The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Plaintiff Richard Lederer brings this employment discrimination action against his former employer, defendant BP Products North America ("BP"). Plaintiff alleges that he was wrongfully terminated and subjected to a hostile work environment in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code §§ 8-101 et seq. Defendant now moves for summary judgment. The motion will be granted in part and denied in part.
Most of the relevant facts in this case are disputed. The following discussion draws on both parties' versions of the facts to give an overview of the relevant events and accusations.*fn1
In January 2002, plaintiff began working as a baker at a "BP Connect" store owned by defendant in Bayside, Queens. This store was the first in what became a series of BP establishments at which customers can find gasoline pumps, convenience stores, and small cafes that sell pastries, soups and sandwiches. Plaintiff was hired when the store opened and, aside from what defendant claims were occasional attendance problems, was by all accounts a good baker until the night of April 4, 2003. (D. 56.1 Stmt. ¶¶ 41-46; P. 56.1 Stmt. ¶¶ 41-46.)
That night, plaintiff was scheduled to work the night shift. Shortly after showing up for work, however, plaintiff took thirty dollars from a cash register, left a note explaining that his leased car had broken down on the Grand Central Parkway (Keegan Aff. Ex. 22), and left the store. Lederer did not finish the night's baking; the bagels, defendant alleges, were ruined, and the danishes left unfinished. Lederer did not call any other employees to alert them to his absence. When the store opened, the store was short of baked goods during the morning rush hour. (D. 56.1 Stmt. ¶¶ 81-84.) Lederer was fired in short order. (Id. ¶¶ 86-92; Compl. ¶¶ 59-64.)
Plaintiff argues that although his actions on April 4 were admittedly cause for termination, they were in fact nothing more than a convenient excuse for his firing. He argues that he was fired - and, prior to his termination, subjected to a hostile work environment - because he is gay, and because he has AIDS.
Plaintiff alleges that Kenneth Stockman, a manager at the Bayside store, and other employees repeatedly made sexually offensive remarks to him and around him. (See Lederer Dep., Keegan Aff. Ex. 1 ("Lederer Dep."), at 255-56). Stockman allegedly made various comments about another gay employee, calling him "faggot" and saying "I don't know how he can work, he's always on his knees." (Lederer Dep. at 244, 248, 250.) Stockman also allegedly made sexual remarks to and about Lederer, such as calling him "Anaconda," a reference to his penis. (Lederer Dep. at 244.) Stockman would also single out Lederer for conversations about homosexuality, saying things like "I don't know how two men get it on like that," and specifically talking in graphic terms about oral and anal sex between men, asking, "Could you ever see yourself blowing another man[?] Isn't that disgusting?" (Lederer Dep. at 275.) Lederer also claims that Stockman repeatedly questioned him as to whether he "wanted to blow" Stockman. (Compl. ¶ 33.) Lederer states that these remarks were made "in a very loud, obnoxious and taunting tone." (Id. ¶ 34.)
At least some of the comments by some of the employees were made in ignorance of Lederer's sexual orientation. Lederer told the other employees that he was or had been married to a woman, and that he had children from that previous marriage. (Lederer Dep. at 241-42.) Although Lederer did not explicitly reveal his sexual orientation to anyone at the Bayside BP Connect until March 2003, however, Lederer believes that Stockman understood him to be gay when Stockman made earlier harassing remarks, because Stockman seemed so interested in the subject of Lederer's sexuality and his opinions on homosexuality. (Lederer Dep. at 274.)
In March 2003, Stockman demanded from Lederer a doctor's note explaining an earlier absence from work. When Lederer produced a note explaining that he had Hepatitis C, Stockman expressed a belief that that disease was only contracted by drug users or those who had intimate contact with them. Lederer revealed that he was infected with HIV, and that the Hepatitis C was related to this condition, not drug use. Stockman asked Lederer whether he had gotten AIDS from a man or a woman, at which point Lederer revealed that he was gay. (Compl. ¶¶ 38-48.) Stockman asked if he had been "blowing guys in the [kitchen] cooler."*fn2 (Compl. ¶ 49.)
On December 9, 2004, Lederer filed the complaint that began this action, alleging violations of the ADA, Title VII, the NYHRL, and the NYCHRL. Defendant now moves for summary judgment.
I. Summary Judgment Standard
Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A "genuine issue of material fact" exists if the evidence is such that a reasonable factfinder could find in favor of the non-moving party. Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). The moving party bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
In deciding a summary judgment motion, the court must "resolve all ambiguities and draw all reasonable references in the light most favorable to the party opposing the motion." Cifarelli v. Babylon, 93 F.3d 47, 51 (2d Cir. 1996). At this stage, the court is not to make any credibility assessments or weigh the evidence. Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). The nonmoving party, however, "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and must make a "showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Plaintiff claims to have been unlawfully terminated under the ADA (Compl. ¶¶ 69-73), which provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees." 42 U.S.C. § 12112(a). Defendant contends that plaintiff has failed to produce evidence sufficient to establish a prima facie case for relief.
ADA employment discrimination claims are subject to the familiar burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), under which "[a] plaintiff must establish a prima facie case; the employer must offer through the introduction of admissible evidence a legitimate non-discriminatory reason for the discharge; and the plaintiff must then produce evidence and carry the burden of persuasion that the proffered reason is a pretext." Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 169 (2d Cir. 2006). To establish a prima facie case for relief, plaintiff must show 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 ...