The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge.
Plaintiff Megan Aina brings this action against the City of New York pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the New York State Executive Law § 296, alleging that she was subjected to a hostile work environment after she became physically impaired from tears in her meniscus in both her knees and a torn ligament in one ankle. Although Aina does not claim that her physical condition prevents her from working, she does assert that her impairment substantially limits her ability to walk and stand for any extended period of time.
At the conclusion of discovery proceedings, the City has moved for summary judgment pursuant to Fed. R. Civ. P. 56, contending that plaintiff's physical impairment is not substantial enough to be covered by the ADA and that the proof in this action fails to rise to the level of a genuine issue of fact as to whether she was subjected to a hostile work environment. As explained more thoroughly below, because Aina has not presented a triable issue of fact as to whether her workplace was "permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of [her] employment," Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)(citations and internal quotation marks omitted), the City's motion for summary judgment is granted and the complaint is dismissed.*fn1
The following facts are taken from the record as viewed in the light most favorable to plaintiff, with all reasonable inferences drawn in her favor. In 1989, Aina began working with the New York City Human Resources Administration ("HRA") as a Medicaid Eligibility Specialist. (Aina Affidavit dated Mar. 31, 2006 ("Aina Aff.") ¶ 1.) Nine years later, she transferred to the Client Representative Unit within the HRA, where her "primary duty was inputting patient information submitted by different medical facilities into a computer in order to determine whether the patient was eligible for Medicaid coverage." (Id. ¶ 2.)
In 1999, Aina stepped into a pothole while walking and sustained a torn meniscus in both knees and a torn ligament in her right ankle. (Id. ¶ 3.) Aina had surgery on her right knee in January 2001 and on her left knee in July 2002. (Id. ¶ 5.) Aina's orthopedic surgeon -- Stuart Remer -- has classified Aina as having "a permanent partial disability." (Affidavit of Stuart Remer dated April 5, 2006, at ¶ 6.) He also acknowledges that Aina "is presently able to function through pain medication and cortisone injections from time to time." (Id.)
As a result of her condition, Aina needs a cane and knee and ankle braces in order to walk. (Aina Aff. at ¶ 4.) Even with their aid, she states she cannot walk more than half a block without experiencing pain. (Id.) Indeed, Aina applied -- and was accepted -- for the services of Access-A-Ride, a program operated by the New York Metropolitan Transportation Authority which provides transportation for handicapped individuals. (Id. ¶ 6.) Currently, Access-A-Ride transports Aina to and from work. (Id.) Once she arrives at HRA, Aina admits that she is "still able to perform the essential functions of [her] work," including "get[ing] up and go[ing] to the printer and photocopy machine." (Id. ¶ 9.) Aina states," I wouldn't say [the injury] affected my responsibility with my job . . . So I do my job okay. I drive myself in with a cane but I do my job every day." (Transcript of Aina Deposition dated Feb. 6, 2006 ("Aina Tr.") at 43:24-44:2.)
Aina alleges several incidents of ridicule and harassment that she claims constitute a hostile work environment. They are as follows:
After returning from medical leave in 2001, Aina alleges that her supervisor at the time -- Veena Kulkarni -- began to criticize her work performance on a regular basis. On one occasion, Kulkarni threw a pile of files on top of Aina's desk while Aina was sitting there, causing some of the files to hit Aina and some to fall to the floor. (Aina Aff. ¶ 10; Aina Tr. at 53:18-22.) Aina complained about this incident to Kulkarni's supervisor, who replied that she could take more medical leave if needed and concluded: "It is not harassment for your supervisor to supervise." (Aina Aff. at Exh. 4.)
In April 2002, Aina was transferred to another HRA unit, where she contends supervisors Constant Ford and Marijke Lowe "embarked on a concerted effort to get [her] to resign." (Id. ¶ 11.) That effort included denying her request to work overtime (id.), and initially denying, but ultimately granting, permission to take a "floating holiday." (Aina Tr. at 71:12-72:2.) However, Aina cannot link that denial to her disability. (Aina Tr. at 71:12-72:2; 106:16-19.) In addition, Aina testified that her co-workers in the new unit would "often" gather to "jeer and point" in her direction. (Aina Aff. ¶ 11.) There is no evidence specifically how often this treatment occurred. (See id.) Aina could not hear what her co-workers were saying during these incidents, and therefore she does not know whether what they were saying related to her alleged disability. (Aina Tr. at 68:25-69:12; 73:25-74:2) ("I don't know what she's saying because I in my seat . . . Ms. Lowe would be telling them I don't know but they pointing in to my direction. Sometimes I get up to retrieve something from the printer and I see all of them staring and pointing at me.") Aina also describes one occasion when she was walking toward the restroom, and Ms. Ford "slammed the door in such a violent manner that it almost hit my knees." (Aina Aff. ¶ 11.)
In March 2003, Aina was waiting outside the building to be picked up and taken home by Access-A-Ride when Ford passed her and said, "I don't see why you make such a fuss about your disability." (Aina Aff. ¶ 12.) Also, at some unspecified time, Ford asked Aina "why don't you look for another job." (Id.)
In November 2003, Ford walked past Aina's cubicle and told her: "You're not going to leave this place until something terrible happens to you." (Id.) Ford did not say anything else during that conversation. (Aina Tr. at 88:16-20.) That same afternoon, while Aina was getting into the Access-A-Ride bus to go home, the bus driver told her that the driver of a waiting limousine was holding a piece of paper with her name on it. (Aina Tr. at 88:21-89:19.) Aina then looked out the bus window and saw the limousine driver, but she stayed in the Access-ARide bus and went home. (Id. at 89:25-90:7) She never learned who sent the limousine, although she speculates that it was sent by her co-workers. (Id. at 89:25-92:12.)
In addition, one of Aina's co-workers -- Gloria Foster -- submitted an affidavit asserting that Ford "spoke to Ms. Aina in a very hostile manner" and "looked at Ms. Aina with extreme hatred in her eyes." (Affidavit of Gloria Foster dated Mar. 31, 2006, at ¶ 7.) Foster, however, fails to recount the details of any specific comments or instances in which Ford allegedly acted with hostility toward Aina. (See id.) According to Aina, another co-worker named Catherine Ashby suggested Aina apply to work for a particular company that was hiring "disabled people." (Aina Aff. ¶ 15.)
On three occasions in December 2003, Aina's lunch was taken out of a communal refrigerator by an unknown person and discarded. (Id. ¶ 13; Aina Tr. at 85:1-86:19.) One day in January 2004, Aina "slipped and nearly fell" because of "a puddle of water spilled on the floor" near her cubicle. Aina found water on the floor near her cubicle again the following two mornings, as well as two additional mornings more than one year later. (Id. ¶ 14.) Aina never fell or injured herself in any way because of the ...