MEMORANDUM-DECISION AND ORDER
Plaintiff Robert Shannon ("Plaintiff") commenced the instant action pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the New York Human Rights Law ("HRL"), N.Y. EXEC. LAW § 296 et seq., claiming that Defendant Verizon New York, Inc. failed to provide him with reasonable accommodation, subjected him to a hostile work environment on account of his disability, and retaliated against him for engaging in protected activity. Currently before the Court are Defendant's Motion and Plaintiff's Cross-Motion for summary judgment.
As of 1996, Plaintiff was employed by Defendant principally doing field technician work including splicing lines, removing manhole covers and climbing poles. Mem. of Law in Support of Plntfs' Opp. to Deft's Motion for Summary Jud't (Dkt. No. 36) at 2. Between 1996 and the present, Plaintiff has had the title of Telecommunications Technical Associate ("TTA") and worked at the TTA pay grade. Deft's Statement of Material Facts (Dkt. No. 32) at ¶¶ 3, 4. In 1997, Plaintiff was diagnosed with cancer and underwent a radical prostatectomy.
Compl. (Dkt. No. 1) at ¶ 8. The operation resulted in both incontinence and sexual dysfunction. Id. The former condition led Plaintiff's doctor to prescribe a 40 pound lifting restriction. Id. Defendant's job description for field technicians included lifting and/or moving 100 pounds. Deft's Statement of Material Facts (Dkt. No. 32) at ¶ 2. After Plaintiff's operation, Defendant accommodated Plaintiff by allowing him to work as a field technician on a special project in Troy, New York, with heavy lifting reduced or eliminated. Compl. (Dkt. No. 1) at ¶ 10; Mem. of Law in Support of Plntfs' Opp. to Deft's Motion for Summary Jud't (Dkt. No. 36) at 2. In this position, Plaintiff was able to accrue some overtime and was eligible for advanced training opportunities.
In July 2003, Plaintiff took a medical leave of absence from Defendant to undergo a hernia operation. Id. at 3. Plaintiff returned to work in early October 2003, at which time, the special project he had worked on had ended. Id. In October 2003, Plaintiff was transferred to Defendant's clerical office in Menands, New York and then to a maintenance center in Albany, where he did clerical work until January 2004. Id. at 3-4. In response to Plaintiff's complaints, Defendant returned Plaintiff to Defendant's Troy location to follow-up on old work order projects from January 2004 to August 2004. Id. at 3-4.
In approximately March 2004, Defendant placed Plaintiff in its Health Improvement Committee ("HIC") process. Deft's Statement of Material Facts (Dkt. No. 32) at ¶ 11. Through this process, employees have a ninety (90) day period during which they are able to search for available positions that they can perform notwithstanding any health restrictions. Mem. of Law in Support of Deft's Motion for Summary Judgment (Dkt. No. 32) at 4. During this ninety (90) day period, Plaintiff applied for one position, central office technician. Id. at 5. Plaintiff was not offered the central office technician position purportedly because it had a lifting requirement of over 40 pounds. Id. In August 2004, Plaintiff was permanently assigned to work as a Construction Coordinator, a clerical position. Id.; Mem. of Law in Support of Plntfs' Opp. to Deft's Motion for Summary Jud't (Dkt. No. 36) at 5. In this position, Plaintiff was supervised directly by James Murray and indirectly by Joseph Messina, the Director of Construction in the Albany, New York area. Id.; Plntf's Statement of Material Fact (Dkt. No. 37) at ¶ 1. On February 10, 2005, Plaintiff provided Murray with a doctor's note limiting Plaintiff to one hour per day of typing because of hand and wrist pain caused by carpal tunnel syndrome. Mem. of Law in Support of Deft's Motion for Summary Judgment (Dkt. No. 32) at 5. In March 2005, Defendant sent Plaintiff home. Mem. of Law in Support of Plntfs' Opp. to Deft's Motion for Summary Jud't (Dkt. No. 36) at 5. Plaintiff was out on disability leave from March 2005 until October 2005 to treat his carpal tunnel syndrome. Id.; Mem. of Law in Support of Deft's Motion for Summary Judgment (Dkt. No. 32) at 5. When Plaintiff returned to work in October 2005, he did not have any typing restrictions. Id. Plaintiff has continued in the Construction Coordinator position. Mem. of Law in Support of Deft's Motion for Summary Judgment (Dkt. No. 32) at 5.
Plaintiff alleges that, despite the lifting requirement included in the job description for field technicians, there are several field technician positions, such as inspector or locator, for which he is qualified and which would not violate his lifting restrictions. Compl. (Dkt. No. 1) at ¶ 12. Additionally, Plaintiff alleges that while serving as a construction coordinator he missed valuable opportunities for overtime pay and for professional training and enhancement. Id. at ¶ 17, 18.
Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In applying this standard, courts must "'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (quoting Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001)). Once the moving party meets its initial burden by demonstrating that no material fact exists for trial, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). Rather, the non-movant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 252 (citation omitted). Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).
A. Failure to Accommodate
Plaintiff commenced the instant action under the ADA and the HRL. To establish a claim under the ADA, Plaintiff must demonstrate that: "(1) plaintiff's employer is subject to the ADA;*fn1 (2) plaintiff was disabled within the meaning of the ADA; (3) plaintiff was otherwise qualified to perform the essential functions of [his] job, with or without reasonable accommodation; and (4) plaintiff suffered [an] adverse employment action because of [his] disability." Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 2004) (internal citation omitted).
Defendant first contends that Plaintiff is not disabled within the meaning of the ADA because he does not suffer from a physical impairment that substantially limits one or more of his major life activities. Plaintiff responds that he is disabled because his prostate gland was surgically removed, thereby causing him to suffer from incontinence and erectile dysfunction. Plaintiff also argues that Defendant has regarded him as disabled and that he has a record of being disabled.
There are three ways that a person can qualify as being disabled under the ADA: "[I]ndividuals with a physical or mental impairment that substantially limits one or more of the major life activities of such individual are disabled within the meaning of the ADA.... A plaintiff is also disabled within the meaning of the ADA if [he] has a record of such an impairment.... Finally, a plaintiff is considered disabled under the ADA if [he] is regarded as suffering from a physical or mental impairment ...