The opinion of the court was delivered by: STERLING JOHNSON, JR., District Judge
Plaintiff Barbara Lorinz ("Plaintiff") brings this action
against Defendant Turner Construction Company ("Defendant")
alleging violations of the Americans with Disabilities Act,
42 U.S.C. § 12112 et seq. (the "ADA"); the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"); the New York
State Human Rights Law, N.Y. Exec. Law § 290 et seq. (the
"NYHRL") and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq. (the
"NYCHRL"). Currently before this Court is Defendant's motion for
summary judgment. For the reasons stated herein, the motion is
FACTUAL AND PROCEDURAL BACKGROUND
In 1972, Plaintiff began her extensive career with Defendant.
(Pl.'s Rule 56.1 Statement at ¶ H.) In 1987, Plaintiff became a
full time project accountant. (Id.) Prior to her termination,
Plaintiff was a project accountant assigned to the IS-5 School
and New York Hospital of Queens construction projects. According
to Defendant, Plaintiff was responsible for: (1) preparing
monthly bills to clients; (2) preparing critical financial
reports to the corporate office concerning the financial status
of the projects assigned to her; (3) making monthly subcontractor
payments; (4) making monthly vendor payments; (5) doing weekly
payroll administration for Defendant employees at her assigned
projects; and (6) managing the filing of all project related
documents. (Def.'s Rule 56.1 Statement at ¶ 3.)
From 1995 until her termination, Tom Garcia ("Mr. Garcia")
served as Plaintiff's supervisor. (Id. at ¶ 2). From the
beginning of 1996, Plaintiff began to exhibit signs of depression
at work, in which she would cry daily on and off for twenty
minutes and would have difficulty concentrating. (Id. at ¶ 20.)
In April 1996, as part of her performance review, Plaintiff
received counseling and development concerning her computer
skills in the Excel and Eaton computer software programs. (Id.
at ¶ 21). Mr. Garcia was responsible for providing Plaintiff with
individualized computer training in these programs. (Id.)
During Plaintiff's training sessions, Mr. Garcia observed that "[she] would frequently cry and become unable to do
her work." (Id. at ¶ 23.) In July 1996, Mr. Garcia "suggested"
that Plaintiff take time off from work because of her
difficulties. (Id.) On August 1, 1996, Plaintiff's father died.
(Pl.'s Rule 56.1 Statement at ¶ 27.) Following his death,
Plaintiff requested and was given the month of August off.
(Id.) At the end of August, Plaintiff called and requested
additional time off, to which she was given. From September 1,
1996 through March 3, 1997, Plaintiff received benefits and wages
in accordance with Defendant's disability policies. (Id. at ¶
28.) From August 1, 1996 to February 1997, Plaintiff called her
supervisors to report on her medical status. (Def.'s
Rule 56.1 Statement at ¶ 32.) Defendant contends that Plaintiff informed
her supervisors that she was unable to return to work and was
emotional and upset during these conversations. Plaintiff also
submitted medical documentation concerning her mental capacity
and her inability to work. (Pl.'s Rule 56.1 Statement at ¶ 29.)
In February 1997, Plaintiff asked Mr. Garcia if she could
return to work on a part-time basis. (Id. at ¶ 32.) Mr. Garcia
responded that he would get back to her. (Id.) According to Mr.
Garcia, Plaintiff was crying and emotional during this
conversation, and when he asked if she was certain that she could
return to work, Plaintiff stated that she did not know but would
like to give it a try. (Def.'s Rule 56.1 Statement at ¶¶ 34-5.)
Mr. Garcia then returned Plaintiff's call and informed her that
Defendant did not have any part-time positions available and
terminated her employment. (Id. at ¶ 34.) According to
Plaintiff, Mr. Garcia informed her that she was being terminated for lack of work.*fn1 Defendant
maintains that Plaintiff was terminated because she was incapable
of returning to her former position and that no other positions
were available. (Id.) One month later, Defendant hired John
Episcopio ("Mr. Episcopio"), who was born on October 25, 1969, as
Plaintiff's replacement. (Pl.'s Rule 56.1 Statement at ¶ 37.)
Defendant eventually terminated Mr. Episcopio's employment
because of his inability to meet the job requirements. (Id.)
Plaintiff continued to receive disability benefits through June
1999. (Def.'s Rule 56.1 Statement at ¶ 41.)
In July 1997, Plaintiff filed a complaint with the New York
State Division of Human Rights Division alleging disability and
age discrimination. On or about April 2000, after an
investigation, the New York State Division of Human Rights found
that there is probable cause to believe that Defendant engaged in
unlawful discriminatory practices relating to Plaintiff's claims.
On October 12, 2000, Plaintiff filed the instant complaint.
Defendant filed the instant summary judgment motion.
I. Summary Judgment Standard
A moving party is entitled to summary judgment if "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 a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The burden is on
the movant to establish the absence of any genuine issue of
material fact. Celotex Corp., 477 U.S. at 323; see also
Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18
(2d Cir. 1995).
Once the movant has made a properly supported motion for
summary judgment, the burden shifts to the nonmoving party to
present "significantly probative" supporting evidence showing
that there is a material factual issue for trial. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Summary
judgment should be granted "against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial." Celotex Corp., 477 U.S. at 322;
see also Sim v. New York Mailers' Union No. 6,
166 F.3d 465, 469 (2d Cir. 1999).
Plaintiff alleges that Defendant discriminated against her in
violation of the ADA by unlawfully terminating her employment and
by failing to accommodate her disability. The ADA provides that
"no employer covered by the Act shall discriminate against a
qualified individual with a disability because of the disability
of such individual in regard to . . . the discharge of
employees." 42 U.S.C. § 12112(a). "A `qualified individual with a
disability' is an individual with a disability who, with or
without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds
or desires." 42 U.S.C. § 12111(8). To establish a prima facie case of discriminatory discharge
under the ADA, an employee must show: (1) that [she] is an
individual who has a disability within the meaning of the
statute, (2) that an employer covered by the statute had notice
of [her] disability, (3) that with reasonable accommodation,
[she] could perform the essential functions of the position
sought, and (4) that the employer has refused to make such
accommodations." Stone v. City of Mt. Vernon, 118 F.3d 92,
96-97 (2d Cir. 1997).*fn2 The Second Circuit has held that
"failure to make a reasonable accommodation, when the employee
has satisfied the first three elements of his claim, amounts to
discharge `because of' his disability." Parker v. Columbia
Pictures Indus., 204 F.3d 326, 332 (2d Cir. 2000) (quoting
Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 870 (2d Cir.
A. Is Plaintiff disabled?
The ADA defines a disability as either: (1) a physical or
mental impairment that substantially limits one or more of the
major life activities of [an] individual; (2) a record of such an
impairment; or (3) being regarded as having such an impairment.
See 42 U.S.C. § ...