Opinion
DOCKET NO. 99-CV-0015E(Sc)
May 24, 2001
Denis A. Kitchen, Jr., Esq., Williamsvillle, NY, ATTORNEYS FOR THE PLAINTIFF.
Daniel DeRose, Esq., c/o Kehoe DeRose, Community Bank Building, Olean, NY. ATTORNEYS FOR THE DEFENDANT.
MEMORANDUM and ORDER
Plaintiff filed a complaint with the New York State Division of Human Rights ("DHR") March 27, 1998 alleging that he had been unlawfully terminated in violation of New York's State Human Rights Law, N.Y. Exec. Law § 296 ("HRL") because he had a temporary disability — i.e., a temporary colostomy. He also requested that the DHR accept his complaint on behalf of the Equal Employment Opportunity Commission ("EEOC") as raising a charge under the Americans with Disabilities Act, 42 U.S.C. § 12112-12117 ("ADA"). On August 28, 1998 the DHR issued both its Final Investigative Report and Basis of Determination and its Determination and Order After Investigation, finding that there was no probable cause to support plaintiff's contention that he had been fired due to his temporary disability. Plaintiff sought review of this decision by the EEOC, which adopted the findings 0f the DHR, closed its investigation and issued a right-to-sue letter October 10, 1998. Plaintiff filed this action pro se January 8, 1999. He subsequently retained an attorney, Denis A. Kitchen, Jr., Esq., who filed an amended complaint on behalf January 26, 2000. In his Amended Complaint, plaintiff states that he was fired due to a temporary disability in violation of the ADA. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331. Defendant filed a motion August 22, 2000 to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP") and for summary judgment under FRCvP 56(b) and such is presently before this Court for disposition.
The Amended Complaint is simply a retyped version of the standard fill-in-the-blank Discrimination Complaint form provided by this Court for use by pro se litigants. This form lists three possible causes of action — viz., (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2000e-17, (2) the Age Discrimination in Employment Act, 29 U.S.C. § 621-634 and (3) the Americans with Disabilities Act, 42 U.S.C. § 12112-12117, and instructs the pro se litigant to place a check mark next to the statute under which he brings cause of action. In the Amended Complaint, Kitchen has simply retyped all three statutes listed in the standard Discrimination Complaint verbatim without specifying pursuant to which particular statute the Amended Complaint is brought. However because there are no allegations in the Amended Complaint that plaintiff was fired due to his race, color, gender, religion, national origin or age and because the only facts alleged in the complaints filed with both the DHR and the EEOC and in the Amended Complaint in this action relate to disability discrimination, this Court will assume that plaintiff's cause of action in his Amended Complaint is brought pursuant to the ADA.
Preliminarily this Court notes that neither party is in compliance with Rule 56 of this Court's Local Rules of Civil Procedure ("LRCvP") which requires the filing of a statement of undisputed or disputed facts. Plaintiff has also failed to comply with LRCvP 7.1(e) which requires the filing of a memorandum of law in addition to an answering affidavit. In opposition to defendant's motion to dismiss, plaintiff has submitted only an "Answering Affidavit" from his attorney, which is not based upon personal knowledge but rather attempts to summarize the facts in this case. Neither has plaintiff filed a memorandum of law in opposition to defendant's motion. In short, plaintiff has submitted no legal argument or authority in opposition to defendants' motion. Due to the parties' failure to comply with LRCvP 56 and inasmuch as there are no affidavits of parties or witnesses in the record, this Court has been forced to comb through the depositions to cull the following facts.
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 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 the rule." LRCvP 56.
"Absent leave of court or as otherwise specified in this rule, upon any motion filed pursuant to Federal Rules of Civil Procedure 12, 56 or 65(a), the moving party shall file and serve with the motion papers a memorandum of law and an affidavit in support of the motion and the opposing party shall file and serve with the papers in opposition to the motion an answering memorandum and a supporting affidavit. Failure to comply with this subdivision may constitute grounds for resolving the motion against the non-complying party." LRCvP 7.1(e).
Plaintiff did cite one case from the District of New Jersey during oral argument. However such case noted that "[t]emporary medical conditions do not constitute disabilities under the ADA." Dejoy v. Comcast Cable Communications, Inc., 968 F. Supp. 963, 985 (D.N.J. 1997). That court accordingly dismissed plaintiff's ADA disability claim, but denied summary judgment on his perception-of-disability claim because his employer may have perceived him as being disabled even though his temporary medical condition did not amount to an impairment. Id. at 987. Plaintiff did not claim that defendant perceived him as being disabled and so the Dejoy case is not helpful to his case.
Richard Bokman is the sole owner of Rick Bokman, Inc., an auto body repair business with between twenty-eight and thirty employees. Bokman Dep. at 5-6. Joseph Hirsch is the manager of the body shop — Bokman Dep. at 9 — Blane Burt is the painter — Burt Dep. at 113 — and Victor Scott is an auto body technician — Hirsch Dep. at 68. Plaintiff was hired by defendant as an auto body technician September 25, 1997. Am. Compl. ¶ 3; Am. Answer ¶ 1. The quality of plaintiff's work was satisfactory — Hirsch Dep. at 51-52 —, however defendant states that plaintiff's behavior at work was disruptive. Bokman Dep. at 11, 15. Hirsch testified that plaintiff began "acting up" about a month after he started working and that all of plaintiff's co-workers complained about his behavior. Hirsch Dep. at 58-61. Burt states that plaintiff annoyed him because he would make sarcastic remarks, moon him and grab his crotch. Burt Dep. at 115-117. Plaintiff denies doing such. Murray Dep. at 18-19, 35-36. Burt complained to Hirsch about plaintiff's conduct. Hirsch Dep. at 58-60, 111; Burt Dep. at 118. Hirsch states that Scott complained to him on four or five occasions that he could not stand working with plaintiff to the extent that he was "half bawling" and "had tears in his eyes." Hirsch Dep. at 69-70. Both Hirsch and Burt state that there was a bad atmosphere while plaintiff worked at the shop that did not exist either before he started or after he left and Burt and Scott told Hirsch that they would quit if plaintiff's behavior continued. Burt Dep. at 118-122; Hirsch Dep. at 102, 108-109. Plaintiff states that he had a conflict with Scott because Scott smoked marijuana at work and he informed Hirsch of such sometime in November 1997. Murray Dep. at 11-13, 25. Plaintiff states that he had a conflict with Burt because he was a "miserable guy" who would "cut [him] off and say get the F out of my way" when he went to the paint booth. Murray Dep. at 15-17. Plaintiff states that his conflicts with Burt started after he had told Hirsch that Scott was smoking marijuana. Murray Dep. at 25. Plaintiff states that he complained to Hirsch that Burt was being rude to him, but that Hirsch did not listen to his complaints because "he favored [Burt]." Murray Dep. at 16-17.
Hirsch states that he spoke with plaintiff about his behavior four or five times and that one time, after speaking to plaintiff about his behavior, plaintiff "picked up his finger and lifted his butt up and pointed to his ass" when leaving his office. Hirsch Dep. at 61-62, 86-88, 107-108. Hirsch states that, although he had repeatedly informed plaintiff that his conduct was unacceptable, it continued. Hirsch Dep. at 104-105. Plaintiff states that Hirsch never spoke to him about his behavior and that plaintiff never pointed to his ass. Murray Dep. at 16, 36. Bokman states that Hirsch had informed him of the complaints about plaintiff's behavior approximately six times beginning in mid-November 1997. Bokman Dep. at 18. Bokman states that he spoke with plaintiff about his behavior during the first or second week of December 1997. Id. at 21-24. Bokman states that plaintiff said that Burt was an "asshole" and an idiot who did not know what he was doing and that Hirsch and all the others were also idiots. Id. at 24. Bokman states that he requested that plaintiff talk to Burt with him and that they shake hands and work things out, but that plaintiff refused to do so and walked away from him. Id. at 24-25. Plaintiff admits that this conversation with Bokman took place, but states that it was during the week before Christmas 1997 and denies making the above statements or refusing to shake Burt's hand. Murray Dep. at 20, 23-24. Plaintiff states that the discussion occurred because he had approached Bokman at the Christmas luncheon earlier that day and asked to talk to him that Saturday and that the conversation related to problems he was having with his co-workers, not his behavior. Murray Dep. at 22-23. Plaintiff states that he told Bokman that shaking Burt's hand would not work because he had unsuccessfully tried to reconcile with Burt previously and therefore he would not shake Burt's hand and that Bokman then stated that, "if [plaintiff] wasn't happy with [his] job [he] could load up [his] fucking toolbox and get out of here." Murray Dep. at 23-25, 42. Bokman states that he felt threatened by the anger plaintiff displayed during this encounter and thought that plaintiff might "snap" and physically attack someone. Bokman Dep. at 25. Bokman states that, after he spoke with plaintiff, he discussed the situation with Hirsch during the second or third week of December 1997 and decided to terminate plaintiff. Bokman Dep. at 35, 90. Hirsch states that during this discussion he told Bokman that he did not think it was right to terminate plaintiff at that time due to the impending holidays because plaintiff had several children. Hirsch Dep. at 105-106. Bokman states that he therefore decided to terminate plaintiff after the holidays effective January 1, 1998 but that plaintiff was not terminated at such time because he became ill. Bokman Dep. at 90.
Plaintiff learned that he would have to leave work for medical reasons the last weekend in December. Murray Dep. at 10, 26. Plaintiff states that he had first began to experience abdominal pain in the middle of November 1997 for which he eventually saw a physician, who diagnosed appendicitis and performed an appendectomy December 26, 1997. Am. Compl. ¶ 16A, B. During the appendectomy the surgeon discovered that plaintiff did not have appendicitis, but rather had diverticulitis requiring resection of his large intestine and a temporary colostomy. Am. Compl. ¶ 16B. Plaintiff states that has wife notified Hirsch that he would be unable to work for about three months and provided him documentation from has physician. Murray Dep. at 26-28; Am. Compl. ¶ 16D. Bokman telephoned plaintiff at has home January 21, 1998 to inquire as to health and to determine if he had received certain insurance information. Bokman Dep. at 90; Murray Dep. at 30-31. Bokman states that plaintiff told him he would be able to return to work around March or April 1998, and asked if he still had has job; Bokman states that he told plaintiff that he still had has job but added that he had intended to terminate plaintiff in December 1997, after which plaintiff yelled at him and then hung up. Bokman Dep. at 90-91, 96. Plaintiff states that Bokman did not tell him that he had intended to discharge him in December 1997, that he neither yelled at nor hang up on Bokman during this conversation and, at the conclusion thereof, he believed that he would be returning to has job after has recovery. Murray Dep. at 31-32.
Plaintiff states that he called Hirsch on February 23, 1998 and told him that he was going to the hospital to have has colostomy reversed and that he would be able to return to work around the end of March 1998, to which Hirsch replied that he did not think that he would have a job for plaintiff because plaintiff did not like working there. Murray Dep. at 33. Plaintiff states that Bokman called him later that day in response to has conversation with Hirsch and then told him that he had decided to terminate plaintiff at the end of December 1997 but had postponed such due to the holidays. Id. at 34-35. Plaintiff states that he did not swear or yell at Bokman during this conversation
It is unclear from the record whether there were two separate conversations, one on January 21, 1998 and another on February 23, 1998. Plaintiff refers to two separate conversations; however Bokman and Burt refer to only one.
and that he did not hang up on him, but that he did tell him that he did not think that one could terminate "somebody while they w[ere] on disability, [and] that [he] would probably end up seeking legal action." Id. at 35. Plaintiff poses that, when Bokman told him during the February 23, 1998 telephone conversation that he had decided to terminate him in early December 1997 but had decided not to due to the impending holidays, it was because Bokman believed Hirsch and Burt when they said that plaintiff's behavior was disruptive, not because he was sick or disabled. Id. at 40-42.
Another auto body technician named Douglas Shoop had been periodically out on disability due to back problems and was allowed to return to work. Hirsch Dep. at 110; Murray Dep. at 28-29.
Plaintiff states that he was terminated during has conversation with Bokman February 23, 1998. Murray Dep. at 39; Am Compl. ¶ 16D. Defendant states that plaintiff quit his job through his conduct during the January 21, 1998 conversation. Bokman Dep. at 39-43. Plaintiff believes that he was discriminated against based upon has disability because he was terminated while he was out on medical leave and that this was the only act of discrimination perpetrated against him by defendant. Murray Dep. at 39. Plaintiff states that the diverticulitis and temporary colostomy constitute an impairment which is a disability under the ADA and the HRL — Compl. ¶ 16(C) — and has attorney argues that the reasonable accommodation for this disability would have been to give plaintiff three months off from work to recover. Kitchen September 21, 2000 Aff. ¶ 5. Plaintiff states that he first disclosed has disability to — or defendant first became aware of his disability — in December of 1997. Am. Compl. ¶ 17. He states that he first asked defendant for an accommodation of has disability December 5, 1997 and that no accommodation was provided. Am. Compl. ¶¶ 18-19. However in has deposition, plaintiff states that the disability, to which he is referring and for which he unsuccessfully requested accommodation December 5, 1997, was that he felt sick and nauseated that day, such that he could not perform his job duties for half of a day, and asked if he could leave work to go to his physician. Murray Dep. at 36-38. However, defendant did allow plaintiff to leave work to go to his physician and plaintiff's allegation in his Amended Complaint that he had not been provided with a reasonable accommodation is incorrect. Murray Dep. at 38.
Plaintiff does not allege that he was wrongly perceived as being disabled. While he stated in has Amended Complaint that he is "complaining in this action of . . . [h]arassment on the basis of unequal terms and conditions of . . . employment" and "[r]etaliation because I complained about discrimination or harassment directed toward me," there are no facts in support of such and this Court notes that such language has simply been lifted from the standard fill-in-the-blank Discrimination Complaint form. Am. Compl. ¶ 10. It also appears that plaintiff believes that he was discriminated against by being accused of mooning, grabbing his crotch and pointing at his ass because "they are like sexual assaults" and are slanderous although unrelated to has claim of disability discrimination. Murray Dep. at 39, 43-44. However, allegations of any such slander were not raised in the Amended Complaint and are not before this Court.
Defendant seeks summary judgment on plaintiff's ADA claim on three grounds — viz. (1) that plaintiff has failed to establish a prima facie case disability discrimination, (2) that giving plaintiff three months' leave to recuperate is not a reasonable accommodation and (3) that plaintiff failed to rebut defendant's evidence that he was terminated because of a legitimate nondiscriminatory reason. 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 making a motion 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). In deciding 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. 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.
The ADA states in pertinent part that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . the discharge of employees. . . ." 42 U.S.C. § 12112 (a). The ADA only protects an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds . . . 42 U.S.C. § 12111 (8). When ruling on a summary judgment motion in a discriminatory discharge case brought under the ADA, this Court applies the burden shifting test established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). This test has three-parts — (1) plaintiff must establish a prima facie case of discrimination, (2), if plaintiff establishes a prima facie case, the burden of production shifts to defendant to articulate a legitimate nondiscriminatory reason for its actions and (3), if defendant articulates a legitimate nondiscriminatory reason for its actions, the burden of proof shifts back to plaintiff to establish that the reason articulated by defendant was not its true reason, but rather was a pretext for discrimination. McDonnell Douglas, at 802-804. Under the McDonnell Douglas framework, the court determines whether the plaintiff has established a prima facie case of discrimination and whether the defendant has articulated a legitimate nondiscriminatory reason; only then does the ultimate issue of whether defendant unlawfully discriminated against plaintiff go to the jury. Greenway, at 53. "In order to make out a prima facie case of discriminatory discharge under the ADA, a plaintiff must show that (1) his employer is subject to the ADA, (2) he suffers from a disability within the meaning of the ADA, (3) he could perform the essential functions of his job with or without reasonable accommodation and (4) he was fired because of his disability. Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 149-150 (2d Cir. 1998).
The first requirement to establish a prima facie case is that the employer is subject to the ADA. An employer is subject to the ADA if it is "engaged in an industry affecting commerce" and has "15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. . . ." 42 U.S.C. § 12111 (2) and (5)(A). Rick Bokman, Inc. is an auto body repair shop which has between twenty-eight and thirty employees — Bokman Dep. at 5-6 — and accordingly is an employer subject to the ADA. The second requirement is that plaintiff suffers from a disability within the meaning of the ADA. A disability under the ADA is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual . . . ." 42 U.S.C. § 12102 (2) (A). To determine whether a plaintiff is disabled for purposes of the ADA, the court follows a three-step approach — viz, (1) determine whether plaintiff suffers from a physical or mental impairment, (2) identify the life activity upon which plaintiff relies and determine whether it is a major life activity under the ADA and (3) determine whether plaintiff's impairment substantially limits the major life activity relied on by plaintiff. Colwell v. Suffolk County Police Dept., 158 F.3d 635, 641 (2d Cir. 1998) (citing Bragdon v. Abbott, 524 U.S. 624, 632-639 (1998), cert. denied, 526 U.S. 1018 (1999). Plaintiff's diverticulitis and temporary colostomy constitute a physical impairment under the ADA — 29 C.F.R. § 1630.2 (h)(1) — and both of the life activities identified by plaintiff — i.e., working and lifting — are considered major life activities. 29 C.F.R. § 1630.2 (i); Reeves, at 150; Colwell, at 642. The main issue to be determined is whether plaintiff's appendicitis/diverticulitis and temporary colostomy substantially limited his ability to work.
"According to the EEOC, the term `substantially limits' means, in pertinent part, `[s]ignificantly 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.'" Reeves, at 150 (quoting 29 C.F.R. § 1630.2 (j)(1)(ii)).
In considering whether an individual is substantially limited in a major life activity the court should consider the following three factors — viz., (1) the "nature and severity of the impairment", (2) the "duration or expected duration of the impairment" and (3) the "permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2 (j)(2). The determination whether an individual is disabled under the ADA is made "on an individualized, case-by-case basis" — Reeves, at 151 —; however "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities. Such impairments may include, but are not limited to, broken limbs, sprained joints, concussions, appendicitis, and influenza." 29 C.F.R. Pt. 1630.2(j) App. A three-month impairment in the ability to work does not constitute a disability because it "is of too short a duration" to be considered substantially limiting for purposes of the ADA. Colwell, at 646 (inability to work during seven-month recuperation period not substantially limiting); Adams v. Citizens Advice Bureau, 187 F.3d 315, 316-317 (2d Cir 1999) (three and one-half month inability to work due to injury not disability under ADA); McDonald v. Corn. of Pa. Dept. of Public Welfare, 62 F.3d 92, 96 (3d Cir. 1995) (two-month inability to work while recuperating from surgery not covered by ADA due to limited duration); Sanders v. Arneson, 91 F.3d 1351, 1354 (9th Cir. 1996) cert. denied, 520 U.S. 1116 (1997) (three and one-half month inability to work of too short a duration to be considered disability under ADA). A disability under-the ADA "does not include temporary medical conditions, even if those conditions require extended leaves of absence from work" because such conditions are not substantially limiting. Halperin v. Abacus Technology Corporation, 128 F.3d 191, 199 (4th Cir. 1997). "Courts within this circuit, and the vast majority of courts elsewhere which have considered the question, have held that temporary disabilities do not trigger the protections of the ADA because individuals with temporary disabilities are not disabled persons within the meaning of the act." Graaf v. North Shore University Hospital, 1 F. Supp.2d 318, 321 (S.D.N.Y 1998). To apply the protections of the ADA "to circumstances such as those presented here would be a massive expansion of the legislation and far beyond what Congress intended. McDonald, at 96. Plaintiff has failed to establish that he is disabled for purposes of the ADA because his temporary medical impairment does not substantially limit the major life activities of working or lifting.
The third requirement to establish a prima facie case is that plaintiff can still perform the essential functions of his job with or without a reasonable accommodation. Reeves, at 149. Perhaps the most essential function of any job is simply coming to one's place of employment when scheduled to perform one's functions. Halperin, at 197. An employee who cannot perform the essential functions of his job even with a reasonable accommodation has no claim under the ADA because he is not a qualified individual, and "it is irrelevant that the lack of qualification is due entirely to a disability." Matthews v. Commonwealth Edison Co., 128 F.3d 1194, 1195 (7th Cir. 1997). Plaintiff was out on medical leave from late December until he was discharged and he admitted in his deposition that he was unable to perform the essential functions of his job from the last week of December until the last week of April. Murray Dep. at 27. While plaintiff claims that a reasonable accommodation would have been to give him three months off from work to recuperate, a reasonable accommodation only applies when the employee is able to remain at work and to perform the essential functions of his job with that accommodation — and plaintiff would certainly not be performing the essential functions of his job if and while he was absent therefrom for three months recuperating.
The final requirement to establish a prima facie case is that plaintiff was discharged due to his disability. Reeves, at 149-150. A plaintiff need not establish that his disability was the sole reason for his discharge, only that his disability played a motivating role in the employer's decision to discharge him. Parker v. Columbia Pictures Industries, 204 F.3d 326, 337 (2d Cir. 2000). Although defendant states that it had made the decision in December of 1997 to terminate plaintiff due to his disruptive behavior before he left work for medical reasons, plaintiff was not informed of such until January or February 1998 due to his being out on disability. While this Court cannot determine defendant's motivation in terminating plaintiff, such is irrelevant for purposes of deciding this motion because plaintiff has failed to establish either that he is disabled for purposes of the ADA or that he could perform the essential functions of his job with or without a reasonable accommodation and has therefore failed to establish a prima facie case that he was discharged due to a disability in violation of the ADA.
Even though plaintiff has failed to establish a prima facie case that he was discharged due to a disability in violation of the ADA, defendant has nonetheless articulated a legitimate non-discriminatory reason for discharging him — i.e., that plaintiff's behavior at work was disruptive and created a bad atmosphere that did not exist when plaintiff was not present. While plaintiff disputes that his behavior was disruptive, he does not argue that this reason is only a pretext for discrimination, but rather states that he believed that Bokman took the side of the other employees and did not give credence to what he had to say. Murray Dep. at 41. "I think the reason Mr. Bokman wanted to terminate me is because he believes in Joe [Hirsch]. Joe believes in Blane [Burt]. Its all whatever Joe — Blane said goes — went." Ibid. Therefore, even had plaintiff established a prima facie case of discrimination, he has failed to offer evidence that the legitimate non-discriminatory reason proffered by defendant for discharging him was only a pretext. Accordingly defendant's motion for summary judgment dismissing plaintiff's ADA claim will be granted.
It appears to this Court, based upon the facts alleged by plaintiff, that the proper cause of action would be under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601-2654 ("FMLA") which states that "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . . [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612 (1)(D). However the FMLA would not be applicable to plaintiff both because it applies only to employers that have 50 or more employees — 29 U.S.C. § 2611 (4)(A)(i) — and defendant has only 28-30 employees and because it only protects employees who have been at their job for at least twelve months — 29 U.S.C. § 2611 (2)(A) (i) — and plaintiff had only been employed by defendant for three months before he took leave due to his health condition. Furthermore, if plaintiff's assertion that the ADA applied to his situation were correct, there would have been no need for Congress to enact the above section of the FMLA in the first place. Cf. Sarno v. Douglas Elliman-Gibbons Ives, Inc., 183 F.3d 155, 160-161 (2d Cir. 1999).
While not delineated in the Amended Complaint, the parties appear to be of the impression that plaintiff has also brought a claim for violation of the HRL and defendant seeks to dismiss this claim on the basis that because plaintiff filed it with the DHR he is therefore barred from filing a lawsuit on the same grounds. When ruling on a motion to dismiss for failure to state a claim, all facts alleged by plaintiff are assumed to be true and the court should not dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Pursuant to N.Y Exec. Law § 297(9) a plaintiff who files a HRL complaint with the DHR is thereafter barred from filing suit on the same basis. Hirsch v. Morgan Stanley Co., 657 N.Y.S.2d 448 (App.Div. 2 d Dep't 1997); Ehrlich v. Kantor, 213 A.D.2d 447 (App.Div.2d Dep't 1995). Plaintiff filed a complaint with the DHR alleging that he was terminated due to his temporary disability in violation of the HRL; therefore defendant's motion to dismiss such claim — assuming it to have been made — will be granted.
Accordingly, it is hereby ORDERED that defendant's motion to dismiss and for summary judgment is granted, that plaintiff's, complaint is dismissed and that this case shall be closed.