The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Thomas J. Wega ("plaintiff" and/or "Wega"), brings this action pursuant to the Americans With Disabilities Act, 42 U.S.C. § 12100, et seq . ("ADA") claiming that defendant Center for Disability Rights ("CDR") unlawfully discriminated against him on the basis of a disability. Specifically, plaintiff alleges that he is disabled under the ADA as a result of residual effects of a cerebral vascular accident sustained in 1994; that CDR failed to accommodate his condition during the time of his employment; and that he was unlawfully terminated from his employment because of his condition.
Defendant denies plaintiff's claims, and alleges that plaintiff failed to request any reasonable accommodation, and that his termination of employment was not a result of any discriminatory animus. In addition, defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on grounds that plaintiff has failed to state a cause of action for discrimination. Specifically, defendant contends that Wega has failed to establish that he is disabled under the terms of the ADA; has failed to establish that he requested and was denied a reasonable accommodation for his condition; and that CDR had reasonable business justification for terminating Wega's employment. Plaintiff opposes defendant's motion and cross-moves for summary judgment arguing that he is a qualified individual with a disability within the meaning of the ADA and that defendant failed to accommodate plaintiff during his employment. Moreover, plaintiff asserts that there are questions of fact as to the scope and range of discriminatory harassment and abuse plaintiff suffered while employed with CDR.
For the reasons set forth below, I grant defendant's motion for summary judgment, and deny plaintiff's cross-motion for summary judgment.
At the outset, this Court must review the requirements of the Local Rules of Civil Procedure. Local Rule 56 provides: "In any motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, there shall be annexed to the notice of motion "a separate, short, and concise statement of the material facts as 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). "The papers opposing a motion for summary judgment shall include 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 id. 56.1(b). In short, the moving party must set forth the material facts that it contends are not in dispute, whereas the non-moving party must then set forth the material facts that he contends are in dispute (i.e., material facts as to which she contends that there is a genuine issue). CDR has complied with both rules. See Def.'s Statement of Material Facts, Doc.# 58 ("SOMF") and Def.'s Response to Plaintiff's Statement of Material Facts Pursuant to Rule 56.1., Doc.# 78 ("Responding Statement").
Plaintiff, however, appears to have only partially complied with the Local Rules by submitting a "Statement of Material Facts Raising Genuine Issues of Fact For Trial" ("Hybrid Statement").*fn1 See Doc.# 74.3. Plaintiff's Hybrid Statement failed to specifically controvert the defendant's SOMF as required by Loc. R. Civ. P. 56.1(b) and (d).*fn2 Although plaintiff's Hybrid Statement sets forth some facts that appear to somewhat contradict defendant's SOMF and at the same time setting forth his own version of undisputed facts under 56.1(a), it nonetheless includes facts that are contained in defendant's SOMF i.e., facts about which there is no disagreement and that create no genuine issue of material fact. Consequently, plaintiff's Hybrid Statement has the effect of causing confusion and obscuring the record. Further, it fails to specifically set forth which facts create a genuine issue of material fact--as opposed to a recitation of all the alleged facts . Since plaintiff has only partially complied with Rule 56.1(b) and 56.1(d), the third paragraph of Rule 56.1 comes into play. It 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).
As this Court held in Kuchar v. Kenmore Mercy Hosp., 2000 WL 210199, at *1 (W.D.N.Y.2000) "[w]hile the consequence of this miscue is minimal given the general consensus between the parties [as shown by defendant] as to the constituent facts of this case, where a discrepancy exists this Court is obligated to and will 'deem admitted' the [moving party's] version of the facts... [although] the Court is [also] obligated to and will believe the [non-moving party's] evidence and all justifiable inferences will be drawn in his favor."*fn3 In view of Rule 56.1(c), the relevant facts that the court deems undisputed, based on the Amended Complaint, the parties' 56.1 Statements (as limited by invocation of the Local Rule), and other materials submitted in connection with defendant and plaintiff's motions for summary judgment, are as follows:
Plaintiff suffered a stroke in March 1994. See SOMF, ¶ 1. In October 1994, plaintiff underwent a comprehensive neuro-psychological evaluation performed by Dr. Peter B. Sorman, Ph.D. ("Dr. Sorman"). See id., ¶ 3. Dr. Sorman's report dated November 3, 1994 ("November 1994 Report") found that plaintiff had "superior abilities" with respect to intellectual functioning. For instance, general intelligence and verbal intellectual capacities were in the high average range while the nonverbal intellectual capacities was in the average range . See id., ¶ 4.*fn4 With regard to attention and coordination, plaintiff was within average range. See id., ¶ 5. A sensory-perception examination revealed that all of plaintiff's sensory organs were within normal limits. See id. In terms of language and academic abilities the November 1994 Report showed that plaintiff had "no apparent word finding difficulties" and his academic capabilities are commensurate with his level of education. See id.
The report further found that plaintiff demonstrates "superior verbal abstraction capabilities" in terms of new learning ability. See id. In addition, the November 1994 Report summarized Dr. Sorman's examination of plaintiff by finding that he is "functioning in the high average range of general intelligence with a statistically significant difference noted between verbal and nonverbal intellectual capacities, the latter within average range....Mr. Wega...has retained very superior fund of general knowledge and high average vocabulary, mental arithmetic calculations and verbal abstraction capacities in the superior range....Mr. Wega's overall attention and concentration abilities for structured information was found to be within average range. Overall memory functions range from average to slightly above average capacities." See id., ¶ 6. Indeed, on many of the factors tested, plaintiff scored above average. See Fusco Aff., Ex. C.
At the time of his stroke, plaintiff was employed as the Director of Health and Safety Services for the American Red Cross ("Red Cross"). See id., ¶ 7. Within months after the stroke, plaintiff returned to work but he continued to receive physical therapy for problems with his leg. See id., ¶ 2. In 1998 plaintiff was terminated from his position at the Red Cross. See id., ¶ 7.*fn5 In 1999, plaintiff was hired by the American Heart Association ("AHA") as Vice-President for Health Admissions. See id., ¶ 8. However, in early 2002 plaintiff was placed on a performance improvement plan by the AHA. In seeking assistance from VESID, plaintiff received a job coach to assist him at work. Plaintiff's VESID counselor, Laura Mass referred him back to Dr. Sorman for a re-evaluation in February 2002. See id., ¶ 11.
Dr. Sorman's report dated February 11, 2002 ("February 2002 Report") revealed that plaintiff's vocabulary function were in the high average range in terms of his intellectual abilities. In addition, his "non-verbal reasoning was assessed at...average capacity" and his "IQ composite...is at the upper end of the average range." See id., ¶ 12. Plaintiff also exhibits average "working memory" and he "still exhibits intellectual capacities in the average-to-above average range with well-developed verbally mediated skills." See id. Essentially, the February 2002 Report concluded that plaintiff's cognitive profile "remains relatively unchanged from data obtained in 1994." See id. The report however indicated that "[m]ulti-tasking...may present a challenge as will issues such as organization and time management of responsibilities." See id.*fn6 One of the recommendations in the February 2002 Report was that plaintiff receive the assistance of a job coach. See id., ¶ 13. In this regard, plaintiff had at least ten job coaching sessions with Ray Connor, a coach provided through VESID from mid-April through mid-May 2002. See id. Despite the services of the job coach, plaintiff was terminated from his employment at the AHA in either May or June 2002. See id., ¶ 14.
In the fall of 2002, plaintiff applied for the position of Director of Administration at the CDR. See id., ¶ 15. Plaintiff's cover letter indicated that he suffered from a stroke but had made a "remarkable recovery." See id., ¶ 15. In fact, plaintiff testified at his deposition that at no time during his employment with CDR did he ever request an accommodation regarding either his physical or mental limitations as a result of his 1994 stroke. See id., ¶ 16. In December 2002, CDR hired plaintiff as the Director of Administration and he held that title until April 2004. See id., ¶ 18. As Director of Administration plaintiff had two main areas of responsibility, namely the finances of the organization and overall human resource guidance. See Affidavit of Bruce Darling ("Darling Aff."), ¶ 23. However, throughout the fall of 2003 and well into 2004 plaintiff had performance problems handling the financial responsibilities of his job as seen by his lack of knowledge of CDR's funding streams, as exhibited by his inability to complete major tasks*fn7 and as shown by plaintiff's failure to file the organization's taxes in 2003.*fn8 See SOMF, ¶ 17. Plaintiff's title changed in April 2004 to Director of Human Resources ...