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Steven P. Thomsen v. Stantec

May 19, 2011


The opinion of the court was delivered by: David G. Larimer United States District Judge


On August 7, 2009, plaintiff Steven Thomsen ("plaintiff") initiated the instant action against Stantec, Inc. ("Stantec" or "defendant"). Plaintiff, a former Stantec employee, alleges that Stantec discriminated against him on the basis of disability and failed to make reasonable accommodations for his disability in violation of the Americans with Disabilities Act, 42 U.S.C. §12101 et seq. ("ADA") and New York Human Rights Law, N.Y. Exec. Law §§290 et seq. ("NYHRL"), and also interfered and retaliated against him with respect to his exercise of rights under the Family and Medical Leave Act, 29 U.S.C. §2601 et seq. ("FMLA").

Stantec now moves to for summary judgment dismissing plaintiff's claims in their entirety. For the following reasons, the motion for summary judgment (Dkt. #17) is granted, and the complaint is dismissed.


Summary judgment will be granted if the record demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P.56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). While caution is merited in cases where motive, intent or state of mind are at issue, which is a common component of discrimination claims like those asserted here, see Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988); Montana v. First Federal Savings and Loan Ass'n of Rochester, 869 F.2d 100, 103 (2d Cir.1989), "the salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to... other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985) (summary judgment rule would be rendered sterile if mere incantation of intent or state of mind would act as a talisman to defeat an otherwise valid motion). See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000), quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993) (trial courts should not "treat discrimination differently from other ultimate questions of fact"). When considering a motion for summary judgment, the Court must draw inferences from underlying facts "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

I. Plaintiff's ADA Discrimination Claims

Plaintiff's claims of employment discrimination are subject to the burden-shifting analysis first articulated in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). First, plaintiff must establish a prima facie case of discrimination by demonstrating that: (1) his employer is subject to the ADA; (2) he was a person with a disability as defined by the ADA; (3) the plaintiff was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodations; and (4) plaintiff suffered adverse employment action on account of his disability. See Rambacher v. Bemus Point Cent. Sch. Dist., 307 Fed. Appx. 541,543-544 (2d Cir. 2009); Shannon v. N.Y. City Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003).

Once plaintiff has established a prima facie case, the burden shifts to Stantec to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. Once it does so, the burden then returns to plaintiff, to supply evidence that the legitimate, nondiscriminatory reason offered by Stantec for the adverse employment action is pretextual. See St. Mary's Honor Center, 509 U.S. 502 at508.

While granting plaintiff the liberal interpretation and favorable inferences due to him as a non-movant, I find that plaintiff cannot make out a prima facie case of discrimination in violation of the ADA, and thus, his claims must be dismissed.

Title I of the ADA prohibits employers from discriminating again any "qualified individual with a disability because of the disability of such individual in regard to" any aspect of employment. 42 U.S.C. §12112(a). A disabled individual is one who: "(i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 42 U.S.C. §12102(2).

An impairment cannot be demonstrated by bare evidence of a medical diagnosis, such as cancer: rather, the ADA "requires those claiming the Act's protection . . . to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience . . . is substantial." Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002). In considering the severity of the impairment for the afflicted individual, the Court assesses, "(I) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2). "A disability under the ADA does not include temporary medical conditions, even if those conditions require extended leaves of absence from work because such conditions are not substantially limiting." Murray v. Rick Bokman, Inc., 2001 U.S. Dist. LEXIS 7163 at *21 (W.D.N.Y. 2001) (internal quotations omitted).

Here, plaintiff has failed to demonstrate that he is an individual with a disability pursuant to the ADA, or that he was subjected to adverse employment action resulting from that disability.

Plaintiff claims that his bowel cancer, which necessitated at least three medical leaves of absence from work in order to undergo surgical removal procedures, each lasting approximately six weeks, constituted an ADA-qualifying disability. However, plaintiff has produced no evidence that his impairments -- whatever they might have been during his medical leaves of absence -- were significantly restrictive, persistent or permanent. See generally 29 C.F.R. § 1630.2(j)(1)(ii)( "substantially limits" means "[s]ignficantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity"). A "temporary inability to work after surgery does not constitute a 'disability' under the ADA," and plaintiff has produced no evidence to suggest that he experienced anything more. Walker v. Consol. Edison Co. of New York, Inc., 2002 U.S. Dist. LEXIS 20112 at *14 (S.D.N.Y. 2002). To the contrary, plaintiff testified that his condition did not limit his ability to accomplish any major life activity, except for the brief periods in which he was hospitalized and/or on medical leave. (Dkt. #17-9, #17-10 at 111-117). He also testified that when he returned to work, his physician imposed no restrictions on him, and he did not request any accommodations in order to perform his job. (Dkt. #17-9, #17-10 at 49-59, 120). The parties agree that plaintiff's surgeries were successful, and that as of the time his employment was terminated by Stantec, he was cancer-free.

The undisputed evidence thus indicates that plaintiff experienced only discrete, temporary and brief periods of impairment as he recovered from surgery, followed by successful returns to work, in which his ability to perform, and his employer's expectations, were unchanged. Nor is there any question as to whether Stantec had notice of a disability: plaintiff never notified Stantec that he was disabled or requested accommodations. See e.g. Watson v. Arts & Entm't TV Network, 2008 U.S. Dist. LEXIS 24059 at *39-*40 (S.D.N.Y. 2010) ("[a]lthough there may be close cases where knowledge of some symptoms may give rise to a question of fact concerning the employer's knowledge of the claimed disability . . . [no such case exists where] defendant had no reason to know or even suspect that [the ...

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