Opinion
No. 03 Civ. 3926 (LAK)(FM).
September 30, 2005
MEMORANDUM DECISION AND ORDER
I. Introduction
Plaintiff Louis Cook brings this employment discrimination action against his former employer, Deloitte Touche, LLP ("Deloitte"), alleging that he was improperly terminated on the basis of an actual or perceived disability in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq.; the New York State Human Rights Law ("NYSHRL"), Executive Law § 290, et seq.; and the New York City Human Rights Law ("NYCHRL"), New York City Administrative Code § 8-101, et seq. Following the close of discovery, Deloitte has moved for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket Nos. 9, 10). Cook opposes that motion and alleges that he is entitled to a continuance to take further discovery pursuant to Rule 56(f). For the reasons set forth below, Deloitte's motion for summary judgment is granted with respect to Cook's ADA claim, Cook's Rule 56(f) application is denied, and his claims arising under the NYSHRL and NYCHRL are dismissed without prejudice so that they may be pursued in state court.
In February 2005, the parties consented to my exercise of jurisdiction over this matter pursuant to 28 U.S.C. § 636(c) for the limited purpose of deciding Deloitte's summary judgment motion. (See Docket No. 26).
II. Facts
Unless otherwise noted, the following facts either are undisputed or are set forth in the light most favorable to Cook.
A. Cook's Employment at Deloitte
Cook began his employment with Deloitte on October 21, 1996. He was hired as an administrative assistant and was assigned to the Management Solutions Services Department ("MSS") in Deloitte's offices at the World Financial Center in New York. (See Def.'s R. 56.1 Stmt. ¶ 1; Pl.'s R. 56.1 Counterstmt. ¶ 1; Decl. of Jennifer Hein. Esq., dated June 30, 2004 ("Hein Decl.") Exs. B (Dep. of Louis Cook, taken on May 3, 2004 ("Cook Dep.")), at 18, 30, 34, 67 F Tabs 1, 2). In this capacity, Cook served as a member of a pool which provided secretarial and administrative support for approximately sixty people, including direct support for six Deloitte partners and directors. (Cook Dep. 30-32).
Deloitte employees are rated twice each year. (See Hein Decl. Ex. F Tab 3 at 343-74). In virtually all of Cook's evaluations, his team leaders rated his skills and attributes as "demonstrating strength." "significantly exceeding expectations," or "fully meeting expectations." (Id.). Cook received only one unsatisfactory evaluation during his employment at Deloitte. (Id. at 344; see also Cook Dep. 84-85). Deloitte concedes that this isolated review did not accurately reflect Cook's otherwise above average job performance. (Def.'s R. 56.1 Stmt. ¶ 2 n. 2; Cook Dep. 63-67).
1. Alleged Disability
Cook testified that for many years before he began to work for Deloitte, he suffered from knee and foot pain, which he believed arose out of a sports-related injury. (Cook Dep. 41). By late May 1997, his knee pain was sufficiently serious that he was unable to participate in Deloitte's Corporate Challenge. (Id. at 50, 235). By May or June 1998. Cook's legs were "stiffening up" whenever he slept or walked. (Id. at 40-41, 49).
Despite his pain, Cook did not use any assistive devices, such as a cane, walker, or surgical brace, during this period. (Id. at 174). Instead, he simply wore a device like "an Ace bandage with metal in it" on each knee and walked slowly. (Id. at 174-75). Although the bandages were not visible, Cook told "everybody" about them and "mentioned [his] knee problems every single day, five days a week, to someone in [MSS]." (Id. at 172, 176).
Prior to 1999, although making inter-office deliveries was not part of an administrative assistant's official job duties. Cook carried packages several times each week from his office at the World Financial Center to Federal Express offices located on the other side of the World Financial Center and in the World Trade Center. (Id. at 58, 68, 72). That year, however, he was unable to continue making such deliveries himself due to his knee pain; he, therefore, had to rely on his superiors to make their own deliveries or leave the deliveries to be completed by others, including his co-workers and Deloitte's inter-office delivery personnel. (Id. at 75, 86-87, 188-91).
According to Cook, the pain in his knee affected not only his ability to walk, but also his ability to sleep. (Id. at 54). As a result, he was "coming to work sleepy," which limited his ability to perform his job. (Id.). Although no one at Deloitte outwardly treated Cook differently, he claims to have sensed "invisible problems," with "people talking about [him] behind his back," his co-workers "seem[ing] distant," and some of his superiors giving him "bad looks or bad stares." (Id. at 85, 185).
In May or June 1998, Cook was referred to an orthopedic specialist, Dr. Ronald Grelsamer, who recommended that Cook attend physical therapy two times per week and take Motrin, an anti-inflammatory drug, to treat his pain. (Id. at 40-43). Cook typically went to the physical therapy sessions during his lunch break, but sometimes left work early for that purpose. (Id. at 45). Cook often did not tell anyone that he was going to therapy, but he would, as a courtesy, let his managers know where he was if a session extended past his lunch hour. (Id. at 46).
At the same time, Cook began seeing another doctor, Dr. Dean Spellman, who diagnosed him as having heel spurs caused by the problems with his knees. (Id. at 90-91).
In May or June 1999, Dr. Grelsamer informed Cook that his right "kneecap was off its track" and needed to be surgically corrected. (Id. at 38-39, 42, 45). Cook then contacted Lois Lehmkuhl, the Medical Benefits Administrator at Deloitte, to request the forms necessary to apply for a paid medical leave that he originally thought would last no longer than one month. (Cook Dep. 94, 99).
2. Medical Leave
Under Deloitte's short-term leave policy, an employee may receive pay for up to three months of medical leave, following which the employee is expected either to return to work or to request a further extended leave of absence without pay. (See Hein Decl. Ex. F Tab 4). Deloitte also promises to "make every reasonable effort consistent with good business practice to reinstate employees to their position or to one of like status and pay if they return to work within three months from their last day worked." (Id. Tab 5 at 1629). However, if an employee remains disabled, his employment is terminated at the end of twelve months of paid or unpaid leave. (Id. at 1475; Cook Dep. 149; see also Hein Decl. Ex. C (Dep. of Pamela Reid, taken on May 4, 2004 ("Reid Dep."), at 75-76)).
Deloitte's Human Resources Department granted the fully-paid medical leave sought by Cook. (Cook Dep. 98-99). Accordingly, he began that leave on September 9, 1999, and his surgery was performed shortly thereafter. At that time, Cook's expected return-to-work date was October 11, 1999. (Cook Dep. 99; Hein Decl. Ex. F Tab 6).
After Cook began his medical leave, Deloitte transferred oversight of employee leaves from its Human Resources Department to its Personal Services Network ("PSN") in Hermitage, Tennessee. (See Hein Decl. Ex. D (Dep. of Charlic Webb, taken on May 5, 2004 ("Webb Dep."), at 15-17; Cook Dep. 103). PSN assumed responsibility for all matters related to employee leaves, including contact with employees on disability leave. (Id.). PSN maintains a computer database file for each such employee. (Webb Dep. 15-17; Hein Decl. Ex. F Tab 7 (PSN Incident Report)). The database contains entries reflecting each telephone call or letter between Deloitte and the employee, including notes summarizing the substance of the contact. (See Hein Decl. Ex. F Tab 7). Supervision of Cook's leave of absence was assigned to Susan Blessing, a PSN analyst. (See Cook Dep. 125; Hein Decl. Ex. F Tab 7 at 142).
Cook did not return to work as originally scheduled on October 11, 1999; instead, he received a one-month extension after Dr. Grelsamer determined that his knee was not healing as rapidly as Dr. Grelsamer had hoped. (Cook Dep. 101-02; Hein Decl. Ex. F Tab 8 at 1517-18). In connection with that extension, Cook submitted an additional medical request form to PSN. (Id.).
In November 1999, Dr. Grelsamer examined Cook's knee and again told him that he needed yet another month off. (Id.). Once again, Cook called Blessing, told her of his need for an extension, and submitted the necessary paperwork, (Id. at 102-03). Deloitte granted Cook the second extension even though he did not provide Deloitte with a date certain to return to work. (Id.).
On November 17, 1999, Dr. Grelsamer completed an Attending Physician's Supplementary Statement, in which he released Cook to return to work on December 13, 1999. (See id. at 104; Hein Decl. Ex. F Tab 8 at 1519). The form, which was faxed by Cook to Blessing, indicated that, upon his return to work, Cook would be able to sit for a total of four hours, stand for a total of three hours and walk for a total of two hours intermittently over the course of each work day. (See Hein Decl. Ex. F Tab 8 at 1519). The form also indicated that Cook would be able to lift up to 10 pounds frequently, up to 11 to 20 pounds occasionally, and would never be able to lift over 21 pounds. (Id.). Dr. Grelsamer further indicated on the form that Cook was unable to "[c]limb, [t]wist/bend/stoop, [r]each above shoulder level" or "[o]perate a motor vehicle." (Id.).
At his deposition, when Cook was asked whether Dr. Grelsamer had ever told him that he had a disability, he testified that he had been advised that he might "have to face this, [his] knee problems, for the rest of [his] life." (Cook Dep. 158). He conceded, however, that two other doctors who had treated him never stated that he had a disability. (See id. at 157, 158).
Despite Dr. Grelsamer's release, Cook did not return to work on December 13, 1999. (Id. Tab 7 at 141; Cook Dep. 104). Blessing claims that, in an effort to ascertain a date for Cook's return to work, she placed a series of calls to him between December 13 to December 17, 1999, each of which went unanswered and unreturned. (Hein Decl. Ex. F Tab 7 at 143-45). Indeed, in a contemporaneous email to another PSN analyst, Blessing wrote that she had "never had a problem reaching [Cook] in the past," but now felt "he [was] avoiding [her] calls." (Id. at 145). Cook testified, however, that he did not receive any telephone calls from Blessing or any messages reflecting her calls during December 1999. (Cook Dep. 106-07).
Cook eventually telephoned Pam Reid, Deloitte's Administrative Director of Administrative Services, and reached her assistant, Wendy McKernan. (Id. at 104, 107). Because Cook had exhausted all of his paid leave, he advised McKernan that he was ready to return to work, but would need a few additional days off in the future for "follow-up medical care" and to attend to a matter related to child support proceedings. (Id. at 108, 119, 213). According to Cook, McKernan suggested that he instead take a leave of absence. (Id. at 109). Cook feared angering a "good portion of [MSS]" if he returned to work and then took off more time. (Id. at 123). For that reason, he acceded to McKernan's suggestion. (Id. at 115). At the time, he believed that he had no option other than to take an unpaid leave of absence. (Id. at 116).
McKernan subsequently called Cook to explain the details of his unpaid personal leave. (Id. at 116). In particular, McKernan told him that he would have one full year in which to return to work. (Id.). McKernan further indicated that Cook should call her when he was ready to return to Deloitte. (Id. at 127).
On December 20, 1999, McKernan sent Blessing an email confirming her "approval for Louis Cook to take a [p]ersonal [l]eave of [a]bsence beginning December 13, 1999." (Hein Decl. Ex. F Tab 7 at 147; see also Cook Dep. 127). That same day. Blessing sent Cook a certified letter explaining the cost of maintaining his medical insurance coverage during the period of up to one year that Cook would be out on personal leave. (Hein Decl. Ex. F Tab 7 at 147). On January 13, 2000, after Cook failed to respond to the letter, Blessing called him to ask whether he wished to keep his benefits. (Id. at 152). Cook lacked the financial wherewithal to continue his medical benefits and therefore faxed Blessing a request to cancel his medical insurance. (Cook Dep. 130; Hein Decl. Ex. F Tab 12).
On August 17, 2000, nearly one year after he began his medical leave, Cook contacted several Deloitte employees to inquire about returning to work. (Cook Dep. 133-35, 137; Pl.'s R. 56.1 Counterstmt. ¶ 21; Hein Decl. Ex. F Tab 7 at 159, Tab 16 (New York State Unemployment Ins. Appeal Bd. Hr'g Tr. ("Hr'g Tr.")) at 23-24, Tab 19 (EEOC Charge of Discrimination) (Rider A); Webb Dep. 21, 23-24). He eventually reached Reid who informed him that his former position in MSS had been filled. (Cook Dep. 138; Hr'g Tr. 25; Reid Dep. 61). Cook responded that he could not have resumed that job in any event because his continuing knee problems required that he have a "sedentary" position. (Cook Dep. 138, 140; see also Hr'g Tr. 25-26). He also told Reid that he had a doctor's note confirming this need. (Cook Dep. 140). After a "long pause," Reid told Cook that he could apply for any other open administrative position at Deloitte for which he was qualified, and that she would call him back as soon as she received his personnel file. (Cook Dep. 140; Hr'g Tr. 25-26; Reid Dep. 54-61, 70). Despite that promise, neither Reid nor anyone else ever contacted Cook regarding open positions at Deloitte. (Cook Dep. 144-45).
Cook never provided his note from Dr. Grelsamer to Deloitte. (Cook Dep. 229-30). The note, which is dated August 15, 2000, is nevertheless an attachment to Cook's EEOC charge. (Hein Decl. Ex. F Tab 19). It reads as follows:
Please allow Mr. Cook to perform a more sedentary job as a result of his difficult knee condition [kneecap arthritis].Thank you for your consideration.
(Id.) (emphasis in original).
At the time of Cook's call to Reid, Deloitte maintained a database accessible to all employees from any of its computers which described Deloitte's vacant positions and set forth the names of the persons to contact in order to apply. (Cook Dep. 144-45; Reid Dep. 70; Webb Dep. 77-78; Hein Decl. Ex. F Tab 13 (Deloitte Open Positions as of Aug./Sept. 2000)). According to Reid. Cook could have come to Deloitte's offices to review these postings, could have asked someone within the company which positions were available, or could have requested that the information be sent to him. (See Reid Dep. 58). Cook testified, however, that no one ever told him to check these postings, and that he did not know he could access the information without visiting Deloitte's offices. (Cook Dep. 144-45).
In September 2000, before his year of personal leave had expired, Cook became "frustrat[ed]" by the lack of any response from Deloitte. (Id. at 143-44, 150). He therefore sent a letter to Charlie Webb, then Deloitte's Director of Human Resources Operations, and others, on September 21, 2000, in which he wrote, "Since I have not received a response . . ., I can only assume that my employment at Deloitte . . . has been terminated." (Id. at 149-50; Hein Decl. Ex. F. Tab 14). He also requested "an official termination notification, `pink slip.'" (Hein Decl. Ex. F. Tab 14 at 295) (emphasis in original).
Deloitte did not respond to Cook's letter. (Cook Dep. 154). Subsequently, however, by letter dated December 13, 2000 — exactly one year after Cook began his personal leave — Deloitte terminated him. (Cook Dep. 154; Hein Decl. Ex. F Tab 15). In the interim, Cook had applied for unemployment insurance benefits in October. When he was asked why he did not contact anyone at Deloitte or go to its offices to inquire about a position. Cook testified that he did not want "to just go there and try to just push [himself] on [Deloitte]." (Hr'g Tr. 31).
During calendar year 2000, while he was on personal leave, Cook went to a local gym two to three times per week. (Cook Dep. 240). During many of those visits, Cook walked on a treadmill for nearly one mile. (Cook Dep. 240-41). He also engaged in a weight training and conditioning routine which included "light leg extensions." (Id. at 240). Cook testified that he continued this routine regularly through most of 2002. (Id. at 243).
B. Other Proceedings
1. Unemployment Benefits
As noted above, Cook applied for New York State unemployment insurance benefits in early October 2000. (Cook Dep. 13, 27-28, 155; see Hein Decl. Ex. F Tab 17). Although this was prior to his official termination, Cook wrote on his application that he had been terminated by Deloitte "a week after September 21 [, 2000]." (Cook Dep. 156).
The New York State Department of Labor initially found Cook eligible to receive unemployment benefits effective October 9, 2000. (Hein Decl. Ex. F Tab 17). Deloitte objected to this finding, however, on the grounds that Cook had "voluntarily separated from employment without good cause[, or,] in the alternative, . . . [was] not available [to] work. (Id. at 317). Deloitte also requested a hearing before an Administrative Law Judge ("ALJ"). (Id.).
An initial unemployment insurance hearing was held on February 14, 2001. Cook failed to appear at that hearing because he left the waiting room for a brief period just before his case was called. (Id.). When he returned, Cook "stayed in the waiting area for over an hour" before he learned that his case had been heard and closed. (Hr'g Tr. 5; Hein Decl. Ex. F. Tab 17 at 317).
Following the uncontested February 14th hearing, the ALJ reversed the Department of Labor's initial determination that Cook was eligible for unemployment benefits. (Hein Decl. Ex. F Tab 17 at 317-18). On February 16, 2001, Cook applied to have the case reopened so that a new hearing could be held. (Id.). That application was granted and a second hearing was held before ALJ Wendy Pichardo on March 12, 2001. (See Hr'g Tr. 1). Cook appeared without counsel and testified, along with Webb and McKernan. (Id.).
At the hearing, Webb testified that Cook had called her in August 2000 to inquire about the status of his job. (Hr'g Tr. 11). During their conversation, Webb advised him that, if he was interested in returning to work, he would have to apply for an open position at Deloitte. (Id.).
McKernan testified that she called Cook to inquire about his plans after he failed to return to work in mid-December 1999. (Id. at 15). Cook questioned McKernan at the hearing about that call as follows:
COOK: Okay getting back to that December of 1999 conversation, regarding my leave of absence, who suggested a leave of absence?
. . .
McKERNAN: You did. You said you were not returning to work.
COOK: Because I was undergoing custody proceedings?
McKERNAN: Yes.
COOK: And I said I would be better off unemployed in a custody battle. [sic]
McKERNAN: Yes.
By comparison, at his deposition, Cook testified that he did not request an unpaid leave of absence during this conversation, but simply indicated that he would need a few days off to "handle personal business and medical needs." (Cook Dep. 110-11). Cook claims that McKernan then suggested that he take an unpaid leave, saying, "[T]his is a business we are running, we can't have our employees taking time off." (Id. at 111).
(Id. at 17).
Cook testified at the hearing that he called McKernan a few days prior to the end of his temporary leave and told her that he was "ready to go back to work, but . . . ha[d] to still take some days off because of [his] . . . child family situation." (Id. at 19). He also testified that he had considered taking an unpaid leave of absence of a few months' duration because he "thought that it was going to be a short thing — family court and that's it." (Id. at 20). As he explained, if the leave of absence was unpaid, he intended to "get . . . a temp job, and make the money on the side." (Id. at 21).
Cook testified that during the same conversation, McKernan told him that he should contact her office when he was ready to return to work. (Id. at 23). Cook admitted that he did not contact anyone at Deloitte about returning to work until August 2000, when he spoke with Webb. (Id.). During their conversation, Webb told him that Deloitte would be "glad to have [him] back" but that his former position in MSS was no longer available. (Id. at 25). Cook responded that reinstatement to his prior position was not important to him because he was still having problems with his knees, and, as he previously had indicated to Reid, had doctors' notes indicating that he needed a different position within the company. (Id. at 25-26).
Cook further testified at the hearing that after he spoke with Reid, he heard back one week later from someone in Blessing's office who "wanted to know the status of [his] return back to work:" he also heard from an employee in Deloitte's Leave and Disability Department who told him she would get back to him in a few days. (Id. at 26-27).
Cook testified that he left a message for Reid in late September, but heard nothing in response. (Id. at 27). Thereafter, on September 21, 2000, having not heard from anyone at Deloitte, Cook sent his letter indicating that he thought he had been terminated and requesting a "pink slip." (Hein Decl. Ex. F Tab 14 at 295).
In late March 2001, the ALJ issued a written decision in which she concluded that "the substantial evidence establishes that [Cook] failed to return to work after a personal leave of absence, . . . failed to take steps to protect his employment by reporting to the office and in person and applying for a position," and, "[u]nder the totality of the circumstances presented, . . . quit employment [at Deloitte] without good cause." (Id. Tab 17 at 318). The ALJ, therefore, held that Cook was ineligible for unemployment benefits. (Id.). On May 11 and July 20, 2001, the Unemployment Insurance Appeal Board upheld this determination. (Id. Tab 18).
2. EEOC Filing
On June 16, 2001, Cook filed a Charge of Discrimination against Deloitte with the federal Equal Employment Opportunity Commission ("EEOC"), alleging that he was discriminated against because of a disability in violation of the ADA. (Hein Decl. Ex. F Tab 19) (EEOC Charge of Discrimination) (Rider A)). In his charge, Cook conceded that he had been advised by McKernan that his personal leave could not last longer than one year or he would be terminated. (Id.). Cook alleged, in substance, that when he contacted Deloitte in August and September 2000, he was given a run-around after he indicated that he "had a doctor's note stating that [his] knee condition would require work restrictions." (Id.). Cook also claimed that his "prior amicable working relationship [with Deloitte] deteriorated when [he] developed severe knee and foot problems." (Id.).
On February 4, 2003, the EEOC issued a Determination that there was reasonable cause to believe that Deloitte's failure to provide Cook with a reasonable accommodation of his disability resulted "in the termination of his employment in violation of the ADA." (Affirm. of Sheila M. Hurley, dated Sept. 7, 2004 ("Hurley Affirm.") Ex. 1). The EEOC also invited the parties to enter into settlement discussions. (Id.). On February 28, 2003, after it was unable to secure a settlement satisfactory to Cook, the EEOC issued him a Right to Sue notice. (Id.).
On May 28, 2003, Cook timely commenced this action against Deloitte alleging that he was the victim of disability-based discrimination in violation of the ADA, NYSHRL and NYCHRL (Docket No. 1). In its motion for summary judgment, Deloitte contends that (a) Cook has not established a prima facia case of discrimination under any of these statutes; (b) even if Cook has established a prima facia case, Deloitte has articulated a legitimate, non-discriminatory reason for his termination; and (c) Cook cannot demonstrate that Deloitte's stated reason for his termination is pretextual.
III. Discussion
A. Summary Judgment
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate only when:
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.
In deciding a motion for summary judgment, the court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and . . . draw all permissible inferences in favor of that party." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). The Court also must accept as true the non-moving party's evidence, if supported by affidavits or other evidentiary material. See Kulak v. City of New York, 88 F.3d 63, 70 (2d Cir. 1996). Assessments of credibility, choosing between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court. Fischl, 128 F.3d at 55. See also Fed.R.Civ.P. 56(c) 1963 advisory committee's note. Thus, "[t]he court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried." Fischl, 128 F.3d at 55.
To defeat a motion for summary judgment, the non-moving party cannot merely rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the nonmoving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
The Second Circuit has cautioned that summary judgment is often inappropriate in cases where the trier of fact will have to delve into an employer's intent, because intent is an issue as to which direct evidence is rarely available. See, e.g., Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994); Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984). However, when an employer has explained its conduct and the plaintiff has offered only conclusory assertions in opposition, summary judgment may be granted. See, e.g., Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all [discrimination] cases.").
B. Substantive Claims
1. ADA
a. Applicable Law
The ADA prohibits discrimination by an employer covered by the ADA against a "qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). In connection with discriminatory discharge claims under the ADA, the Second Circuit applies the familiar burden-shifting analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998); see also Heyman v. Queens Vill. Comm. for Mental Health for Jamaica Cmty. Adolescent Prog., Inc., 198 F.3d 68, 72 (2d Cir. 1999) (citingGreenway). Under that analysis, a plaintiff bears the initial burden of establishing a prima facia case of discrimination by showing that (i) his employer is subject to the ADA; (ii) he suffered from (or was regarded as suffering from) a disability within the meaning of the ADA; (iii) he could perform the essential functions of his job with or without reasonable accommodation; and (iv) he suffered an adverse employment action because of his disability. See McDonnell Douglas Corp., 411 U.S. at 802 (1973); Capobianco v. City of New York, No. 04 Civ. 3230, 2005 WL 2100445, at *7 (2d Cir. Sep. 1, 2005); Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir. 2004); Heyman, 198 F.3d at 72 (2d Cir. 1999); Moguel v. Covenant House/New York, No. 03 Civ. 3018 (RWS), 2004 WL 2181084, at *10 (S.D.N.Y. Sept. 29, 2004) (quoting Heyman). As many courts have noted, this initial burden is not a demanding one. See Greenway, 143 F.3d at 52.
If a plaintiff succeeds in making a prima facie showing, the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for the action taken. McDonnell Douglas, 411 U.S. at 802; see also Heyman, 198 F.3d at 72 (citing Chambers v. TRM Copy Ctrs., 43 F.3d 29, 38 (2d Cir. 1994)); Greenway, 143 F.3d at 52 (citing McDonnell Douglas). Should the defendant carry that burden of production, the plaintiff then must prove that the reason proffered by the employer is merely a pretext for its intentional discrimination.See McDonnell Douglas, 411 U.S. at 804; Heyman, 198 F.3d at 72.
Deloitte does not dispute that it is an employer whose employees are covered by the ADA. Turning to the second element of a prima facie showing, the term "disability" is defined in the ADA as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual;
(B) a record of such impairment; or
(C) being regarded as having such an impairment.
To establish a disability under the ADA, a plaintiff must show that (i) he suffers from a physical or mental impairment; (ii) the claimed impairment affects a specific activity that constitutes a "major life activity;" and (iii) the impairment "substantially limits" the major life activity identified. See Sussle v. Sirina Protection Sys. Corp., 269 F.Supp.2d 285, 297 (S.D.N.Y. 2003). In order to determine whether these requirements have been met, a court must engage in an "individualized and fact-specific" inquiry. Potenza v. City of New York, Dep't of Transp., No. 00 Civ. 707, 2001 WL 1267172, at *10 (S.D.N.Y. Oct. 23, 2001) (citing Colwell v. Suffolk Police Dep't., 158 F.3d 635, 643 (2d Cir. 1998)), aff'd, 365 F.3d 165 (2d Cir. 2004).
The terms "physical impairment," "substantially limits" and "major life activity" are not defined in the ADA. Nevertheless, the EEOC, the agency charged with enforcement of the statute, has defined those terms in its regulations. Those regulations are not binding on the federal courts, but still provide useful guidance concerning the statute's proper interpretation. See Ryan v. Grac Rybicki, 135 F.3d 867, 870 (2d Cir. 1998).
The EEOC regulations define a physical impairment as:
[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.29 C.F.R. § 1630.2(h)(1).
Under the EEOC regulations, the term "major life activities" is defined to include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i) (emphasis added). A person is "substantially limited" in the ability to perform a major life activity if the person is:
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly 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.29 C.F.R. § 1630.2(j)(1).
The regulations explain further that "[w]ith respect to the major life activity of working,"
(i) The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.29 C.F.R. § 1630.2(j)(3)(i).
Among the factors that may be considered in determining whether an individual is substantially limited in a major life activity are:
(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).
The case law in this Circuit uniformly holds that persons do not have a "disability" within the meaning of the ADA if their medical conditions are temporary, "even if those conditions require extended leaves of absence from work[,] because such conditions are not substantially limiting." Huskins v. Pepsi Cola of Odgensburg Bottlers, Inc., 180 F.Supp. 2d 347, 351 (N.D.N.Y. 2001). See, e.g., Graaf v. North Shore Univ. Hosp., 1 F. Supp. 2d. 318, 321-22 (S.D.N.Y. 1998) (plaintiff truck driver unable to work for five months due to a shoulder injury not disabled under the ADA); Adams v. Citizens Advice Bureau, 187 F.3d 315-17 (2d Cir. 1999) (plaintiff not disabled despite inability to work for more than three months); Moguel, 2004 WL 2181084, at *11 (maintenance worker unable to walk without assistance for five months not disabled within the meaning of the ADA); Thompson v. Fed. Reserve Bank of New York, No. 01 Civ. 11640 (DC), 2004 WL 330243, at *8 (S.D.N.Y. Feb. 23, 2004) (plaintiff's temporary cardiac fibrillation and major depression did not render her disabled under the ADA); Rector v. Sylvania, 285 F.Supp.2d 349, 354 (S.D.N.Y. 2003) (temporary shoulder injury that kept plaintiff out of work for six months after surgery "not sufficient to qualify as a disability under the ADA"). Moreover, to establish that he is disabled, a plaintiff seeking to recover under the ADA must proffer admissible medical evidence; his self-serving statements to that effect do not suffice. See, e.g., Sussle, 269 F.Supp. 2d at 302-03 (collecting cases); Douglas v. Victor Capital Group, 21 F.Supp.2d 379, 392 (S.D.N.Y. 1998) (same).
Finally, even if a plaintiff is unable to establish that he is disabled within the meaning of the ADA, he may satisfy the first element of his prima facie case by making the alternative showing that his employer regarded him as having a physical or mental impairment that would substantially limit a major life activity.Sutton v. United Air Lines, 527 U.S. 471, 489 (1999); DaPonte v. Manfredi Motors, Inc., 335 F.Supp.2d 352, 356-57 (E.D.N.Y. 2004), aff'd, 2005 WL 2243638 (2d Cir. 2005). As the Second Circuit recently has explained:
A "regarded as" claim "`turns on the employer's perception of the employee and is therefore `a question of intent, not whether the employee has a disability.'" Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 646 (2d Cir. 1998) (quoting Francis v. City of Meridien, 129 F.3d 281, 284 (2d Cir. 1997)). It is not enough that the employer perceive the employee as "somehow disabled"; the employer must regard the employee as "disabled within the meaning of the ADA," i.e., having an impairment that substantially limits a major life activity. Id. at 646 (emphasis omitted); see Jacques v. DiMarzio, Inc., 386 F.2d 192, 201 (2d Cir. 2004). Capobianco, 2005 WL 2100445, at *8.
b. Application of Law to Facts
Cook contends that Deloitte failed to reasonably accommodate him because of his disability in two ways: first, by requiring that he take an open-ended personal leave in December 1999, rather than letting him take days off as needed; and, second, by failing to place him in a position more sedentary than the one he previously held when he sought to return to work in August/September 2000. Deloitte maintains, however, that Cook has failed to establish that he was disabled during either time period and that he had, at best, a temporary condition which did not constitute a disability within the meaning of the ADA.
Cook concedes that he did not make any requests for a reasonable accommodation while he was on medical leave between September and December 1999 or prior to August 2000 while he was on an unpaid long-term leave. (Cook Dep. 170).
i. December 1999
Ironically, with respect to Deloitte's first alleged failure to accommodate Cook, both sides place principal reliance on the same document: Dr. Grelsamer's statement dated November 17, 1999, in which he said that Cook could return to work on December 13, 1999. (Hein Decl. Ex. F Tab 8 at 1519). As Deloitte correctly observes, Dr. Grelsamer did not list any limitations or restrictions on Cook's work activities on that form in response to a question which specifically asked for such information. (Id.). However, in the very same section of the form where this blank appears, Dr. Grelsamer checked boxes indicating that Cook could not climb, twist, bend, stoop, or reach above shoulder level. (Id.). He also checked boxes indicating that Cook had limitations on his ability to sit, stand, walk and lift or carry weights, including an inability to lift or carry objects weighing more than 21 pounds. (Id.).
Thus, there were activities that Dr. Grelsamer indicated Cook could not perform at all. For example, the form states that Cook was unable to climb or bend. Under the ADA, an absolute inability to engage in these activities may constitute a substantial limitation on a major life activity. See, e.g., Colwell, 158 F.3d at 643 (assuming that ability to bend over and reach up are major life activities); Kriskovic v. Wal-Mart Stores, Inc., 948 F.Supp. 1355, 1364 (E.D. Wis. 1996) ("court accepts for present purposes that climbing stairs is a major life activity"); see also Zarzycki v. United Techs. Corp., 30 F.Supp.2d 283, 289 (D. Conn. 1998) (requisite substantial limitation of ability to bend not shown in absence of supporting medical evidence); but see Sussle, 269 F.Supp.2d at 312 (inability to climb stairs "does not in itself substantially limit an individual's ability to perform a major life activity");Stewart v. Weast, 228 F.Supp.2d 660, 662 (D.Md. 2002) (inability to climb stairs does not substantially limit major life activity of walking).
For purposes of the present motion, I will assume that Cook either has established or could establish through competent medical evidence that he had a substantial limitation on at least one of his major life activities in mid-December 1999. Nonetheless, to prevail on his ADA claim with respect to this time period. Cook must also show through medical evidence that the limitations to which he was subject were more than temporary conditions because "[s]urgery-related absences from work and short-term working restrictions thereafter do not constitute a `disability' pursuant to the ADA." Potenza, 2001 WL 1267172, at *10.
One major life activity that plainly was not subject to a significant limitation here is the major life activity of working. Even if Cook was unable to return to his former job as an MSS administrative assistant, there is no suggestion that there were not many other jobs for persons with comparable backgrounds that he was capable of performing.
In an effort to meet this threshold, Cook points to two of Dr. Grelsamer's reports. (See Hein Decl. Ex. F Tab 8). In the first such report, dated September 10, 1999, Dr. Grelsamer stated that he first treated Cook for knee pain in July 1998. (Id. at 1517). This report, however, does not provide any details concerning the major life activities, if any, that Cook allegedly was unable to pursue at that time. Accordingly, the report does not permit the inference that Cook was substantially limited in his ability to engage in activities recognized as major life activities as early as 1998.
Moreover, the issue is not whether Cook was disabled before his surgery, but whether he had a disability amounting to more than a temporary post-surgical condition in December 1999. With respect to that issue, the only medical evidence that Cook has cited is a note that he subsequently received from Dr. Grelsamer in mid-August 2000. That note, which is not notarized, asks Deloitte to allow Cook to perform "a more sedentary job as a result of his . . . kneecap arthritis." (Hein Decl. Ex. F Tab 19). Such an unsworn statement plainly is inadmissible to prove that Cook was suffering from a "disability" as that term is defined in the ADA in December 1999. See United States v. All Right, Title Interest in Real Prop. Appurtenances, 77 F.3d 648, 657-58 (2d Cir. 1996) ("unsworn letter was an inappropriate response to the . . . motion for summary judgment, and the factual assertions made in that letter were properly disregarded by the court");accord Capobianco, 2005 WL 2100445, at *6. Furthermore, even if the note could be considered for its truth, it provides absolutely no detail regarding Cook's knee condition.
For these reasons, Cook has failed to adduce any admissible medical evidence that he suffered from a disability within the meaning of the ADA in December 1999. See Potenza, 2001 WL 1267172, at *10 (dismissing Rehabilitation Act claim because doctor's unsworn letter stated that plaintiff was "unable to squat fully" but failed to explain "how significant this restriction [was] in performing major life activities" or "the duration of the impairment"). Accordingly, even if Cook suffered an adverse employment action by being coerced into taking a lengthy unpaid leave, he cannot show that the adverse employment action was the result of a "disability" under the ADA. As a matter of law, he therefore has failed to make out a prima facie case with respect to his disability claim insofar as it arises out of the events of December 1999.
Employment discrimination claims under the Rehabilitation Act are analyzed in the same manner as under the ADA. See Francis v. City of Meridien, 129 F.3d 281, 284 n. 4 (2d Cir. 1997).
ii. August/September 2000
Cook's proof with respect to his physical status in August and September 2000 suffers from similar deficiencies. First, as noted above, the unsworn note that Dr. Grelsamer prepared in mid-August 2000 is inadmissible to show that Cook was suffering from a disability at that time. Moreover, even if the note were admissible, it does not provide any information concerning the major life activities that allegedly were adversely impacted by Cook's knee arthritis, nor does it establish that he had a significant limitation on any of those activities.
The only other evidence of a "medical" opinion relating to Cook's condition in August 2000 that is before this Court is Cook's own deposition testimony regarding his visit to Dr. Grelsamer during that month. According to Cook, Dr. Grelsamer told him at that tune that he could go back to work, but that his knees were "still bad" and that, if he wished, Cook could "go on long-term disability" or "Social Security" alternatives that he rejected because he was a "young man" and "wanted to work." (Cook Dep. 169-70). This testimony is, of course, inadmissible hearsay to the extent it is offered for its truth. See Fed.R.Evid. 801(c), 802. Additionally, even if Dr. Grelshamer's alleged statements could be considered by a finder of fact, they plainly fail to provide any details regarding any specific life activities that Dr. Grelsamer thought were adversely impacted by the condition of Cook's knees or the extent of Cook's limitations on those activities.
Cook consequently has failed to adduce any admissible medical evidence from which a finder of fact reasonably could conclude that Cook suffered from a "disability" within the meaning of the ADA during August or September 2000, the period in which he contends he was constructively discharged by not being offered the more sedentary position that he had requested Deloitte to provide.
iii. Effect of EEOC Determination
In an effort to fill the evidentiary voids in his prima facie case, Cook urges the Court to accord "significant weight" to the EEOC's findings regarding his ADA claim. In its Determination, the EEOC found that Cook suffered from "ostcoarthritis degenerative bone/soft tissue disease of the knee and heel." (Hurley Affirm. Ex. 1 at 205). The EEOC also noted that "recent medical records" show that Cook's disability "continues to manifest itself and substantially limits [Cook] in major life activities, including . . . walking." (Id.). The EEOC Determination, however, provides absolutely no evidentiary detail to support either of these conclusory assertions. Nor can this Court assume that such evidence exists. For example, there isno admissible medical evidence before this Court which indicates that Cook suffered from a heel condition, much less that it impacted his walking. There also is no admissible medical evidence that Cook had any other disability in calendar year 2000. Furthermore, even if the Court were to assume that some such evidence was presented to the EEOC, Cook has not shown, as he must, that it can be presented in admissible form at the trial of this case. It follows that the EEOC Determination cannot fill the gaps in Cook's attempted prima facie showing of actual disability in this case. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1284 (9th Cir. 2000) (EEOC letters which report only conclusions are insufficient to create a genuine issue of material fact).
iv. "Regarded As" Liability
Despite Cook's inability to make a prima facie showing that he was actually disabled, he still would be entitled to maintain his ADA claim if there was proof from which a jury reasonably could find that he was subjected to an adverse employment action because Deloitte regarded him as disabled within the meaning of the ADA. See 42 U.S.C. §§ 12102(2)(C), 12112(a).
Deloitte contends that Cook requested a further leave in December 1999 solely so that he could deal with certain non-medical family issues. (See, e.g., Def.'s R. 56.1 Stmt. ¶ 12). Cook counters that he did not request such an extended leave, and stated instead to McKernan that he was "ready to return to work," but "wanted them to know in advance [that] there was going to be a few days that [he] may have to take off" for "[f]ollow-up medical care . . . and personal" reasons. (Cook Dep. 108). Having allegedly been forced to take an extended unpaid leave after making these statements, Cook contends that Deloitte had a mixed motive for refusing to accommodate him, and therefore is liable under the ADA. (See Pl.'s Mem. at 36-39).
As further proof of Deloitte's improper motive, Cook points to an email in early 2001 in which McKernan indicated that MSS had asked as early as September 1999 whether he could be replaced "since he had been out so long." (Hurley Affirm. Ex. 6). Cook also cites two notations on an internal Deloitte system in December 1999. Specifically, on December 13, 1999, Blessing noted on the system that she had spoken to McKernan, who had advised her that "[t]he partners are very unpleased with [Cook's] performance and really [want] him replaced." (Hein Decl. Ex. F Tab 7 at 143). Additionally, on December 15, 1999, another Deloitte employee made a notation indicating that Cook's return to work was a "hot issue in the local office." (Id.).
Taken in context, it seems clear that each of the notations cited by Cook relates to his unavailability, rather than the reasons that he was not at work. However, even if the "hot issue" being debated at Deloitte was Cook's continuing knee pain, none of the cited entries suggests that Deloitte regarded Cook as disabled in December 1999. Cook consequently has not made a prima facie showing that he was regarded as being disabled within the meaning of the ADA at that time.
Turning to the events of August and September 2000, Cook relies principally on Reid's alleged pause after he requested certain accommodations as evidence of Deloitte's continuing hostility to his legitimate medical needs. (See Pl.'s Mem. at 27) Cook also points to Deloitte's alleged failure to call him back to arrange a time for him to review Deloitte's list of available jobs. (Id.). If an employee could bootstrap such innocuous events as a pause in a conversation into proof that a supervisor regarded him as disabled, virtually every ADA case in which an employer alleged that his employer regarded him as disabled would require a trial. While the Second Circuit has urged caution in granting summary judgment when an employer's intent is at issue, see Gallo, 22 F.2d at 159, the fact that Reid paused before responding and failed to call him back, even if proved, clearly is not a sufficient basis for a reasonable juror to find that Deloitte regarded Cook as disabled within the meaning of the ADA and therefore did not want him to return to work in August or September 2000.
In his papers, Cook also seeks to rely on the "affidavit" of Pamela Fair. (See Pl.'s Mem. at 27). Fair was formerly employed as an Administrative Assistant at Deloitte. (See Hurley Affirm. Ex. 12). There are several evidentiary problems with this exhibit, which is dated February 14, 2001. First, the affidavit is unsworn. Second, Fair alleges that she was told by another Deloitte employee, Mary Singer, that "Administrative S[ervices was] speaking to various managers of . . . Cook and the consensus was they did not want him to return to their group after his leave." (Id.). This aspect of Fair's affidavit is therefore at least double hearsay to the extent it is offered for the truth.See Fed.R.Evid. 801(c). Finally, although Fair sets forth her belief that Deloitte "did not want [Cook] back due [to] the absences surrounding his knee problem and other consequences surrounding his increasing disability," (Hurley Affirm. Ex. 12), this conjecture on her part is plainly inadmissible. See Fed.R.Evid. 701. Fair's affidavit is therefore insufficient to make out a prima facie showing that Deloitte regarded Cook as disabled.
Since Cook has not made a prima facie showing that he was either disabled or regarded as disabled within the meaning of the ADA, I have not addressed whether Cook could establish that Deloitte's asserted reasons for its actions were pretextual.
v. Cook's Rule 56(f) Application
Cook and his counsel also seek a continuance pursuant to Rule 56(f) of the Federal Rules of Civil Procedure so that they may obtain additional discovery before the Court rules on Deloitte's motion. (See Pl.'s Mem. at 42). Rule 56(f) provides that a court may deny a motion for summary judgment or grant a continuance when it appears "from the affidavits of a party opposing summary judgment that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition." Fed.R.Civ.P. 56(f). To defeat or delay an award of summary judgment on this ground, the party opposing the motion must "submit an affidavit showing (1) what facts are sought to resist the motion and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts."JSC Foreign Economic Ass'n Technostroyexport v. Int'l Dev. and Trade Services, Inc., No. 03 Civ. 5562 (JGK), 2005 WL 2173911, at *15 (S.D.N.Y. Sep. 6, 2005) (citing Gurary v. Winehouse, 190 F.3d 37, 43-44 (2d Cir. 1999)).
The discovery deadline in this action was May 28, 2004. (Docket No. 8). Thereafter, Deloitte moved for summary judgment on June 30, 2004. (Docket Nos. 9, 10). The first time that Cook's counsel, Sheila Marie Hurley, Esq., sought any additional discovery, however, was some time in August of that year. (See letter from Ms. Hurley to the Court dated Oct. 1, 2004) (referring to earlier letter). Subsequently, Cook argued in his memorandum of law opposing summary judgment that he was entitled to relief under Rule 56(f). (See Pl.'s Mem. at 42). Even at that juncture, however, neither Cook nor his counsel submitted an affidavit supporting his application. Indeed, it was only after Deloitte submitted reply papers detailing the requirements for a Rule 56(f) application in this Circuit, that Cook's counsel submitted a "Proposed Sur-Reply Affirmation" laying out the basis for their application. (See Def.'s Reply Mem. at 15; Affirm. of Ms. Hurley dated October 4, 2004 ("Hurley Sur-Reply Affirm."). Cook's counsel also addressed this application during an October 15, 2004 conference scheduled after Judge Kaplan had initially referred Deloitte's motion for summary judgment to me for a Report and Recommendation.
In her Sur-Reply Affirmation, Cook's counsel alleges that her "request for a continuation [sic] and further discovery stems from the service upon [Cook] of a dispositive motion by [Deloitte] with discovery outstanding, where past practice between the parties had been to attempt to resolve such issues without resort to the Court, after seeking discovery extensions." (Hurley Sur-Reply Affirm. ¶ 9). Although Deloitte evidently responded to discovery requests that Cook served only a few days before the discovery period ended. (see letter from Jennifer Hein to the Court dated Aug. 25, 2004), there was no reason for counsel to assume that the Court would permit further discovery after the expiration of the deadline it had imposed. Moreover, the summary judgment motion in this case could scarcely have come as a surprise to Cook since the parties had stipulated to a schedule for its filing in early March. (Docket No. 8). Consequently, if Cook or his counsel took issue with the adequacy of the discovery materials that they had received, their complaints should have been voiced before discovery closed, and certainly before Deloitte went to the expense of preparing its summary judgment papers. Rather than doing so, Cook and his counsel waited four months after the close of discovery (and nearly two months after the motion was filed) before bringing their alleged concerns to the attention of the Court.
In any event, having reviewed the record in this case, I find that Ms. Hurley's claims that Deloitte's discovery responses are inadequate are grossly overblown. In Cook's memorandum of law, Ms. Hurley points to several instances in which Deloitte witnesses indicated that they made certain electronic entries in the course of their work which allegedly have not been produced. (See Pl.'s Mem. at 42 n. 5). On this basis, Ms. Hurley seeks further electronic discovery. However, there has been no showing that the critical electronic entries were kept from Cook. Thus, it apparently is uncontested that Deloitte produced all of the relevant electronic entries on its personnel database. (See Hein Decl. Ex. F Tab 7). Deloitte also produced an email from McKernan indicating that MSS wanted to replace Cook as early as September 1999, which Cook characterizes as a "smoking gun." (See Hurley Affirm. Ex. 6; Pl.'s Mem. at 35). Even if other emails exist in Deloitte's computer archives, as Cook alleges, he has not made the showing necessary to warrant their retrieval at this late date at Deloitte's expense, nor has he volunteered to foot the bill for doing so. See generally Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309, 317-18 (S.D.N.Y. 2003); see also Fed.R.Civ.P. 26(b)(2) (requiring court to balance the probative value of proposed discovery against its potential burden).
In her Sur-Reply Affirmation, Ms. Hurley further requests to take at least five additional depositions of Deloitte employees who allegedly were aware of Cook's disability. (Hurley Sur-Reply Affirm. ¶ 10 n. 3). However, even if all of these witnesses testified in the manner that Ms. Hurley anticipates, this could not cure Cook's failure to prove through medical evidence that he was disabled under the ADA. Moreover, to the extent that this testimony would relate to Cook's "regarded as" claim, Ms. Hurley has not adequately explained why these witnesses were not deposed during the time previously allotted for discovery.
For these reasons. Cook is not entitled to any relief under Rule 56(f).
2. Non-Federal Claims
Cook's only other claims in this case arise under the NYSHRL and the NYCHRL, statutes which contain definitions of the term "disability" far broader than the ADA definition. See Giordano v. City of New York, 274 F.3d 740, 753 (2d Cir. 2001).
Under the NYSHRL, a "disability" is defined as
(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or
(b) a record of such an impairment or
(c) a condition regarded by others as such an impairment . . .
N.Y. Exec. Law § 292(21)(a)-(c) (emphasis added). Under the NYCHRL, the "term `disability' means any physical, medical, mental or psychological impairment, or a history or record of such impairment." N.Y. City Admin. Code § 8-102(16)(a). As the Second Circuit has noted, unlike their ADA counterpart, "neither of these definitions requires [a plaintiff] to show that his disability substantially limits a major life activity."Giordano, 274 F.3d at 754.
For this reason, in assessing the sufficiency of Cook's remaining claims, the Court would be required to apply state law.See id.; Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 155-56 (2d Cir. 1998). In that regard, although the Court could retain jurisdiction over those claims pursuant to 28 U.S.C. § 1367(c)(3), the Second Circuit has indicated that, "where all of the federal claims have been dismissed. . . . if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals.'" Giordano, 274 F.3d at 754 (quotingUnited Mine Workers v. Gibbs, 383 U.S. 715, 726-27 (1966));see also McDowell v. Father Flanagan's Boys' Home, No. 03 Civ. 2058, 2005 WL 1006022, at *6 (E.D.N.Y. Apr. 26, 2005) (dismissing plaintiff's pendent claims under NYSHRL and NYCHRL without prejudice after granting summary judgment on ADA claim).
Here, because Deloitte is entitled to summary judgment with respect to Cook's federal claim for relief, Cook's only remaining claims arise under state (and local) law. Moreover Cook's ability to recover on those claims will turn, at least in part, on state court interpretations of those statutes. The Court therefore declines to exercise supplemental jurisdiction over Cook's pendent claims, which will consequently be dismissed without prejudice to their renewal in state court.
IV. Conclusion
For the reasons set forth above, Deloitte's motion for summary judgment is granted with respect to Cook's ADA claim, Cook's application for relief under Rule 56(f) is denied, and Cook's claims under the NYSHRL and NYCHRL are dismissed without prejudice to their assertion in state court. In light of this disposition, the Clerk of the Court is respectfully requested to close this case.
SO ORDERED.