The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Plaintiff Emilio Bonilla, Jr. brings this action pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. (the "Rehabilitation Act"), alleging that he was unlawfully discriminated against on the basis of disability by his employer, the United States Postal Service (the "Postal Service"). Defendant John E. Potter, the Postmaster General of the United States, moves for summary judgment. The motion will be granted.
Plaintiff worked as a mail processing clerk for the Postal Service at various locations in the New York City area from October of 1988 until June of 2002. During that time, he was the subject of nine disciplinary actions, all of them stemming from attendance problems. On June 28, 2002, plaintiff was terminated from his employment at the Postal Service.
During his employment, plaintiff suffered from a variety of medical and psychological conditions, including depression, back and abdominal problems, gall bladder disease, and Meniere's Disease, an inner ear disorder that causes vertigo, dizziness, and tinnitus (a ringing or buzzing in the ears). On October 11, 2002, plaintiff filed a discrimination complaint with the Postal Service's Equal Opportunity Compliance and Appeals Office, alleging discrimination on the basis of disability, and in particular that the Postal Service had failed to reasonably accommodate his conditions and had terminated him because of them. (Bacon Dec. Ex. I at 4.) On January 14, 2004, the Postal Service issued a final decision concluding that plaintiff had failed to make out a prima facie case of disability discrimination because, inter alia, he was not "disabled" under the relevant law. (Bacon Dec. Ex. A.)
On April 27, 2004, plaintiff filed the complaint that initiated the present federal action. On April 14, 2006, defendant moved for summary judgment. Plaintiff submitted his reply on August 21, 2006.*fn1
I. Summary Judgment Standards
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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). The court may only determine if there is a genuine issue to be tried, and is not to resolve disputed issues of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The court must draw all reasonable inferences and resolve all ambiguities in the nonmoving party's favor, and construe the facts in the light most favorable to the nonmoving party. Id. at 254-255.
The party seeking summary judgment bears the burden of showing that no genuine factual dispute exists. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995). Once the moving party has made a showing that there are no genuine issues of material fact, the burden shifts to the nonmoving party to raise triable issues of fact. Anderson, 477 U.S. at 250. Mere conclusory allegations will not suffice. Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the nonmoving party. Anderson, 477 U.S. at 248. Pro se pleadings are held to a "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972).
II. Rehabilitation Act Standards
Plaintiff contends that he was unlawfully terminated on the basis of his disability, that his employer failed to make reasonable accommodations of that disability, that he faced unequal terms and conditions of employment, and that he was retaliated against for complaining about this treatment. (Compl. ¶ 4.) Although plaintiff's pro se complaint invokes the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 12112-12117, a federal employee's "sole claim for discrimination on the basis of disability is under the Rehabilitation Act." Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir. 1998). "The regulatory schemes of the ADA and Rehabilitation Act are similar . . . The terms common to both regulatory schemes are to be interpreted in the same way." Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997). Accordingly, plaintiff's complaint will be construed as raising a claim under the Rehabilitation Act.
The Rehabilitation Act, like the ADA, prohibits an employer from discriminating against an otherwise qualified employee because of a disability. See 29 U.S.C. § 794(a) (Rehabilitation Act); 42 U.S.C. § 12112(a) (ADA). Section 504(a) of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a).
In order to state a claim under either statute, a plaintiff must first be able to establish a prima facie case. Stone, 118 F.3d at 96. If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the employer to demonstrate that the employment action taken was for a neutral reason, and was not discriminatory. See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 722 (2d Cir. 1996). If the employer is able to articulate a non-discriminatory reason for the employment action, the burden shifts back to the plaintiff to show that alleged non-discriminatory reason ...