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March 31, 2004.

JAMES D. BREWER, Plaintiff,

The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District



Plaintiff, James Brewer, filed this action against his former employer, defendant Sears, Roebuck & Company ("Sears"), alleging disability and age discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 21 et seq. Before the Court is Sears's motion for summary judgment, brought pursuant to Fed.R. Civ. R. 56. For the reasons that follow, Sears's motion is granted and plaintiff's complaint is dismissed.


  The following facts are undisputed. Plaintiff (born June 13, 1950) worked for Sears as a full-time service technician for 29 years. In March 1999, he suffered a back injury on the job and was out of work due to a herniated lumbar disk from April 26 through August 2, 1999. At that time, his doctor cleared him to return to work full-time without any restrictions. The day that he returned to work, Edward Cody, plaintiff's manager, informed plaintiff that due to a decrease in service calls in the area in which plaintiff worked (the Hornell branch), it could no longer support a full-time technician.

  Plaintiff was not fired. Instead, he was given the option of becoming a "full-time flex" employee who would work on an as needed basis. There was no guarantee that he would work a certain number of hours per week. However, Sears informed plaintiff that as a full-time flex employee, he would maintain the majority of his benefits and, as a senior level employee, would be given preference for hours before other flex employees. He was also given the option of trying flex time for six months or, as a third option, he could take a lay-off and get a severance package. Plaintiff voluntarily chose lay-off and severance. At the time, all other employees in his branch were full-time flex employees.

  In October 1999, Sears placed an advertisement in a newspaper for "full-time" service technicians in the Horseheads, New York branch. Plaintiff applied for and was qualified for the position. However, when Sears informed plaintiff that the job was full-time flex and paid $4.00 an hour less than what plaintiff had been making at the time he separated from Sears, he lost interest, and failed to contact Sears to discuss the position further.

  At all times relevant to his claims, plaintiff was 49 years old.


  Courts analyze claims of discrimination under the ADA and ADEA using the familiar burden-shifting analysis developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973). See Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48-49 (2d Cir. 2002) (analyzing ADA claim); Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003) (applying framework to ADEA claim).

  First, plaintiff must establish a prima facie case of age or disability discrimination. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory business rationale for its actions. "[O]nce the defendant has made a showing of a neutral reason for the complained of action, `to defeat summary judgment . . . the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination.'" Terry, 336 F.3d at 138 (quoting Stern v. Trustees of Columbia Univ. in City of New York, 131 F.3d 305, 312 (2d Cir. 1997)); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001); James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2002). Plaintiff may meet this burden by showing, inter alia, that the employer's proffered reasons for its decision were false or that discrimination was the real motivation for the Company's decision. Reeves v. Sander son Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) ("a plaintiff's aprima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.").

 I. Plaintiff's ADA Claim

  Plaintiff's ADA claim must be dismissed because plaintiff has failed to establish a prima facie case of discrimination under the ADA. To demonstrate a prima facie case under the ADA, plaintiff must show that: (1) he is an individual with a disability within the meaning of the ADA; (2) that his employer is subject to the ADA and had notice of the disability; (3) that the plaintiff 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 v. Queens Vill. Comm. for Mental Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir. 1999); Reeves v. Johnson Controls World Serv., 140 F.3d 144, 149-50 (2d Cir. 1998); Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998).

  Plaintiff has failed to establish the first element that he is disabled within the meaning of the ADA. The ADA defines "disability" as a physical or mental impairment that substantially limits one or more major life activities, a record of having such an impairment, or being regarded by an employer as having such an impairment. See 42 U.S.C. § 12102(2). Plaintiff acknowledges that at the time he was offered full-time flex status, he had no physical impairment that restricted substantially limited him in any manner. Although he had a ...

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