Opinion
99-CV-0500E(M)
December 6, 2001
MEMORANDUM and ORDER
On July 25, 1997 plaintiff filed with the Equal Employment Opportunity Commission ("EEOC") and New York State's Department of Human Rights ("DHR") a charge alleging that defendant National Fuel Gas Distribution Corporation, ("NFG") had discriminated against him. The EEOC issued a right-to-sue letter April 28, 1999. Plaintiff commenced this action July 15, 1999 alleging that NFG had discriminated against him in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101-12213 ("ADA") and New York's Human Rights Law ("HRL"), N.Y. Exec. Law § 290 et seq. because it had perceived him as suffering from a disability. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, 1343(a)(4) and 1367. Defendant filed a motion for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure ("FRCvP") seeking to dismiss the Complaint in its entirety and such motion is presently before this Court for disposition.
This Court has not been provided with copies of the EEOC charge and the right-to-sue letter and accordingly cannot determine the scope of the asserted charges.
"It shall be an unlawful discriminatory practice * * * [f]or an employer * * *, because of the * * * disability * * * of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment." N.Y. Exec. Law. § 296(1)(a). "The term `disability' means (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, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held." N.Y. Exec. Law § 292(21).
Summary judgment "shall be rendered forthwith if 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 judgment as a matter of law." FRCvP 56(c). The party moving for summary judgment must demonstrate to the court the "lack of a genuine, triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A fact is material if it "might affect the outcome of the suit under the governing law" and is genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). When ruling on a motion for summary judgment the court must view the facts in the "light most favorable to the opposing party" — Adickes v. H.S. Kress Co., 398 U.S. 144, 157 (1970) — however, the opposing party may not rest upon conclusory statements in his pleadings but "must set forth specific facts showing that there is a genuine issue for trial." FRCvP 56(e). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment" and, if "the evidence is merely colorable * * * or is not significantly probative * * *, summary judgment may be granted." Anderson, at 247-250. Furthermore, summary judgment must be granted when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. In such a situation, there can be no `genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, at 322-323.
As a preliminary matter, this Court notes that plaintiff has not properly complied with Rule 56 of this Court's Local Rules of Civil Procedure ("LRCvP"). In accordance with this rule, defendant submitted a forty-four paragraph Statement of Material Facts ("Statement") with citations to supporting evidence in the record. Although plaintiff responded to such — admitting many of these statements — for the most part he simply denied those statements with which he disagreed. Pl.'s Response to Def.'s Statement of Material Facts ("Response"). Merely denying certain statements in the moving party's statement of undisputed material facts without stating the factual basis for such denial and without disclosing where in the record is the evidence relied upon in making such denial does not constitute a "separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried" — as is required to controvert the moving party's statement of undisputed material facts for LRCvP 56's purpose which "is to streamline the consideration of summary judgment motions by freeing [this Court] from the need to hunt through voluminous records without guidance from the parties." Holtz v. Rockefeller Co., 258 F.3d 62, 74 (2d Cir. 2001) (discussing Rule 56.1 of the Local Rules of Civil Procedure for the Southern and Eastern Districts of New York which is essentially the same as LRCvP 56). A court may, but is not required to, search the record for evidence which the party opposing summary judgment fails to point to in his LRCvP 56 statement. Id. at 73. Inasmuch as the citations to the record in defendant's Statement support its factual assertions, this Court declines to search the record in an attempt to find evidence contradicting such when plaintiff has failed to do so and, consequently, those statements contained in defendant's statement of undisputed material facts which plaintiff simply denied are deemed admitted.
"In any motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, there shall be annexed to the notice of motion a separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. The papers opposing a motion for summary judgment shall include a separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party. The motion for summary judgment may be denied if the movant fails to annex the statement required by this rule." LRCvP 56.
Plaintiff also submitted a three-paragraph statement of disputed material facts wherein he states:
"Plaintiff contends that the defendant made no effort to determine his actual restrictions as of March 1995 before reassigning him to the facilities attendant position.
"Plaintiff contends that the defendant did not engage in an interactive process of identifying the plaintiff's restrictions and determining whether these restrictions prevented him from engaging in the job of a Serviceman A after March 1995.
"Plaintiff contends that the reason defendant did not reassign the plaintiff to the Serviceman's A [sic] position was because of defendant's erroneous perception that the plaintiff was restricted from performing the duties of the Serviceman A position." Pl.'s Statement of Material Disputed Facts ¶¶ 1-3.
However, for summary judgment purposes, what plaintiff contends is irrelevant unless he points to evidence in support of such contentions.
Plaintiff was hired by NFG as a meter reader November 1, 1965 and was promoted to the position of Serviceman A in June 1974. As a Serviceman A plaintiff was represented by the International Brotherhood of Electrical Workers ("IBEW"). The duties of a Serviceman A, which is among the most physically demanding positions with NFG, include visiting customers' premises to investigate for gas leaks and to service gas-fired appliances, gas meters and gas pipelines. To perform these duties, a Serviceman A must be able to, on a frequent and extensive basis, use hand-tools, operate motor vehicles, work outdoors in inclement weather, walk on snow or ice-covered surfaces, ascend and descend ladders, work on meters in difficult to reach or confined places, lift up to twenty pounds, reach and work on appliances above shoulder level and stoop, bend and kneel to work under low ceilings. A Serviceman A must also have strong vision and be able to see in dark areas such as basements and have good manual dexterity in combination with hand-eye coordination. Statement ¶¶ 1, 3-5.
NFG maintains an unwritten light-duty program for employees who are placed on medical restrictions, which is administered by Leonard Taylor, the General Manager for Labor Relations, and Linda Roehner, the Assistant Manager for Claims and Insurance. Roehner obtains the medical restrictions from an employee's physician and forwards them along with their expected duration to Taylor who is responsible for finding productive light-duty work consistent with such employee's medical restrictions. From the time that he was hired until November of 1987, plaintiff suffered various injuries and each time that he was injured NFG accommodated his injury by providing him with light-duty work consistent with his medical restrictions. After plaintiff had recovered from each of these injuries he was restored to his regular position without any loss of pay or benefits. Statement ¶¶ 6-11.
On November 11, 1987 plaintiff injured the muscles in his chest, back, left arm and neck while turning a "gas key" during the course of his employment. Plaintiff was examined by his personal physician and by Dr. James H. Matthews M.D., a physician hired by NFG and, consistent with their recommendations, was placed on light-duty work due to his back injury. From November 11, 1987 until March 27, 1995, plaintiff was given light-duty work, primarily performing clerical duties, but also replacing keys for fleet vehicles and calibrating test equipment and occasionally contacting customers to schedule appointments and training new servicemen. Plaintiff remained covered by the IBEW while working on light-duty jobs during this period and continued to be paid the salary of a Serviceman A. Statement ¶¶ 12-13, 15-16, 23, 25-26.
This physician is not identified.
Dr. Matthews provided NFG with medical reports on plaintiff dated December 8 and 22 of 1987 and January 21, March 11, May 23 and September 15 of 1988. In his report dated September 15, 1988, Dr. Matthews opined that plaintiff was "permanently partially disabled, able to do only sedentary work." Roehner Aff. Ex. A (Medical Reports from Dr. Matthews). Plaintiff was examined by Dr. Thomas E. Pastore, M.D. June 4, 1992 at the request of NFG.
Dr. Pastore opined that plaintiff has a "permanent, partial disability with respect to his back and wrists. He can continue working with the above restrictions noted * * *. Basically I feel that Mr. Covelli should be restricted as far as any frequent bending, lifting, or pushing, pulling or twisting motions of his back. He should avoid stair or ladder climbing as much as possible. He can walk short distances, a half to one city block. He can sit for prolonged periods of time, I would say three to four hours. He can drive a vehicle. He should, again, avoid climbing, frequent stooping or bending, in order to avoid reinjuring his back. As far as his hands are concerned, I feel that he could perform a clerical type of work but any type of occupation which involved a repetitive gripping or repetitive frequent motions of his hands or strenuous activities with his hands might aggravate his carpal tunnel problems." Roehner Aff. Ex. C (Medical Report from Dr. Pastore).
The problems with plaintiff's wrists — i.e., carpal tunnel syndrome — are unrelated to his November 11, 1987 injury. Roehner Aff. Ex. B (Aug. 4, 1989 Medical Report from Dr. Bertola).
Dr. Pastore also stated that he felt that plaintiff's "long term prognosis is somewhat guarded since the degenerative changes in his back will progress as he ages." Ibid. Based on Dr. Pastore's findings Roehner summarized plaintiff's medical restrictions as follows: no lifting, bending, stooping, pushing or pulling; no twisting motions using the back; should avoid stair or ladder climbing; no walking farther than one city block and no repetitive gripping or strenuous activity involving the hands. Roehner Aff. Ex. D (Roehner July 15, 1992 Letter). Plaintiff also provided NFG with medical reports from Dr. Ignatius S. Bertola, M.D. from June 6, 1988 through August 23, 1995 recommending that he remain on light-duty work. Roehner Aff. Ex. B (Medical Reports from Dr. Bertola).
In late December 1994 or early 1995, plaintiff's supervisor Jay Lesch reported to Taylor that he was having difficulty finding sufficient light-duty work, covered by the IBEW and consistent with plaintiff's medical restrictions, to keep plaintiff occupied. Taylor reviewed the plaintiff's medical restrictions and searched for an available long-range position consistent with such but was unable to find one that was covered by the IBEW. At that time, a facilities attendant (security guard) retired creating an opening which was consistent with plaintiff's medical restrictions, but was not covered by the IBEW. NFG transferred plaintiff to this position in March 1995 but continued to pay him at his Serviceman A salary of $21.79 per hour. Plaintiff was displeased with this transfer because he would thereby lose his union representation and apparently his pay would be frozen at his current level — Covelli Dep. at 172-173 — and accordingly filed a grievance with the IBEW alleging that he had not been given sufficient time before this transfer to confer with his physicians and furnish medical records concerning his current medical restrictions. During a third-step grievance meeting on August 28, 1995, the IBEW indicated that plaintiff wished to return to his position as a Serviceman A and to resume unrestricted duties. However, NFG refused to consider plaintiff's request to return to his position as Serviceman A unless it were presented with full medical clearance. Plaintiff thereafter submitted medical releases to NFG — viz., (1) a September 3, 1995 letter from Dr. Bertola, (2) a September 6, 1995 note from Dr. Bertola, (3) a December 6, 1995 note from Dr. Donald W. Robinson, M.D., (4) a January 23, 1996 letter from Dr. Frank E. Lorch, M.D., a December 31, 1996 letter from Dr. David L. Bagnall, M.D. and a January 23, 1996 note from Dr. Bagnall —; however, NFG did not find these releases to be credible because they did not indicate that there had been any change in plaintiff's physical condition. Between August 1995 and April 1997, NFG and the IBEW engaged in discussions to resolve the grievance which discussions ultimately led to an agreement whereby NFG agreed to restore plaintiff to his position as a Serviceman A effective September 3, 1997 but without any backpay. Statement ¶¶ 27-33, 37-43.
Plaintiff stated that he could now perform the duties of a Serviceman A because while training new servicemen as part of his light-duty work, he had noticed that the iron meters had been replaced with lighter aluminum meters. Covelli Dep. at 260-264. However, NFG had replaced almost all of the iron meters with aluminum ones before plaintiff had injured his back and gone on light duty-work — i.e., by January 1988 only two percent of the gas meters in use were iron. Joyce Aff. ¶¶ 1-5. In addition, during oral argument on this motion, plaintiff's counsel, John A. Galeziowski, Esq. claimed that plaintiff had not recovered from his impairments, but rather that the essential duties of a Serviceman A had changed so that plaintiff could now perform such duties despite his impairments and that defendant perceived plaintiff as being unable to perform any work covered by the IBEW. See also Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 4. There is no evidence, however, that the duties of a Serviceman A had changed between November 11, 1987 when plaintiff was injured and had gone on light-duty work and August 28, 1995 when plaintiff requested to be reinstated to his duties as a Serviceman A. The fact that defendant transferred plaintiff to the job as a facilities attendant does not establish that it believed that plaintiff was incapable of performing any job covered by the IBEW; he had been performing light-duty work covered by the IBEW for over seven years, but defendant simply no longer had available sufficient light-duty work covered by the IBEW.
"I have examined Richard Covelli in my office on September 6, 1995.
"In reviewing the patient's complaints and initial history of injury, physical findings remain static with no new history of injury or other medical problems.
"Mr. Covelli continues to have degenerative arthritis of his lumbar spine and low [sic] his low back pain when lifting heavy objects. He states, however, that his back has improved enough for him to be able to be employed as a service man. He is able to flex his back to about 70 degrees. He has a positive leverage test on the right side to 60 degrees, and his deep tendon reflexes are equal and physiologic bilaterally.
"I gave him a prescription for Ultram which he takes on occasion, but his back feels to the point where he'd like to get back into a working type environment. I feel he could lift the house meter, and this would not do any harm to his back at this time.
"If I could be of any further help, please contact my office. He will return to see me on 11/29/95." Donathen Nov. 13 Aff. Ex. G (emphasis added). As seen, this letter is dated three days before the examination referenced therein is said to have taken place.
"To whom it may concern; [plaintiff] is under my care and treatment for a back injury. He was re-evaluated today and may return to work." Donathen Nov. 13 Aff. Ex. H.
"OK to return to full duty as a serviceman." Donathen Nov. 13 Aff. Ex. I. This note was given after plaintiff told Dr. Robinson that he needed a release to be restored to his Serviceman A position and that he had already been working at such duties for the last six months. Covelli Dep. at 285.
This letter, stamped "DICTATED BUT NOT READ SENT BY SECRETARY TO AVOID DELAY IN MAILING," states, inter alia, that "I read the description of his job, which he brought with him, and believe that he could safely return to that type of work. After all, he does remain quite active, such as shoveling his driveway of snow, mowing two acres of grass, restoring cars and raising Siberian huskies. I have given him an excuse that he may return to full-duty as a serviceman." Donathen Nov. 13 Aff. Ex. J.
"I've reviewed your questions regarding Mr. Covelli. I've also reviewed Dr. Lorch's notes and the job description you have provided for me for serviceman for National Fuel. It is my understanding that Mr. Covelli can return to work as a serviceman, based on the job description you have provided. Certainly anyone is at risk for injury at any time, and he may indeed have problems with his job as a serviceman, although at this time I feel that he is perfectly safe to return without restriction." Donathen Nov. 13 Aff. Ex. L.
This note states that plaintiff may return to work January 24, 1996 on full duty as a serviceman with no restrictions. Donathen Nov. 13 Aff. Ex. K.
NFG agreed to allow plaintiff to return to the full duties of a Serviceman A based upon a four-page medical evaluation and release by Dr. James J. White Jr., M.D. dated April 16, 1997. Taylor Dep. at 51-53; Donathen Nov. 13, 2000 Aff. Ex. M (White Apr. 16, 1997 Letter).
Plaintiff contends that from March 11, 1995 through September 3, 1997, NFG discriminated against him in violation of the ADA and the HRL by refusing to reinstate him to his position as a Serviceman A because it improperly perceived him as being disabled from performing the duties of such position. Compl. ¶¶ 14-31. Defendant seeks summary judgment dismissing the Complaint on the basis that it had not perceived plaintiff as being disabled for purposes of the ADA because, although it then viewed plaintiff as being unable to perform the essential duties of a Serviceman A due to his permanent medical restrictions, it had not viewed him as having an impairment which substantially limited one or more major life activities and, assuming that plaintiff is able to state a prima facie case, it had a legitimate non-discriminatory reason for not having earlier restored plaintiff to his position as a Serviceman A — i.e., it had not believed that he could perform the essential functions of the position due to the attendant medical restrictions. Def.'s Reply Mem. of Law in Further Supp. of Mot. for Summ. J. at 2-4.
Plaintiff claims that when he worked as a facilities attendant his shift began at 6:00 a.m. and that, had he still been covered by the IBEW, he would have received a $0.75 per hour night differential which he calculated to have amounted to a total of $1,560 and that he did not receive the benefit — concurrently or retroactively — of the three percent raises given to Servicemen A in December of 1995 and December of 1996. Donathen Nov. 13, 2000 Aff. Ex. N (Covelli Dep. at 64-76).
The ADA states: "No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment." 42 U.S.C. § 12112(a). A "disability is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment." 42 U.S.C. § 12102(2)(A)-(C). The term "regarded as having such an impairment" means:
"The term `covered entity' means an employer" — 42 U.S.C. § 12111(2) — "engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year * * *." 29 C.F.R. § 1630.2(e)(1).
Under the ADA, the term "discriminate" includes "limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee * * *." 42 U.S.C. § 12112(b)(1).
A "qualified individual with a disability" is an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8).
The term "substantially limits" is defined as being"[u]nable to perform a major life activity that the average person in the general population can perform; or [s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity compared to the condition, manner, or duration under which the average person in the general population can perform the same major life activity." 29 C.F.R. § 1630.2(j)(1)(i)-(ii).
Working is considered a major life activity. 29 C.F.R. § 1630.2(i).
"(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
"(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
"(3) Has none of the impairments defined in paragraphs (h)(1) or (2) but is treated by a covered entity as having a substantially limiting impairment." 29 C.F.R. § 1630.2(l).
A plaintiff may prove disability discrimination in violation of the ADA by either presenting direct evidence of discrimination or, because direct evidence of discrimination is rarely available, by relying upon the burden-shifting analysis enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973). Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985); International Brotherhood of Teamsters v. United States, 431 U.S. 324, 357-360 (1977); Heyman v. Queens Village Committee for Mental Hlth, 198 F.3d 68, 72 (2d Cir. 1999) (McDonnell Douglas burden-shifting analysis applies to ADA claims).
Plaintiff claims that there is direct evidence that defendant had discriminated against him on the basis of his disability and therefore the McDonnell Douglas burden-shifting analysis need not be applied because defendant had relied on his "laundry list of permanent restrictions" without making an effort to determine whether he was still under such restrictions before transferring him to the position of facilities attendant and then refused to restore him to his original position as a Serviceman A when presented with medical releases. Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 4-10. However, such does not constitute direct evidence of discrimination because, as noted by plaintiff, his restrictions were permanent and the medical releases he had submitted did not state that there had been any change in his physical condition. Accordingly, this Court will apply the McDonnell Douglas burden-shifting analysis to plaintiff's claim.
Plaintiff also alleges that defendant failed to engage in an interactive process to determine whether plaintiff could perform the essential functions of a Serviceman A with reasonable accommodations. Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at 12-13. Such is irrelevant, however, because plaintiff never requested reasonable accommodations — as soon as he had been transferred to the facilities attendant position, he stated that he could then perform the duties of a Serviceman A without the need for any accommodations, reasonable or otherwise.
Such analysis has three steps — viz., (1) the plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence; (2), if the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to articulate a legitimate non-discriminatory reason for its actions; and (3), if the defendant articulates a legitimate non-discriminatory reason for its actions, the plaintiff must then be given the opportunity to establish that the non-discriminatory reason asserted by defendant was not its true reason but was only a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981).
To state a prima facie claim of disability discrimination under the ADA, plaintiff Covelli must prove by a preponderance of the evidence (1) that NFG is a covered entity under the ADA, (2) that NFG had perceived him as being disabled as defined by the ADA, (3) that he had been able to perform the essential functions of a Serviceman A with or without a reasonable accommodation and (4) that NFG had refused to restore him to his position as a Serviceman A from March 1995 until September 1997 because of his disability. See Heyman at 72.
It is not disputed that NFG is a covered entity under the ADA; accordingly, the first issue to be determined is whether NFG had perceived plaintiff as being disabled. To show such, plaintiff must present evidence that NFG had perceived him as having a physical impairment which substantially limited his ability to engage in a major life activity. NFG had perceived plaintiff as suffering from a physical impairment — i.e., his back injury — what must next be determined is whether NFG had perceived such impairment as substantially limiting his ability to work.
"The determination of whether an individual is disabled under the ADA is made on an individualized case-by-case basis" with regard to whether his impairment substantially limits the identified major life activity. Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 151-152 (2d Cir. 1998). "To be considered disabled under the `regarded as' prong of the [ADA], * * * a plaintiff must allege that the employer regarded the employee to be suffering from an impairment within the meaning of the [ADA], not just that the employer believed the employee to be somehow disabled." Francis v. City of Meriden, 129 F.3d 281, 286 (2d Cir. 1997). Although working is considered a major life activity under the ADA — 29 C.F.R. § 1630.2(i) —, the "inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Id. at § 1630.2(j)(3)(i).
"`[T]he mere fact that an employer is aware of an employee's impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that that perception caused the adverse employment action.' Plaintiff must show that defendants perceived his impairment as substantially limiting the exercise of a major life activity." Reeves, at 153 (quoting Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir. 1996)).
A plaintiff must prove that his employer regards him as being unable to work in a broad range of suitable jobs based on his age, training and experience because of his disability. Ryan v. Grae Rybicki, 135 F.3d 867, 873 (2d Cir. 1998). "An impairment that disqualifies a person from only a narrow range of jobs is not considered a substantially limiting one." Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 723 (2d Cir. 1994), cert. denied, 513 U.S. 1147 (1995). Simply because a plaintiff is viewed by his employer as being unable to work in a specific job does not mean that the employer regards that employee as being substantially limited in the major life activity of working as is required for the stating of a claim under the ADA. Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989). See also Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 383 (2d Cir. 1996). Assigning an employee to light-duty work does not mean that such employee is perceived as being substantially limited in his ability to work. Colwell v. Suffolk County Police Department, 158 F.3d 635, 646-647 (2d Cir. 1998), cert. denied, 526 U.S. 1018 (1999).
Cases decided under the Rehabilitation Act of 1973, 29 U.S.C. § 701-796 are applicable to ADA cases. Francis, at 285, n. 4.
"To be substantially limited in the major life activity of working * * * one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual's skills * * * are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs." Sutton v. United Air Lines, 527 U.S. 471, 492 (1999).
Based upon the evidence presented, NFG had believed that plaintiff's impairments resulting from his November 11, 1987 injury restricted his ability to perform the essential functions of a Serviceman A; however there is no evidence that NFG had perceived plaintiff's impairment as precluding him from the substantial life activity of working, such that he was precluded from a broad range of jobs. To the contrary, over a seven-year period NFG had provided plaintiff with a host of light-duty jobs, including some that specifically utilized his skills as a Serviceman A, such as training new servicemen and handling technical service calls.
An employer may require medical proof that an employee is capable of performing the essential functions of a position. 42 U.S.C. § 12112(d)(4); Harris v. Harris Hart, Inc., 206 F.3d 838, 844 (9th Cir. 2000) ("Given that plaintiff had previously requested accommodation of his disability for the same position, defendant was not prohibited from requesting documentation from an appropriate medical professional concerning plaintiff's condition."); Greiner v. Cyanamid Plastics, Inc., 70 F.3d 667, 677 (1st Cir. 1995) ("the employer must be able to assess the extent of the applicant's recovery from inability to perform"); Brumley v. Pena, 62 F.3d 277, 279-280 (8th Cir. 1995) (upholding requirement that former employee provide medical clearance to return to work after having been on disability); 29 C.F.R. § 1630.14(c). Accordingly, the fact that NFG had required plaintiff to provide medical documentation to substantiate his recovery — which occurred immediately upon his being transferred to a non-union position and which defendant has aptly characterized as miraculous — before allowing him to return to the full duties of a Serviceman A, is not sufficient evidence that NFG perceived him as being disabled under the ADA, because for more than seven years plaintiff had insisted that he was unable to perform the full duties of a Serviceman A. Colwell, at 647. See also Spath v. Hayes Wheels International-Indiana, Inc., 211 F.3d 392, 398 (7th Cir. 2000) (requiring medical release from specialist in light of employee's nine-year disability); Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 193 (3d Cir. 1999) ("If the employer is factually mistaken about the extent of an employee's impairment, and the employee or his agent is responsible for the mistake, the employer is not liable under the ADA."). NFG's requirement that plaintiff provide it with medical clearance substantiating his recovery before allowing him to return to the full duties of a Serviceman A proves nothing more than that it questioned his suspiciously timed recovery. Ibid.
The defendant's dissatisfaction with the reports provided by plaintiff is perfectly reasonable in light of the evidence in the record. For over seven years plaintiff had claimed and the physicians who examined him had opined that he was permanently disabled, such that he could not perform the essential functions of a Serviceman A — until plaintiff was transferred to a non-union position. The medical releases thereafter provided by plaintiff fail to explain his recovery the September 3, 1995 letter from Dr. Bertola states that plaintiff now believes that he can perform the duties of a Serviceman A but noted that there had been no change in plaintiff's physical condition — Donathen Nov. 13 Aff. Ex. G —, the January 23, 1996 letter from Dr. Lorch states that plaintiff could perform the duties of a Serviceman A because "[a]fter all he does remain quite active, such as shoveling his driveway of snow, mowing two acres of grass, restoring cars and raising Siberian huskies" — Id. at Ex. J — activities in which plaintiff at his deposition substantially denied having performed — Covelli Dep. at 115-128, 321-327. This letter also states that "I have given him an excuse that he may return to full-duty as a serviceman" — Donathen Nov. 13 Aff. Ex. J (emphasis added) — and the December 31, 1996 letter from Dr. Bagnall relied upon the dubious findings of Dr. Lorch. Id. at Ex. L.
"Plaintiff proposes an apparently impossible situation for an employer. On the one hand, an employer must acknowledge the medical restrictions needed by an employee, while on the other hand it must ignore those same medical restrictions when the employee believes the restrictions might affect his assignment to a desired position." Taylor, at 189.
Plaintiff stated during his deposition that he cleans his driveway of snow by plowing it with his truck, that he mows his grass using a riding mower and does so for no more than an hour at a time, that he purchases antique cars and then pays to have them professionally restored and that his wife raises Siberian Huskies and that he occasionally helps out by giving them food and water or letting them out. Covelli Dep. at 115-128, 321-327.
In addition, plaintiff began seeing a chiropractor, Dr. Covino, to treat his back August 30, 1995 one week before he went to Dr. Bertola to obtain a release to return to work on the ground that his back had improved. He had an MRI on his back as recommended by Dr. Covino the week after he had obtained the release from Dr. Bertola. Covelli Dep. at 274-278.
Accordingly, plaintiff has failed to present a prima facie case because he has not established that NFG had perceived him as suffering from a disability within the meaning of the ADA. However and assuming arguendo that plaintiff had stated a prima facie case of disability discrimination under the ADA and/or the HRL, defendant has articulated a legitimate non-discriminatory reason for having failed to grant plaintiff's request to be restored to his former position of Serviceman A — i.e., plaintiff had been under medical restrictions precluding him from performing the essential functions of such position for over seven years and the medical releases provided by plaintiff did not indicate that there had been any such change in his physical condition as would justify lifting such restrictions.
Plaintiff has also made fleeting references to the major life activity of lifting and, although plaintiff's medical restrictions only precluded him from extensive lifting, the medical restriction list compiled by Roehner indicated that he could not engage in any lifting. The definition of disability under the HRL is also broader than that of the ADA — the impairment need only be diagnosable by medically accepted techniques and it need not substantially limit a major life activity. N.Y. Exec. Law § 292; Reeves, at 154-156; State Div. of Human Rights v. Xerox Corp., 65 N.Y.2d 213, 218-219 (1985).
To establish that the legitimate non-discriminatory reason asserted by defendant was only a pretext, the "plaintiff must show that there is a material issue of fact as to whether (1) the employer's asserted reason for [the adverse employment action] is false or unworthy of belief and (2) more likely than not the employee's [disability] was the real reason for the [adverse employment action]." Woroski v. Nashua Corporation, 31 F.3d 105, 108-109 (2d Cir. 1994). See also Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 92 (2d Cir. 1996). Plaintiff has failed to satisfy this standard. His allegation that defendant did not properly work with him to lift his medical restrictions and determine whether he could perform the essential functions of a Serviceman A does not go to establish that defendant's asserted non-discriminatory reason is false or unworthy of belief and that more likely than not the real reason he was not immediately restored was because defendant improperly perceived him of suffering from a disability.
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted, that the Complaint is dismissed and that this case shall be closed in this Court.