MEMORANDUM-DECISION AND ORDER*fn1
This case involves a claim under the Americans with Disabilities Act, Section 12101 et seq., of Title 42 of the United States Codeby Plaintiff Robert Shannon against his employer, Defendant Verizon New York. Complaint (Dkt. No. 1). On April 13, 2007, the Court issued a Memorandum-Decision and Order (the "April Order") (Dkt. No. 54) granting, in part, Defendant's Motion for summary judgment. Summary judgment was granted on Plaintiff's hostile workplace claim in its entirety and his failure to accommodate claim to the extent that it was based on Plaintiff being actually disabled or on Plaintiff having a record of disability. However, summary judgment was denied on Plaintiff's failure to accommodate claim to the extent is was based on a theory that Plaintiff was "regarded as" disabled. Currently before the Court are Motions for partial reconsideration, filed by both parties. Dkt. Nos. 55, 57.
A. Standard for Motion for Reconsideration
A motion for reconsideration may be granted upon one of three possible grounds: (1) an intervening change in law, (2) the availability of evidence not previously available, and (3) the need to correct a clear error of law or prevent manifest injustice. In re C-TC 9th Ave. P'ship, 182 B.R. 1, 3 (N.D.N.Y. 1995) (McAvoy, D.J.); Doe v. New York City Dept. of Social Servs., 709 F.2d 782, 789 (2d. Cir. 1983). "[A] motion for reconsideration should not be granted when the moving party seeks solely to relitigate an issue already decided." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
Defendant argues that reconsideration of the April Order is necessary to correct a clear error of law and/or to prevent manifest injustice. Motion for reconsideration (Dkt. No. 55) at 3. Specifically, Defendant alleges that it was an error of law to allow Plaintiff to proceed with his failure to accommodate claim, once it was decided that Plaintiff was not actually disabled, under the terms of the ADA, and that the Court erred in finding that Plaintiff established his prima facie case. Id. at 2.
1. Is Finding that Employees Who are "Regarded as" Disabled Have Right to Accommodation a Clear Error of Law?
Defendant asserts that individuals that are not actually disabled, but fall under the protection of the ADA because they are "regarded as" disabled, need not be accommodated. Defendant asserts that it was a clear error of law to allow Plaintiff's failure to accommodate claim to proceed, once it had been determined that Plaintiff was not actually disabled under the terms of the ADA. Motion for reconsideration (Dkt. No. 55) at 6-8.
However, as Defendant acknowledges, this issue has not been decided in the Second Circuit.
See Cameron v. Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 64 (2d Cir. 2003) (declining to decide the issue); Kaplan v. City of North Las Vegas, 323 F.3d 1226, 1231 (9th Cir. 2003) (noting circuit split on this issue). There is also case law in this Circuit that supports the holding of the April Order. Jacques v. DiMarzio,Inc., 200 F. Supp. 2d 151 (E.D.N.Y. 2002); Lorinz v. Turner Const. Co., 2004 WL 1196699 (E.D.N.Y. May 25, 2004).
In supporting its argument, Defendant puts great emphasis on a quote from an order issued by this Court in a previous case, Keck v. N.Y. State Office of Alcoholism & Substance Abuse Servs. ("Keck"), 10 F. Supp.2d 194 (N.D.N.Y. 1998) (Kahn, D.J.). Motion for reconsideration (Dkt. No. 55) at 6. That order states that "there can clearly be no claim of discrimination based on failure to accommodate a disability where there is no actual disability." Keck, 10 F.Supp.2d at 198. However, that statement is dicta, and the Court is not bound to follow it in the present case. The plaintiff in Keck had made no showing as to having a record of a disability or being regarded as disabled; the case was decided on whether the defendant provided accommodation for the plaintiff's actual disability. Id.
Additionally, in the nine years since Keck, several decisions have directly addressed the feasibility of a failure to accommodate claim brought by a plaintiff who is not actually disabled under the terms of the ADA and have decided, persuasively, that these cases should be allowed. Jacques, 200 F.Supp.2d at 163-71; Lorinz, 2004 WL 1196699 at *7; Williams v. Phila. Hous. Auth. Police Dept. ("Williams"), 380 F.3d 751, 773 (3d Cir. 2004). As the District Court of the Eastern District of New York noted in Jacques v. DiMarzio,Inc., "the plain language of the [ADA] does not distinguish between 'regarded as' disabled plaintiffs and actually disabled plaintiffs in defining who is a 'qualified individual.'" 200 F. Supp.2d at 166 (citing 42 U.S.C. § 12111(8)). The Jacques court also determined that it was Congress' intent that 'regarded as' plaintiffs be entitled to reasonable accommodations and that such a result furthered the goals of the ADA. Id. ("[c]ategorically denying reasonable accommodations to "regarded as" plaintiffs would allow the prejudices and biases of others to impermissibly deny an impaired employee his or her job because of the mistaken perception that the employee suffers from an actual disability. This is the concern addressed by Congress..."). See also Williams, 380 F.3d at 774 ("Thus, the ADA was written to protect one who is 'disabled' by virtue of being 'regarded as' disabled in the same way as one who is 'disabled' by virtue of being 'actually disabled,' because being perceived as disabled 'may prove just as disabling.') (quoting H.R. Rep. No. 101-485 (III), 1990 U.S.C.C.A.N. 445, 453).
The Court is persuaded that this interpretation of the ADA best serves the statute's goal of remedying discrimination based on ...