United States District Court, W.D. New York
March 31, 2004.
JAMES D. BREWER, Plaintiff,
SEARS, ROEBUCK & COMPANY, Defendant
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
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.").
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 herniated disk
in his back, the evidence showed that it had healed and that his doctor
cleared him to return to work without any restrictions.
In his pro se response to defendants' motion, plaintiff states
that it is his belief that Sears thought that he would be unable "to
perform [his] normal work activities" because of his previous back
injury. (Dkt. #30, Conclusion ¶ IV). Plaintiff seems to be arguing
that he was "disabled" within the meaning of the ADA because Sears
perceived him to be under a disability. See
42 U.S.C. § 12102(2)(c). This argument must fail. To make out a claim based
on an employer's perception of disability, plaintiff must establish that
Sears regarded him as "significantly restricted in the ability to perform
either a class of jobs or a broad range of jobs."
29 C.F.R. § 1630.2(j)(3)(i); see also Francis v. City of Meriden,
129 F.3d 281, 284 (2d Cir. 1997). Therefore, whether Sears regarded
plaintiff as unable to perform his "normal work activities" of his lawn and
garden service job, therefore, is not determinative of whether Sears
perceived him as being disabled within the meaning of the ADA. See id. ("The inability to perform a single,
particular job does not constitute a substantial limitation in the major
lief activity of working.").
In addition, there is no evidence that Sears actually regarded
plaintiff as disabled and plaintiff's subjective belief that it did is
insufficient to withstand summary judgment. Cameron v. Cmty. Aid for
Retarded Children, Inc., 335 F.3d 60, 64-65 (2d Cir. 2003). In fact,
the record shows that Sears did not regard plaintiff as disabled. Sears
did not terminate plaintiff. Instead, it offered him a full-time flex
position and asked that he work under the same terms and conditions as
the other non-disabled employees in his service unit. Further, Sears was
prepared to offer plaintiff the service technician position in Horseheads
in the fall of 1999 had he been interested in it. These two undisputed
facts undermine any claim that Sears held a perception that plaintiff was
Because plaintiff has not shown that he meets the definition of
"disabled" under the ADA, Sears is entitled to summary judgment. See
Cameron, 335 F.3d at 65 (plaintiff failed to demonstrate that her
employer perceived her as disabled within the meaning of the ADA);
see also Ryan, 135 F.3d at 871-72 (affirming summary judgment to
employer where employee failed to establish that he suffered from an
impairment that substantially limited his ability to engage in a major
life activity); Bennette v. Cinemark, 295 F. Supp.2d 243,
255-56 (W.D.N.Y. 2003) (same).
II. Plaintiff's ADEA Claim
In addition, plaintiff's ADEA claim must be dismissed because plaintiff
has failed to establish a prima facie case of age
discrimination. To do so, plaintiff must show that he was within the
protected age group, he was qualified for the position, he was subject to
an adverse employment action, and the adverse action occurred under circumstances giving
rise to an inference of discrimination. Grady v. Affiliated Cent.,
Inc., 130 F.3d 553, 559 (2d Cir. 1997).*fn1
There is no dispute as to the first two elements. Further, I will
assume, without deciding, that the circumstances regarding his separation
from Sears and Sears's conduct with respect to the Horseheads service
position are "adverse" employment actions in the context of this case. As
to the fourth element of the prima facie case, I find that
plaintiff has not shown that either of these actions occurred under
circumstances that would give rise to an inference of age discrimination.
Plaintiff admitted that every active employee in the Hornell branch was
working on a full-time flex schedule, including at least two employees
that were younger than plaintiff. With the exception of one employee who
had been out of work on long term disability, plaintiff was the only
employee that was working on full-time schedule. Thus, by offering him a
full-time flex position, Sears was treating him like all of the other
employees in his branch.
The same can be said for the service position in Horseheads. The record
demonstrates that Sears had been changing its employment structure during
the 1990's and had begun to hire service technicians solely on full time
flex status. When plaintiff was informed that he would be treated like
any other candidate for the position, he simply chose not to accept the
job. Although plaintiff believed that he was entitled to return to Sears and receive the
same level of pay as when he agreed to be laid off, there is nothing in
the record to suggest that he was entitled to do so. Moreover, plaintiff
has failed to set forth any evidence that the decision to offer him a job
paying less than his previous wage, or under a different hours format,
was based on his age.
Furthermore, there is absolutely no evidence in the record that
plaintiff was treated any differently than younger employees, or that
Sears made the decisions regarding plaintiff because he was 49 years old.
Aside from his own assumption that Sears decided to place him on flex
time because of his age, there is nothing in the record from which a
reasonable juror could infer that Sears engaged in age discrimination.
It is well-settled that plaintiff has the burden at the outset of
"proving by a preponderance of the evidence a prima facie case
of discrimination." Texas Dep't of Cmty Affairs v. Burdine,
450 U.S. 248, 252-53 (1981). The Second Circuit has made clear that a court's
determination of whether the circumstances of a case give rise to an
inference sufficient to satisfy this fourth element "must be a
determination of whether the proffered admissible evidence shows
circumstances that would be sufficient to permit a rational finder of
fact to infer a discriminatory motive." Chambers v. TRMCopy Centers
Corp., 43 F.3d 29, 38 (2d Cir. 1994).
As the Second Circuit in Chambers observed:
Circumstances contributing to a permissible
inference of discriminatory intent may include the
employer's continuing, after discharging the
plaintiff, to seek applicants from persons of the
plaintiff's qualifications to fill that position,
see, e.g., Meiri v. Dacon, 759 F.2d 989,
995-96 (2d Cir.), cert. denied,
474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985); or the
employer's criticism of the plaintiff's
performance in . . . degrading terms, see,
e.g., Lopez v. S.B. Thomas, 831 F.2d at 1189;
or its invidious comments about others in the
employee's protected group, see, e.g.,
Ostrowski v. Atlantic Mutual Insurance
Companies, 968 F.2d 171, 182 (2d Cir. 1992); or
the more favorable treatment of employees not in
the protected group, see, e.g.,
Washington v. Garrett, 10 F.3d 1421, 1434 (9th
Cir. 1993) (in a supposed "reduction in force," the
plaintiff, a black, was the only person to lose
her job); or the sequence of events leading to the
plaintiff's discharge, see, e.g., Ostrowski v.
Atlantic Mutual Insurance Companies, 968 F.2d
at 183; or the timing of the discharge, see,
e.g., Dister v. Continental Group, Inc., 859
F.2d at 1115.
Id. at 37.
Here, however, plaintiff has failed to allege such circumstances, yet
alone produce evidence that any of these circumstances exist here to
support such an inference. He makes no allegations that his age was
discussed during his meeting with Cody. Plaintiff does not claim that he
was replaced by a younger employee, or that other younger employees were
offered full-time jobs at the Horseheads position. Nor does plaintiff
assert that stray comments were made in the Hornell section about older
employees. Rather, plaintiff bases his claim primarily on his subjective
beliefs that his age was the motivation behind Sears's decision making
process. This is not sufficient, and therefore, plaintiff has failed to
meet his minimal burden of establishing a prima facie case.
See Cameron, 335 F.3d at 63 (2d Cir. 2003) (quoting Meiri
v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)) (an employee's "
[p]urely conclusory allegations of discrimination, absent any concrete
particulars," are insufficient to defeat a summary judgment motion.);
see also Ludovicy v. Dunkirk Radiator Corp., 922 F.2d 109,
109-110 (2d Cir. 1990) (summary judgment warranted where plaintiff failed
to establish a prima facie case because he did not show that his
discharge occurred under circumstances giving rise to an inference of age
Defendant's motion for summary judgment (Dkt. #19) is granted, and
plaintiff's complaint is dismissed with prejudice.
IT IS SO ORDERED.