Opinion
99-CV-6480
March 31, 2003
DECISION AND ORDER
Procedural Background
In accordance with the provisions of 28 U.S.C. § 636(c), the parties have consented to the jurisdiction of this Court for all dispositive matters, including trial. (Docket #11). Before the Court is defendant City of Rochester's motion for summary judgment. (Docket #14).
Relevant Facts
Plaintiff Angelo Burgos (hereinafter "Burgos") began his employment with the defendant City of Rochester (hereinafter "the City") in 1989. At all times relevant to this action, plaintiff's job with the City was a Water Maintenance Worker/Construction Worker. (The job duties of a Water Maintenance Worker/Construction Worker are attached as Exhibit "A" to Docket #14). While the exact chronology of events is less than clear from the record, sometime before 1997, plaintiff injured his back while working. Although he was disabled from work for a period of time, the record is clear that plaintiff did eventually return to work.
On January 26, 1998, plaintiff "further injured his back in the performance of his duties by lifting a fire hydrant head." See Complaint at paragraph 17. This injury was severe enough for plaintiff to be placed on full disability by the City. Plaintiff apparently applied for and received Workers Compensation benefits. On September 15, 1998, the City received a report from plaintiff's treating internist, Dr. Bernard Sussman, opining that plaintiff was able to return to work with certain limitations. According to Dr. Sussman's report, plaintiff could return to a "light duty assignment" involving "no lifting in excess of 25 pounds" and "no repetitive bending or stooping." Dr. Sussman's report also recommended that plaintiff be "able to change positions as frequently as needed." According to Sussman's report, "these restrictions are permanent." See Exhibit "B" annexed to Docket #14. Thereafter, the City apparently received another medical report, this one from plaintiff's treating neurologist, Dr. James T. Maxwell. Although Dr. Maxwell found plaintiff to complain of constant pain, plaintiff advised he was able to drive a car, shop and "go about" the simple activities of daily living. Dr. Maxwell's report opined that plaintiff could return to work full time, "8 hours a day, 5 days a week" doing things like paper work, answering the phone, scheduling, driving, reading water meters, going up and down stairs [and] light machining." Dr. Maxwell's report stated that plaintiff should not engage in "heavy lifting, pushing, pulling for the present time." See Exhibit "A' annexed to Docket 21.
Plaintiff did not apply for reinstatement to his former position with the City, but instead requested reassignment to an alternative position for which he was qualified and which would have accommodated his medical restrictions. See Docket #19 at paragraph 13. After reviewing the available medical reports and information, the City determined that plaintiff could not perform the duties associated with his old job and there were not any permanent light duty positions available for plaintiff. After the expiration of a one year leave of absence pursuant to section 71 of New York's Civil Service, plaintiff's employment with the City was terminated. Plaintiff thereafter commenced the instant lawsuit alleging that his termination constituted disability discrimination in violation of the American with Disabilities Act (hereinafter "ADA"). The City now moves for summary judgment on the ground that plaintiff has failed to establish that he is disabled within the meaning of the ADA.
Discussion
A. Summary Judgment Standard: A district court properly may grant summary judgment only "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A court must view the evidence in the light most favorable to the non-moving party and must draw all inferences in favor of that party. Hayes v. New York City Dep't of Corrections, 84 F.3d 614, 619 (2d Cir. 1996). Although the Second Circuit has cautioned against granting summary judgment in discrimination cases where an employer's intent is at issue, Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994), the Court has also deemed summary judgement an appropriate measure to resolve ADA cases where the record is clear that plaintiff did not meet the threshold burden of proving that he or she had a disability.Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 154 (2d Cir. 1998).
B. Is Plaintiff Disabled Within the Meaning of the ADA? The ADA prohibits an employer from discriminating against a qualified individual with a disability in the terms, conditions and privileges of employment. 42 U.S.C. § 12101 et seer. To prove a prima facie case of discrimination, a plaintiff must demonstrate, inter alia, that he has a disability within the meaning of the ADA.Heyman v. Queens Vill. Comm. for Mental Health, 198 F.3d 68, 72 (2d Cir. 1999).
Whether a person has a disability under the ADA is an individualized inquiry. Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999). An individual is considered to have a "disability" under the ADA if he or she has: "(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 impairment; or (3) being regarded as having such an impairment." 42 U.S.C. § 12102(2)(A)-(C); Williams v. Salvation Army, 108 F. Supp.2d 303, 313 (S.D.N.Y. 2000). If an individual meets any one of these three criteria, he or she is considered to be an individual with a disability for purposes of coverage under the ADA. Glidden v. County of Monroe, 950 F. Supp. 73, 76 (W.D.N.Y. 1997). In response to the City's summary judgement motion, plaintiff argues that he meets the first and third variation of the ADA's definition of disability. See Plaintiff's Memorandum of Law (Docket #18).
1. Substantial Limitation of Major Life Activity: The Supreme Court recently set forth a three step analysis for determining whether a plaintiff has a disability under the first subsection of the ADA's definition of disability. The plaintiff must (1) have a mental or physical impairment that (2) substantially limits (3) a major life activity. Bragdon v. Abbott, 524 U.S. 624, 631 (1998). For purposes of this motion, the Court assumes that Burgos' back condition qualifies as a physical impairment. Hence, the crucial inquiry hinges on whether the impairment (1) significantly restricts (2) Burgos' major life activities. It is here that plaintiff proof falls far short of what is required to defeat defendant's motion for summary judgment.
Regulations implementing the ADA have defined "major life activities" to encompass "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2(1). This list is illustrative and not exhaustive. Bragdon, 524 U.S. at 625. Indeed, the Second Circuit has identified other major life activities to include sitting, standing, lifting and reaching. Ryan v. Grae Rybicki P.O., 135 F.3d 867, 870 (2d Cir. 1998). Plaintiff's complaint does not identify the major life activity or activities which his back impairment substantially limits. Indeed, the only identification of such activities is contained in plaintiff's affidavit submitted in opposition to the City's summary judgment motion. See Docket #20. At paragraph 5 of that affidavit, plaintiff avers:
As a result of my condition I cannot preform any functions in my daily life which require bending, lifting or twisting. I cannot stand or sit for extended periods of time without a break. I cannot lift weight in excess of 20 pounds.
Assuming this lone and conclusory allegation is sufficient to identify the major life activity which is being impaired, Burgos has failed to provide any admissible evidence to substantiate his assertion that his ability to perform these is substantially limited. It must be remembered that not every physical impairment qualifies as an ADA disability because not every physical impairment substantially limits a major life activity. "Although almost any impairment may, of course, in some way affect a major life activity, the ADA clearly does not consider every impaired person to be disabled. Thus, 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." Ryan v. Grae Rybicki, 135 F.3d at 870 (emphasis in original). See Parisi v. Coca-Cola Bottling Co., 995 F. Supp. 298, 302 (E.D.N.Y. 1998) (plaintiff must allege a specific factual basis to support a finding of a substantial limitation of a major life activity and may not rely upon conclusory allegations of such a limitation), aff'd, 172 F.3d 38 (2d Cir. 1999).
Plaintiff has failed to meet his burden of coming forward with admissible evidence of a substantial limitation of any major life activity. Critical to this failure is the lack of any admissible medical evidence to support a finding of substantial limitation. Plaintiff has not submitted an affidavit or sworn testimony from a medical professional documenting his impairment or any substantial physical limitations. The only medical evidence plaintiff has submitted or referred to are doctors' letters which are clearly inadmissible hearsay and may not properly be considered. See Douglas v. Victor Capital Group, 21 F. Supp.2d 379, 391 (S.D.N.Y. 1998) (Summary judgment granted in ADA case where the only medical evidence plaintiff relied upon were inadmissible hearsay doctor letters). Plaintiff's affidavit describing his medical limitations and restrictions, without admissible supporting documentation, "simply is not sufficient to establish his prima facie case under the ADA."Id. at 384. See McCleary v. National Cold Storage, Inc. 67 F. Supp.2d 1288, 1296-97, n. 3 (D. Kan. 1999) (discussing effect of ADA plaintiff's failure to submit admissible medical evidence regarding limitations of major life activities).
Even were this Court to consider the doctors' letters, plaintiff has nonetheless failed to proffer evidence sufficient to permit a jury to conclude that any of his major life activities were "substantially limited." In determining whether plaintiff's impairments are substantial, the court should consider the nature and severity of the impairment as compared with the average person's ability to perform the identified activities. 29 C.F.R. § 1630.2 (j)(2). The letters from Drs. Sussman and Maxwell note that plaintiff's back condition does not prevent him from lifting up to 25 pounds, driving a car, going up and down stairs, performing light machine work or even working a 40 hour work week. In the context of back conditions, this "medical evidence" does not support a finding of a substantial limitation. See Colwell v. Suffolk County Police Department, 158 F.3d 635, 644-46 (2d Cir. 1998) (police officers' back injuries which limited the ability to lift heavy objects did not substantially limit the major life activity of working so as to render the officers disabled under the ADA), cert. denied, 526 U.S. 1018 (1999); Helfter v. United Parcel Service, Inc., 115 F.3d 613, 617-18 (8th Cir. 1997) (evidence that impairment that limited lifting weights over ten pounds did not demonstrate triable issue regarding substantial limitation on a major activity); Snow v. Ridgeview Medical Center, 128 F.3d 1201, 1207 (8th Cir. 1997) (general lifting restriction of 25 pounds not a disability under the ADA); Rosa v. Brink's Inc., 103 F. Supp.2d 287, 291 (S.D.N.Y. 2000) ("Recurrent back pains and problems are endemic to a substantial part of the adult population of the United States, and it would require something considerably more severe and specific than anything plaintiff has evidenced here for such a problem to qualify as `substantial' in terms of the ADA"); Baker v. County of Monroe, 47 F. Supp.2d 371, 379 (W.D.N.Y. 1999) (back injury limiting plaintiff from lifting more than 40 pounds did not establish disability within meaning of ADA); Kirkendall v. United Parcel Serv., Inc., 964 F. Supp. 106, 111 (W.D.N.Y. 1997) (plaintiff's primary limitations, which consisted of an inability to lift items in excess of 30 pounds, to sit for periods longer than three hours at a time and to engage in certain leisure activities, did not demonstrate that he was substantially limited in any major life activity, including the ability to work).
Plaintiff has also failed to demonstrate that he was disabled because he was substantially limited in the major life activity of work. 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). See Vaughnes v. United Parcel Serv., Inc., 2000 WL 1145400 at *7 (S.D.N.Y. August 14, 2000) ("Thus, the inability to perform a narrow range of jobs does not constitute a substantial limitation in the major life activity of working.") (citations omitted). See generally What Constitutes Substantial Limitation on Major Life Activity of Working for Purposes of Americans With Disabilities Act ( 42 U.S.C.A §§ 12101- 12213), 141 A.L.R. Fed. 603 (1997).
Even accepting Burgos' assertions regarding his work limitations as being true, his ability to work is not "significantly restricted" as is most plainly evidenced by the large class of jobs of which he is capable of performing and is actively seeking. See Dupre v. Charter Behavioral Health Systems, 242 F.3d 610, 615 (5th Cir. 2001) (fact that plaintiff's back condition precluded her from jobs involving prolonged standing or sitting, heavy lifting or prolonged walking insufficient to demonstrate substantial limitation in life activity of working); Glozman v. Retail, Wholesale Chain Store Food Employees Union, 2002 WL 727020 at *6 (S.D.N.Y. April 24, 2002) (plaintiff not substantially limited from working where he presented a number of other positions in which he could work without significant accommodation); Zarzycki v. United Technologies Corp., 30 F. Supp.2d 283, 292-93 (D. Conn. 1998) (plaintiff's subsequent work experience in class of jobs available is relevant to the issue of whether he was actually disabled); Parisi v. Coca-Cola Bottling Co., 995 F. Supp. at 299 (plaintiff's knee injury which precluded him from employment as route deliveryman did not substantially limit his ability to work in a wide range of employment options, in fact, plaintiff "sought reassignment to other positions in the defendant's employ which his injury would not prevent him from performing.").
Ironically, the letters from plaintiff's doctors, which specifically identify a broad range of jobs which plaintiff could perform refute his contention that he is disabled under the ADA. Plaintiff's treating neurologist wrote that he thinks Burgos "can and should go back to work full time, 8 hours a day, 5 days a week. Such things as paper work, answering the phone, scheduling, driving, reading water maters, going up and down stairs, light machining all would be possible for him to do." See Exhibit A, Docket #21.
2. Regarded as Having a Disability: Plaintiff makes the alternative argument that even if he is not disabled under the first definitional standard set forth in the ADA, the City regarded him as such and accordingly, he is disabled under the ADA. To state a claim under the "regarded as" prong of the ADA, the plaintiff must "allege that the employer believed, however erroneously, that the plaintiff suffered from an `impairment' that, if it truly existed, would be covered under the statute and that the employer discriminated against the plaintiff on that basis." Francis v. City of Meriden, 129 F.3d 281, 285 (2d Cir. 1997). In addition, the employee must demonstrate that the employer viewed him or her as precluded from more than one job in order to support an allegation that the employer "regarded" the employee as disabled.Whitlock v. Mac-Gray, Inc., 2002 WL 31432688 at *3 (D. Mass. October 30, 2002).
The evidence that plaintiff relies on in support of his claim that the City "regarded" his as disabled is a March 2, 1998 memo in his personnel file which states that he was "100% disabled" and refers to his "12-15 comp cases." (Exhibit "E" to Marinetti Affidavit, Docket #21). However, this document does not warrant a finding that the City perceived Burgos to be disabled. In the first place, the statement in the memo about Burgos being "100% disabled" was not a statement by the City thatit considered plaintiff disabled. Rather, the memo refers to the opinion of plaintiff's treating physician. Second, the bare fact that the City was aware of Burgos' limitations or believed him to be unqualified for his previous position does not equate to a finding that defendant regarded him to be disabled. See Reeves v. Johnson Controls World Servs., 140 F.3d 144, 153 (2d Cir. 1998) ("[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") (citations omitted); Beason v. United Technologies Corp., 2002 WL 519459 at *11 (D. Conn. March 15, 2002) (while employer may have perception that employee is unable to perform work involving heavy lifting, "he has not presented sufficient evidence that he was regarded as unable to perform technical or mechanical work that may have also been within his abilities or qualifications, but that did not require a high physical demand");Covelli v. National Fuel Gas Distribution Corp., 2001 WL 1823584 at *6 (W.D.N.Y. December 6, 2001) ("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"), aff'd, 49 Fed. Appx. 356 (2d Cir. 2002).
Moreover, Burgos has failed to established that the City perceived him to be precluded from performing a "broad range of jobs."Colwell, 158 F.3d at 647. Indeed, the same memo plaintiff relies on in support of his contentions states: "It is also important that we proceed quickly and not wait like we did and allow him to be on light duty for one and ½ years." (See Exhibit "E", Marinetti Affidavit). The logical conclusion to be drawn from this statement is that defendant believed that plaintiff would be qualified to handle a light duty position, and thus, not substantially limited in a broad range of jobs.
In sum, Burgos has offered no evidence which would support a finding that the City "regarded" him as having a disability. This determination is fatal to plaintiff's claims and consequently, defendant's motion for summary judgment on the ADA claims is granted. New York State Human Rights Law: Plaintiff has also brought a claim against defendant arising under the New York State Human Rights Law. Plaintiff argues, and defendant concedes, that the burden of proving a qualifying disability is easier under the New York State Human Rights Law than under the ADA. See Reeves, 140 F.3d at 155-56.
Because the Court concludes that plaintiff does not have a disability under the ADA (or was regarded as such) as a matter of law, it need not consider whether plaintiff could perform the essential functions of his position with our without reasonable accommodation or whether defendant has offered a legitimate non-discriminatory reason for Burgos' termination.
However, having dismissed plaintiff's federal claims, the Court declines to exercise supplemental jurisdiction over the remaining state law claim pursuant to 28 U.S.C. § 1367 (c)(3). The Second Circuit has held that in the usual case in which all federal-law claims are eliminated before trial, the Court should decline to exercise jurisdiction over the remaining state law claims. Travelers Ins. Co. v. Keeling, 996 F.2d 1485, 1490 (2d Cir. 1993) (citations omitted).See also Martz v. Incorporated Vill. of Valley Stream, 22 F.3d 26, 32 (2d Cir. 1994) ("[h]aving dismissed all of [plaintiff's] federal claims, the district court was correct in also dismissing her pendent state law claims).
Because the remaining cause of action involves an interpretation of solely state law, it is best left to be decided by a state court. See Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001) (having dismissed plaintiff's ADA claims, Court declines to exercise supplemental jurisdiction over New York state law discrimination claims). See also United Mine Workers v. Gibbs, 383 U.S. 715, 726 n. 15 (1966) ("federal courts should not be overeager to hold on to the determination of issues that might be more appropriately left to settlement in state court litigation") (citations omitted).
Conclusion
For all of the foregoing reasons, defendant's motion for summary judgment on the federal claims is granted. Plaintiff's remaining state law claims are dismissed without prejudice. SO ORDERED.