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Moguel v. Covenant House/New York


September 29, 2004


The opinion of the court was delivered by: Sweet, D.J.


Defendant Covenant House/New York ("Covenant House"), incorrectly named herein Covenant House, has moved for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure, dismissing the complaint of plaintiff Elvis Moguel ("Moguel"), who is proceeding pro se. For the reasons set forth below, Covenant House's motion for summary judgment is granted, and this action is dismissed.

Prior Proceedings

On July 16, 2002, Moguel filed a complaint with the New York State Division of Human Rights ("NYDHR") alleging that Covenant House, his former employer, had engaged in unlawful discriminatory practices with regard to gender and disability. On February 13, 2003, the NYDHR issued a no-probable-cause determination following a fact-finding investigation. On March 24, 2003, the Equal Employment Opportunity Commission ("EEOC") issued a Notice of Right to Sue.

Thereafter, Moguel commenced this action on April 29, 2003, against Covenant House, alleging gender-based discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law (the"NYHRL"), N.Y. Exec. Law § 296, as well as disability-based discrimination in violation of the Americans with Disabilities Act of 1990 (the"ADA"), 42 U.S.C. § 12101 et seq., and the NYHRL, N.Y. Exec. Law § 292. Moguel's complaint also contains a retaliation claim pursuant to both Title VII and the ADA.

On August 1, 2003, Covenant House served its answer to the complaint. The parties thereafter conducted written discovery and Moguel was deposed on February 19, 2004. Covenant House then brought the instant motion for summary judgment on March 31, 2004, which was noticed for submission on May 5, 2004. Among its motion papers, Covenant House included a notice pursuant to Local Civil Rule 56.2 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, notifying Moguel of the importance of submitting materials in response to Covenant House's motion. No opposition papers were filed by Moguel, and on May 4, 2004, Covenant House filed reply papers urging that its motion be granted.

By a letter to the Court dated June 28, 2004, Moguel requested a thirty-day extension of time in order to oppose Covenant House's motion, indicating that he had been attending to a family emergency out of the state and had only learned about Covenant House's motion upon returning to New York. Moguel indicated in his letter that he strongly opposed Covenant House's motion. Moguel's request was granted on June 29, 2004.

No opposition papers from Moguel having been received during the thirty-day extension of time, Covenant House's motion was deemed fully submitted upon expiration of the extension period.

The Facts

The facts are set forth based upon Covenant House's Local Civil Rule 56.1 statement and supporting affirmation. In the absence of any opposition by Moguel to Covenant House's motion in the form of sworn affidavits or other papers, these facts are deemed admitted by Moguel and are taken as true for the purposes of this motion. See Vermont Teddy Bear Co. v. 1-800 BEARGRAM Co., 373 F.3d 241, 246 (2d Cir. 2004); LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 211 (2d Cir. 2001). The facts set forth below do not constitute findings of fact by the Court.

Covenant House is a not-for-profit childcare agency that provides shelter and services to homeless and runaway children. In addition to food, shelter, clothing and crisis care, Covenant House provides a variety of services to homeless youth including health care, education, vocational programs, legal services, recreation, mother/child programs, transitional living programs, street outreach and aftercare.

Moguel worked in house maintenance/facilities at three of Covenant House's New York locations. He was hired on January 27, 1997, to work 40 hours per week as a porter in the Facilities Department. At times during his employment, Moguel was given increased duties due to reduced staff, but he was never required to work more than 40 hours per week.

Covenant House enforces its sick leave and medical leave of absence policies. The abuse of these policies by employees is not tolerated because it imposes a financial strain on Covenant House's ability to provide its services to the public.

At the beginning of employment, Covenant House provides each new employee with its Employee Handbook (the"Handbook") which describes Covenant House's time and attendance requirements. The Handbook also outlines the requirements employees must fulfill in order to take a leave of absence. Covenant House requires its employees to complete all requisite leave forms in order to take a leave of absence and/or short-term disability leave.

According to the Handbook, a medical leave of absence will commence after an absence of five consecutive sick days. In order to take an approved medical leave of absence, an employee must complete a disability form with a physician's statement, certifying the date disability will commence and the expected date the employee will return to normal duties.

The Handbook specifically requires employees to provide a doctor's note to substantiate an absence from work if the employee has, or is developing, an attendance problem.

Moguel was aware that the Handbook requires employees to complete leave of absence forms if an employee is out of work for five days or more. Upon being hired by Covenant House, Moguel received and reviewed the entire contents of the Handbook. He also received and reviewed numerous other items listed in an employee checklist provided by Covenant House.

During Moguel's employment, he exercised regularly, played in basketball tournaments, and worked out at the gym.

During his employment with Covenant House over a span of five and a half years, Moguel was absent at least 99 times. Moguel acknowledges that he was absent approximately 99 times during his employment with Covenant House. Specifically, he acknowledges that he was absent seven days in 1997, eleven days in 1998, and thirteen days in 1999, although he contends that many of these absences were excused.

He further acknowledges that he was absent eleven days between January 2000 and May 2000. He acknowledges that his evaluation for 2000 noted that he was absent ten days that year.

Moguel acknowledges that he was absent 24 days in 2001 and that he missed eight days of work in April 2002 due to an ankle sprain.

Covenant House gave Moguel warnings and suspensions for absenteeism in August 1998, November 1998, and October 1999. In May 2000, Moguel was given another warning because he was absent eleven times and late three times during a five-month period. On November 19, 2001, Moguel was given another warning because he had called in sick 25 times since the beginning of that year and he had been absent five more times.

Moguel disputed certain of the disciplinary sanctions against him for excessive lateness or absences and filed grievances or objections in opposition to the discipline. None of Moguel's grievances involved allegations of discrimination or sought to oppose a discriminatory practice by Covenant House. In response to Moguel's grievances and objections, Covenant House amended certain of the disciplinary sanctions issued.

Moguel testified at his deposition that some supervisors permitted him to use vacation days for sick days, while other supervisors did not permit this exchange. He also indicated his belief that if he brought a doctor's note, his absence was excused and not counted as an absence.

In April 2002, Judy Mills ("Mills") spoke to Moguel and requested that he complete disability forms because he had been absent for five or more consecutive days. Moguel did not complete the disability forms.

On June 2, 2002, Moguel injured his ankle when it was hit by a stray ball while he was playing basketball. On June 5, 2002, he went to a doctor regarding his ankle injury. That same day, Moguel provided Covenant House with a note from his doctor stating that he would be out of work until June 10, 2002. Moguel did not provide a doctor's note for the first two days of his absence.

On June 10, 2002, Moguel telephoned his supervisor, Sharon Williams ("Williams"), and informed her that he would be out of work for the week and he hoped to return on June 17, 2002. On June 12, 2002, Mills telephoned Moguel and informed him that, pursuant to company policy, he was required to submit a disability form for his absence from April 5 through April 16, 2002 and requisite forms for the absence beginning on June 3, 2002. Moguel had disability leave forms in his possession in June 2002 before he received copies of such forms from Mills. Moguel never provided the requisite leave forms.

Moguel acknowledges that he was absent from work for two weeks in June 2002 due to a lower leg soft tissue injury. Moguel was able to walk with the assistance of a cane or walking stick on June 5, 2002 and on June 12, 2002.

On June 17, 2002, Mills telephoned Moguel and informed him that he was terminated for excessive absenteeism and failure to follow company procedure regarding the completion of disability forms.

As of the date of Moguel's termination, the injury of which he had informed Covenant House was a lower leg soft tissue injury. He never asked for an accommodation of this injury.

Moguel had outpatient surgery to repair his Achilles tendon on July 12, 2002, and he returned home that same evening. After his surgery, Moguel was mobile with the use of a leg cast, then sometime thereafter with the use of crutches, and finally with the use of a walking shoe. Moguel's Achilles tendon was injured for five months before he resumed walking without assistance. Moguel testified at his deposition that he was able to walk without assistance and that, at that time, he exercised and played basketball, although not like he used to do. He further testified that he feared reinjuring his Achilles tendon and that he had been affected by his injury for over six months and completely recovered in a year.

After Moguel's employment with Covenant House was terminated and after his recovery, Moguel worked as a painter. He also worked for Social Services for 40 hours per week after his employment with Covenant House ended. He received five months of disability pay from June 11, 2002 through November 10, 2002.

The Summary Judgment Standard

Summary judgment is granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329, 338 (2d Cir. 2004); see generally 11 James Wm. Moore, et al., Moore's Federal Practice ¶ 56.11 (3d ed. 1997 & Supp. 2004). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine"whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Summary judgment is appropriate where the moving party has shown that"little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Serv., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994) (internal citations omitted)."The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995).

A material fact is one that would"affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that"a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see also R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). Thus,"[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248; see also Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) ("[T]he mere existence of factual issues where those issues are not material to the claims before the court -- will not suffice to defeat a motion for summary judgment.").

In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002). Thus,"[s]ummary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993). In order to defeat a motion for summary judgment, the non-moving party must offer sufficient evidence to enable a reasonable jury to return a verdict in its favor. See Anderson, 477 U.S. at 248; Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001); Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).

A litigant's pro se status"does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotation marks omitted); see also Edwards v. I.N.S., 59 F.3d 5, 8-9 (2d Cir. 1995). Indeed, proceeding pro se"does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); see also Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995).

It is the law of this Circuit that"even when a nonmoving party chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial" and that summary judgment is appropriate as a matter of law. Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001); see also Vermont Teddy Bear, 373 F.3d at 244; Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 n.1 (2d Cir. 2001); Booker v. Fed. Reserve Bank of New York, Nos. 01 Civ. 2290 (DC) & 01 Civ. 2291 (DC), 2003 WL 1213148, at *12 (S.D.N.Y. Mar. 17, 2003); Mattel, Inc. v. Pitt, 229 F. Supp. 2d 315, 320 (S.D.N.Y. 2002). Thus,

Where, as here, a nonmoving pro se party has failed to submit papers in opposition to a motion for summary judgment, summary judgment may be granted as long as the Court is satisfied that the undisputed facts"show that the moving party is entitled to a judgment as a matter of law," and plaintiff has received notice that failure to submit evidence in opposition may result in dismissal of his case.

Blackett v. Pathmark Stores, Inc., No. 01 Civ. 6913 (DLC), 2002 WL 31385817, at *2 (S.D.N.Y. Oct.21, 2002) (quoting Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996)).


I. Moguel's Gender-Based Discrimination Claim Is Deemed Withdrawn and Dismissed

At his deposition, Moguel testified that while he was completing the form to file his charge with the NYDHR,

[T]he lady said -- she asked me a question, do they treat the females the same way and I said not that I know of, and [the gender claim] was on there after that. So basically it's not a female issue at all.

(Deposition of Elvis Moguel, dated Feb. 19, 2004, attached as Exhibit Y to the Affirmation of Margaret Armstrong Weiner, dated Mar. 30, 2004 ("Weiner Aff."), at 172.) When asked to clarify whether he was really alleging gender-based discrimination, Moguel responded:

A. No, it's basically discrimination and retaliation.

Q. So in order for your complaint pending in federal court, you would need to correct your complaint to take out gender discrimination because you're not alleging that?

A. Basically that.

Q. But you are saying that you're alleging ability discrimination?

A. Oh, yeah.

(Weiner Aff., Exh. Y, at 173.) In light of the foregoing testimony, Moguel's claim of gender-based discrimination is deemed withdrawn and is hereby dismissed with prejudice. Cf. Marks v. Nat'l Communications Ass'n, Inc., 72 F. Supp. 2d 322, 328 (S.D.N.Y. 1999).

II. Moguel's Retaliation Claim Is Dismissed

Moguel has alleged *fn1 that he was terminated by Covenant House in retaliation for the grievances that he filed through the employee grievance procedure to challenge certain disciplinary sanctions imposed on him and in retaliation for his request to review his personnel file. Covenant House argues that Moguel's retaliation claim is procedurally deficient because it was not included in the charge Moguel filed with the NYDHR and substantively deficient because Moguel cannot establish a prima facie case of retaliation.

It is well established that a district court may only hear

Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is"reasonably related" to that alleged in the EEOC charge. This exhaustion requirement is an essential element of Title VII's statutory scheme.

Butts v. City of New York Dep't of Housing Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (internal citations omitted), superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998); cf. Holtz, 258 F.3d at 82 n.5 (clarifying that" < the="" failure="" to="" exhaust="" administrative="" remedies="" is="" a="" precondition="" to="" bringing="" a="" title="" vii="" claim="" in="" federal="" court,="" rather="" than="" a="" jurisdictional="" requirement'")="" (quoting="" francis="" v.="" city="" of="" new="" york,="">235 F.3d 763, 768 (2d Cir. 2000) (internal quotation marks and citations omitted)). Courts have interpreted the limitation on Title VII claims set forth in Butts to apply to claims brought under the ADA as well. See, e.g., Brennan v. King, 139 F.3d 258, 268 & n.12 (1st Cir. 1998); Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997); Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir. 1996); accord James v. Newsweek, No. 96 Civ. 393 (LAP), 1999 WL 796173, at *8 (S.D.N.Y. Sept. 30, 1999), aff'd 213 F.3d 626 (2d Cir. 2000); Gallegos v. NYC Health & Hosp. Corp., No. 98 Civ. 435 (LBS), 1998 WL 726025, at *2 (S.D.N.Y. Oct. 14, 1998); Garcia v. Coca-Cola Bottling Co., No. 96 Civ. 6072 (AGS), 1998 WL 151032, at *2 (S.D.N.Y. Mar. 12, 1998).

The Court of Appeals for the Second Circuit has recognized three circumstances in which claims not explicitly raised in an EEOC charge may nonetheless be considered in the context of later litigation in a district court. See Butts, 990 F.2d at 1402. The first such circumstance involves new claims in which the conduct at issue would fall within the" < scope="" of="" the="" eeoc="" investigation="" which="" can="" reasonably="" be="" expected="" to="" grow="" out="" of="" the="" charge="" of="" discrimination.'"="" id.="" (quoting="" smith="" v.="" am.="" president="" lines,="" ltd.,="">571 F.2d 102, 107 n.10 (2d Cir. 1978)). The provision for this type of"reasonably related" claim is generally understood as"an allowance of loose pleading" in recognition of the fact that EEOC charges are often filed by employees proceeding without the benefit of counsel, and of the fact that the purpose of such charges is"to alert the EEOC to the discrimination that a plaintiff claims she is suffering." Id.; accord Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2001). The second circumstance in which a claim not previously raised in an EEOC charge may be permitted to be raised in subsequent litigation occurs where the new claim alleges retaliation by the employer against the employee for having filed the EEOC charge itself. See Butts, 990 F.2d at 1402. The third and final circumstance arises"where a plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Id. at 1402-03.

With regard to Moguel's retaliation claim, only the first scenario described in Butts has any bearing here.*fn2 Under this exception to the general rule,"[w]here the facts in the original EEOC charge do not sufficiently apprise the EEOC that another type of discrimination claim lurks in the background, courts have held that the second claim is not reasonably related to the first." Alonzo v. Chase Manhattan Bank, N.A., 25 F. Supp. 2d 455, 458 (S.D.N.Y. 1998); see also Mitchell v. FAB Indus., Inc., No. 96 Civ. 95 (RWS), 1996 WL 417522, at *4 (S.D.N.Y. July 25, 1996) ("Where, as here, the gravamen of an EEOC investigation lies in specific categories of discrimination, a plaintiff attempting to sue on additional grounds must have initially alleged facts sufficient to trigger an EEOC investigation on those grounds.").

In his charge filed with the NYDHR, Moguel alleged gender-based and disability-based discrimination relating to incidents that purportedly occurred in June 2002. Moguel's charge contains no mention of his personnel file or his access thereto, nor any reference to the grievance procedure at Covenant House or to any grievances that Moguel may have filed. Indeed, with the exception of background information concerning the date that Moguel was hired by Covenant House and Moguel's representation that his time, attendance and work performance were satisfactory, Moguel's charge contains no references to events transpiring prior to June 2002. In the absence of any mention in Moguel's NYDHR charge of his grievances, his access to his personnel record, or any retaliatory motive behind his termination, the allegations contained in the charge are insufficient to signal the possible presence of a retaliatory termination claim founded on distinct and separate factual allegations.

Moreover, the NYDHR's no-probable-cause determination summarizing the results of the NYDHR's investigation makes no mention of any grievances in its detailed account of the disciplinary sanctions imposed on Moguel over the course of his employment at Covenant House. This fact lends further support to the conclusion that Moguel's request to review his personnel file, his submission of grievances, and any allegedly retaliatory motive underlying Covenant House's termination of his employment could not be expected to fall within the scope of the investigation reasonably expected to grow out of the charge in question. Moguel's claim of retaliatory termination is, accordingly, not reasonably related to the claims of gender-based and disability based discrimination contained in his NYDHR charge.

As Moguel's retaliation claim is not reasonably related to the claims contained in his NYDHR charge, that claim must be dismissed for failure to exhaust administrative remedies. See, e.g., Cordoba v. Beau Dietl & Assocs., No. 02 Civ. 4951 (MBM), 2003 WL 22902266, at *10 (S.D.N.Y. Dec. 8, 2003) (concluding that the"EEOC's investigation into national origin and age discrimination claims cannot be expected to evolve into an investigation of retaliatory motive" and dismissing the claim); Gambrell v. Nat'l R.R. Passenger Corp., No. 01 Civ. 6433 (NRB), 2003 WL 282182, at *8 (S.D.N.Y. Feb. 3, 2003) ("Where the EEOC charge alleges discrimination but not retaliation the reasonable scope of the agency's investigation cannot be expected to encompass allegations of retaliatory motive."); Harris v. New York City Dep't of Homeless Serv. Eligibility Investigation Unit, No. 97 Civ. 432 (SAS), 1998 WL 205334, at *9 (S.D.N.Y. Apr. 28, 1998) (concluding that the plaintiff's retaliation claim was"separate and distinct" from his gender discrimination claims, that"[e]ven under the broadest reading of [the plaintiff's] EEOC charge, the reasonable scope of the agency's investigation could not be expected to encompass... allegations of retaliatory motive" where there were"simply no statements in his charge that might suggest that anything other than race and/or gender discrimination was implicated," and that the plaintiff's"Title VII retaliation claim presents both a new legal theory (retaliation), and new factual allegations..., neither of which were properly presented to the EEOC or the DHS"), aff'd 181 F.3d 82 (2d Cir. 1999); see also Sussle v. Sirina Protection Sys. Corp., 269 F. Supp. 2d 285, 314 (S.D.N.Y. 2003) (holding that the plaintiff's retaliation claim was not reasonably related to the disability discrimination claim alleged in his EEOC charge).

As the time for curing this defect has now expired, Moguel's retaliation claim is dismissed with prejudice. See, e.g., Cordoba, 2003 WL 22902266, at *11 & n.8 (citing Berry v. Kerik, 345 F.3d 126, 127-28 (2d Cir. 2003), withdrawn, 366 F.3d 85 (2d Cir. 2004); Flaherty v. Metromail Corp., 235 F.3d 133, 136 (2d Cir. 2000)). In light of this dismissal, there is no need to reach Covenant House's alternative argument that Moguel has failed to state a prima facie retaliation claim.

III. Moguel's Disability Claim Is Dismissed

Moguel's remaining claim alleges disability-based discrimination by Covenant House in violation of the ADA and N.Y. Exec. Law § 292, a provision of the NYHRL. Covenant House contends that Moguel's disability claim under the NYHRL is barred by the election of remedies doctrine and, consequently, should be dismissed. Covenant House further argues that summary judgment dismissing Moguel's claim of disability discrimination in violation of the ADA is appropriate, as Moguel was not disabled as defined by the ADA and, even if he were disabled within the meaning of the ADA, he cannot establish that the reasons given by Covenant House for his termination were a pretext for disability-based discrimination.

A. Moguel's Disability Claim under the NYHRL Is Barred

New York Executive Law § 297(9) provides, in relevant part:

Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages... unless such person had filed a complaint hereunder or with any local commission on human rights,... provided that, where the division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if no complaint had been filed with the division.

N.Y. Exec. Law § 297(9). Put succinctly, subsection 297(9) provides that"a person claiming to be aggrieved by an unlawful discriminatory practice may seek relief either from a court of appropriate jurisdiction or from the [New York State Division of Human Rights] or any local commission on human rights, but not both." Clements v. St. Vincent's Hosp. & Med. Ctr., 919 F. Supp. 161, 164 (S.D.N.Y. 1996); see also Moodie v. Fed. Reserve Bank, 58 F.3d 879, 882-83 (2d Cir. 1995) ("Generally, the remedies of administrative review through the Human Rights Division or judicial review are mutually exclusive.") (internal citation omitted and emphasis in original); accord Thomas v. New York City Health & Hosp. Corp., No. 02 Civ. 5159 (RJH), 2004 WL 1962074, at *1 n.1 (S.D.N.Y. Sept. 2, 2004); Benjamin v. N.Y.C. Dep't of Health, No. 99 Civ. 12345 (LTS) (AJP), 2003 WL 22883622, at *6 (S.D.N.Y. Dec. 8, 2003); Bullock v. Presbyterian Hosp. in the City of New York, No. 95 Civ. 3928 (JSM), 1996 WL 328740, at *2 (S.D.N.Y. June 13, 1996).*fn3 This express limitation on the election of remedies applies equally to NYHRL claims brought in state court and to those brought as pendant claims in federal court. See, e.g., Thomas, 2004 WL 1962074, at *1 n.1 (citing Collins v. Mfrs. Hanover Trust Co., 542 F. Supp. 663, 672-73 (S.D.N.Y. 1982)); Hunnewell v. Mfrs. Hanover Trust Co., 628 F. Supp. 759, 761 (S.D.N.Y. 1986). As Moguel's charge filed with the NYDHR alleged the same claim of disability-based discrimination in the termination of his employment at issue in the instant action, Moguel is barred by N.Y. Exec. Law § 297(9) from pursuing his claim under the NYHRL here.

B. Summary Judgment as to Moguel's Disability Claim under the ADA Is Granted

The ADA prohibits discrimination by an employer covered by the ADA 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). In analyzing a discriminatory discharge claim under the ADA, the Court of Appeals for the Second Circuit has applied"the burden-shifting analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)." Heyman v. Queens Village Committee for Mental Health for Jamaica Community Adolescent, 198 F.3d 68, 72 (2d Cir. 1999) (citing Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998))."Under McDonnell Douglas, [a] plaintiff bears the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination." Id. (citing Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994)).

To establish a prima facie case of discrimination under the ADA,"[a] plaintiff must show by a preponderance of the evidence that (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability." Heyman, 198 F.3d at 72 (citing Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998)).

Under the ADA, a disability with respect to an individual is defined as"(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarding as having such an impairment." 42 U.S.C. § 12102(2). The EEOC regulations issued with regard to implementing the equal employment provisions of the ADA set forth that the phrase"substantially limits" means, in pertinent part, being

Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

29 C.F.R. § 1630.2(j)(1)(ii). The phrase"major life activities" means, according to the EEOC regulations,"functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i).

The EEOC regulations further state that certain factors should be considered in determining whether an individual is substantially limited in a"major life activity," including:

(i) The nature and severity of the impairment;

(ii) The duration or expected duration of the impairment; and

(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

29 C.F.R. § 1630.2(j)(2). With respect to the major life activity of working,

The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

29 C.F.R. § 1630.2(j)(3)(i). In addition, the"inability to engage in leisure activities and sports, which require a great deal of physical vigor, does not equate with the inability to engage in normal everyday activities or job related duties." Huskins v. Pepsi Cola of Odgensburg Bottlers, Inc., 180 F. Supp. 2d 347, 352 (N.D.N.Y. 2001); see also Kirkendall v. United Parcel Serv., Inc., 964 F. Supp. 106, 111 (W.D.N.Y. 1997).

Temporary, intermittent and episodic impairments do not, by their very nature, substantially limit a major life activity such as working. See, e.g., Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002) (explaining that"the impairment's impact must... be permanent or long term" in order to constitute a substantial limitation); Adams v. Citizens Advice Bureau, 187 F.3d 315, 316-17 (2d Cir. 1999) (holding that a plaintiff had failed to make out a claim that he was disabled within the meaning of the ADA where he had failed to offer evidence that he was substantially limited in major life activities as a result of an injury that left him unable to work for more than three months); Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 646 (2d Cir. 1998) (holding that a temporary impairment of seven months, by itself, was"too short [in] duration... to be'substantially limiting'"); Thompson v. Fed. Reserve Bank of New York, No. 01 Civ. 11640 (DC), 2004 WL 330243, at *8 (S.D.N.Y. Feb. 23, 2004) (stating that a disability under the ADA"does not include temporary medical conditions, even if those conditions require extended leaves of absence from work because such conditions are not substantially limiting" and holding that the plaintiff's temporary medical conditions did not render her disabled under the ADA) (quoting Huskins, 180 F. Supp. 2d at 352 (concluding that a plaintiff had not established a prima facie case of disability-based discrimination under the ADA where he was unable to work as a truck driver for five months due to a shoulder injury)) (internal quotation marks omitted).

Moguel's lower leg soft tissue injury in June 2002, which was addressed through outpatient surgery in July 2002, has not been shown to substantially limit any of the major life activities set forth above, including the major life activity of working. After his surgery, Moguel was mobile with the use of a leg cast, then sometime thereafter with the use of crutches and finally with the use of a walking shoe. Moguel resumed walking without assistance within five months, and testified that he was able to walk without assistance at the time of his deposition and had resumed exercise, albeit limited in light of his fear of reinjury. He also testified that he was affected by his injury for over six months and completely recovered within a year. All inferences having been drawn in Moguel's favor, it nonetheless appears that his injury, in light of its temporary nature and notwithstanding any limitation it may pose for the degree to which he engages in exercise and playing sports, does not constitute a disability under the ADA. As it has not been shown by a preponderance of the evidence that Moguel was disabled within the meaning of the ADA, Moguel has thus not established a prima facie case of disability-based discrimination under the ADA here and summary judgment for Covenant House is appropriate.


For the reasons set forth above, Moguel's gender-based discrimination claim is dismissed and Covenant House's motion for summary judgment is granted as to his remaining claims. This action is dismissed.

It is so ordered.


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