Brtalik v. South Huntington Union Free School District

Filing 49

MEMORANDUM AND ORDER: See attached Memorandum and Order for details. Ordered by Magistrate Judge Arlene R. Lindsay on 3/8/2012. c/ecf (Imrie, Robert)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
JAMES BRTALIK,
Plaintiff,

MEMORANDUM AND
ORDER
CV 10-10 (ARL)

-againstSOUTH HUNTINGTON UNION FREE
SCHOOL DISTRICT,
Defendant.
---------------------------------------------------------------X
LINDSAY, Magistrate Judge:

The plaintiff, James Brtalik (“Brtalik”), commenced this employment discrimination
action against the defendant, South Huntington Union Free School District (“the School
District”), alleging federal claims pursuant to 42 U.S.C. § 1983 and the Americans with
Disabilities Act, 42 U.S.C. §§ 12102 (the “ADA”) as well as state law claims pursuant to the
New York State Human Rights Law (the “NYSHRL”). The parties have consented to the
undersigned’s jurisdiction pursuant to 28 U.S.C. § 636. Before the court is the defendant’s
motion for summary judgment and the plaintiff’s cross-motion for partial summary judgment
pursuant to Federal Rule of Civil Procedure (“Rule”) 56. For the reasons set forth below, the
defendant’s motion is granted and the plaintiff’s motion is denied.
BACKGROUND
A. Brtalik’s Employment History
In 1988, Brtalik was hired by the School District as a Instructional Media Center
Technician, commonly referred to as an Audio-Visual Technician. Def. 56.1 Stmt. ¶ 3; Pl. 56.1

Ctr. Stmt. ¶ 3.1 Brtalik’s job responsibilities include supplying and setting up equipment and
facilitating audio-visual functions and activities that take place in the School District. Def. 56.1
Stmt. ¶ 4. A part of Brtalik’s duties includes carrying audio-visual equipment typically weighing
about 20 pounds. Def. 56.1 Stmt. ¶ 5; Pl. 56.1 Ctr. Stmt. ¶5. Brtalik continues to be employed
by the School District.
The factual backdrop of this motion centers on Brtalik’s June 29, 2009
colonoscopy/polypectomy procedure.2 Def. 56.1 Stmt. ¶ 17. During the procedure, a benign
rectal polyp was removed and the doctor reported his finding of internal hemorrhoids. Pl. 56.1
Ctr. Stmt. ¶ 23. Upon completion of the colonoscopy, the doctor furnished Brtalik with a note
restricting him to light duty and no heavy lifting for a period of two weeks. Id. at § 25. When
Brtalik returned to work the following day he was informed that a light duty assignment was not
available and that he would be required to use sick time. Id. at § 70. Brtalik asserts that he has
suffered from hemorrhoids since 1994 and continues to experience hemorrhoids requiring him to
apply medication to treat his symptoms including, among other things, Preparation H. Id. at §
29.

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The material facts, drawn from the Complaint and the parties’ Local 56.1 Statements, are
construed in the light most favorable to the non-moving party, except as otherwise noted. See
Iannuzzi v. American Mortg. Network, Inc., 727 F. Supp. 2d 125, 130-31 (E.D.N.Y. 2010). The
court notes that the plaintiff’s Rule 56.1 counter-statement contests many of the facts in the
defendant’s Rule 56.1 Statement. The court has carefully reviewed the plaintiff’s counterstatements and finds that, for the most part, the counter-statements supplement the defendant’s
statements or dispute the admissibility of the evidence relied upon. Where necessary the court
will address the plaintiff’s objections.
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Brtalik’s complaint alleges a series of earlier disabilities which will be addressed below.
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B. Procedural History
On August 28, 2009, Brtalik filed a Charge of Discrimination based on disability
discrimination and retaliation with the Equal Employment Opportunity Commission (“EEOC”).
Def. 56.1 Stmt. ¶ 1.3 The EEOC Charge sets forth a series of disabilities that Brtalik alleges
support his claim of discrimination. See Ventor Aff. at Ex. 1. Specifically, his alleged
disabilities include (1) a 2002 torn meniscus, which kept him out of work for three weeks; (2) an
anxiety disorder as a result of a hostile work environment; (3) a 2006 elbow injury that forced
him to “have his duties restricted temporarily,” (4) tests for potential heart problems; (5) a 2006
bout of heel pain; (5) a pneumonia while on vacation in 2008; and (6) the 2009 colonoscopy
addressed in this motion. In his complaint, Brtalik alleges that he was denied a reasonable
accommodation after suffering each of the above disabilities. He also alleges retaliation after
engaging in activities protected by the ADA.
His EEOC Charge also described a purported First Amendment claim arising from the
harassment and retaliation he claims to have endured for speaking out on a matter of public
concern. Brtalik claimed, in this regard, that he made protected statements about a co-worker
comprising of correspondence he sent to administrators complaining about the co-worker’s job
performance. Specifically, Brtalik advised District Administrators that his co-worker had lost a
key to the high school projection booth making it possible for students to injure themselves or
steal School property.4 See 10/6/2010 Memorandum and Order at 3. On October 23, 2009,

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The plaintiff disputes the defendant’s assertion of this fact based on procedural grounds
notwithstanding the fact that the statement is taken verbatim from the complaint.
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In his complaint, Brtalik claimed that his statements to the School District advising them
of his co-worker’s conduct and the fact that his co-worker was creating a hostile work
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Brtalik received a right to sue letter.
On January 20, 2010, Brtalik commenced the instant action alleging a Section 1983
retaliation claim for the exercise of his First Amendment right to speak as to matters of public
concern, an ADA claim discrimination/failure to accommodate claim and an ADA retaliation
claim. On March 10, 2010, the School District requested a pre-motion conference before the
District Judge seeking permission to file a motion to dismiss. In its letter, the School District
outlined several deficiencies in the complaint including the fact that a vast majority of the
allegation were barred by the statute of limitations. In response, Brtalik indicated that he
“agree[d] that the § 1983 statute of limitations is three (3) years and the statutory requirement is
300 days to file an EEOC charge.” Accordingly, the court granted the School District leave to
move to dismiss the complaint except with respect to the statute of limitations issue which was
not controverted. See 4/8/2010 Order.
On October 6, 2010, the court granted, in part, the School District’s motion dismissing
any state law claims for failure to file the statutory notice of claim, the Section 1983 First
Amendment claim, and any ADA claims based upon perceived disability. The court denied the
motion with respect to the ADA discrimination/failure to accommodate claim and the ADA
retaliation claim. On May 27, 2011, the defendant submitted its motion for summary judgment
on the remaining claims.5 In his opposition to the defendant’s motion, Brtalik withdrew his

environment were protected by the First Amendment. Brtalik also claimed First Amendment
protection for advising the School District that, when asked to do so, he refused to make copies
of copyrighted material. See 10/6/2010 Memorandum and Order at 3.
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In its October 6, 2011 Memorandum and Order, the District Court recited the complete
list of disabilities initially forming the basis of Brtalik’s ADA discrimination case
notwithstanding the fact that it had previously ruled that any violations barred by the statute of
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claims that the School District discriminated against him due to his actual disability and/or record
of impairment and his claim for ADA retaliation, leaving only the reasonable accommodation
claim. See Pls. Mem at 1.
The plaintiff then cross-moved for partial summary judgment on the remaining claim
arguing for the first time that his “acute hemorrhoids” were the disabling condition that form the
basis of his reasonable accommodation claim, not the 2009 colonoscopy procedure alleged in his
complaint.
DISCUSSION
I.

Summary Judgment Standards
Summary judgment is proper 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 judgment as a matter
of law.” FED . R. CIV . P. 56(c). “An issue of fact is genuine if ‘the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’ A fact is material if it ‘might
affect the outcome of the suit under the governing law.’” Roe v. City of Waterbury, 542 F.3d 31,
35 (2d Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In
determining whether an issue is genuine, “[t]he inferences to be drawn from the underlying
affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most
favorable to the party opposing the motion.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d

limitations would not be considered by the court. As a result, the defendant included arguments
in its motion papers concerning the validity of all of the violations including those dating as far
back as 2002. Recognizing that any claims occurring prior to October 31, 2008 were barred,
Brtalik’s papers only address the 2009 procedure. See Pl’s. Mem. in Opp. at 1. It is clear that the
only “disability” currently at issue is the 2009 colonoscopy/polypectomy.
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Cir. 1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam));
Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989)).
Once the moving party has met its burden, “the nonmoving party must come forward with
‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting FED . R. CIV . P. 56(e)). The nonmoving
party cannot survive summary judgment by casting mere “metaphysical doubt” upon the
evidence produced by the moving party. Matsushita, 475 U.S. at 586. Summary judgment is
appropriate when the moving party can show that “little or no evidence may be found in support
of the nonmoving party’s case.” Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24
(2d Cir. 1994) (citations omitted). However, “the judge’s role in reviewing a motion for
summary judgment is not to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. The Court will
apply these principles to the plaintiff’s ADA claim.
II.

Brtalik’s Reasonable Accommodation Claim
The ADA prohibits employment discrimination by a “covered entity . . . against a

qualified individual on the basis of disability in regard to . . . discharge of employees, . . . and
other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Employers of
persons with disabilities are required to make “reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability who is an
applicant or employee.” 42 U.S.C. §§ 12112(b)(5)(A); 29 C.F.R. § 1630.9(a). In order to
establish a prima facie case of disability discrimination for failure to accommodate under the
ADA, an employee has the burden to demonstrate that: “(1) [he] is a person with a disability
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under the meaning of the ADA; (2) an employer covered by the statute had notice of [his]
disability; (3) with reasonable accommodation, [he] could perform the essential functions of the
job at issue; and (4) the employer refused to make such accommodation.” Fahey v. City of New
York, 2012 U.S. Dist. LEXIS 15104 * 16 (E.D.N.Y. Feb. 7, 2012). Here, the School District
does not dispute that it is a covered entity subject to the ADA. Rather, the School District
maintains that Brtalik fails to meet this burden because he is not disabled within the meaning of
the ADA and was not qualified to perform the essential functions of his job.
Under the ADA, a person is disabled if he has: “(A) a physical or mental impairment that
substantially limits one or more major life activities of such individual; (B) a record of such an
impairment; or (C) [is] regarded as having such an impairment.” See 42 U.S.C. § 12102(1). On
January 4, 2008, Congress modified “the standard by which courts assess whether a person has a
disability under the ADA.” See Villanti v. Cold Spring Harbor Central School District, 733 F.
Supp. 2d 371, 377 (E.D.N.Y. 2010). The ADA Amendments (the “ADAA’) broaden the
definition of disability and the class of major life activities protected by the ADA stating that the
definition is to “be construed in favor of broad coverage of individuals . . . to the maximum
extent permitted by the terms of [the] Act.”6 42 U.S.C. § 12102(4).
The ADA does not define the terms “physical impairment” or “substantially limits.”
However, the EEOC regulations implementing the ADA do provide guidance concerning the
interpretation of the statute. See Negron v. City of New York, 2011 U.S. Dist. LEXIS 119463 *32

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The ADAA overturned the Supreme Court’s holdings in Sutton v. United Air Lines, 527
U.S. 471 (1999) and Toyota Motor Manufacturing v. Williams, 534 U.S. 182 (2002), which has
strictly construed the meaning of “substantially limits” and “major life activities.” Villanti, 733 F.
Supp. 2d at 377.
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(E.D.N.Y. Sept. 14, 2011). The EEOC regulations define physical impairment, in pertinent part,
as:
[a]ny physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more body systems, such as
neurological, musculoskeletal, special sense organs, respiratory
(including speech organs), cardiovascular, reproductive, digestive,
genitourinary, immune, circulatory, hemic, lymphatic, skin, and
endocrine.
29 C.F.R. § 1630.2(h)(1). “Following the 2008 Amendments, the EEOC regulations define
‘substantially limits,” in part, as follows:
(ii) An impairment is a disability within the meaning of this section
if it substantially limits the ability of an individual to perform a
major life activity as compared to most people in the general
population. An impairment need not prevent, or significantly or
severely restrict, the individual from performing a major life
activity in order to be considered substantially limiting.
Nonetheless, not every impairment will constitute a disability
within the meaning of this section.
(iii) The primary object of attention in cases brought under the
ADA should be whether covered entities have complied with their
obligations and whether discrimination has occurred, not whether
an individual's impairment substantially limits a major life activity.
Accordingly, the threshold issue of whether an impairment
"substantially limits" a major life activity should not demand
extensive analysis.
(vii) An impairment that is episodic or in remission is a disability if
it would substantially limit a major life activity when active.
Negron, 2011 U.S. Dist. LEXIS at * 32 (citing 29 C.F.R. § 1630.2(j)(1)). The term “major life
activities” are described in the statute. These activities include:
(A) . . . caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.
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(B) Major bodily functions. For purposes of paragraph (1), a major
life activity also includes the operation of a major bodily function,
including but not limited to, functions of the immune system,
normal cell growth, digestive, bowel, bladder, neurological, brain,
respiratory, circulatory, endocrine, and reproductive functions.
42 U.S.C. § 12102(2).
In his complaint, Brtalik maintains that he was disabled within the meaning of the ADA
based on his 2009 colonoscopy. See Complaint at ¶ 52. “While Congress undoubtedly intended
to broaden the scope of the ADA . . . it remains the case that not every impairment is a
disability.” Brandon v. O’Mara, 2011 U.S. Dist LEXIS 112314 * 19 (S.D.N.Y. Sept. 28, 2011).
This is certainly the case here where the alleged impairment does not even constitute a disorder,
condition, cosmetic disfigurement or anatomical loss. “Indeed, the revised EEOC regulations
provide that ‘[a]n impairment is a disability . . . if it substantially limits the ability of the
individual to perform a major life activity as compared to most people in the general
population.” Id. (citing 29 C.F.R. § 1630.2(j)(1)(ii))(emphasis added). Brtalik’s attempt to
characterize a routine, diagnostic, out-patient procedure, or any related minor discomfort, as a
disability within the meaning of the ADA is simply absurd.
Even more troubling is the plaintiff’s eleventh-hour attempt to salvage this litigation by
re-characterizing his disability as “acute hemorrhoids, on a continuous, episodic basis, for 15
years.” Pls. Mem. in Support at 7. It is well settled in this Circuit that a party may not raise a
factual allegation for the first time on summary judgment. See Brown v. Henderson, 257 F.3d
246, 252 (2d Cir. 2001). Yet, Brtalik contends that his failure to describe his disability as a
hemorrhoid condition or indeed to even mention his hemorrhoids in either his complaint, the
EEOC Charge, or the motion practice to date should simply be disregarded by the Court. Brtalik
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argues that the School District had notice of his new disability claim given the fact that he had
provided them with “the name and contact information of his treating physician; access to all of
his medical records supporting his physical condition; and release authorizations so that the
Defendant itself could obtain those medical records.” Pls. Mem. In Support at 2. In short,
Brtalik argues that the defendants should have been able to deduce from discovery the true nature
of his alleged disability. The court disagrees. See Hare v. Hayden, 2011 U.S. Dist. LEXIS
40683 *12, n.1 (S.D.N.Y. Apr. 14, 2011)(retaliation allegations referenced at depositions and
other filings but not contained in complaint were dismissed)
Brtalik has failed to demonstrate that he is an individual with a disability within the
meaning of the ADA. Accordingly, having failed to establish a prima facie case, the defendant’s
motion for summary judgment on the plaintiff’s reasonable accommodation claim is granted and
the plaintiff’s motion for partial summary judgment is denied. The Clerk of Court is directed to
close this case.
Dated: Central Islip, N.Y.
March 8, 2012

SO ORDERED
_________/s/_______________
ARLENE ROSARIO LINDSAY
United States Magistrate Judge

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