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
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
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.").
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 ...