The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff Jay Whitehead commenced the instant action against Defendant United Parcel Service, Inc. ("UPS") claiming that he was terminated from his employment on account of his disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. and the New York Human Rights Law. Presently before the Court are Defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56 and Plaintiff's motion for partial summary judgment pursuant to Rule 56.
Plaintiff was diagnosed with epilepsy in 1979. Since that time, Plaintiff has taken Dilantin, an anti-seizure medication. The last time Plaintiff suffered a seizure was in 1996. Plaintiff's epilepsy does not limit his ability to drive, work as a mechanic, or perform his normal functions. Plaintiff's epilepsy has not interfered with Plaintiff's career as a mechanic.*fn2
In April 2006, Plaintiff applied for a position with UPS as an automotive mechanic in Oneonta, New York. The Oneonta facility employs only one mechanic. As part of the application, Plaintiff filled out and signed an employment application and an Agreement and Policy Acknowledgment form. The job description of the mechanic position indicates that one of the essential job functions is to "meet D.O.T. requirements and be CDL qualified as required by job assignment." The job listing continues to state that:
The essential functions of this job may vary greatly depending upon the size and location of the UPS facility. At some locations, employees may not perform all of the essential job functions listed above. At other locations, employees may perform some or all of the functions listed above and, in addition, may be required to perform other jobs or tasks as directed.
In May 2006, UPS offered Plaintiff a position as an automotive mechanic. Plaintiff accepted the offer. Plaintiff began working for UPS on May 15, 2006. On May 17, 2006, Plaintiff was sent for a physical examination. As part of the examination, Plaintiff indicated that he took Dilantin. The examining physician completed the physical and informed Plaintiff that he had passed the examination based upon representations that he would be driving only within New York State and had a New York commercial driver's license.*fn3 Upon review of the report of the physical examination, UPS's nurse, Robin Fey, raised a concern whether Plaintiff could obtain a Department of Transportation ("D.O.T.") medical certificate because of his epilepsy and the fact that he was taking anti-seizure medication. Fey contacted the examining clinic and informed them that Plaintiff would be required to cross state lines and, therefore, needed a D.O.T. certificate. Because epilepsy disqualifies a person from obtaining a D.O.T. medical certificate, 49 C.F.R. § 391.41(b)(8), the examining physician changed his report and opined that Plaintiff was disqualified from obtaining a DOT medical certificate. UPS then terminated Plaintiff's employment. Plaintiff was informed that he would be re-hired if he could obtain a DOT certificate. The individual hired to replace Plaintiff does not have a New York State commercial driver's license (which Plaintiff does have),*fn4 but does have a D.O.T. medical certificate.
Rule 56 of the Federal Rules of Civil Procedures governs motions for summary judgment. It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56( c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in her favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
With these standards in mind, the Court will address the pending motions.
a. Prima Facie Case Under the ADA
Defendant contends that Plaintiff cannot establish a prima facie case under the ADA. Plaintiff responds that he was terminated because he was regarded as substantially limited in the major life activity of working.
To establish a prima facie case under the ADA, Plaintiff must demonstrate that: (1) Defendant is subject to the ADA; (2) he is disabled within the meaning of the ADA; (3) he is otherwise qualified to perform the essential functions of the job; and (4) he suffered an adverse employment action because of his disability. Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 2004); see also Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008). Here, there is no dispute as to the first ...