The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff Gabriele Verrocchio ("Plaintiff") commenced the instant action against Defendant Federal Express Corporation ("Defendant") asserting a claim under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 and for breach of contract. Presently before the Court is Defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56. Plaintiff failed to file opposition papers.
The following facts are taken from Defendant's statement of material facts submitted pursuant to N.D.N.Y.L.R. 7.1(a)(3). Because Plaintiff failed to respond to Defendant's motion, the following facts are deemed to be true. N.D.N.Y.L.R. 7.1(a)(3).
Plaintiff was employed by Defendant from 1983 until 2007. At all times relevant hereto, Plaintiff worked as a courier. To drive a commercial vehicle for Defendant, couriers are required to obtain and maintain a commercial drivers' license. One of the essential functions of the courier position is the ability to lift up to 75 pounds on a daily basis. Another essential function is the ability to meet the qualification of Section 391 of the Federal Motor Carrier Safety Regulations. These regulations require, among other things, that there be "no impairment of . . . [a]n arm . . . [that] interferes with the ability to perform normal tasks associated with operating a commercial motor vehicle. . . ." 49 C.F.R. § 391.41(b)(2)(ii).
In December 2006, while working for Defendant, Plaintiff was involved in a motor vehicle accident and was injured. Since that time, Plaintiff has received workers' compensation benefits. As a result of the accident, Plaintiff was placed on a medical leave of absence. Thereafter, Plaintiff attempted to return to work for approximately one month, but was returned to leave status due to his inability to perform the job.
In July 2007, Plaintiff underwent an independent medical evaluation ("IME") in connection with his workers' compensation claim. The IME physician stated that Plaintiff could not return to his position as a courier, but could return to any available light duty using mainly his right upper extremity. Plaintiff was then asked to participate in Defendant's Temporary Return to Work ("TRW") program and return to work on light duty. Plaintiff was instructed to contact the station manager no later than August 28, 2008 to work out a schedule and job duties. Although Plaintiff knew that participation in TRW was not voluntary and that the failure to participate could result in termination, Plaintiff did not report to TRW. Plaintiff never asked for any accommodation to perform light duty.
In September 2007, Plaintiff received another letter from Defendant instructing him to participate in the TRW program. Plaintiff contacted the station manager concerning the type of work to be performed. Plaintiff also visited his physician concerning his work restrictions. Plaintiff's treating physician, Dr. Kammerman, confirmed that Plaintiff should not lift more than 15 pounds or stand for more than a half hour or sit for more than an hour.
Plaintiff did not report to TRW duty. Plaintiff never requested any accommodation from Defendant to perform any light duty or courier functions. On September 14, 2007, Plaintiff was terminated for his failure to report to his TRW assignment.
At deposition, Plaintiff testified that he could not perform the essential functions of the courier position between the date of the accident and his termination. Plaintiff also filed for Social Security benefits, claiming to be totally disabled.
Defendant moves for summary judgment pursuant to Rule 56. 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 his 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 ...