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Sacks v. Gandhi Eng'g, Inc.

United States District Court, S.D. New York

February 27, 2014


Order Filed: August 23, 2013

Page 630

Farrell Sacks, Plaintiff, Pro se, Flushing, NY.

For City of New York, Movant: Melanie Calandra Teresa Ash, New York City Law Department, New York, NY.

For Gandhi Engineering, Inc., Defendant: Keith J Frank, LEAD ATTORNEY, Perez, Furey & Varvaro, Uniondale, NY.

Page 631


Deborah A. Batts, United States District Judge.

On August 23, 2013, United States Magistrate Judge Debra C. Freeman issued a Report and Recommendation (" Report" ), recommending that Defendant's Motion for Summary Judgment be granted in part and denied in part. (Report at 1, 26.) Defendant filed timely Objections to the Report. Pro se Plaintiff did not respond to Defendant's Objections.

For the reasons set forth below, after conducting the appropriate levels of review following Defendant's Objections, the Report and Recommendation of Magistrate Judge Freeman dated August 23, 2013 shall be ADOPTED in its entirety. Accordingly, the Court GRANTS Defendant's Motion for Summary Judgment as to

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Plaintiff's claims of discrimination based on age and religion but DENIES Defendant's Motion for Summary Judgment as to Plaintiff's claim that Defendant discriminated against him in violation of the Americans with Disability Act of 1990 (" ADA" ).


The Report sets forth the factual background in great detail in the Report. Parties' familiarity with the Report and underlying facts is assumed, and this Order recounts the facts only to the extent necessary for the resolution of Defendant's Objections thereto.

The City of New York Department of Transportation (" DOT" ) hired Defendant to oversee bridge construction projects. (Def. 56.1 Stmt. ¶ 8.) Defendant employed Plaintiff from September 7, 2010 to October 22, 2010 as a Senior Inspector for one of DOT's bridge construction projects. (Id. ¶ 7.) Among his Inspector duties, Plaintiff submitted daily work reports, measured " Quantities," climbed ladders, measured and photographed installations, walked on rebar mat, and performed various concrete tests. (Id. ¶ 24; Pl. 56.1 Stmt. ¶ 24.) The Parties dispute whether Plaintiff sufficiently performed his duties. (Def. 56.1. Stmt. ¶ 25; Pl. 56.1 Stmt. ¶ 25.) Defendant claims that Kirti Gandhi (" Gandhi" ), the owner of Gandhi Engineering Inc., and DOT engineers witnessed Plaintiff not performing adequately his job duties. (Frank Decl. Ex. E ¶ ¶ 6-7.) Therefore, Defendant asserts, he was " terminated due to performance." (Id. Ex. F ¶ ¶ 4, 9.) Plaintiff, however, claims that his supervisor, Godfrey Passaro (" Passaro" ), told him he was fired becuase DOT was unhappy with his " agility." (Pl.'s Add'l Points ¶ 5.) He claims that, although Gandhi told Plaintiff that he was " unable to perform his duties as Inspector," nothing in his personnel record indicates poor performance. (Pl.'s Add'l Points ¶ ¶ 6, 8.)

Plaintiff does not have a disability, nor has he been told by a medical provider that he has one or that he has any problems with his agility. (Def. 56.1 Stmt. 19, 21 ; Sacks Dep. 75:6-9.) He also never informed Defendant that he had a disability or needed an accommodation. (Def. 56.1 Stmt. 18, 20.) While Defendant has seen a medical practitioner since the beginning of this action, it was unrelated to any mobility or agility concerns. (Sacks Dep. 130:22-131:15.)


A. Standard of Review for a Report and Recommendation

" Within fourteen days after being served with a copy [of a Magistrate Judge's Report and Recommendation], a party may serve and file specific written objections to the proposed findings and recommendations." Fed.R.Civ.P. 72(b)(2); accord 28 U.S.C. § 636(b)(1)(C). The court may adopt those portions of the report to which no timely objection has been made, as long as there is no clear error on the face of the record. Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003). A district court must review de novo " those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). " To the extent, however, that the party makes only conclusory or general arguments, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." Indymac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07 Civ. 6865, 2008 WL 4810043, at *1 (S.D.N.Y. Nov. 3, 2008). After conducting the appropriate levels of review, the Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate. 28 U.S.C. § 636(b)(1)(C).

Page 633

B. Legal Standard for Disability Discrimination

Disability discrimination claims alleged under the ADA are examined using the three-step burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Ben-Levy v. Bloomberg, 518 F.Appx. 17, 19 (2d Cir. 2013). To establish a prima facie case of disparate treatment, a plaintiff must demonstrate that

(1) the defendant is covered by the ADA; (2) plaintiff suffers from or is regarded as suffering from a disability within the meaning of the ADA; (3) plaintiff was qualified to perform the essential functions of the job, with or without reasonable accommodation; and (4) plaintiff suffered an adverse employment action because of his disability or perceived disability.

Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005). A plaintiff's burden to establish a prima facie case is de minimis. Katz v. Adecco USA, Inc., 845 F.Supp.2d 539, 548 (S.D.N.Y. 2012).

When a plaintiff brings a claim on the basis of that his employer regarded him as disabled, " the decisive issue is the employer's perception of his or her employee's alleged impairment." Giordano v. City of New York, 274 F.3d 740, 748 (2d Cir. 2001). A plaintiff therefore must " show not only that the defendants 'regarded [him] as somehow disabled,' but that they 'regarded [him] as disabled within the meaning of the ADA.'" Id. (citation omitted). When Congress passed the ADA Amendment Act (" ADAAA" ) of 2008, it created a more lenient definition of " regarded as" disabled or perceived disability:

An individual meets the requirement of " being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

42 U.S.C. § 12102(3)(A); 29 C.F.R. § 1630.2(l)(1).[1] Accordingly, to survive summary judgment, a plaintiff is required to raise a genuine issue of material fact as to whether the employer " regarded him as having a mental or physical impairment." Hilton, 673 F.3d at 128. A physical impairment includes, inter alia, a " physiological disorder or condition . . . affecting . . . [the] musculoskeletal" system. 29 C.F.R. § 1630.2(h)(1). The impairment only constitutes a disability under the ADA

if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.[2]

29 C.F.R. § 1630.2(j)(1)(ii). Major life activities include walking and bending. 29 C.F.R. § 1630.2(i)(1)(i).

After a plaintiff sustains the prima facie burden, a defendant must then " proffer a legitimate, nondiscriminatory reason for

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the complained of action." Ben-Levy, 518 F.Appx. at 19 (citing Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)). If the employer meets that burden, " [t]his rebuts the presumption raised by the prima facie case, at which point 'the burden shifts back to the plaintiff to prove, by a preponderance of the evidence, that the real reason for the adverse employment decision was discrimination.'" Kemp v. Metro-North R.R., 316 F.Appx. 25, 27 (2d Cir. 2009) (citation omitted).

C. Defendant's Objections

Magistrate Judge Freeman recommended that this Court dismiss Plaintiff's religion and age discrimination claims because he could not establish a prima facie case of discrimination under the McDonnell Douglas framework. (Report 14-20.) However, the Report recommended to deny Defendant's Motion for Summary Judgment as to Plaintiff's disability discrimination claims because he made out his prima facie case of disability discrimination and there was a triable issue of fact as to whether Defendant's explanation for his termination was pretextual. (Report 20-26.)

Defendant objects to the Report's findings that (1) agility is a physiological condition that can be perceived as a disability under the ADA, (2) there was an inference of discrimination based upon perceived disability, (3) Defendant did not put forth a legitimate non-discriminatory basis for its termination decision, and (4) Plaintiff produced sufficient evidence to demonstrate pretext. The Court has reviewed for clear error the portions of the Report to which no objections have been made and finds none.

Defendant's first Objection relates to the Report's finding that Plaintiff set forth sufficient evidence to establish the second part of Plaintiff's prima facie case. The Report explained that the statements that Plaintiff was terminated due to his lack of agility and his inability to perform his job tasks, where his job involved walking, climbing, and bending, " give rise to an inference that Defendant believed that Plaintiff had a physiological condition, most likely involving the musculoskeletal system." (Report 23.) Defendant contends that, even under the ADAAA standard, agility cannot constitute a disability. Defendant also asserts the Report erred in finding that Defendant believed Plaintiff had a disability.

As an initial matter, the Report correctly determined that the ADAAA " regarded as" standard and not the pre-2008 Amendment standard applies. In applying pre-ADAAA law, the Second Circuit held that evidence suggesting that the employee " lacked the physical strength and agility necessary . . . was insufficient to establish that [he] was considered substantially limited in the major life activity of 'working.'" Cardo v. Arligton Central School District, 473 F.Appx. 21, 23-24 (2d Cir. 2012). Defendant now speculates that the Second Circuit in Cardo would have determined that agility was not a disability if the Circuit had applied the ADAAA. Such speculation is not entitled to de novo review, especially given that the Report expressly considered Cardo. Moreover, Magistrate Judge Freeman never determined that lack of agility is a perceived disability and instead noted that the agility comment was evidence of Defendant's perception of Plaintiff's physical limitations. The Court finds no error in Magistrate Judge Freeman's well-reasoned analysis.

Defendant's second Objection is the Report erred in finding Plaintiff produced sufficient evidence to demonstrate that Defendant perceived him as having a disability and therefore his termination could not be a result of disability discrimination. Under the ADAAA's more lenient perceived

Page 635

disability standard, Plaintiff is " 'not required to show that the disability [s]he is perceived as suffering from is one that actually limits, or is perceived to limit, a major life activity.'" Harris v. NYU Langone Med. Ctr., No. 12 Civ. 454, 2013 WL 3487032, at *17 (S.D.N.Y. July 9, 2013) (quoting Davis v. New York City Dep't of Educ., No. 10 Civ. 3812, 2012 WL 139255, at *5 (E.D.N.Y. Jan. 18, 2012)). Nonetheless, a plaintiff is still required to provide evidence suggesting that the employer perceived the employee as having an impairment. See Hilton, 673 F.3d at 128; see also Risco v. McHugh, 868 F.Supp.2d 75, 108-09 (S.D.N.Y. 2012).

In making its Objection, Defendant contends the Report erred in finding that, given Plaintiff's job involved walking, climbing, and bending, the two statements--namely, Passaro saying the DOT was unhappy with Plaintiff's agility and Gandhi noting that Plaintiff was unable to perform his duties as Inspector--gave rise to an inference that Defendant believed Plaintiff had a physiological condition, most likely involving the musculoskeletal system. However, Defendant's argument merely rehashes the same factual assertions it made before the Magistrate. The only novel argument propounded by Defendant is its citation to Sibilla v. Follett Corp., No. 10 Civ. 1457, 2012 WL 1077655, at *7 (E.D.N.Y. Mar. 30, 2012). Although Defendant contends that the court found that the inability to perform work functions such as bending, lifting, and climbing is not a basis for determining that the plaintiff had a physiological condition, the court made no such determination. Rather, the court explained, " The fact that an employer regards an employee as obese or overweight does not necessarily mean that the employer regards the employee as suffering a physical impairment." Sibilla, 2012 WL 1077655, at *7 (emphasis added). Here, the Report correctly determined that, viewing the evidence in the light most favorable to Plaintiff, he established a prima facie case of discrimination on the basis of perceived disability.

Defendant's third Objection lacks merit as it misstates the Report's finding. Because the Report found that Defendant proffered a legitimate non-discriminatory basis for its termination decision, the Report continued to the third step of the McDonnell Douglas framework. Thus, Defendant's Objection is entitled to only clear error review, and the Court finds none.

Defendant's fourth Objection asserts that Plaintiff did not produce sufficient evidence to demonstrate that its legitimate reason was pretextual. Defendant claims that the Report erred in finding that Gandhi and Passaro's inconsistent statements regarding Plaintiff's termination demonstrated pretext. In making its arguments, Defendant points to Gandhi's deposition explaining the reason for Plaintiff's termination during which Ganhi answered, " I told Mr. Sacks that we cannot use his services as he is unable to perform his duties." (Obj. 8.) Defendant then speculates as to the meaning of " unable" and attempts to explain away the other inconsistencies in the record regarding the reason for Plaintiff's termination. These arguments are not entitled to de novo review. See Azkour v. Little Rest Twelve, Inc., No. 10 Civ. 4132, 2012 WL 1026730, at *2 (S.D.N.Y. Mar. 27, 2012) (" [C]ourts generally do not consider new evidence raised in objections ... absent a compelling justification for failure to present such evidence to the magistrate judge." (citation omitted)). Moreover, arguments that relitigate issues or factual matters are entitled to review only for clear error, and the Court finds none. See IndyMac Bank, F.S.B., 2008 WL 4810043, at *1.

Page 636

Accordingly, the Court ADOPTS the Report's recommendation to deny Defendant's Motion for Summary Judgment as to Plaintiff's disability discrimination claim.

III. Conclusion

Having conducted the appropriate levels of review of the Report and Recommendation of United States Magistrate Judge Debra C. Freeman, dated August 23, 2013, this Court APPROVES, ADOPTS, and RATIFIES the Report in its entirety. Defendant's Motion for Summary Judgment is GRANTED with respect to Plaintiff's religion and age discrimination claims but DENIED as to Plaintiff's disability discrimination claim.

The Court hereby sets the following schedule for pre-trial submissions:

Proposed Requests to Charge and Proposed Voir Dire shall be submitted by April 28, 2014. A Joint Pre-trial Statement (" JPTS" ) shall be submitted by April 28, 2014. The JPTS shall conform to the Court's Individual Practices and Supplemental Trial Procedure Rules.

Memoranda of Law addressing those issues raised in the JPTS shall be submitted by April 28, 2014. Responses to the Memoranda shall be submitted by May 12, 2014. There shall be no replies.



DEBRA FREEMAN, United States Magistrate Judge.


Pro se plaintiff Farell Sacks (" Plaintiff') brings this employment discrimination action against defendant Gandhi Engineering, Inc. (" Ghandi Engineering" or " Defendant" ), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq . (" Title VII" ), the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq . (the " ADEA" ), and the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101, et seq . (the " ADA" ). Specifically, Plaintiff claims that Defendant terminated him and failed to rehire him because of his religion, his age, and a perceived disability.

Currently before the Court is Defendant's motion for summary judgment (Dkt. 37), which has been referred to me for a report and recommendation. For the reasons that follow, I recommend that Defendant's motion for summary judgment be granted in part and denied in part.


A. Factual Background

It is undisputed that Plaintiff was employed by Defendant from September 7, 2010 through October 22, 2010, as a " Senior Inspector" on a project, known as the " 149th Street Bridge," which the New York City Department of Transportation (" DOT" ) had hired Defendant to oversee. ( See Local Rule 56.1 Statement, dated Feb. 22, 2013 (" Def. Rule 56.1 Stmt." ) (Dkt. 45) ¶ ¶ 6, 8-9; Response to Statement of Material Facts Pursuant to Local Rule 56.1, dated May 3. 2013 (" Pl. Response" ) (Dkt. 59) ¶ ¶ 6, 8-9.[1]) It is also undisputed

Page 637

that Defendant's principal, Dr. Kirti Ghandi (" Ghandi" ), is Hindu ( see Def. & Pl. 56.1 Stmts. ¶ 16[2]), and that the man who served as Plaintiff's immediate supervisor, Godfrey Passaro (" Passaro" ), is Roman Catholic ( see id .). Plaintiff is Jewish, and was 55 years old when he worked for Defendant. ( See Def. & Pl. 56.1 Stmts. ¶ ¶ 11, 15.)

According to Defendant, Plaintiff's job duties, as a Senior Inspector, included, inter alia, turning in a " Daily Work Report" to the Office Engineer at the Field Office, paying contractors for work done, climbing up and down on ladders to inspect completed work, making sure that all work was performed in accordance with contract drawings and City specifications, walking on the " [r]ebar mat" to confirm that rebars were properly installed and supported, and performing required " Concrete Tests." ( See Def. 56.1 Stmt. ¶ 24.) For the most part, Plaintiff agrees that these were his assigned duties. ( See Pl. Response ¶ 24.) The parties dispute, however, whether Plaintiff properly performed these duties.

In this regard, Defendant contends that Plaintiff failed to submit reports on a timely basis, to walk on the rebar mat, to bend to measure concrete, to climb construction ladders to inspect work, to perform " any of the concrete tests, as required," or to pay contractors. ( See Def. Rule 56.1 Stmt. ¶ 25.) For his part, Plaintiff asserts that he did perform all identified tasks in the manner required. ( See Pl. Response ¶ 25.) Certainly, Plaintiff contends that he performed all of the physical inspection work that was part of his job. ( See id .) As to the submission of his Daily Work Reports, Plaintiff apparently concedes that he did not submit those reports daily, but asserts that, as practical reality, he was only required to turn them in every few weeks, in batches, which he did. ( See id . ¶ 24(a) (noting that " [t]here was no office engineer" at Plaintiff's work site); id., Ex. B (deposition of Farrel Sacks, conducted on Nov. 14, 2012 (" Sacks Dep." )), at 59:14-60:8; 61:5-19 (explaining that Plaintiff turned in his daily reports when Passaro came to the site).) Finally, regarding the payment of contractors, Plaintiff contends that he wrote " work in progress" in the payment block instead of paying contractors because he was directed to do so by Passaro. ( See Pl. Response ¶ 25.)

The parties also dispute nearly all facts regarding Plaintiff's termination. Defendant currently states, in its summary judgment papers, that the DOT told Ghandi that Plaintiff was " not satisfactorily performing his job" and asked Ghandi " to take [Plaintiff] off the 149th Street Bridge Project." (Def. Rule 56.1 Stmt. ¶ 26.) Defendant further states that, as a result, Plaintiff was informed, " on or about October 22, 2010 that his employment was being terminated due to performance." ( Id. ¶ 27.) Similarly, Passaro now states, in an affidavit, that he informed Plaintiff that " his employment was being terminated due to performance." (Declaration of Keith J. Frank, Esq., in Support of Defendant's Motion for Summary Judgment, dated Feb. 22, 2013 (" Frank Decl." ) (Dkt. 38), Ex. E (Affidavit of Godfrey Passaro, dated Feb. 21, 2013 (" Passaro Aff." )) ¶ 9.) It should be noted, though, that, in response to the written deposition questions that Defendant's witnesses answered as part of the discovery process, Passaro swore that he did not give Plaintiff any reason for his termination " other than [that] it was what Dr. Ghandi told me to do." (Pl. Response, Ex. C, at 1.) Further,

Page 638

Ghandi swore, in discovery, that he (not Passaro) told Plaintiff that Defendant " [could not] use his services[,] as [Plaintiff] [was] unable to perform his duties as an Inspector." (Pl. Response, Ex. D, at 1 (emphasis added).)

Plaintiff disputes that his termination was at the behest of the DOT, noting that there is no written record of any such request. (Pl. Response ¶ 26.) Nonetheless, in describing what transpired when he was notified of his termination (which he claims was on October 21, 2010, not October 22 ( id. ¶ 27)), Plaintiff does state that Passaro told him: " The City is not happy with your agility." (Pl. Add'l Points ¶ 5.) Plaintiff also notes, though, that, in connection with his claim for unemployment insurance, Ghandi did not report that Plaintiff had been discharged for cause, but rather that he became unemployed due to " lack of work" and " [p]ermanent [l]ay-[o]ff." ( See id., ¶ ¶ 7-8 (referencing Pl. Response, Ex. G).)

The parties additionally dispute who filled the position of Senior Inspector at the 149th Street Bridge project after Plaintiff's employment was terminated. According to Defendant, the position was filled by Uriel Aminov, a Ghandi Engineering employee who had been hired before Plaintiff, and who was 64 years old. (Def. Rule 56.1 Stmt. ¶ 14.) Plaintiff counters that he was " replaced by a series of individuals, and at times more than one individual simultaneously," and that inspector reports from the time period following Plaintiff's termination (reports that have not been submitted to the Court) would substantiate his position. ( See Pl. Response ¶ 14.) This, though, seems to differ from the facts asserted by Plaintiff at his deposition, when he testified that, to his knowledge, his position was filled by a Ghandi Engineering employee who had occasionally visited the project site while Plaintiff was there, and whom Plaintiff " believe[d]," " [f]rom the surname, probably," to be Hindu. ( See Sacks Dep., at 78:21-79:25.) When asked for the source of his information that this particular employee had replaced him on the job, Plaintiff testified that he had learned this from one or more railroad employees who had worked on the same project and with whom Plaintiff had been friendly, but whose names he had since forgotten. ( See id., at 80:1-11.)

Defendant states, and Plaintiff concedes, that no one at Ghandi Engineering discussed Plaintiff's age ( see Def. & Pl. 56.1 Stmts. ¶ 13) and that, during the period of Plaintiff's employment, Ghandi Engineering had 64 employees, of whom 42 (approximately 66%) were over the age of 40, and 34 (approximately 53%) were aged 50 to 90 ( see Def. & Pl. 56.1 Stmts. ¶ 12). Defendant also states, and Plaintiff does not contest, that Plaintiff never mentioned his religion to anyone at Ghandi Engineering, and that the company does not maintain records of employee religious affiliations. ( See Def. & Pl. 56.1 Stmts. ¶ ¶ 10, 13.) Despite the lack of formal records, Defendant asserts, and Plaintiff admits, that " it was known informally that twelve [employees] were Christian, two were Coptic Christian, five were Jewish, four were Hindu, one was Muslim, one was Jain, one was Atheist and one Agnostic," but that Plaintiff's " religion when he was employed with Defendant was not known." (Def. & Pl. 56.1 Stmts.¶ 17.)

Although Plaintiff's Amended Complaint explicitly claims that Defendant discriminated against Plaintiff both by terminating him and by failing to hire him ( see Amended Complaint, dated Jan. 5, 2012 (" Am. Compl." ) (Dkt. 13), at 2), Defendant's Rule 56.1 Statement does not include any facts relevant to Plaintiff's failure-to-hire claim. Defendant does, however, submit a Declaration from Brenda Hill (" Hill" ), its

Page 639

Director of Human Resources, in which Hill confirms that Plaintiff applied for re-employment, after his termination, but that Defendant did not rehire him. ( See generally Frank Decl., Ex. G (Affidavit of Brenda Hill, dated Feb. 21, 2013).) More specifically, Hill states that, when Plaintiff " applied again for employment with Defendant just after his termination [she] did not provide him with a reason for not hiring him," adding that " based on his prior employment with Defendant he would not have been considered." ( Id. ¶ 6; see also Pl. Response, Ex. E (discovery response from Hill stating that she did not give Plaintiff a reason for not hiring him in Dec., 2010).)

In Plaintiff's sheet of " Additional Points," he only briefly references Defendant's " failure to rehire [him] . . . in December, 2010." (Pl. Add'l Points ¶ 9.) In that submission, Plaintiff appears to suggest that Defendant somehow told him that he was not rehired " based on poor performance," but that this was false. ( See id .) The Court notes, though, that any such version of events would not only be contradictory to Hill's account, but also to Plaintiff's own deposition testimony. At his deposition, Plaintiff testified -- consistent with Hill's Affidavit -- that, in December 2010, he applied for a job that Defendant was advertising on ( see Sacks Dep., at 103:75-104:4), that he spoke to Hill by phone about it, and that he was told he would not be hired for the advertised position, but was not given a reason ( see id., at 104:5-18).

B. Procedural History

By his " best recollection," Plaintiff filed a charge of discrimination with the EEOC on April 16, 2011. (Am. Compl. § 3(A).) The EEOC was unable to conclude that a violation occurred, and issued a " right to sue" letter on May 17, 2011. ( See id., App'x (copy of right to sue letter).)

Plaintiff initiated the present action with a pro se form Complaint dated August 9, 2011, seeking $100,000 in lost wages. ( See Compl. (Dkt. 2), § IV.) In his Complaint, Plaintiff indicated by check marks that he was alleging discrimination in violation of Title VII, the ADEA, and the ADA ( see Compl., at 1), that the discriminatory acts consisted of terminating and failing to hire him ( see id., at 2), and that Defendant was " still committing these acts against [him]" ( id., at 3). Plaintiff also attached a half-page description of the facts of his case, alleging that he was hired by Defendant, was told upon termination that he was " not physically agile enough," was replaced, to the best of his knowledge, with a younger, Hindu employee, and was told that he was not qualified when he reapplied for another position with Defendant. ( See Compl., at 3-4.) Plaintiff then stated, " I believe that I was terminated based on perceived disability, age (55) and religion (non-Hindu)." ( Id.)

On October 13, 2011, the Court ordered Plaintiff to amend his Complaint, so as to clarify and expand his initially-pleaded allegations. ( See Dkt. 8.) On January 10, 2012, Plaintiff filed his Amended Complaint, which included more detailed allegations that the original, including an allegation that " fewer than 10" of the " approximately one hundred employees at Ghandi Engineering" were non-Hindu. ( See Am. Compl.) This Court then proceeded to supervise discovery in the action, pursuant to an Order of Reference issued on January 13, 2012. ( See Dkt. 16.) After repeated extensions of the discovery deadline, discovery closed on January 25, 2013, with the exception of a few discrete items, and the Court set a briefing schedule for summary judgment motions. ( See Dkts. 32, 33.)

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On February 22, 2013, Defendant timely moved for summary judgment on all of Plaintiff's claims. ( See Notice of Motion, dated Feb. 22, 2013 (Dkt. 37); Def. Rule 56.1 Stmt; Memorandum of Law in Support of Motion for Summary Judgment, dated Feb. 22, 2013 (" Def. Mem." ) (Dkt. 39); Frank Decl.[3]) In its motion, Defendant argues that Plaintiff cannot establish a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for any of his discrimination claims; more specifically, Defendant argues that the evidence does not support an inference of religious, age, or disability discrimination ( see Def. Mem. at 6), and that Plaintiff, as a matter of law, cannot show that he is a member of a class protected by the ADA because he is not disabled within the mean of that Act ( see id., at 11-13). Further, Defendant asserts that, even if Plaintiff can establish a prima facie case of religious, age, or disability discrimination, Plaintiff cannot show that Defendant's proffered legitimate business reason for terminating Plaintiff was pretextual. ( See id., at 13.)

By letter dated March 25, 2013 -- four days before his March 29, 2013 deadline to file opposition papers ( see Dkt. 32) -- Plaintiff sought a 30-day extension of that deadline, which the Court granted, with Defendant's consent. ( See Dkt. 41.) Then, by letter dated April 22, 2013 -- approximately one week before the extended deadline -- Plaintiff requested that the Court " extend" discovery, stating that, without first obtaining documents he had subpoenaed from the DOT, he would not be able to respond to Defendant's summary judgment motion. (Dkt. 48.) Defendant opposed the discovery " extension" and the Court, construing Plaintiff's letter as a request to reopen an already-closed discovery period, denied the request and directed Plaintiff " to file his opposition to Defendant's summary judgment motion no later than May 3, 2013." (Order, dated Apr. 26, 2013 (Dkt. 52).) The Court further directed Plaintiff that, if he " believ[ed] that, in any respect, he [could] []not present facts essential to justify his opposition to the motion, he should make a specific showing of this, by affidavit or declaration, pursuant to Rule 56(d) of the Federal Rules of Civil Procedure." ( Id.)

Three days after the Court issued its April 26 Order, the City filed a motion (Dkt. 54),[4] seeking to quash the subpoena that Plaintiff had served on it (as referenced in Plaintiff's April 22 letter to the Court), on the ground that the subpoena was facially over-broad and would have required the DOT to produce a large volume of documents in an extremely short period of time ( see Memorandum of Law in Support of Non-Party the City of New York's Motion To Quash Plaintiff's Subpoena and for a Protective Order, dated Apr. 26, 2013 (Dkt. 57), at 4-7). Although the subpoena in question was issued by the Clerk of Court on April 13, 2013, the City presented evidence that it was not served with the subpoena until April 23, 2013, the day after Plaintiff sent his letter to the Court seeking an " extension" of discovery to enable him to obtain the subpoenaed documents. ( See Affidavit of Malgorzata Banka in Support of Non-Party The City

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of New York's Motion to Quash Plaintiff's Subpoena and For a Protective Order, dated Apr. 26, 2013 (Dkt. 55) ¶ 4 & Ex. A.) Essentially, the subpoena called for the production of all " project records," without limitation, relating to the DOT project on which Plaintiff was employed by Defendant, covering the entire time-span of the project. ( See id., Ex. A.) Plaintiff did not respond to the City's motion to quash, and the Court granted the motion " without prejudice to Plaintiff seeking to subpoena documents from the City in the future, should he be able to demonstrate specific need, either under Fed.R.Civ.P. 56(d), or for trial." (Order, dated May 14, 2013 (Dkt. 60) (Mem. Endors.).) The Court also directed Plaintiff " to serve no further subpoena on the City without prior leave of Court." ( Id.)

On May 3, 2013, Plaintiff filed an opposition to Defendant's motion for summary judgment, consisting of a form reply affirmation with no attachments (Affirmation in Opposition to Motion, dated Apr. 28, 2013 (Dkt. 58)), and a Response to Defendant's Rule 56.1 Statement. As noted above ( see n.1, supra ), Plaintiff attached several exhibits to his Response, including a page titled " Additional Points and Conclusion." (Pl. Add'l Points.)

On May 23, 2013, Defendant filed a reply memorandum. (Reply Memorandum of Law in Support of Motion for Summary Judgment, dated May 23, 2013 (" Def. Reply" ) (Dkt. 61).)



A. Summary Judgment

Under Rule 56(c), a motion for summary judgment should be granted " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996). The moving party bears the burden of showing that no genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Accordingly, the Court " must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

Nonetheless, the party opposing summary judgment must cite to " particular parts of materials in the record" or show " that the materials cited [by the movant] do not establish the absence . . . of a genuine dispute" as to any material fact. Fed.R.Civ.P. 56(c)(1). In order to make such a showing, " [t]he non-moving party may not rely on conclusory allegations or unsubstantiated speculation," Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citing D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998)), but, rather, must present " significant probative evidence tending to support the complaint." Smith v. Menifee, No. 00 Civ. 2521 (DC), 2002 WL 461514, at *3 (S.D.N.Y. Mar. 25, 2002) (citing First Nat'l Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). " If the evidence is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted).

Where the party opposing summary judgment is proceeding on a pro se basis, the Court must read that party's papers liberally and interpret them " to raise the strongest arguments that they suggest."

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McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks and citation omitted). Even a pro se plaintiff, however, cannot defeat a motion for summary judgment by relying merely on the allegations of a complaint. See Champion v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996). Rather, when confronted with evidence of facts that would support summary judgment, the plaintiff must come forward with evidence in admissible form that is capable of refuting those facts. See Jermosen v. Coughlin, 877 F.Supp. 864, 867 (S.D.N.Y. 1999) (in order to defeat summary judgment, a pro se plaintiff must present concrete evidence from which a reasonable jury could return a verdict in his favor); see also Fed.R.Civ.P. 56(c)).

In sum, the Court " cannot try issues of fact; it can only determine whether there are issues to be tried" on the evidence presented. Am. Mfrs. Mut. Ins. Co. v. Am. Broad.-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir. 1967); accord Sutera v. Schering Corp., 73 F.3d 13, 15-16 (2d Cir. 1995). Where there is no genuine issue of material fact, viewing the evidence in the light most favorable to the nonmoving party, summary judgment is appropriate. See Liberty Lobby, 477 U.S. at 248-250.

B. Employment Discrimination

While separate statutes provide the basis for claims of religious, age, and disability discrimination, all such claims are evaluated using the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003) (religious discrimination under Title VII); Holtz v. Rockefeller & Co., 258 F.3d 62, 76-77 (2d 2001) (age discrimination under the ADEA); Stephan v. West Irondequoit Cent. Sch. Dist., 450 F.Appx. 77, 79 (2d Cir. 2001) (disability discrimination under the ADA). " Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of discrimination." Holtz, 258 F.3d at 76, 77. To establish a prima facie case, the plaintiff must show that: (1) he was a member of the class protected by the relevant statute; (2) he was qualified for the job in question; (3) the employer took an adverse employment action against him; and (4) the adverse action took place " under circumstances giving rise to an inference of discrimination." Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000). At the summary judgment stage, the burden of proof that a plaintiff must meet to make out a prima facie case is de minimis. Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 94 (2d Cir. 2001). " In determining whether the plaintiff has met the de minimis initial burden of showing 'circumstances giving rise to an inference of discrimination,' the function of the court on a summary judgment motion is to determine whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2d Cir. 1995) (internal quotation marks and citation omitted).

If the plaintiff makes this de minimis showing, then a presumption of discrimination is created, and, to rebut the presumption, the employer must articulate some legitimate, non-discriminatory reason for the adverse action taken against the plaintiff. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); see also Schnabel, 232 F.3d at 87. The employer's burden, in this regard, is not to prove, conclusively, that the proffered reason was the actual reason for the adverse action, but rather simply to undercut the plaintiff's prima facie case " through the introduction of admissible evidence" of legitimate reasons for the adverse action against the plaintiff. Texas Dept. of Comty.

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Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

If the employer articulates such a reason, then the presumption of discrimination disappears, see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000), and the plaintiff must come forward with evidence capable of showing " that the proffered reason was merely a pretext for discrimination," Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir. 1999) (citation omitted). Mere pretext " may be demonstrated either by the presentation of additional evidence showing that the employer's proffered explanation is unworthy of credence, or by reliance on the evidence comprising the prima facie case, without more." Id. (internal quotation marks and citation omitted). " To defeat summary judgment . . . 'the plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the motivating factors.'" Holtz v. Rockefeller & Co., 258 F.3d 62, 78 (2d Cir. 2001) (quoting Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995) (internal quotation marks omitted)). " The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253.

An extra measure of caution is needed in " granting summary judgment to an employer when, as here, its intent is at issue." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). An employer's records will rarely document the state of mind or motives of its decision-makers, and therefore materials " must be carefully scrutinized for circumstantial evidence that could support an inference of discrimination." Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996). Nonetheless, " summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (" It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." ); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) (" [T]he salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to commercial or other areas of litigation." ).


A. Religious Discrimination

Defendant argues that, based on the evidence in the record, Plaintiff cannot make out even a prima facie case of discrimination based on religion. ( See Def. Mem., at 6-7.) Specifically, Defendant contends that Plaintiff cannot make out the fourth element of a prima facie case -- i.e., that his termination took place under circumstances giving rise to an inference of discrimination.[5] ( See id .) In support of

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its position, Defendant points out that the undisputed evidence demonstrates that Plaintiff did not inform anyone at Gandhi Engineering that he is Jewish, that the company does not keep records of its employees' religious affiliations, that Plaintiff has conceded that no one at the company discussed his religion, and that, in fact, Plaintiff's religion was unknown to Defendant during the time Plaintiff was employed. ( See Def. Mem., at 7 (citing Sacks Dep., at 75-77); see also Def. Rule 56.1 Stmt. ¶ ¶ 15, 17; Pl. 56.1 Stmt. ¶ 17.) Defendant is correct that summary judgment is warranted in its favor on Plaintiff's religious discrimination claim, given that Plaintiff relies entirely on speculation and inadmissible hearsay to oppose Defendant's arguments, and has not adequately demonstrated that he should be allowed additional discovery prior to the Court's decision.

As to the speculative nature of Petitioner's opposition, he proffers his own deposition testimony that he was replaced, on the job, by a person he believed to be Hindu. ( See Sacks Dep., at 78:21-79:8.) Plaintiff testified, though, that his information that this individual actually replaced him came from unidentified " railroad employees" (Sacks Dep., at 80:2-11), and he further testified that his assumption that this person was Hindu was based only on what he " observed culturally," and on what he surmised from this person's " language and . . . surname" ( id., at 79:8-11). Moreover, Plaintiff himself diverged from this account in his Response to Defendant's Rule 56.1 Statement, in which he now asserts that he was not replaced by a single individual, but rather " by a series of individuals," whose identities he apparently does not know, but who he suggests could be identified by inspector reports that he has not submitted. ( See Pl. Response ¶ 14.)

While evidence that a plaintiff was " replaced by a person outside the protected class" may give rise to an inference of discrimination, Meiri v. Dacon, 759 F.2d 989, 996 (2d Cir. 1985), the Court's " determination of whether circumstances 'giv[e] rise to an inference' of discrimination must be a determination of whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive." Id. at 38 (alteration in original) (emphasis added). Speculation and hearsay, such as that offered by Plaintiff on this point, is insufficient to support an inference of discrimination at the summary judgment stage. See Burke v. Evans, 248 F.Appx. 206, 208 (2d Cir. 2007) (holding that plaintiff failed to make out a prima facie case of discrimination where he " did not produce any evidence beyond vague recollections of conversations with co-workers, anecdotes based on hearsay, and other unsupported speculation" ).

As to any need for additional discovery, Plaintiff's arguments, liberally construed, may be suggesting that, without the aforementioned " inspector reports," Plaintiff cannot adequately respond to Defendant's motion. Plaintiff may also be attempting to argue that he needs additional statistical evidence to support his

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allegation that Defendants did not necessarily discriminate against Jews, per se, but rather, more generally against non-Hindus.[6] ( See Am. Compl., App'x; Pl. Add'l Points ¶ 1 (stating that the " statistical data regarding employee religion is incomplete" ).) Prior to the date when Plaintiff's opposition was due, however, the Court explicitly informed him that, if he believed that he needed any additional discovery in order to be able to respond to Defendant's motion, he should submit an affidavit or declaration to that effect, in accordance with Rule 56(d) of the Federal Rules of Civil Procedure. ( See Order, dated Apr. 26, 2013 (Dkt. 52), ¶ 2.) Furthermore, in order to justify such belated discovery, Plaintiff should have explained with specificity, in his affidavit or declaration, " how [he] w[ould] obtain that discovery; how those facts [would be] reasonably expected to raise a genuine issue of material fact; what efforts have been made to date to obtain that discovery; and why the earlier efforts were unsuccessful." Gene Codes Forensics, Inc. v. City of New York, 812 F.Supp.2d 295, 307 (S.D.N.Y. 2011). Here, Plaintiff has submitted no affidavit or declaration to address any need for additional discovery, and thus is not entitled to relief under Rule 56(d). See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994) (noting that referencing need for additional discovery in memorandum opposing summary judgment " is not an adequate substitute" for an affidavit).

Further, although Plaintiff vaguely references evidence that he has apparently not obtained to date, he makes no effort to explain, in any way, why he was unable to obtain any needed " inspector reports" during the discovery period in this action. Plaintiff's deposition testimony demonstrates that he knew of the existence and potential relevance of such reports from his own experience ( see Sacks Dep., at 49, 83:20-25), and thus he cannot contend that he only learned of them, or of their supposed importance, after the close of the discovery period. Plaintiff has also failed to show that evidence of the religion of Defendant's other employees even exists in any documentary form, in the possession of either Defendant or the DOT, and Defendant has stated -- without any challenge from Plaintiff -- that it maintains no records that would reveal such information. Moreover, while Plaintiff initially alleged that " [o]f approximately one hundred employees at Gandhi Engineering, Inc.[,] fewer than ten are of faiths other than the Hindu faith" (Am. Compl., App'x), Plaintiff has now admitted the truth of Defendant's statements reflecting that, of Defendant's 64 employees, only four were known, informally, to be Hindu, and 23 (apparently not including Plaintiff) were known, informally, to be non-Hindu. (Def. & Pl. 56.1 Stmts.¶ 17.) For these reasons, Plaintiff has not shown that a reopening of the discovery period would be likely to enable him to obtain any " statistical data" that could support his claim of religious discrimination.

Under the circumstances, I do not recommend that discovery be reopened. Rather, I recommend that the Court grant Defendant summary judgment dismissing Plaintiff's religious-discrimination claim, on the ground that Plaintiff has not made out a prima facie case of such discrimination.

B. Age Discrimination

Defendant also argues that Plaintiff has failed to make out a prima facie case of age discrimination because the evidence

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similarly does not support an inference that Plaintiff's termination was age based. ( See Def. Mem., at 8-9.) Although evidence that a terminated employee was replaced with someone " substantially younger" may support an inference of age discrimination, as required for a prima facie case, Brennan v. Metropolitan Opera Ass'n, Inc., 192 F.3d 310, 317 (2d Cir. 1999), Plaintiff has provided no such evidence here.

Plaintiff testified that his age-discrimination claim was based on " [r]eplacement by someone much younger than [he]" (Sacks Dep., at 105:20-24), presumably referring to the same employee, mentioned above, who Plaintiff believed replaced him and surmised was Hindu. Yet, for the same reasons discussed above, Plaintiff's testimony that he was told that a certain individual replaced him is inadmissible hearsay that cannot form the basis of his prima facie case. Plaintiff also provides no evidence as to the ages of the multiple individuals who, he now claims, filled his role. ( See Pl. Response ¶ 14.)

This leaves only Plaintiff's contention that " 87.5% of all employees terminated from 2009 to the present were over the age of 40" (Pl. Add'l Points ¶ 2), but, although statistical evidence may be used to show that an employer " exhibits a pattern of . . . terminating older workers," Plaintiff's " proffered evidence of a pattern of discrimination does not meet . . . minimal standards [of admissibility because] statistical evidence . . . must be supported by expert analysis," Saenger v. Montefiore Med. Ctr., 706 F.Supp.2d 494, 515-516 (S.D.N.Y. 2010) (citations omitted) (noting that such expert analysis is necessary because without it " courts would have a difficult time ensuring that juries consider only 'statistically significant' data" (citing Ottaviani v. SUNY New Paltz, 875 F.2d 365, 371 (2d Cir. 1989))).

Here, Plaintiff's has not only failed to provide an expert analysis, but his own statistical summary suffers from several obvious flaws that make it less relevant than it might appear, even if it were admissible. First, the Court notes that the evidence to which Plaintiff refers actually shows that 19 of the 24 terminated employees, or approximately 79%, were over the age of 40 at the time of their termination, not 87.5% as Plaintiff contends.[7] ( See Pl. Add'l Points ¶ 2 (citing Pl. Response ¶ 14, Ex. F (table listing ages and termination dates of Ghandi Engineering employees from 2009 to 2013)).) Second, the records do not indicate how many, if any, of the " terminated" employees, several of whom were in their 70s, retired or resigned of their own accord. Finally, any such statistics must be placed in context of the fact, conceded by Plaintiff, that approximately two thirds of Defendant's employees at the time Plaintiff was employed were over age 40. ( See Def & Pl. 56.1 Stmts. ¶ 12.)

As Plaintiff has not come forward with reliable, admissible evidence that the circumstances of his termination give rise to an inference of age discrimination, he cannot establish a prima facie case of age discrimination under McDonnell Douglas . I therefore recommend that Defendant also be granted summary judgment in its favor on this claim.

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C. Disability Discrimination

Defendant finally argues that there is no evidence to support a prima facie case that Plaintiff was subject to discrimination on the basis of perceived disability because the allegedly perceived impairment, lack of " agility," does not qualify as a " disability" under the ADA. ( See Def. Mem., at 9-13.) Defendant alternatively argues that, even if the Court were to find that Plaintiff has made out a prima facie case of disability discrimination, the evidence is nevertheless insufficient to support Plaintiff's claim that Defendant's proffered legitimate reason for Plaintiff's termination was a pretext for unlawful discrimination. ( See id., at 13.) These two arguments are discussed in turn.

1. Prima Facie Case

An individual is disabled within the meaning of the ADA if the individual has

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such impairment; or © [is] regarded as having such an impairment.

42 U.S.C. § 12102(1). Under previous versions of the ADA, there were " two . . . ways in which individuals [could] fall within" the statutory definition of " being regarded as having" a disability: " (1) [the employer] mistakenly believe[d] that a person ha[d] a physical impairment that substantially limit[ed] one or more major life activities, or (2) [the employer] mistakenly believe[d] that an actual, nonlimiting impairment substantially limit[ed] one or more major life activities." Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Congress " explicitly rejected" Sutton, however, see Widomski v. SUNY at Orange, 933 F.Supp.2d 534, 2013 WL 1155439, at *7 (S.D.N.Y. 2013), when it passed the ADA Amendments Act of 2008 (the " ADAAA" ), Pub. L. No. 110-325, 122 Stat. 3553, 3553 (2008) (finding that Sutton " and its companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect" ).

Under the ADAAA, discrimination is based on a perceived disability, and is hence illegal, " whether or not the [actual or perceived] impairment limits or is perceived to limit a major life activity." 42 U.S.C. § 12102(3)(A) (emphasis added). Moreover, the ADAAA's " [r]ules of construction regarding the definition of disability" provide that the " definition of disability . . . shall be construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of this chapter." 42 U.S.C. § 12102(4)(A). Thus, on summary judgment, to establish that he is disabled within the meaning of the ADAAA, a plaintiff is " only required to raise a genuine issue of material fact about whether [his employer] regarded him as having a mental or physical impairment." Hilton v. Wright, 673 F.3d 120, 129 (2d Cir. 2012).

EEOC regulations interpreting the ADA and ADAAA, to which this Court gives significant deference, see Francis v. City of Meriden, 129 F.3d 281, 283 n.1 (2d Cir. 1997), interpret " [p]hysical or mental impairment" to mean " [a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine." 29 C.F.R. § 1630.2(h)(1). Still, the EEOC takes the position that " [t]he definition of 'impairment' does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within 'normal' rage

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and are not the result of a physiological disorder." 29 C.F.R. Pt. 1630, App.

Defendant's argument that a perceived lack of " agility" is not a perceived " disability" under the ADA relies exclusively on one Second Circuit case, Cardo v. Arlington Cent. Sch. Dist., 473 F.Appx. 21 (2d Cir. 2012). The plaintiff in Cardo, however, was fired in 2007, see Cardo v. Arlington Central Sch. Dist., No. 07 Civ. 8667 (JSR), 2011 WL 135003, at *2 (S.D.N.Y. Jan. 13, 2011), before the ADAA took effect, and the case was therefore governed by pre-ADAA law. See Widomski, 933 F.Supp.2d 534, 2013 WL 1155439, at *7 (" In considering ADA claims based on conduct that occurred prior to 2009, the Second Circuit has applied 'the version of the statute in effect during the time period at issue.'" (quoting Ragusa v. Malverne Union Free Sch. Dist., 381 F.Appx. 85, 87 n. 2 (2d Cir.2010))).[8]

Under the ADAAA, a perceived " physiological . . . condition . . . affecting . . . [the] musculoskeletal" system, 29 C.F.R. § 1630.2(h)(1), is a perceived " impairment" covered by the ADA. Here, as set out above, Plaintiff has testified that Passaro told him that his employment was being terminated due to his lack of " agility" (Pl. Add'l Points ¶ 5), and, during discovery, Ghandi himself stated under oath that Plaintiff's employment was terminated because Plaintiff was " unable" to perform his job (Pl. Response, Ex. D, at 1). These statements, taken together, and coupled with the descriptions of the tasks that, according to Defendant, Plaintiff failed to perform (the majority of which involved, inter alia, walking, climbing, or bending ( see Def. Rule 56.1 Stmt. ¶ 25)), suggest that Defendant held the perception that Plaintiff could not meet the physical demands of his job. Viewed in the light most favorable to Plaintiff, this evidence gives rise to an inference that Defendant believed that Plaintiff had a physiological condition, most likely involving the musculoskeletal system; that Defendant further believed that this impairment prevented Plaintiff from performing key components of his job; and that Plaintiff's employment was terminated, at least in part, for that reason. Plaintiff has, therefore, made out a prima facie case of discrimination on the basis of perceived disability.

2. Evidence of Pretext

Defendants alternatively argue that, even if Plaintiff has made out a prima facie case of disability discrimination, the Court should still grant summary judgment in Defendant's favor because Plaintiff cannot prove discrimination in the face of the legitimate, non-discriminatory reason for Plaintiff's termination that Defendant has proffered -- i.e., that Plaintiff's performance of his job was poor. ( See Def. Mem., at 13.) For the reasons discussed above, however, a rational jury could conclude, from the evidence of record, that Defendant believed that Plaintiff could not perform his job because of a perceived disability. In this context, Defendant's proffered explanation that Plaintiff

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was terminated for poor performance of his duties is insufficient to warrant summary judgment.

There is, of course, a difference between an employer's perception, on the one hand, that an employee is unwilling to perform the physical requirements of his job and the employer's perception, on the other hand, that the employee is unable to perform those job duties. Whereas the former could provide the employer with a legitimate, non-discriminatory reason for termination, the latter would suggest a perceived disability that may be an impermissible reason for termination. In this case, as already discussed, the performance issues cited by Defendant include Plaintiff's purported failure to perform a number a physical tasks, such as " climb[ing] up and down on the construction ladders," " bend[ing] to measure," and " walk[ing] on the Rebar mats." ( See Def. Rule 56.1 Stmt. ¶ 25.) Regardless of whether Plaintiff was, as he contends, actually able to perform these tasks, Defendant has suggested, during discovery, that Plaintiff's employment was terminated because Plaintiff did not -- and could not -- engage in these activities. (Pl. Response, Ex. D, at 1 (sworn statement by Ghandi that he told Plaintiff he was being terminated because he was " unable to perform his duties as an inspector" (emphasis added).)[9]

In addition, on the issue of " pretext," it is notable that Ghandi's statements as to the reason for Plaintiff's termination have changed over the course of this litigation. The fact that his current statement, that Plaintiff was fired solely for poor performance ( see Ghandi Aff. ¶ ¶ 7-9), is at odds with his earlier sworn statement, that Plaintiff was " unable" to do the duties of an Inspector (Pl. Response, Ex. D), calls his credibility into question. The changes in Passaro's statements on this point -- shifting from his earlier testimony that he gave Plaintiff no reason for his termination ( see Pl. Response, Ex. C, at 1) to his current testimony that he told Plaintiff " that his employment was being terminated due to performance" (Passaro Aff. ¶ 9) -- are noteworthy for the same reason. Defendant's now-proffered legitimate reason for Plaintiff's termination is further suspect because of the information Defendant provided on an earlier worker's compensation form, where it made no reference to any performance issues at all, but rather attributed Plaintiff's termination to a lack of available work. ( See Pl. Add'l Points ¶ 8.) These contradictions in Defendants' own words cast doubt on whether its current statements are " []worthy of credence." See Heyman, 198 F.3d at 72; see also EEOC v. Ethan Allen, Inc . 44 F.3d 116, 120 (2d Cir. 1994) (noting that " a reasonable juror could infer that explanations given by [defendant] . . . were pretextual" where EEOC introduced evidence " suggesting that [defendant] provided inconsistent explanations for its decision to terminate" an employee).

Taken as a whole, the record presented to this Court is sufficient to raise a triable issue of fact as to whether Defendant's current explanation for Plaintiff's termination (that Plaintiff simply failed to perform work that he was presumably capable

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of performing) is a pretext for unlawful discrimination based on a perceived disability. The same is true with respect to Defendant's asserted reason as to why it did not rehire Plaintiff, when he later reapplied for the same type of position. Accordingly, I respectfully recommend that Defendant's motion for summary judgment as to Plaintiff's claim for disability discrimination under the ADA be denied.


For the foregoing reasons, I recommend that Defendant's motion for summary judgment (Dkt. 37) be granted as to Plaintiff's claims of discrimination based on age and religion, but denied as to Plaintiff's claim of discrimination based on perceived disability.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Amended Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Deborah A. Batts, United States Courthouse, 500 Pearl Street, Room 2510, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, Room 1660, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Batts. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

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