The opinion of the court was delivered by: NEAL McCURN, Senior District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff, Richard M. Picinich ("Picinich") brings this suit
against United Parcel Service ("UPS"), United Parcel Service of
America, Inc. ("UPS of America"), Jim Grover ("Grover"), Brendan
Canavan ("Canavan"), and Jeffrey Wilson ("Wilson"), alleging
violations of the Americans with Disabilities Act ("ADA") and New
York Human Rights Law ("NYHRL").*fn1 Presently before the
court is the defendants' motion for summary judgment dismissing
the entire complaint. Also before the court is a motion for
partial summary judgment by the plaintiff. Oral argument was
heard regarding the pending motions on December 22, 2003 in
Syracuse, New York. Decision was reserved.
Picinich began his employment with defendant UPS in 1976. From
1982 until 1991, he held various management level positions which
required him to supervise operations at different UPS facilities,
primarily in New Jersey. Picinich was promoted to Security
Manager in June 1991, and UPS relocated him to its Upstate New
York District ("Upstate N.Y. District"), where he continued as a
Security Manager until June 1999. The Security Manager position
required that Picinich work out of Syracuse, New York and
complete security responsibilities in an area spanning from the
New York-Canadian border to the north, Albany, New York to the
east, and Binghamton, New York to the south.
On July 1, 1999, Picinich was reassigned to a new position,
entitled District Damage Coordinator, in the Damage Recovery
Group of the Upstate N.Y. District. In November 1999, Picinich was temporarily assigned to an
operations management position in Utica, New York, entitled
Preload Manager, and in December 1999, he was notified that the
assignment was permanent. Picinich objected to this assignment
for reasons unrelated to the present motions, and elected to
challenge same through the "Employee Dispute Resolution" ("EDR")
process at UPS. As the first step of EDR, Picinich met with Doye
Lux, the District Manager at that time, and defendant Grover on
January 7, 2000 to ask that he be placed back on his career path
in the area of security. Picinich also requested a "peer review"
hearing with a committee, which included two representatives
selected by him and one selected by UPS. The hearing, held on
March 2, 2000, resulted in a decision by the committee that
Picinich's reassignment to the Preload Manager position was
appropriate. See Aff. of Jonathan J. Harper, Oct. 8, 2003 at
Ex. 3, Dkt. No. 40.
Prior to the hearing, on January 20, 2000, Picinich "called
out" from work due to a back condition, for which he had been
receiving medical treatment for approximately three weeks. See
Pl.'s Ex. D, Dep. of Richard Picinich, Feb. 24, 2003 ("Picinich
Dep. I") at 204:20-205:14, Dkt. No. 45.*fn2 A review of
Picinich's deposition transcript indicates that he testified to
experiencing back pain while at work in the early morning on
January 20, 2000, that he called Dr. J. Christopher Stringer on
the same day and was told not to go into work that evening, as
his shift was to begin at approximately 9:00 p.m. on January 20,
2000 and end in the early morning of January 21, 2000. On February 1, 2000, Picinich began short-term disability
leave, which included continuation of his full salary,*fn3
after Dr. Jeffery Kahn, to whom he was referred by Dr. Stringer,
notified UPS that Picinich could not return to work due to a back
injury. Dr. Kahn issued a physician's note on January 21, 2000
which stated that Picinich was "temporarily totally disabled"
until further notice.*fn4 See Harper Aff. at Ex. 4, Dkt.
No. 40. Dr. Kahn issued a report after Picinich's January 21,
2000 office visit, wherein he stated that "it is contraindicated
for [Picinich] to perform the type of work that he does, given
the fact that he has a subacute disc herniation, and with the
minimum of two hours of sitting per day in traveling from
Syracuse to Utica that is required for his job. I am going to
provide him with an out of work note until further notice." Id.
at Ex. 5. On March 10, 2000, Dr. Kahn diagnosed Picinich with
"multilevel lumbar disc herniations with radiculopathy" and
stated that the work restrictions in place at that time should
not be modified. See Pl.'s Ex. 6, Dkt. No. 45.
On March 15, 2000, Picinich underwent an independent medical
examination ("IME") at the request of CIGNA, the then
administrator of disability benefits for UPS. Defendants contend
that Dr. W. David Ferraraccio, the orthopedic surgeon who
conducted the IME, concluded that Picinich "could return to the pre-load within certain medical restrictions." See
Defs.' Statement of Material Facts at ¶ 29, Dkt. No. 38. In fact,
as Picinich correctly notes, the IME report indicates that he
"cannot return to his previous employment with the degree of
lifting, bending, and stooping involved." Dr. Ferraraccio further
stated in this report that "[i]f work were available where
[Picinich's] lifting could be limited to no more than 10 to 12
pounds on an occasional basis where he did not have to bend,
twist, stoop, push or pull repetitively, and where he had
complete freedom to change position from sitting to standing at
will, I would feel this to be satisfactory." See Harper Aff. at
Ex. 6, Dkt. No. 40. Dr. Kahn informed CIGNA on March 27, 2000
that after review of Dr. Ferraraccio's report, he agreed that
Picinich could return to his previous job only if his work were
modified appropriately and that he could not return to his
previous job with the degree of lifting, bending and stooping
involved. See Pl.'s Ex. 10, Dkt. No. 45. By letter dated March
31, 2000, CIGNA notified Picinich that it recommended immediate
termination of his wage continuation benefits because, based on
the reports of Drs. Ferraraccio and Kahn, UPS determined "that
they are able to make reasonable accommodations in order for
[Picinich] to successfully return to work." See Pl.'s Ex. 11,
Dkt. No. 45.
On April 3, 2000, Dr. Kahn notified CIGNA that Picinich could
return to work with the following restrictions: no bending or
lifting below the waist, no more than 30 minutes of standing or
walking, no lifting in excess of 10 pounds between waist and
shoulder level, no kneeling, stooping, bending, climbing or
twisting, and no driving more than 30 minutes. See Pl.'s Ex.
12, Dkt. No. 45. Dr. Kahn also stated that he expected the
aforementioned restrictions would remain on a permanent basis,
and that considering, among other factors, the driving distance between Picinich's home and the UPS location where he last
worked, Picinich "could not return to his work activities" as
Kahn understood them to be offered at that time. See id.
UPS requested a meeting with Picinich to discuss his return to
work, and on April 7, 2000, Picinich met with four UPS
representatives, including Registered Nurse Robin Fey,
Occupational Health Manager for the Upstate N.Y. District, and
defendant Grover, and reviewed his work restrictions. During that
meeting, Picinich was told to work within his restrictions, and
that a part time Preload Supervisor would be available to assist
him. On April 10, 2000, Dr. Kahn issued a formal release for
Picinich to return to work within the restrictions he outlined
for CIGNA on April 3, 2000.
Picinich contends that he returned to work as the Preload
Manager at the UPS facility in Utica in the evening of April 11,
2000 and worked "for three or so days" until Dr. Kahn removed him
from work "because of the pain and condition [he] was in." See
Aff. of Richard Picinich, Oct. 27, 2003 at ¶ 9, Dkt. No. 44;
Pl.'s Ex. E, Dep. of Richard Picinich, Mar. 17, 2003 ("Picinich
Dep. II") at 70:4-23, Dkt. No. 45. According to Picinich, when he
arrived at work on the evening of April 11, 2000, he discovered
that the part time Preload Supervisor, Scott Briggs, was in a
knee brace because, according to Mr. Briggs, he underwent knee
surgery. See Picinich Aff. at ¶ 9, Dkt. No. 44. Further,
Picinich contends that during the three days of his return to
work, Mr. Briggs was unable to assist Picinich with any physical
activities and requested that Picinich train new employees,
since, Mr. Briggs claimed, he was unable to do so due to his
knee. Id. at ¶ 10. Also during this time, Picinich contends he
"was forced to restrain a package sliding towards [him] to
protect [himself] while on the operations floor, to twist and
bend due to inadequate room, to maneuver on the operations floor, to be on
[his] feet most of the day, and to train new employees." Id. at ¶
11.*fn5 On April 14, 2000, Dr. Kahn removed Picinich from
work "effective immediately," stating that he was to be
considered "temporarily totally disabled until further notice."
See Harper Aff. at Ex. 9, Dkt. No. 40.
Picinich contends that in May 2000, he asked Robin Fey about
returning to work, and in June 2000, he inquired with her about
relocating to another district. See Pl.'s Ex. J, Dep. of Robin
Fey, Feb. 26, 2003 at 138:17-139:5, 148:7-149:5, Dkt. No. 45.
However, on June 15, 2000, Dr. Kahn diagnosed Picinich with
"multilevel lumbar degenerative disc disease with bilateral L5
and left S1 radiculopathies" and concluded that, regarding work
issues, he "would like to have [Picinich] perform an aggressive
stabilization program for the next four weeks before considering
any release to return to work at this time." Moreover, Dr. Kahn
stated that "the violation of the guidelines for return to work
parameters which occurred in April cannot occur again, and unless
I receive some written assurance that such will not occur and a
detailed job description which will be adhered to is provided, no
return to work release will be provided, and [Picinich] will be
considered permanently disabled." See Pl.'s Ex. 18, Dkt. No.
Thereafter, on July 13, 2000, Picinich underwent a functional
capacity exam ("FCE") at the request of CIGNA.*fn6 After the exam,
Picinich was examined by Dr. Kahn, who later reported that
Picinich suffered re-injury from the FCE and he could not predict
the degree to which Picinich would recover or the time it would
take. See Pl.'s Ex. 19, Dkt. No. 45; Harper Aff. at Ex. 10,
Dkt. No. 40. On July 20, 2000, Dr. Kahn issued another report in
which he stated that Picinich was to be considered "temporarily
totally disabled from any type of work activities" at that
time. See Harper Aff. at Ex. 11, Dkt. No. 40 (emphasis added).
The following month, August 2000, Picinich told Robin Fey that
he wanted to be a productive employee at UPS. However, on August
15, 2000, Dr. Kahn issued a report which stated that Picinich was
"temporarily totally disabled from employment." In a meeting
between Picinich and defendants Grover and Canavan on September
25, 2000, Picinich indicated that he wished to return to work,
requested a staff position, mentioned he was having back
problems, and requested a reasonable accommodation. However, Dr.
Kahn notified UPS, on November 3 and 28, 2000, that he continued
to deem Picinich "temporarily totally disabled".
On January 5, 2001, Dr. Kahn released Picinich for work, with
the following restrictions:
 No sitting, standing, driving or walking more
than 25 minutes at a time.
 No bending, lifting, carrying, climbing,
stooping, kneeling, twisting, or squatting on a
 He must be placed in a work environment where he
has an adequate space and safe area to be able to
perform prone extensions on an hourly basis or more
frequent as needed.
 He must be afforded the opportunity to change
positions every 25 minutes as described above.
Additionally, Dr. Kahn reported that Picinich needed to work,
on a permanent basis, in a "sedentary position, with no physical
handling activities of any type." Pl.'s Ex. 25, Dkt. No. 45. On
January 12, 2001, in response to a request by Dave Matt, District
Workforce Planning Manager at UPS,*fn7
Dr. Kahn reported
that, as of that date, Picinich was unable to perform all of the
physical and mental functions of the Preload Manager position as
reported by UPS. See Harper Aff. at Ex. 15, Dkt. No. 40. Dr.
Kahn also reported that, regarding the Preload Manager position,
Picinich was unable to perform the following functions: load or
unload packages of up to 70 pounds, bend, stoop, crouch, crawl,
climb, turn-pivot, lift and lower packages up to 70 pounds,
assist in moving packages up to 150 pounds, or lift above
shoulder or below waist to foot level. See id. Further, Dr.
Kahn reported that Picinich could travel by car on a limited
basis, to wit, 25 minutes at a time. See id. See also Pl.'s
Ex. K, Kahn Dep. at 90:8-25, 113:9-16, Dkt. No. 45. On February
1, 2001, in response to another request from Dave Matt, Dr. Kahn
reworded his aforementioned restrictions as capabilities as
It is my opinion within a reasonable degree of
medical certainty that [Picinich] can work in a full
time sedentary position within the following
 He may alternate between sitting, standing and
walking, with none of those activities performed more
than 25 minutes at a time, prior to change in
position, and may drive up to 25 minutes from his
home to work place.  He may utilize standard office equipment at his
desk such as a calculator, computer or telephone.
 He must be allowed to work in an environment
where there is a safe area to allow him to perform
exercises previously described at least on an hourly
basis for a few minutes, or more frequently if
Harper Aff. at Ex. 18, Dkt. No. 40. Dr. Kahn concluded by stating
that Picinich "may not perform any bending, lifting, carrying,
climbing, stooping, kneeling, twisting or squatting at any time . . .
[and] may not perform any physical handling type activities,
drive a vehicle other than his own vehicle to and from work, or
climb any more than a few stairs to access his work space, with
full restriction on repetitious stair climbing as an integral
part of work activities." Id.
On January 19, 2001, Picinich asked Robin Fey if he could
transfer to another district, to which she replied that she "did
not know but  would ask." See Pl.'s Ex. J, Fey Dep. at
198:5-17, Dkt. No. 45. On February 1, 2001, UPS employee Tom
Wolfe was promoted from Security Supervisor to replace Bev
Mehalik as Security Manager in Pennsylvania. Defendants contend
they were unaware of the date Mr. Wolfe was recommended for the
On March 20, 2001, Dave Matt issued a letter to Picinich which
stated that "[o]ver the last several weeks, UPS has carefully
evaluated your request for a job-related accommodation . . .
[and] . . . based upon the medical information that we have
received, we have made a preliminary determination that you may
be eligible for a reasonable accommodation pursuant to the
[ADA]." Pl.'s Ex. 33, Dkt. No. 45. Matt concluded the letter by
informing Picinich that a meeting was scheduled for April 4, 2001
so that UPS could continue its assessment of Picinich's request,
and that Picinich should be prepared to discuss in detail the
specific accommodation he was requesting. See id. At the April 4, 2001 meeting, Picinich, Robin Fey and Dave Matt
discussed potential accommodations regarding the Preload Manager
position. UPS, citing a memorandum issued to defendant Wilson
from Dave Matt and Robin Fey regarding the commentary at the
meeting, argues that, at the meeting, Picinich said there were no
accommodations which would allow him to perform the Preload
Manager position. See Harper Aff. at Ex. 20, Dkt. No. 40.
Picinich testified, however, that at the meeting he indicated he
was capable of performing this position. See Pl.'s Ex. E,
Picinich Dep. II at 106:5-9, Dkt. No. 45.
According to defendant Wilson, a UPS region committee deemed
Picinich to be a qualified individual with a disability pursuant
to the UPS ADA procedure. See Pl.'s Ex. F, Dep. of Jeffrey
Wilson, Mar. 19, 2003 at 14:2-15:13, 140:11-146:16, Dkt. No. 45.
Defendants dispute the accuracy of Wilson's testimony by citing
to the written UPS ADA procedure as evidence that the region
committee was only authorized "to determine whether [Picinich]
has a condition that may be a disability under the ADA." See
Harper Aff., Ex. 16 at 319, Dkt. No. 40. According to defendants,
UPS only determined that Picinich was "disabled" under its ADA
policy, not, as Wilson testified, that Picinich was a qualified
individual with a disability. See Defs.' Statement of Material
Facts at ¶ 55, Dkt. No. 38. Further, defendants contend that UPS
worked to identify a reasonable accommodation which would allow
Picinich to return to work, citing as evidence a copy of its
"Accommodation Checklist" completed by Picinich, Dave Matt and
Robin Fey on April 4, 2001. See id., citing Harper Aff. at
Ex. 19, Dkt. No. 40. Picinich disputes the accuracy of this
allegation, citing the testimony of Robin Fey and defendant
Grover that UPS did not begin its ADA procedure when he was
released for work in April 2000, see Pl.'s Ex. J, Fey Dep. at
77:11-25, 198:5-23, Dkt. No. 45; Pl.'s Ex. H, Grover Dep. at 154:19-156:7, Dkt. No.
45, and the testimony of Robin Fey that she did not recall
whether she inquired about available positions outside the
District on behalf of Picinich as he requested in January 2001,
and that no essential job functions other than those for the
Preload Manager position were discussed at the April 4, 2001
meeting, see Pl.'s Ex. J, Fey Dep. at 223:8-16, 228:18-23, Dkt.
On April 13, 2001, Dave Matt issued a letter to Picinich
wherein he stated that "after carefully reviewing your situation,
we are aware of no available position at UPS at this time for
which your [sic] are qualified and capable of performing the
essential job functions with or without reasonable accommodation.
If your condition or abilities change in the future, however, or
if you become aware of an open position that you believe you are
capable of performing, please contact me so that we may
re-evaluate your situation." See Harper Aff. at Ex. 21, Dkt.
No. 40. Picinich testified that he did not recall whether, at the
time he received this letter, he was aware of any available
manager positions in the Upstate N.Y. District that he was
qualified to perform. See id., Picinich Dep. II at 107:3-12,
Dkt. No. 40. Picinich simply states that he can perform the
essential job functions of several jobs at UPS. See Pl.'s
Response to Defs.' Statement of Material Facts at ¶¶ 83-88, Dkt.
Picinich contested the decision of UPS' ADA committee through
its EDR process, and a meeting was held on May 14, 2001 between
Picinich, Wilson and Robin Fey to discuss same. Both of
Picinich's EDR claims, regarding his reassignment to Preload
Manager, see supra, at 3, as well as the ADA committee
decision, were scheduled to be heard together on June 11, 2001 at
mediation sponsored by UPS. Picinich cancelled the mediation
prior to its commencement, ostensibly because he was given only five days notice that his
ADA claim would be mediated along with his dispute regarding his
reassignment to Preload Manager. See Picinich Aff. at ¶ 20,
Dkt. No. 44.*fn8
On June 4, 2001, Wilson notified Picinich that a position
entitled "Dispatch Specialist/Yard Controller" opened up in
Syracuse. By letter dated June 6, 2001, Wilson provided Picinich
with a Job Breakdown Analysis (JBA) and other information
regarding this position. On June 23, 2001, Picinich sent a letter
to Wilson wherein he requested additional information about the
physical requirements of the position. Attached to Picinich's
letter was a copy of a letter from Dr. Kahn to Picinich, dated
June 15, 2001, wherein Dr. Kahn stated he was unable to determine
whether the position was "medically appropriate and safe" for
Picinich to accept without more detailed information regarding
the physical demands of the job, including, among other things,
the availability and timing of breaks, equipment used, and
frequency with which changes in body position can be
accommodated.*fn9 See Pl.'s Ex. 44, Dkt. No. 45. Defendants contend that on July 11, 2001, Wilson sent Picinich
written notification of the physical requirements of the Dispatch
Specialist/Yard Controller position as well as pictures of the
workspace, giving him until July 19, 2001 to consider same, but
Picinich never accepted the job offer. See Harper Aff. at Ex.
25, Dkt. No. 40; Harper Aff. at Ex. 30, Picinich Dep. II at
123:15-25, Dkt. No. 40. Picinich testified that he never accepted
nor rejected the job offer because he never received the July 11,
2001 letter from Wilson. See Pl.'s Ex. E, Picinich Dep. II at
123:15-19, 126:8-15, Dkt., No. 45.*fn10 Defendants argue
that Picinich never followed up with Wilson about Picinich's
request for additional information on the Dispatch
Specialist/Yard Controller position, even though he alleges never
receiving it. See Harper Aff. at Ex. 30, Picinich Dep. II at
123:15-25, Dkt. No. 40. However, Picinich contends that he made
three phone calls in an attempt to speak to Wilson after he sent
the June 23, 2001 letter. See Pl.'s Ex. B, Pl.'s Response to
Defs.' First Set of Interrogs. at 15, Dkt. No. 45; Picinich Aff.
at ¶ 26, Dkt. No. 44.
In any event, on June 26, 2001, Dr. Kahn reported that
"[Picinich's] physical condition at this point in time has
decompensated to the point where I do not feel that he can
presently work even within the context of his previously
indicated written release for return to work with restriction and
accommodation. Therefore, I am going to consider him temporarily
totally disabled from work at this point until we can resolve
this acute episode." Harper Aff. at Ex. 27, Dkt. No. 40.
Moreover, Dr. Kahn later testified that from May 25, 2001 until
August 28, 2001, Picinich was totally disabled from working in
any position, including the Dispatch Specialist/Yard Controller position as described in
Wilson's letter of July 11, 2001. See Harper Aff. at Ex. 34,
Kahn Dep. at 95:16-97:12, Dkt. No. 40 (emphasis added).
According to defendants, Picinich's short-term disability
benefit terminated, and his long-term disability benefit
commenced, on May 9, 2001. See Defs.' Statement of Material
Facts at ¶ 62, Dkt. No. 38, citing Harper Aff. at Ex. 31,
Wilson Dep. at 275:1-277:9, Dkt. No. 40. Under long-term
disability, Picinich's benefit was reduced to 60% of his salary
from the full salary benefit he received under short-term
disability. See id. Picinich contends that he received his last
short-term disability payment in March 2001 and that his
long-term disability commenced in April 2001. See Picinich Aff.
at ¶ 15, Dkt. No. 44. In support of his argument, Picinich
submitted a copy of a "Separation Form" signed by Robin Fey on
May 9, 2001, which states that Picinich was terminated on
February 1, 2001, and that his long-term disability commenced on
that date. See Pl.'s Ex. 42, Dkt. No. 45. Defendant Wilson
testified that although the "summary plan" at UPS calls for
short-term disability benefits to terminate after 12 months,
Picinich received an extra two months of short-term benefits
because, as of February 2001, UPS was "still in the process of
trying to continue with the interactive process and the
evaluation of potential accommodations and positions" and it was
not until May 9, 2001 that "it was determined that, to be in
compliance with the necessary record keeping on the
administrative process whereby short-term disability ends and
long-term disability begins according to the summary plan
description, that [UPS] needed to go ahead and take this
particular step." Harper Aff. at Ex. 31, Wilson Dep. at 275:1-20,
Dkt. No. 40. Picinich's long-term disability benefit terminated
on January 30, 2003. In a letter to Picinich informing him of
such, the insurance carrier noted that, based on a vocational assessment of
his case, they determined that he was capable of performing the
jobs of Security Manager and Manager. See Pl.'s Ex. 47, Dkt.
In March 2002, an Administrative Law Judge ("ALJ") for the
Social Security Administration ("SSA") found that Picinich was
entitled to Social Security Disability benefits, based on an
application he filed in November 2000. The ALJ found that
Picinich "has been under a disability, as defined by the Social
Security Act, since January 21, 2000." See Harper Aff. at Ex.
28, Dkt. No. 40 (emphasis added). The ALJ also concluded that
is unable to do sustained work-related physical
activities in a work setting on a regular and
continuing basis of 8 hours a day, for 5 days a week,
or an equivalent work schedule. That ability is
essential for employment and when a claimant lacks
that ability the provisions of Social Security
Ruling 96-8p justify a conclusion of disability.
[Picinich's] occupational base is so markedly eroded
that vocational adjustment to any work existing in
significant numbers in the national economy may not
reasonably be expected.
Id. (emphasis added). The UPS Flexible Benefits Plan stated that
long-term disability benefits could be terminated for failure "to
apply, reapply, and appeal any denials of Social Security
Disability insurance benefit[s] . . . to which you may be
entitled, until all such applications and appeals are exhausted."
See Pl.'s Ex. 22 at UPS00554, Dkt. No. 45.
Picinich filed a dual charge of discrimination with the Equal
Employment Opportunity Commission ("EEOC") and the New York State
Division of Human Rights in May 2001, alleging UPS failed to
accommodate his disability. In September 2001 the EEOC issued
Picinich a "right-to-sue" letter.
On December 7, 2001, Picinich commenced the present suit. In
its current form, the complaint*fn11 sets forth three causes of action.
As Count I, Picinich alleges that defendant UPS*fn12 failed
to provide him with a reasonable accommodation in violation of
the ADA and NYHRL. See Compl. ¶ 38. Picinich alleges in Count
II of the Complaint that defendant UPS terminated his employment
due to his disability in violation of the ADA and NYHRL. See
id., ¶ 39. Finally, in Count III of the Complaint, Picinich
alleges that the individual defendants, Grover, Canavan and
Wilson, aided and abetted defendant UPS in committing violations
of the NYHRL. See id., ¶ 40.
Picinich seeks an order causing UPS to rehire him "at a
sedentary supervisory or management position comparable to [his]
prior supervisory and management positions for which [he] is
qualified to perform with a reasonable accommodation" or in the
alternative, damages in the amount of $3,107,034.80 against
defendants jointly and severally for past and future lost wages
and benefits as well as pension benefits. Picinich also seeks $300,000 in
compensatory damages against defendants jointly and severally,
or, in the alternative, against defendant UPS. Finally, Picinich
seeks an award of litigation costs and expenses.
Defendants now move for summary judgment pursuant to
Fed.R.Civ.P. 56, seeking dismissal of the entire complaint. Picinich
opposes and cross moves for partial summary judgment pursuant to
Fed.R.Civ.P. 56, seeking an order that the first two elements
of his reasonable accommodation claim, to wit, that he was
disabled within the meaning of the ADA and NYHRL and that
defendants had notice of same, have been established as a matter
of law. For purposes of their motion for summary judgment,
defendants do not oppose a finding of disability and notice under
Picinich's reasonable accommodation claim, as they argue that he
cannot establish the final two elements of said claim, to wit,
that he could perform the essential functions of his job with a
reasonable accommodation, and that UPS failed to make such
accommodations. However, in the event the court denies their
motion for summary judgment, defendants oppose Picinich's cross
A. Summary Judgment Standard
A motion for summary judgment shall be granted "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, 106 S.Ct. 2548, 2552 (1986); Peck v. Public
Serv. Mut. Ins. Co., 326 F.3d 330, 337 (2d Cir. 2003), cert.
denied, 124 S.Ct. 540 (2003). When deciding whether to grant a
motion for summary judgment, "a court must construe the facts in the light
most favorable to the non-moving party and must resolve all
ambiguities and draw all reasonable inferences against the
movant." See Baisch v. Gallina, 346 F.3d 366, 372 (2d Cir.
2003), citing Anderson V. Liberty Lobby, Inc., 477 U.S. 242,
255, 106 S.Ct. 2505 (1986). While the initial burden of
demonstrating the absence of a genuine issue of material fact
falls upon the moving party, once that burden is met, the
non-moving party must "set forth specific facts showing that
there is a genuine issue for trial," see Koch v. Town of
Brattleboro, Vermont, 287 F.3d 162, 165 (2d Cir. 2002), citing
Fed.R.Civ.P. 56(c), by a showing sufficient to establish the
existence of every element essential to the party's case, and on
which that party will bear the burden of proof at trial. See
Peck, 326 F.3d at 337.
B. Count I: Failure to Provide a Reasonable Accommodation
Picinich alleges that defendant UPS failed to provide him a
reasonable accommodation in violation of the ADA and NYHRL.
According to the ADA,
[n]o covered entity*fn13 shall discriminate
against a qualified individual with a disability
because of the disability of such individual in
regard to [among other things] the advancement or
discharge of employees, employee compensation, . . .
and other terms, conditions, and privileges of
42 U.S.C. § 12112(a). The term "discriminate" is defined by the
ADA as, among other things,
[n]ot making reasonable accommodations to the known
physical or mental limitations of an otherwise
qualified individual with a disability who is an . . .
employee, unless [the employer] can demonstrate that the accommodation would impose an
undue hardship on the operation of the business of
42 U.S.C. § 12112(b)(5)(A). Pursuant to NYHRL,
[i]t shall be an unlawful discriminatory practice for
an employer . . ., to refuse to provide reasonable
accommodations to the known disabilities of an
employee . . . in connection with a job or occupation
sought or held.
N.Y. Exec. L. § 296.3(a) (McKinney 2003). NYHRL also specifies
that an employer is not required to provide "accommodations which
can be demonstrated to impose an undue hardship on the operation
of [the] employer's . . . business, program or enterprise." N.Y.
Exec. L. § 296.3(b).
In order to establish a prima facie case of failure to provide
a reasonable accommodation pursuant to the ADA and
NYHRL,*fn14 Picinich must establish that (1) he is an
individual with a disability as defined by the ADA, (2) UPS had
notice of his disability, (3) he could perform the essential
functions of his job with reasonable accommodation, and (4) UPS
failed to make such accommodations. See Lovejoy-Wilson v. Noco
Motor Fuel, Inc., 263 F.3d 208, 216 (2d Cir. 2001); Mitchell v.
Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir. 1999);
Romanello v. Shiseido Cosmetics Am. Ltd., 00-Civ.-7201, 2002 WL
31190169, at *7 (S.D.N.Y. Sept. 30, 2002), aff'd, No. 02-9212,
2003 WL 21728998 (2d Cir. July 23, 2003). However, UPS can defeat
Picinich's claim of failure to accommodate if it can establish
"(1) that making a reasonable accommodation would cause it
hardship, and (2) that the hardship would be undue." See
Mitchell, 109 F.3d at 6. See also Romanello, 2002 WL
31190169 at *7. For purposes of its summary judgment motion only, UPS concedes
that Picinich was disabled within the meaning of the ADA and
NYHRL at all relevant times and that UPS had ...