¶ 16-17.) Instead, the Plaintiff received a bonus in December 1998 and thereafter received an 8% raise. (Sussle Decl. ¶ 19.) When Sirina Protection Systems terminated the Plaintiff's employment on July 20, 1999, he was purportedly told that general business conditions led to his termination; no one supposedly advised the Plaintiff that he had been fired "for anything to do with [his] alleged poor work performance." (Sussle Decl. ¶¶ 23-24.) Indeed, the Plaintiff contends that Florez wrote him a positive letter of recommendation after his termination. (See Sussle Decl. ¶¶ 25-27; see also Kaiser Decl., Ex. E.)*fn1

Following his termination, the Plaintiff alleged that he was discharged because of his Hepatitis C. His troubles with the Defendants in this regard, especially with Boyle, apparently began in April 1999, when the Plaintiff decided to treat his Hepatitis C with medication. Over time, the Plaintiff had chosen to consult with Dr. Ira Goldman ("Dr. Goldman") in an effort to seek treatment for his illness; he had been "told that [Dr. Goldman] was a doctor who was . . . on top of th[at] disease and understood a lot about it." (See Sussle Depo. 58:4-11, 59:11-13, 105:7-15.) Dr. Goldman informed the Plaintiff that he had the option of pursuing Interferon and Ribavirin combination therapy ("the combination therapy"). (See Sussle Depo. 59:24-25, 60:2-17, 103:18-25, 104:2-3, 105:7-15.) After the Plaintiff considered whether he wanted to undergo that type of treatment, Dr. Goldman initiated the combination therapy. (See Sussle Depo. 59:24-25, 60:2-17, 103:18-25, 104:2-15, 105:10-15.) The Plaintiff "[s]elf-administered" the therapy by ingesting Interferon pills and applying the Ribavirin liquid with a syringe. (See Sussle Depo. 60:18-25.)

The Plaintiff treated his Hepatitis C with the combination therapy of Interferon and Ribavirin from April 1999 until July 1999. (See Defs.' Statement ¶ 38; Pl.'s Statement ¶ 38; cf. Sussle Depo. 8:8-21.) However, the medication led him to develop anemia and made him feel tired. (See Sussle Depo. 63:8-23, 64:11-15, 102:18-24.) The fatigue he felt as a result of the medication allegedly affected his ability to concentrate, to walk, and to climb stairs. (See Sussle Depo. 62:22-25, 63:2-25, 64:2-23, 102:18-14.) The Plaintiff contends that he was unable to sustain periods of concentration, particularly when it "got hot outside," although he concedes that the treatment did not affect his concentration for most of the working day and on some days not at all. (See Sussle Depo. 63:17-25, 64:2-8, 66:9-25, 67:2-13.) He also purportedly could not walk long distances and had a difficult time climbing stairs. (See Sussle Decl. ¶ 28; Sussle Depo. 64:118, 67:9-23.)

Once Dr. Goldman initiated the combination therapy, the Plaintiff began to feel that he was not "being treated properly and . . . sought a second opinion." (See Sussle Depo. 59:24-25, 60:2-8.) As such, he consulted with Dr. David Bernstein ("Dr. Bernstein"). (See Sussle Depo. 59:21-25, 60:2-8, 180:22-25, 181:2.) Thereafter, Dr. Bernstein supervised the Plaintiff's Hepatitis C treatment. (See Sussle Depo. 58:25, 59:2, 21-25, 60:2-8.)

The Plaintiff eventually informed Dr. Bernstein that he "found it difficult to tolerate" the negative effects of the medication. (See Sussle Depo. 102:8-25, 103:2-5.) As a consequence, Dr. Bernstein decided to terminate the treatment, (see Sussle Depo. 178:6-25, 180:22-25, 181:2-6), and the Plaintiff no longer took the medication after July 1999, (see Defs.' Statement ¶ 38; Pl.'s Opp'n Statement ¶ 38.)

When the Plaintiff began to treat his Hepatitis C with the combination therapy in April 1999, he was working for Sirina Protection Systems. (See Sussle Depo. 62:4-11; see also Defs.' Statement ¶ 38; Pl.'s Opp'n Statement ¶ 38.) Prior to undergoing the treatment, he had never asked Sirina Fire Protection or Sirina Protection Systems for any reasonable accommodations because no accommodations were necessary. (See Sussle Depo. 100:25, 101:2-21.) However, on April 6, 1999, the Plaintiff advised Boyle, in writing, that he had been diagnosed with Hepatitis C and that he would require reasonable accommodations. (Sussle Decl. ¶ 6; see also Zabell Decl., Ex. J.) He apparently told Boyle that the medication he took to treat his condition could "be trying" and made him tired; as such, he explained to Boyle that he might need some time "to just rest [his] head if [he was] feeling light-headed," to take medicine, to go to the doctor, and that he should not be out in the heat. (See Sussle Depo. 114:25, 115:2-19, 118:4-15, 119:2-25.)

According to the Plaintiff, Boyle immediately "grew distant and hostile" towards him and, although Boyle never specifically denied the Plaintiff a reasonable accommodation, he took no affirmative actions to help facilitate any accommodation that the Plaintiff needed. (Sussle Decl. ¶ 7.) Instead, the Plaintiff began to be excluded from business meetings, was not kept informed about important business developments, and was generally "treated like a leper on several occasions." (See Sussle Decl. ¶¶ 8, 22; see also Sussle Depo. 128:18-25, 129:2-25, 130:2-13.) Boyle allegedly appeared, through his attitude, to have problems with the Plaintiff's illness and Boyle supposedly expressed concern that the Plaintiff's condition was interfering with his work performance. (See Sussle Decl. ¶¶ 7, 22.) The Plaintiff is convinced that he would not have been terminated on July 20, 1999, "but for . . . Boyle's aversion to [his] illness." (Sussle Decl. ¶ 23.)

IV. Procedural History

On February 28, 2000, the Plaintiff filed a Charge of Discrimination ("Charge") with the Equal Employment Opportunity Commission ("EEOC"). (See Defs.' Statement ¶ 28; Pl.'s Opp'n Statement ¶ 28; see also Zabell Decl., Ex. D.) In his Charge, the Plaintiff accused the Defendants of disability discrimination. (See Defs.' Statement ¶ 29; Pl.'s Opp'n Statement ¶ 29; see also Zabell Decl., Ex. D.)

The EEOC issued a "Determination" on February 28, 2001, in which the agency concluded that "there [was] reasonable cause to believe that the [Plaintiff's] allegations [were] true." (Kaiser Decl., Ex. C at 2.) However, the EEOC decided not to bring a lawsuit against the Defendants; instead, on March 23, 2001, the EEOC issued a Notice of Right to Sue to the Plaintiff. (Zabell Decl., Ex. F.)

The Plaintiff commenced the instant action against the Defendants on May 3, 2001. He alleged that the Defendants "discriminated against the Plaintiff in the terms and conditions of his employment because of [his] disability." (Compl. ¶ 26.) Accordingly, the Plaintiff asserted that they had violated the ADA, the NYHRL, and the NYCHRL and sought damages. (See Compl. ¶¶ 25-31.)

The Defendants now move for summary judgment.


I. Summary Judgment Standard

"Summary judgment is appropriate where the Court is satisfied 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.'" Celotex Corp. v. Catrett (1986) 477 U.S. 317, 330 (quoting Fed.R.Civ.P. 56(c)). When a district court considers a motion for summary judgment, the court does not resolve disputed issues of fact but only determines whether there is a genuine issue to be tried. Eastman Machine Co., Inc. v. United States (2d Cir. 1988) 841 F.2d 469, 473. A dispute regarding a material fact is genuine "if the evidence is such that the a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 248. "In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant." Marvel Characters, Inc. v. Simon (2d Cir. 2002) 310 F.3d 280, 286.

The party seeking summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Id. "Once a movant has demonstrated that no material facts are in dispute, the non-movant must set forth specific facts indicating a genuine issue for trial exists in order to avoid the granting of summary judgment." Cifarelli v. Village of Babylon (2d Cir. 1996) 93 F.3d 47, 51 (emphasis added). The non-moving party cannot defeat a motion for summary judgment by merely relying "on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas (2d Cir. 1998) 143 F.3d 105, 114. "Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact. The mere existence of a scintilla of evidence supporting the non-movant's case is also insufficient to defeat summary judgment." Niagara Mohawk Power Corp. v. Jones Chemical, Inc. (2d Cir. 2003) 315 F.3d 171, 175 (internal citations and quotation marks omitted). Ultimately, "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249. "If the evidence [produced by the nonmoving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Id. (internal citations omitted).

II. ADA Claims

A. Discriminatory Discharge

1. Statutory Framework

The ADA prohibits covered employers from "discriminat[ing] against a qualified individual with a disability because of the disability of that individual in regard to," inter alia, "[the] discharge of employees." 42 U.S.C. § 12112(a). In this case, the Plaintiff contends that the Defendants discriminated against him on the basis of his disability when they discharged him.

When courts in this circuit consider discrimination claims brought under they ADA, they apply the burden-shifting analysis set forth by the Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, as well as the progeny that sprung therefrom. Pace v. Paris Maintenance Co. (S.D.N.Y.) 107 F. Supp.2d 251, 259, aff'd (2d Cir. 2001) 7 Fed. Appx. 94. Under the McDonnell Douglas framework, the "plaintiff bears the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination." Heyman v. Queens Village Committee for Mental Health for Jamaica Community Adolescent Program, Inc. (2d Cir. 1999) 198 F.3d 68, 72; see also Wernick v. Federal Reserve Bank of New York (2d Cir. 1996) 91 F.3d 379, 383 ("A plaintiff who raises a disability discrimination claim bears the initial burden of establishing a prima facie case."). If the plaintiff "make[s] out a prima facie case, then the burden of production shifts to the defendants to provide a legitimate, nondiscriminatory reason for their decision." Regional Economic Community Action Program, Inc. v. City of Middletown (2d Cir.) 294 F.3d 35, 49, cert. denied (2002) ___ U.S. ___, 123 S.Ct. 74, 154 L.Ed.2d 16. If the defendants furnish such a reason, "the McDonnell Douglas framework — with its presumptions and burdens — disappear[s], and the sole remaining issue [is] discrimination vel non." Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 142-143 (internal citations and quotation marks omitted). The plaintiff "must then show that the employer's proffered reason is pretextual and that [the] plaintiff's alleged disability was the real factor motivating the employer's decision." Glozman v. Retail, Wholesale & Chain Store Food Employees Union, Local 338 (S.D.N.Y. 2002) 204 F. Supp.2d 615, 625.

"In order to make out a prima facie case of discriminatory discharge under the ADA, a plaintiff 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 could perform the essential functions of his job with or without reasonable accommodation; and (4) he was fired because of his disability." Reeves v. Johnson Controls World Services, Inc. (2d Cir. 1998) 140 F.3d 144, 149-150; see also Ryan v. Grae & Rybicki, P.C. (2d Cir. 1998) 135 F.3d 867, 869-870. As the ensuing discussion explains, the Plaintiff has ...

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