The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff John Giallanza ("plaintiff" and/or "Giallanza"), proceeding pro se brings this action pursuant to the Americans with Disabilities Act of 1990, (codified at 42 U.S.C. § 12112 et. seq.) ("ADA")*fn1 alleging that defendant Time Warner Cable ("defendant" and/or "TWC") failed to provide him with a reasonable accommodation so he could perform the essential functions of his job and that TWC terminated his employment because of his disability. In addition, plaintiff also claims that TWC retaliated against him because he complained about discrimination or harassment that was directed towards him.
Defendant now moves for summary judgment, arguing that no reasonable jury could find that it discriminated against plaintiff as he claims. Plaintiff has not opposed defendant's motion.*fn2 For the reasons set forth below, defendant's motion for summary judgment is granted.
Local Rule of Civil Procedure 56.1 requires that the moving party include with its motion for summary judgment a "separate, short, and concise statement of the material facts to which the moving party contends there is no genuine issue to be tried." See W.D.N.Y. Loc. R. Civ. P. 56.1(a). Defendant has complied with this rule. See Docket #33. Plaintiff has not opposed defendant's summary judgment motion and accordingly has not provided "a separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried." See W.D.N.Y. Loc. R. Civ. P. 56.1(b). Because the motion is unopposed, the third paragraph of Rule 56.1 comes into play and reads: "[a]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party." See id.
R. 56.1(c) (emphasis added). In view of this provision, the Court deems admitted all of defendant's statements of facts contained in its June 16, 2008 submission. See Docket #33. Accordingly, the undisputed facts are as follows:
TWC provides cable television, high-speed data, telephone and other related services in New York State and operates a media sales office in Rochester. Plaintiff was an Account Executive ("AE") at TWC. Prior to being employed by defendant, he sold advertising space at radio and television stations for over twenty years. As an AE for defendant, his primary job responsibility was to get clients to buy as much advertising space as possible from TWC. The amount of new and incremental media time on a TWC cable channel plaintiff was required to sell is called a "budget."*fn3 Plaintiff's position as an AE was described as having "essential duties and responsibilities," among others, "to secure new advertising clients," "perform extensive unsolicited calling to develop client list" and "meet defined sales quotas and goals." In addition, the job description states that the "physical demands" of the position include making frequent in-person sales calls and driving a car.
B. Plaintiff's Recruitment Process at TWC
In January 2004, plaintiff's former supervisor at FOX Television referred plaintiff to Dan Budzinski ("Budzinski"), then a general manager at TWC's Rochester, New York office. Budzinski and plaintiff met on several occasions to discuss the prospects of plaintiff's employment at TWC. During the meeting, plaintiff informed defendant of his sales experience and ability. For instance, he told Budzinski that in one year while working at FOX, he brought in new revenue including $50,000 to $70,000 of new incremental Canadian tourism-related media sales business. After each of the meetings held in February and March plaintiff was offered employment at TWC but each time he declined the offers. Plaintiff determined that the projected commissions were overstated based on the target client list provided by defendant and that his likely income was going to be insufficient.
Two months later, Budzinski informed plaintiff that an AE position was available and so plaintiff met with Budzinski and Irene LaBue ("LaBue"), who was to be his direct supervisor, to discuss the opportunity. At the meeting, Budzinski and LaBue presented Giallanza with a different offer that had varied target clients and accounts as well as the revenue expected to be generated from those accounts. In addition, they discussed ways to generate new business and greater income for plaintiff at TWC, including Giallanza bringing the Canadian accounts from FOX that he previously mentioned. As a result of the conversation with plaintiff, TWC offered him employment. Plaintiff accepted the position as well as the terms of the offer when he signed the offer letter.
C. Terms of Plaintiff's Employment
The offer letter assigned a sales budget of $1,091,434 to Giallanza. If this revenue was met, the budget showed plaintiff earning $115,449.06 in annual salary and commissions, which was to be prorated for 2004. On July 12, 2004, Giallanza commenced his employment at TWC. During his orientation he received a letter indicating that his employment with TWC was at-will and he also received the TWC Employee Handbook and anti-discrimination policies. Between the months of August and December 2004, plaintiff achieved his budget goals.*fn4
In January 2005, plaintiff started to develop symptoms of what he thought was a heart condition. In spite of these symptoms plaintiff continued to work and met his budget for January, but he began wearing a heart monitor. However, in the same time period in January 2005, LaBue started noticing that plaintiff was making mistakes that were not typical for an AE with Giallanza's level of experience. Specifically, plaintiff assigned an improper instruction to a client's order concerning when to air a commercial. At the end of January 2005, plaintiff informed LaBue that he might have a cardiac related medical condition.*fn5 By February 2005, plaintiff's undiagnosed medical condition worsened and became so severe that it was difficult for Giallanza to function. For instance, there was a time when plaintiff suffered an attack at the office that led to LaBue driving him home since plaintiff was unable to drive. The chronic attacks caused plaintiff to lose sleep which in turn contributed to more attacks. As a result, plaintiff was absent from work for several days in February 2005. While plaintiff did some work from home, he lacked the ability to focus and his anxiety rendered him unable to drive to appointments. In February 2005, plaintiff sold 63% of his budget.
In March 2005 plaintiff was diagnosed as suffering from general anxiety disorder (and not a cardiac condition), which in turn was causing him to have episodes of severe panic attacks. As a result of the panic attacks, Giallanza was out of the office for nine work days in March. In his absence, LaBue managed his accounts or asked another AE to help plaintiff's clients. However, plaintiff's inability to perform his job became so apparent that on March 14, 2005, a sales manager at TWC wrote to plaintiff expressing concern about plaintiff's failure to meet his budget on the "R News" account. By the end of March plaintiff sold 65% of his budget and brought in a marginal amount of new business. It was also during this time that plaintiff confided in LaBue and informed her of his diagnosis of general anxiety disorder. In addition, he provided LaBue with a note from his doctor explaining his illness/disorder. The doctor's note only directed that Giallanza be allowed to work a flexible schedule, which was granted by TWC.
Plaintiff missed another five days of work in April 2005. When plaintiff was in the office, his illness would sometimes prevent him from visiting clients to make sales calls. As a result, plaintiff only sold 59% of his budget for April. At this point, plaintiff had failed to meet his budget three months in a row. In May 2005, plaintiff informed LaBue that his disorder caused him to panic when, among other things, he traveled by plane, drove under or over bridges or crossed railroad tracks and thus he could not engage in those ...