Opinion
00 Civ. 9518 (SHS)
February 14, 2002
OPINION AND ORDER
Plaintiff Joy Greicus filed this discrimination action against her former employer Liz Claiborne, Inc. claiming she was terminated because she suffers from a physical disability. Greicus brought suit pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., ("ADA"), the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq., ("NYHRL") and section 8-107 of the New York City Administrative Code. Claiborne moved for summary judgment in its favor pursuant to Fed.R.Civ.P. 56(b). Because Greicus cannot prevail on her claim that Claiborne regarded her as disabled within the meaning of the ADA, her ADA claim is dismissed with prejudice and her state and local claims are dismissed without prejudice.
I. BACKGROUND
The following facts are taken from the record as viewed in the light most favorable to plaintiff, with all reasonable inferences drawn in her favor. Greicus was hired by Claiborne in May 1997 as a product analyst in the company's marketing department. Her job involved generating reports on the production and sales of Claiborne's merchandise. After another employee transferred out of the marketing department in December 1997, Greicus became responsible for analyzing and updating the "availability report" that informed account executives how much of each product remained in inventory. (Greicus Cert. ¶ 30; Lordi Cert. ¶ 4.)
At Greicus' first annual job performance review in January 1998, she received an overall rating of "meets expectations." The report praised Greicus' communication skills and stated that she had "grown tremendously" and "become quite comfortable with her daily job responsibilities" in her first year with the company. (Greicus Cert. ¶ 6; Silberman Aff., Ex. 4.) The report also noted that Greicus needed to develop her analytical skills, in particular her facility in generating reports with the software program Microsoft Access. (Silberman Aff., Ex. 4.)
In January or February 1998, the coworker who had been transferred out of the department complained to Greicus' supervisor, Jennifer Lordi, that Greicus continued to ask him for assistance in using the software program and he did not have time to help her. (Lordi Cert. ¶ 6.) In February, Vice President of Sales Pat Kenny called Greicus and asked her a question about the availability report. Kenny reported to Lordi that Greicus was extremely flustered and did not seem to understand the report. (Lordi Cert. ¶ 9.) In October 1998, plaintiff sent an e-mail containing incorrect data to upper managers in the company's Special Sales Department. (Lordi Cert. ¶ 12, Greicus Dep. 75.) Lordi told Greicus that she had to avoid making such mistakes in the future and instructed Greicus to show her any documents she produced before sending them out. (Lordi Cert. ¶ 12.)
On December 7, 1998, Greicus underwent a surgical procedure on her right foot for Morton's neuroma and hammer toe. These are foot disorders that had long caused Greicus severe pain and difficulty walking. (Greicus Cert. ¶ 8.) She successfully applied for short-term disability leave and received her salary while on leave. (Greicus Dep. 95; Silberman Aff., Ex 7.)
Hammer toe is "a condition in which the proximal phalanx of a toe — most often that of the second toe — is extended and the second and digital phalanges are flexed, causing a clawlike appearance."Dorland's Illustrated Medical Dictionary 1846 (29th ed. 2000). Morton's neuroma is a benign tumor caused by the compression of nerve tissue at the base of the toes. See id. at 1206, 1210. Both conditions are frequently caused by wearing short, tight-fitting shoes. See Adam Health Illustrated Encyclopedia, available at http://www.n1m.nih.gov/medlineplus/encycloped.html.
Greicus returned to work on February 15, 1999. She walked with a cane for assistance and could not stand or sit in one position for an extended period of time. (Greicus Cert. ¶ 12, 42.) Because of her injury, Greicus had to keep her foot elevated for much of the day. This necessity, coupled with the continued pain in her foot, adversely affected her efficiency at work. (Greicus Cert. ¶¶ 13, 50.) Greicus' interaction with her supervisors changed after she returned from disability leave. She received negative comments about the decreased speed in which she performed her job and the times she missed work because of medical appointments. (Greicus Cert. ¶¶ 14-15.)
At Greicus' March 11, 1999 performance review, Lordi and Human Resources representative Sherri Cohen informed Greicus she was not meeting the requirements of her position and would be terminated in thirty days unless she improved her performance. (Greicus Dep. 64; Silberman Aff. Ex. 5.) Alternately, Lordi and Cohen told plaintiff she could immediately begin looking for another position while collecting her Claiborne salary for one month. (Greicus Dep. 67, 72; Lordi Cert. ¶ 16.) Cohen and Lordi also agreed to critique Greicus' resume and help her to find a new job. (Greicus Dep. 67, 69.)
After the performance review, Greicus left the office on short-term disability leave. (Greicus Cert. ¶ 48, 50.) During the time she was out, Greicus had her resume faxed to Cohen, who wrote revisions on the resume and returned it. (Greicus Dep. 69-70, Silberman Aff. Ex. 6). On one occasion, Lordi called Greicus to tell her that she had been looking at the classified advertisements in the New York Times for jobs that might be of interest. (Greicus Dep. 68; Lordi Cert. ¶ 16.)
Claiborne terminated Greicus' employment upon the expiration of her short-term disability leave on May 3, 1999. (Greicus Dep. 109; Lordi Cert. ¶ 17.) At the time of her termination, the only restriction on plaintiff due to her foot condition was that she could not stand for long periods of time. (Greicus Dep. 21.)
II. DISCUSSION
A. Summary Judgment Standard
Summary judgment may be granted "only when the moving party demonstrates that 'there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'"Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quoting Fed.R.Civ.P. 56(c)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor . . . and may grant summary judgment only when 'no reasonable trier of fact could find in favor of the nonmoving party.'" Allen, 64 F.3d at 79 (quoting Lund's, Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d Cir. 1989)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must come forward with specific facts to show there is a factual question that must be resolved at trial. Fed.R.Civ.P. 56(e); see also Legal Aid Society v. City of New York, 114 F. Supp.2d 204 (S.D.N.Y. 2000). A non-moving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). In short, a nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
B. ADA Claim
The ADA prohibits employment discrimination against "a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112 (a). A plaintiff alleging discrimination in violation of the ADA bears the initial burden of establishing a prima facie case. See Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 869 (2d Cir. 1998) (citing Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 383 (2d Cir. 1996)). To establish a prima facie case, a plaintiff must show that: (1) her employer is subject to the ADA; (2) she suffers from a disability within the meaning of the statute; (3) she could perform the essential functions of her job with or without reasonable accommodation; and (4) she was fired because of her disability. Ryan, 135 F.3d at 869-70 (citations omitted). The ADA defines "disability" 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 an impairment; or (C) being regarded as having such impairment." 42 U.S.C. § 12102(2).
In her complaint, Greicus alleged that she "suffer[s] from Morton's neuroma and severe hammer toes and is a 'qualified individual with a disability' within the meaning of the ADA." (Compl. ¶ 6). Defendant submits in its Rule 56.1 Statement that the only limitation Greicus suffered as a result of her foot injury was an inability to stand for long periods of time. (Def. Rule 56.1 Stat. ¶ 44.) Plaintiff does not contest this assertion and in her Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment concedes that she does not suffer from an impairment that limits her in a major life activity. Instead, Greicus claims that she meets the statutory definition of "disabled" pursuant to 42 U.S.C. § 12102(2)(C) because Claiborne regarded her as substantially limited in the major life activity of working. (Pl.'s Mem. Opp'n Summ. J. at 2.) Claiborne argues that Greicus should not be allowed to raise this claim in her opposition memorandum since she did not plead that Claiborne regarded her as disabled in her complaint. See Johns-Davila v. City of New York, No. 99 Civ. 1885, 2000 WL 1725418, at *7 (S.D.N.Y. Nov. 20, 2000) (refusing to consider claim that plaintiffls disability substantially limited ability to work when inability to work not alleged in complaint). Courts in this district regularly refuse to hear claims raised for the first time in opposition to a summary judgment motion because of the prejudice to the moving party who has not had an opportunity to conduct discovery on the issue. See, e.g., Bonnie Co. Fashions. Inc. v. Bankers Trust Co., 170 F.R.D. 111, 119 (S.D.N.Y. 1997); Beckman v. U.S. Postal Serv., 79 F. Supp.2d 394, 407 (S.D.N Y 2000) (citing cases).
However, a plaintiff is not required to plead every legal theory in support of a claim. See Newman v. Silver, 713 F.2d 14, 16 n. 1 (2d Cir. 1983). The pleading need only provide the defendant with "fair notice of the claims alleged." Baker v. Latham Sparrowbush Assocs., 808 F. Supp. 981, 989 (S.D.N.Y. 1992); see also Conley v. Gibson, 355 U.S. 41, 47 (1957). Since the phrase "qualified individual with a disability" includes both individuals who suffer from a disability pursuant to section 12102(2)(A) and individuals who are regarded as suffering from such a disability pursuant to section 12102(2)(C), Greicus' complaint arguably gave Claiborne notice that she may claim to be a qualified individual with a disability as defined in section 12102(2)(C). The court need not decide this issue, however, since it is clear that Greicus has not raised an issue of material fact with respect to the "regarded as" claim.
To recover under the "regarded as" prong of the ADA, a plaintiff must establish that her employers perceived her as "disabled," as that term is defined in the statute. Francis v. City of Meriden, 129 F.3d 281, 286 (2d Cir. 1997); Reeves v. Johnson Controls World Servs. Inc., 140 F.3d 144, 153 (2d Cir. 1998). Here, Greicus must show that her employers perceived her as substantially limited in the major life activity of working. See Giordano v. City of New York, 274 F.3d 740, 748 (2d Cir. 2001). To be substantially limited in the life activity of working, an individual's impairment must render her "unable to work in a broad class of jobs."Sutton v. United Airlines, 527 U.S. 471, 491 (1999). "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). Rather, the individual must be "incapable of working in a broad range of jobs suitable for a person of her age, experience, and training because of her disability." Ryan, 135 F.3d at 872.
Because the Equal Employment Opportunity Commission ("EEOC") bears responsibility for implementing the ADA, courts generally defer to the EEOC's regulations in construing the ADA's terms. Giordano, 274 F.3d at 747.
Greicus can point to no evidence that her employer regarded her as suffering from an impairment that would prevent her from working in a "broad class of jobs compared to the average person having comparable training, skills, and abilities." Giordano, 274 F.3d at 749 (internal quotation marks and citation omitted). Rather, the record indicates that after Greicus was informed that she would be terminated at Claiborne, her supervisors assisted her in preparing a resume and even searched for jobs in the classified ads in which they thought she would take an interest. There is simply no support for Greicus' claim that her employers regarded her as disabled within the statutory meaning of that term.
Because Greicus cannot establish a prima facie case of discrimination, Claiborne's motion for summary judgment is granted with respect to the ADA claim.
C. State and Local Claims
The U.S. Court of Appeals for the Second Circuit has found that the NYHRL's definition of disability is broader than the ADA's definition in that it includes medically diagnosable impairments that do not substantially limit an individual in a major life activity. See Reeves, 140 F.3d at 155. The definition of disability contained in the N.Y.C. Administrative Code is similarly broad. See Mora v. Danka Office Imaging Co., No. 98 Civ. 4485, 1999 WL 777888, at *6 (S.D.N.Y. Sept. 29, 1999);Hazeldine v. Beverage Media, Ltd., 954 F. Supp. 697, 707 (S.D.N.Y. 1997). Thus, the Court's determination that Greicus cannot prevail on her ADA claim does not dispose of her state and local discrimination claims. However, since Greicus' federal claim cannot survive summary judgment, this Court has discretion to decline to extend jurisdiction over her state and local causes of action. See 28 U.S.C. § 1367(c)(3);Vaughnes v. United Parcel Service, Inc., No. 97 Civ. 5849, 2000 WL 1145400, at *11 (S.D.N.Y. Aug. 14, 2000). Exercise of this discretion is especially appropriate where, as here, the federal claims have been dismissed before trial. See Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994). Moreover, as the U.S. Court of Appeals for the Second Circuit noted in Giordano, "in the absence of any remaining federal claims, the appropriate analytic framework to be applied to discrimination claims based on a "disability' as defined by New York state and municipal law is a question best left to the courts of the State of New York." 274 F.3d at 754. Accordingly, this Court declines to exercise supplemental jurisdiction over Greicus' NYHRL and N.Y.C. Administrative Code claims.
III. CONCLUSION
For the reasons set forth above, Claiborne's motion for summary judgment is granted. The Clerk of Court is directed to enter judgment in defendant's favor dismissing plaintiff's ADA claim with prejudice and dismissing the remaining claims without prejudice pursuant to 28 U.S.C. § 1367(c)(3).