The opinion of the court was delivered by: Lindsay, Magistrate Judge:
The plaintiff, James Brtalik ("Brtalik"), commenced this employment discrimination action against the defendant, South Huntington Union Free School District ("the School District"), alleging federal claims pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act, 42 U.S.C. §§ 12102 (the "ADA") as well as state law claims pursuant to the New York State Human Rights Law (the "NYSHRL"). The parties have consented to the undersigned's jurisdiction pursuant to 28 U.S.C. § 636. Before the court is the defendant's motion for summary judgment and the plaintiff's cross-motion for partial summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons set forth below, the defendant's motion is granted and the plaintiff's motion is denied.
A. Brtalik's Employment History
In 1988, Brtalik was hired by the School District as a Instructional Media Center Technician, commonly referred to as an Audio-Visual Technician. Def. 56.1 Stmt. ¶ 3; Pl. 56.1 Ctr. Stmt. ¶ 3.*fn1 Brtalik's job responsibilities include supplying and setting up equipment and facilitating audio-visual functions and activities that take place in the School District. Def. 56.1 Stmt. ¶ 4. A part of Brtalik's duties includes carrying audio-visual equipment typically weighing about 20 pounds. Def. 56.1 Stmt. ¶ 5; Pl. 56.1 Ctr. Stmt. ¶5. Brtalik continues to be employed by the School District.
The factual backdrop of this motion centers on Brtalik's June 29, 2009 colonoscopy/polypectomy procedure.*fn2 Def. 56.1 Stmt. ¶ 17. During the procedure, a benign rectal polyp was removed and the doctor reported his finding of internal hemorrhoids. Pl. 56.1 Ctr. Stmt. ¶ 23. Upon completion of the colonoscopy, the doctor furnished Brtalik with a note restricting him to light duty and no heavy lifting for a period of two weeks. Id. at § 25. When Brtalik returned to work the following day he was informed that a light duty assignment was not available and that he would be required to use sick time. Id. at § 70. Brtalik asserts that he has suffered from hemorrhoids since 1994 and continues to experience hemorrhoids requiring him to apply medication to treat his symptoms including, among other things, Preparation H. Id. at § 29.
On August 28, 2009, Brtalik filed a Charge of Discrimination based on
disability discrimination and retaliation with the Equal Employment
Opportunity Commission ("EEOC"). Def. 56.1 Stmt. ¶ 1.*fn3
The EEOC Charge sets forth a series of disabilities that
Brtalik alleges support his claim of discrimination. See Ventor Aff.
at Ex. 1. Specifically, his alleged disabilities include (1) a 2002
torn meniscus, which kept him out of work for three weeks; (2) an
anxiety disorder as a result of a hostile work environment; (3) a 2006
elbow injury that forced him to "have his duties restricted
temporarily," (4) tests for potential heart problems; (5) a 2006 bout
of heel pain; (5) a pneumonia while on vacation in 2008; and (6) the
2009 colonoscopy addressed in this motion. In his complaint, Brtalik
alleges that he was denied a reasonable accommodation after suffering
each of the above disabilities. He also alleges retaliation after
engaging in activities protected by the ADA.
His EEOC Charge also described a purported First Amendment claim arising from the harassment and retaliation he claims to have endured for speaking out on a matter of public concern. Brtalik claimed, in this regard, that he made protected statements about a co-worker comprising of correspondence he sent to administrators complaining about the co-worker's job performance. Specifically, Brtalik advised District Administrators that his co-worker had lost a key to the high school projection booth making it possible for students to injure themselves or steal School property.*fn4 See 10/6/2010 Memorandum and Order at 3. On October 23, 2009, Brtalik received a right to sue letter.
On January 20, 2010, Brtalik commenced the instant action alleging a Section 1983 retaliation claim for the exercise of his First Amendment right to speak as to matters of public concern, an ADA claim discrimination/failure to accommodate claim and an ADA retaliation claim. On March 10, 2010, the School District requested a pre-motion conference before the District Judge seeking permission to file a motion to dismiss. In its letter, the School District outlined several deficiencies in the complaint including the fact that a vast majority of the allegation were barred by the statute of limitations. In response, Brtalik indicated that he "agree[d] that the § 1983 statute of limitations is three (3) years and the statutory requirement is 300 days to file an EEOC charge." Accordingly, the court granted the School District leave to move to dismiss the complaint except with respect to the statute of limitations issue which was not controverted. See 4/8/2010 Order.
On October 6, 2010, the court granted, in part, the School District's motion dismissing any state law claims for failure to file the statutory notice of claim, the Section 1983 First Amendment claim, and any ADA claims based upon perceived disability. The court denied the motion with respect to the ADA discrimination/failure to accommodate claim and the ADA retaliation claim. On May 27, 2011, the defendant submitted its motion for summary judgment on the remaining claims.*fn5 In his opposition to the defendant's motion, Brtalik withdrew his claims that the School District discriminated against him due to his actual disability and/or record of impairment and his claim for ADA retaliation, leaving only the reasonable accommodation claim. See Pls. Mem at 1.
The plaintiff then cross-moved for partial summary judgment on the remaining claim arguing for the first time that his "acute hemorrhoids" were the disabling condition that form the basis of his reasonable accommodation claim, not the 2009 colonoscopy procedure alleged in his complaint.