Opinion
04-CV-6263 CJS.
March 14, 2005.
Rick S. Geiger, Esq., Law Office of Rick S. Geiger, LLC, Pittsford, NY, for Plaintiff.
Paul M. Sansoucy, Esq., Caroline M. Westover, Esq., Bond, Schoeneck King, PLLC, Syracuse, NY, for Defendant.
DECISION and ORDER
INTRODUCTION
This employment discrimination case is before the Court on defendant's motion (# 6) pursuant to Federal Rule of Civil Procedure 12(b)(6) for dismissal, or in the alternative, pursuant to Rule 56 for summary judgment. For the reasons stated below, the application is granted in part, and denied in part.
BACKGROUND
Plaintiff John Bater, Jr. ("Bater") commenced this action by filing a complaint on June 9, 2004, alleging in two counts that defendant Kraft Foods Inc. ("Kraft") discriminated against him under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), and New York State Executive Law § 296. Jurisdiction is based on federal question under 28 U.S.C. §§ 1331 and 1343 (3) (4), the Declaratory Judgment Statute, 28 U.S.C. § 2201, and supplemental jurisdiction for the state claim under 28 U.S.C. § 1367. Kraft is alleged to be a corporation organized under the laws of Delaware, doing business in New York, with its principal offices in Illinois. It has a factory for the production of two of its food products, Cool Whip® and Lunchables®, in Avon, New York, which is within the venue of this Court. Bater is a resident of Avon, New York.Bater alleges in his complaint that he was employed by Kraft from February 1978 until his termination by Kraft effective March 21, 2003. He claims that in 1984, he suffered a slip and fall at work which resulted in injury to his right knee. He states that he underwent surgery in October 1991 to repair the damage, but re-injured that knee on March 20, 2002, while standing up from a chair at work. On that day, Bater states that he was working at his Kraft job during the early morning hours, that he left work to seek medical treatment, and that he returned later in the morning to show his employer a note from his doctor, Lori Ferris, M.D. ("Ferris"). The note stated, "out of work until further notice." (Sansoucy Decl. Ex. C; see also Compl. ¶ 16 (attached to Sansoucy Decl. as Ex. A.))
Bater claims he was examined by an orthopedic specialist, Dr. Matthew J. Landfried, on April 12, 2002. On April 24, 2002, he states that he filed a claim with the New York State Worker's Compensation Board ("Worker's Comp."), alleging that the March 20 injury to his right knee was new. Bater further alleges that on March 28, 2002, Kraft filed an opposition to his Worker's Comp. application. He also states that on April 28, 2002, Dr. Landfried again examined his knee, and requested permission from Worker's Comp. for an MRI.
Bater further says that on July 7, 2002, Worker's Comp. held a hearing and determined that he had not presented sufficient evidence to support his claim of a new injury. Bater also says that in September 2002, Kraft petitioned Worker's Comp. to be released from liability for payment for Bater's continuing medical treatment, and requested that payment be made by the Special Fund set up by New York to pay for medical treatments by Worker's Comp. claimants.
Bater relates in his complaint that on September 9, 2002, he was encouraged by Kraft's Human Resources Assistant and Health and Wellness Coordinator, Patricia Attwood ("Attwood"), to file for short term disability benefits with Kraft's insurance carrier, CNA. Bater states that on September 11, 2002, Kraft received proof that he had filed for disability benefits with CNA.
On September 23, 2002, Bater alleges that Workers Comp. approved his doctor's request for an MRI, and the MRI was conducted on October 8, 2002, by Dr. Ronald Femia. He further alleges that Dr. Femia, "failed to identify a tear in the meniscus of the right knee." Bater asserts that on October 15, and November 26, 2002, Dr. Landfried examined him and provided some treatment to relieve pain, but that CNA had still not made a determination on his claim for short term disability benefits. On December 9, 2002, Bater states that CNA authorized payment, which was subsequently received by him on December 11, 2002. However, Bater alleges that CNA changed its position on December 17, 2002, and approved disability payments only for the period from March 27 to April 26, 2002, and also requested, along with Kraft, reimbursement from Bater for disability pay previously received by him outside of that period.
Bater says that on January 20, 2003, Dr. Landfried examined him and issued a note stating that he should remain out of work "for a period of time." (Compl. ¶ 30.) The note also included a preprinted section with the words, "Date Restrictions Began," and "Thru." (Sansoucy Decl. Ex. N.) The "Date Restrictions Began" section was blank, but the "Thru" section contained, "2/17/03." ( Id.) Bater further states that he attended a Worker's Comp. hearing on May 13, 2003, "where continuing payments for medical treatments were authorized," but that Kraft was not represented at that hearing. (Compl. ¶ 31.)
Bater recounts that on March 24, 2003, Kraft sent him a letter, which he received on or about March 31, 2003, terminating him from employment, effective March 21, 2003, for having been continuously laid off for more than one year. Bater states that on March 25, 2002, Dr. Landfried examined him again, gave him his first injection of SYNVIC to reduce his knee pain, and notified Kraft that Bater was approved to return to work on March 31, 2003, one year and eleven days after he had first left work due to his right knee injury.
Bater relates that although he grieved his termination, Kraft denied it, citing to § 10.6.E in the collective bargaining agreement ("CBA") between Teamsters Local Union # 791 and Kraft, which governed Bater's employment. Article 10 of the CBA reads as follows:
10.6 Seniority will be broken and employment terminated in the following ways:
A. Discharge;
B. Termination, including resignation and voluntary quit [sic];
C. Retirement;
D. Absence from work for three consecutive working days, for any reason, without providing satisfactory notification to the Company;
E. Continuous layoff for any reason for twelve (12) consecutive months;
F. Failure to immediately return to work upon the expiration of an approved leave of absence; or
G. When on layoff, failure to reply within three (3) working days immediately following the day notice to return to work is mailed to the employee via registered mail to the employee's address of record.
CBA (Dec. 1, 2000-Nov. 30, 2003), Art. 10 (attached to Sancoucy Decl. as Ex. S) (emphasis added). Bater asserts that he was never notified that he was placed on a layoff status from his previous medical leave status, also citing to Article 10 of the CBA. Bater Aff. ¶¶ 23, 25.
Bater states that he continued to seek treatment for his knee and that on November 17, 2003, he was examined by another orthopedic specialist, Dr. John Goldblatt, who diagnosed a possible tear in his meniscus. Bater relates that on January 30, 2004, Dr. Goldblatt performed surgery, found a tear, and repaired it.
Bater's complaint states that his "permanent medical condition has substantially limited his major life activities in the following manner: (a.) substantial limitation on his ability to secure and retain work; (b.) substantial limitation on his ability to do normal household chores; [and] (c.) substantial limitation on his ability to do normal walking and exercise." (Compl. ¶ 48.) Bater also alleges that he "can perform the essential functions of his job with Kraft with reasonable accommodation." (Compl. ¶ 49.)
STANDARDS OF LAW
Rule 12(b)(6) StandardIn considering a motion for dismissal under Rule 12, defendant must show that plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See H.J. Inc. v. Northwest Bell Telephone Co., 492 U.S. 229, 249 (1989); see also 2 MOORE'S FEDERAL PRACTICE, § 12.34[1][a] (Matthew Bender 3d ed.). "In considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference." Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir., 1991).The Court must view the complaint, and draw all reasonable inferences, in the light most favorable to the non-moving party. Id.; see also 2 MOORE'S FEDERAL PRACTICE, § 12.34[1][b] (Matthew Bender 3d ed.) (court must accept plaintiff's factual allegations as true). Under the modern rules of pleading, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," FED. R. CIV. P. 8(a)(2), and that "all pleadings shall be so construed as to do substantial justice," FED. R. CIV. P. 8(f). On a Rule 12(b)(6) motion, the issue before the Court "is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claim." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995).
Summary Judgment Standard
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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." FED. R. CIV. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir. 1987) ( en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Once that burden has been met, the burden then shifts to the non — moving party to demonstrate that, as to a material fact, a genuine issue exists. FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S. Ct. 1160 (2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. FED. R. CIV.P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
Of course, it is well — settled that courts must be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. Because direct evidence of an employer's discriminatory intent will rarely be found, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citations and internal quotations omitted). However, the general rule holds and a plaintiff may not defeat a motion for summary judgment merely by relying upon "purely conclusory allegations of discrimination, absent any concrete particulars which, if believed, would show discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citations and internal quotations omitted); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). "A trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue." Gallo v. Prudential Residential Servs., Ltd. Pshp., 22 F.3d 1219, 1224 (2d Cir. 1994)
ADA Standard for Disability
The ADA prohibits discrimination in the hiring, advancement, or discharge of an otherwise qualified employee because of such individual's disability. Cavallaro v. Corning Incorporated, 93 F. Supp. 2d 334 (W.D.N.Y. 2000); 42 U.S.C. § 12112(a). "To establish a prima facie case of disability discrimination, a plaintiff must show: (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered [an] adverse employment action because of his disability." Cameron v. Community Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2nd Cir. 2003) ( citation omitted); Cavallaro, 93 F. Supp. 2d at 342.
"Under the ADA a 'disability' is: 1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; 2) a record of such an impairment; or 3) being regarded as having such an impairment . . ." Kotlowski v. Eastman Kodak Co., 922 F. Supp. 790, 797 (W.D.N.Y. 1996); 42 U.S.C. § 12102(2). "A physical impairment, standing alone, does not necessarily constitute a disability under the ADA," since an impairment "may affect an individual's life without becoming disabling." Cavallaro, 93 F. Supp. 2d at 343, quoting, Hazeldine v. Beverage Media, Ltd., 954 F. Supp. 697, 703 (S.D.N.Y. 1997). Therefore, plaintiff must demonstrate that the impairment "substantially limits" one or more of his "major life activities." Cavallaro, 93 F. Supp. 2d at 343.
The ADA's requirement that, in order to constitute a disability under its terms, an impairment must substantially limit a major life activity underscores that "the impairment must be significant, and not merely trivial." Sutton, 130 F.3d at 898 (citation omitted); see also Runnebaum v. Nationsbank of Maryland, 123 F.3d 156, 167 (4th Cir. 1997) ( en banc) (same); Byrne v. Board of Educ., 979 F.2d 560, 564 (7th Cir. 1992) ("The statute's inclusion of the limiting adjectives 'substantial' and 'major' emphasizes that the impairment must be a significant one.") (RHA case). That is, not any limitation, but only a "substantial" limitation, of not any life activity, but only a "major" life activity, will constitute a disability within the meaning of the statute. See Ryan, 135 F.3d at 870, 1998 WL 50127, at *3 ("In assessing whether a plaintiff has a disability, courts have been careful to distinguish impairments which merely affect major life activities from those that substantially limit those activities."); Knapp v. Northwestern Univ., 101 F.3d 473, 481 (7th Cir. 1996) ("Not every impairment that affects an individual's major life activities is a substantially limiting impairment.").Reeves v. Johnson Controls World Servs., 140 F.3d 144, 151 (2d Cir. 1998). Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(I).
"Substantially limits" means that an individual is: 1) unable to perform a major life activity that the average person in the general population can perform; or 2) 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). "To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice." Sutton v. United Airlines, Inc., 527 U.S. 471, 491 (1999). Moreover, "[a] person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently 'substantially limits" a major life activity.'" Sutton, 527 U.S. at 482-483.
With regard to a perceived disability, the rule is settled:
In determining whether a given "disability" conforms with the definition set forth by the ADA, courts must engage in a tripartite analysis. First, in cases claiming perceived disability, a court must determine whether a plaintiff was viewed or was recorded as having an impairment. Second, it must determine whether that impairment, as perceived or recorded, affects a "major life activity" as the ADA defines that term. Finally, the court must consider whether plaintiff's perceived or recorded disability is one that, if it existed, would substantially limit the identified major life activity. Colwell v. Suffolk Cty. Police Dept., 158 F.3d 635, 641 (2d Cir. 1998). This third requirement ensures that only significant impairments (and perceptions and records thereof) are covered by the ADA. Id. at 642.Temple v. Bd. of Educ., 322 F. Supp. 2d 277, 279 (E.D.N.Y. 2004).
New York Human Rights Law Claim
Plaintiff also makes a claim under the New York State Human Rights Law, codified at New York Executive Law § 296. That statute makes it an unlawful discriminatory practice
for an employer or licensing agency, because of the age, race, creed, color, national origin, sex, disability, genetic predisposition or carrier status, or marital status 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 State law "defines disability more broadly than the ADA in that it only requires an impairment, not an impairment that substantially limits a major life activity." Tojzan v. New York Presbyterian Hosp., No. 00 Civ. 6105 (WHP), 2003 U.S. Dist. LEXIS 5138 (S.D.N.Y. Mar. 31, 2003).
McDonnell Douglas
ADA claims are governed by the three-part analytical framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Greene, 411 U.S. 792 (1973). Terry v. Ashcroft, 336 F.3d 128, 140-41 (2d Cir. 2003); Aka v. Washington Hosp. Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998); see also Klausner v. Industrial Risk Insurers, Inc., 1999 U.S. Dist. LEXIS 10219, 1999 WL 476285, at *3 (S.D.N.Y. July 8, 1999) (applying McDonnell Douglas to N.Y. Human Rights Law claim). Under the McDonnell Douglas standard, a plaintiff bears the burden of proof and must ultimately establish, by a preponderance of the evidence: (1) membership in a protected group; (2) qualification for a position; (3) an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See Shumway v. United Parcel Service, Inc., 118 F.3d 60, 63 (2d Cir. 1997). To establish that the adverse employment action occurred under circumstances giving rise to an inference of discrimination, a plaintiff may demonstrate that "similarly situated" employees who do not share the plaintiff's protected characteristics were treated preferentially. Id.
"New York state courts have adopted the above analysis for discrimination actions arising under the New York State Human Rights Law. See, e.g., Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 939 (1985); O'Connor v. Frawley, 573 N.Y.S.2d 675, 676 (1st Dep't 1991); Ioele v. Alden Press, Inc., 145 A.D.2d 29, 35 (1st Dep't 1989)." Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir. 1992).
Requirements for establishing a prima facie case are minimal. See Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998). If a plaintiff is successful in demonstrating a prima facie case, then the burden shifts to his employer to articulate a legitimate, non-discriminatory purpose for its adverse employment action. Id. at 153 (citing McDonnell Douglas, Corp. v. Greene, 411 U.S. 792, 802 (1973)). The Second Circuit has held that "[a]ny such stated purpose is sufficient to satisfy the defendant's burden of production; the employer does not have to persuade the court that the stated purpose was the actual reason for its decision." Austin v. Ford Model, Inc., 149 F.3d at 153.
Once the employer satisfies its burden, a plaintiff may prevail only if he presents evidence that the employer's proffered reasons are a pretext for discrimination. Id. To demonstrate pretext, a plaintiff must show both that the proffered reason was false and that discrimination was the real reason. Id. In a case where the Supreme Court applied the McDonnell Douglas criteria to an Age Discrimination in Employment Act ("ADEA") claim, the Court held that a plaintiff's prima facie case, combined with sufficient evidence for a reasonable fact finder to reject the employer's nondiscriminatory explanation for its decision, may be adequate to sustain a finding of liability for intentional discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). Justice O'Connor, writing for a unanimous Court, said, "[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Id.; see also Regional Economic Community Action Program, Inc. v. United States, 294 F.3d 35, 49 (2d Cir. 2002). "For the purposes of defeating the defendants' motion for summary judgment, the plaintiff need only raise a material factual issue as to whether the defendants' reason for firing the plaintiff constituted a pretext." Visco v. Community Health Plan, 957 F. SUPP. 381, 388 (N.D.N.Y. 1997).
Following Reeves, the Second Circuit decided Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000). The Second Circuit determined that Reeves had not eliminated the possibility of summary judgment for a defendant in discrimination cases when a plaintiff had proven a prima facie case and offered evidence that the employer's proffered reason was false. Quoting from Reeves, the Second Circuit explained that,
In examining the impact of Reeves on our precedents, we conclude that Reeves prevents courts from imposing a per se rule requiring in all instances that an ADEA claimant offer more than a prima facie case and evidence of pretext. . . . But the converse is not true; following Reeves, we decline to hold that no ADEA defendant may succeed on a summary judgment motion so long as the plaintiff has established a prima facie case and presented evidence of pretext. Rather, we hold that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff." Reeves, 530 U.S. at 143 (internal quotation marks omitted); see also Vadie v. Mississippi State Univ., 218 F.3d 365, 374 n. 23 (5th Cir. 2000) (concluding after Reeves that a prima facie case plus pretext evidence may be enough to permit a finding of discrimination, but will not always be sufficient, with the ultimate issue remaining whether the evidence in the record as a whole "creates a reasonable inference that age was a determinative factor in the actions of which plaintiff complains"). Accordingly, summary judgment might still be appropriate in this matter.Schnabel, 232 F.3d at 90-91.
Though Reeves and Schnabel involve ADEA claims, the cases analyze the same McDonnell Douglas factors applied to ADA claims, such as the one at bar. See Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir. 2004) (applying McDonnell Douglas burden-shifting analysis to ADA claim).
DISCUSSION
Kraft's Motion to Dismiss
Kraft argues in its first point that Bater has not plead a disability under the criteria of the ADA. As stated above, Bater's allegations regarding disability are summed up in one paragraph of his complaint as follows:
Plaintiff's permanent medical condition has substantially limited his major life activities in the following manner: (a.) substantial limitation on his ability to secure and retain work; (b.) substantial limitation on his ability to do normal household chores; [and] (c.) substantial limitation on his ability to do normal walking and exercise."
(Compl. ¶ 48.) Kraft argues that the complaint does not contain any factual allegations to support these conclusory statements. In support of its contention, Kraft cites to Parisi v. Coca-Cola Bottling Co. of New York, 995 F. Supp. 298, 302 (E.D.N.Y. 1998), aff'd 172 F.3d 38 (2d Cir. 1999). That case held that "[t]o allege a disability under the first definition of that term, a plaintiff must allege a factual basis that would support a finding of 'substantial limitation of a major life activity,' and may not rely upon conclusory allegations of such a limitation." Parisi, 995 F. Supp. at 302 ( citing Sherman v. New York Life Ins. Co., No. 96 Civ. 9665, 1997 U.S. Dist. LEXIS 11411, 1997 WL 452024, *3 (S.D.N.Y. Aug. 7, 1997)). The Parisi court determined that, "[h]ere, the complaint does not allege that any of the plaintiff's major life activities are impaired as a consequence of his knee injury." Id.
In the case before the Court, the complaint alleges injuries to plaintiff's right knee, and the conclusions quoted above. The Court determines that, for the purposes of a motion to dismiss, the complaint gave Kraft fair notice of the nature of the claim and the grounds upon which it rests. Of course, since Kraft has also moved for summary judgment, the Court must examine whether Bater has sufficiently supported his allegation of a permanent disability, as well as his allegation that he is able to work for Kraft with a reasonable accommodation.
Summary Judgment Motion
To establish a prima facie case sufficient to meet the requirements of a summary judgment motion, a plaintiff must submit evidentiary proof in admissible form to support the allegations in his complaint. Reviewing Bater's affidavit, he describes the physical requirements of his job as consisting of "frequent physical labor" which required him to "bend [his] knees to lift and move materials and to walk carrying items on a regular basis." Bater Aff. ¶ 13. Thereafter, Bater's affidavit describes in detail the process he went through for his Workers' Comp. and CNA claims for disability, and describes the September 9, 2002, meeting with "Kraft" (the meeting was actually with Attwood), at which Attwood stated that "[b]ecause [Bater] was denied benefits under Workers' Compensation Law in July 2002, I suggested that he apply for short-term disability benefits with Kraft's insurance carrier, CNA." Attwood Aff. ¶ 10; see also Bater Aff. ¶ 20. Bater also alleges that during the one year and eleven days he was out of work, if "Kraft at any time would have told me to return to work[,] I would have done so and I may have also requested a reasonable accommodation for my work duties if it was needed." Bater Aff. ¶ 35 (emphasis added). From his affidavit, Bater also understood that the maximum term of disability insurance was twenty-six weeks. Bater Aff. ¶ 19, Ex. A at 1.
However, nowhere in his affidavit does Bater relate factually what limitations his March 20, 2002 knee injury imposed on him, or how that injury substantially limited one or more of his major life activities. Bater seems to rely on the fact that CNA and Workers' Comp. were considering his application for disability status along with the doctors' notes stating that he was not to return to work as proof that he was disabled. These facts, though, are not by themselves evidentiary proof in admissible form that he was disabled by his knee injury. Merely proving an impairment is insufficient to qualify as a disability. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195 (2002). A plaintiff must additionally show that the impairment substantially limits a major life activity. Id.; see also, Wernick v. Fed. Reserve Bank of N.Y., 91 F.3d 379, 383 (2d Cir. 1996) ( citing Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994)); Vaughn v. Nationsbank Corp., 137 F. Supp. 2d 1317, 1323-24 (N.D. Ga. 2000) ("plaintiff cannot merely assert a physical impairment, like end stage renal disease or diabetes, and be covered by the ADA."). The only proof plaintiff offers of a physical limitation is found in the report of Dr. Ferris, in which she noted that Bater's right knee flexion was limited to ninety degrees at her March 20, 2002 examination. Bater Aff. Ex. C. However, her conclusion, "[h]e is disabled from work until he is evaluated by orthopedics," does not support Bater's contention of a disability meeting the requirements of the ADA.
Bater also argues that, "[d]efendant Kraft never once requested Plaintiff to return to work. . . . That by itself is clear evidence that the disability substantially limited Plaintiff's ability to return to work: i.e., his employer of over 25 years would not even ask him to come in to do his job and in fact they encouraged him to apply for disability." Bater Mem. of Law at 12. The Court can find no authority for the proposition, nor has Bater cited any. Plaintiff went out on disability on March 20, 2002, with a note from his doctor stating that he was "out of work until further notice." On December 17, 2002, CNA approved disability payments until April 26, 2002 and sought return of payments made after that date. On January 20, 2003, Dr. Landfried examined him and issued a note stated that he should remain out of work "for a period of time," but also that his restrictions ended on "2/17/03." By letter dated March 24, 2003, Kraft informed plaintiff that since he had "been on continuous layoff for one year," his "employment with Kraft Foods was terminated effective March 21, 2003." Kristen Crosby, Assoc. Human Resources Manager letter to John Bater (Mar. 24, 2003) at 1. It was not until March 25, 2003 the day following the termination notice, that Bater was again examined by Dr. Landfried, who then authorized his return to work on March 31, 2003, one year and eleven days after he had first left work due to his right knee injury.
Although the burden on a plaintiff to make out a prima facie case is de minimus, it is not automatically met by proof of an injury without any proof of a limitation of a major life activity as a result of that injury. Further, Bater has failed to show that he was capable of performing the essential functions of his job, with or without a reasonable accommodation, prior to March 31, 2003. Not until the day after he was terminated did Bater ever request permission to return to work, contact Kraft about any accommodations to allow him to return to work, or request an extension for his disability status. Daddazio v. Katharine Gibbs Sch., Inc., No. 98 Civ. 6861 (DC), 1999 U.S. Dist. LEXIS 5408 (S.D.N.Y. Apr. 20, 1999) (defendant's motion for summary judgment granted where "Plaintiff also never asked KGS for permission to return to work. In addition, plaintiff never told KGS that he was ready to return to work, nor did he ever ask KGS for any accommodation that would have permitted him to return to work."). Consequently, Bater has failed to meet his burden of establishing a prima facie case under the ADA, and Kraft's motion for summary judgment on that cause of action must be granted.
In light of the Court's dismissal of the only federal cause of action plead in the complaint, the Court, exercising its discretion under 28 U.S.C. § 1367(c)(3), declines to exercise supplemental jurisdiction over the remaining State cause of action.
CONCLUSION
Accordingly, Kraft's motion (# 6) to dismiss is denied, the alternative motion (# 6) for summary judgment is granted and the case is dismissed.