Morris v. Town of Islip

Filing 49

ORDER granting 39 Motion for Summary Judgment. For the reasons set forth herein, the Court grants defendants motion for summary judgment in its entirety. Plaintiffs complaint is dismissed in its entirety. The Clerk of the Court shall enter judgment accordingly and close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/22/2014. (Chipev, George)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-CV-2984 (JFB)(SIL)
_____________________

ANDREW MORRIS,
Plaintiff,
VERSUS

TOWN OF ISLIP,
Defendant.
___________________
MEMORANDUM AND ORDER
September 22, 2014
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Andrew Morris (“Morris” or
“plaintiff”) brings this action against
defendant Town of Islip (“defendant” or
“the
Town”),
alleging
employment
discrimination in violation of the Americans
with Disabilities Act, 42 U.S.C. §§ 12101 et
seq. (“ADA”).1 Specifically, plaintiff alleges
that defendant (1) discriminated against
plaintiff on account of his disability by
failing to accommodate plaintiff’s requests
for reasonable accommodation, assigning
him elevated or overhead work, denying his
request for an emergency personal day, and
directing him to come to work to be
evaluated for light duty and discharging him
without proper notice after a second injury
in July 2009; and (2) retaliated against
plaintiff through similar conduct for filing a
disability discrimination complaint with the

1

The Court previously dismissed plaintiff’s state law
claims. (See Order, Docket No. 18.)

New York State Division of Human Rights
(“NYSDHR”) in April 2009.
The Town moves for summary judgment
pursuant to Federal Rule of Civil Procedure
56, arguing: (1) the discrimination claims
must be dismissed because plaintiff cannot
establish an ADA-qualifying disability for
certain claims, or that he was an otherwise
“qualified individual” for purposes of the
ADA, (2) the discrimination claims fail on
their merits because the uncontroverted
evidence demonstrates that the Town
provided
reasonable
accommodations,
plaintiff did not suffer adverse employment
actions, and the Town lawfully terminated
plaintiff’s employment pursuant to New
York Civil Service Law § 71; and (3)
plaintiff cannot establish a retaliation claim
because he cannot set forth a prima facie
case of retaliation or show that any decisions
were pretextual. For the following reasons,
the Court grants the motion for summary
judgment in its entirety.

to submit any evidence that raises a genuine
issue of disputed fact as to any of these
claims for disability discrimination or
retaliation.

The first six causes of action—which
relate to the period from early June 2009 to
July 23, 2009—cannot survive summary
judgment for several reasons. First, it is
uncontroverted that Morris, upon returning
to work in June 2009, provided
documentation from his treating orthopedist
that indicated that plaintiff could return to
work on June 8, 2009. The documentation
did not list any physical restrictions or
limitations. Moreover, prior to July 23,
2009, plaintiff never provided any medical
documentation to indicate he was restricted
in his ability to perform his job functions. In
fact, plaintiff testified that he tried to get
such documentation from his doctor, and his
doctor refused to provide it. Thus, given
these uncontroverted facts, no rational jury
could conclude that plaintiff suffered from a
disability under the ADA during this period.
Second, even assuming arguendo that a
disability could be established, there is
uncontroverted evidence that overhead work
is an essential function of plaintiff’s job and,
thus, the employer was not required to
eliminate that function to accommodate an
individual with a disability. Third, even
assuming arguendo that the Town had to
provide a reasonable accommodation, there
is uncontroverted evidence that it did—
namely, plaintiff acknowledged that his
supervisors provided him with a helper
unless there was a “freak thing” where one
was unavailable. It is uncontroverted that
plaintiff had a helper on twenty of the
twenty-nine days he worked, including the
date of his injury (i.e., July 23, 2009).
Finally, to the extent plaintiff asserts a claim
based upon a temporary denial of a personal
day (which was later restored to plaintiff),
no rational jury could conclude that such an
act is an adverse employment action either
under the standard for a disability
discrimination claim, or under the more
liberal standard for adverse action under a
retaliation claim. In short, plaintiff has failed

With respect to the seventh cause of
action, an ADA discrimination and
retaliation claim relating to the period after
July 23, 2009, the Court concludes that this
cause of action also cannot survive summary
judgment. First, there can be no disability
discrimination claim for that period because
it is uncontroverted that, as a result of the
July 23, 2009 injury, plaintiff was totally
disabled and, thus, not otherwise qualified to
perform the essential functions of his job,
with
or
without
a
reasonable
accommodation. Second, it is undisputed
that plaintiff was separated from service for
more than one year by reason of disability
resulting from occupational therapy, and
plaintiff provides no evidence or legal
argument to raise a genuine issue of fact as
to defendant’s decision to terminate plaintiff
under Section 71 of the New York Civil
Service Law. In fact, plaintiff’s counsel did
not even argue in his opposition papers that
plaintiff’s termination was unlawful or
discriminatory. Finally, to the extent
plaintiff asserts that the constant light duty
evaluation requests were discriminatory or
retaliatory, the Town has submitted
uncontroverted
evidence
that
such
evaluations were requested pursuant to a
provision in the collective bargaining
agreement with plaintiff’s union. Moreover,
plaintiff has submitted no evidence of any
negative consequence that resulted. In short,
plaintiff has submitted no evidence that
would allow a rational juror to find that such
requests for evaluations under that provision
were discriminatory or retaliatory.

2

I.
A.

BACKGROUND

based at Islip MacArthur Airport. (Def. 56.1
¶¶ 1–2.) In March 1997, he became a
Maintenance Mechanic I (“MMI”). (Id. ¶ 3.)
As part of his job responsibilities, plaintiff
carried heavy light fixtures, which
sometimes weighed as much as one to two
hundred pounds. (Id. ¶ 5.) He also had to
drive, carry ladders, and perform overhead
and elevated work. (Id. ¶ 6.) Other
responsibilities included replacing broken
lights, changing light fixtures, repairing
electrical outlets, and working on ceiling
and exhaust fans. (Id. ¶ 7.) In July 1998,
Morris transferred from MacArthur Airport
to the Town’s Department of Public Works
Maintenance Bureau (“the Bureau”). (Id.
¶ 8.) After his transfer, Morris continued to
perform the heavy lifting, driving, and
overhead work required of the MMI
position. (Id. ¶ 9.)

Factual Background

The Court takes the following facts from
the parties’ affidavits, depositions, exhibits,
and defendant’s Rule 56.1 Statement of
Facts.2 Contrary to Local Rule 56.1(b),
plaintiff did not file a Rule 56.1 Statement
of Facts in response to defendant’s
submission. In fact, plaintiff submitted no
evidence in connection with his opposition,
only a memorandum of law. Accordingly,
the Court could deem every fact in
defendant’s submission admitted for
purposes of this motion. L.R. 56.1(c); see
also Giannullo v. City of New York, 322
F.3d 139, 140 (2d Cir. 2003) (Where “the
opposing party [] fails to controvert a fact so
set forth in the [] Rule 56.1 statement, that
fact will be deemed admitted.”); Litchhult v.
USTRIVE2,
Inc.,
No.
10-CV-3311
(JFB)(ARL), 2013 WL 3491076, at *2 n.1
(E.D.N.Y. July 10, 2013) (detailing
standard). However, in an abundance of
caution, the Court has examined the record
carefully and concludes that the facts in
defendant’s Rule 56.1 Statement are
supported by admissible evidence, and
plaintiff has not pointed to any evidence in
the record to controvert such facts. In
addition, the Court’s own independent
review of the record has not uncovered any
evidence to controvert the facts contained in
defendant’s Rule 56.1 Statement. The Court
construes the facts in the light most
favorable to plaintiff, the nonmoving party.
See Capobianco v. City of New York, 422
F.3d 47, 50 (2d Cir. 2005).
1.

Roughly fifteen maintenance mechanics
were assigned to the Bureau, spread fairly
evenly across three job classifications—I, II,
and III. (Id. ¶10.) Approximately four held
the MMI title. (Id. ¶ 11.) MMIs generally
serve as helpers for the MMIIs and MMIIIs;
they are assigned according to the
magnitude of the work to be undertaken, and
might not be assigned to mechanics that are
performing work of a less intensive nature.
(Id. ¶¶ 12–13.)
In August 2001, plaintiff was promoted
to MMIII, a title that requires that the
employee be in a “physical condition
commensurate with the demands of the
position.” (Id. ¶¶ 14–15.) The work Morris
performed as an MMI, i.e., heavy lifting,
overhead work, and elevated work, also was
required of the MMIII title. (Id. ¶¶ 16–17.)
According to Morris, “sometimes” the
MMIII was provided with a helper. (Id.
¶ 18.) As of January 2, 2007, plaintiff
performed whatever “electrical work within
the Town of Islip [that] needed to be done.”
(Id. ¶ 19.) His electrical responsibilities

Plaintiff’s Employment

Plaintiff began working for the Town in
May 1995, starting as a Custodial Worker I
2

Although the Rule 56.1 Statement of Fact contains
specific citations to the record, the Court cites to the
statements rather than to the underlying citations.
3

documentation from his treating orthopedist,
Dr. Joshua Dines. (Id. ¶ 32.) Dr. Dines
stated that plaintiff “may return to work on
6-8-09.” (Id. ¶ 33; see Dines Letter, Abbate
Affidavit Ex. I.) Dr. Dines did not list any
physical restrictions or limitations. (See
generally Dines Letter.) Between his return
in June 2009 and subsequent injury on July
23, 2009, plaintiff never provided the Town
with any medical documentation to indicate
that he was restricted or limited in his ability
to perform his job functions. (Def. 56.1
¶ 35.) According to Morris, he tried to get a
letter from Dr. Dines to indicate what
plaintiff’s restrictions were before July 23,
2009, but Dr. Dines “would not give it to me
saying anything else.” (Id. ¶ 36; Morris Dep.
at 136:14–22, Finkel Aff. Ex. C.)

included overhead work, elevated work, and
lifting of heavy objects weighing between
one-hundred and two-hundred pounds. (Id.
¶ 20.) Plaintiff also performed “a lot more
ballast and overhead lighting” work after his
promotion. (Id. ¶ 21.)
2.

Plaintiff’s Alleged Disability and
Return to Work

On January 2, 2007, plaintiff injured his
shoulder slipping off a truck and was out of
work until January 22, 2007. (Id. ¶¶ 22–23.)
Two years later, on January 30, 2009,
plaintiff had surgery on the injured shoulder.
(Id. ¶ 24.) For a time after his surgery,
plaintiff was “one hundred percent
disabled.” (Id. ¶ 25.) He was unable to
perform the “normal” and “everyday”
functions of his job title, with or without a
reasonable accommodation. (Id. ¶ 26.)

After he returned to work, Morris claims
that he was “for the most part” able to
perform the essential functions of his job
title. (Def. 56.1 ¶ 37.) He described “lifting
and reaching” as his “biggest problem,” but
he performed overhead work to the best of
his ability.3 (Id. ¶¶ 38–39.) According to
plaintiff, he spoke with his supervisors and
asked them to let him have “at least one or
two helpers” if there was a “big” job coming
up. (Id. ¶ 40.) By plaintiff’s own account,
until his injury in July 2009, he was
provided with helpers “[f]or the most part,”
though “[n]ot every day.”4 (Morris Dep. at

In April 2009, while out work because of
the surgery and on workers’ compensation,
plaintiff filed a complaint with the
NYSDHR. (Id. ¶ 27; see NYSDHR
Complaint, Finkel Aff. Ex. E.) Morris
alleged that the Town’s requests for him to
come in for a light duty evaluation, and its
decision to subject plaintiff to additional
scrutiny, were discriminatory. (Def. 56.1
¶ 28.) NYSDHR conducted an investigation
and found that the Town’s attempt to
monitor and evaluate plaintiff’s physical
condition and capacity to perform light duty
work was in accordance with the “policy
and procedure set forth in the Collective
Bargaining Agreement and rules governing
Worker’s Compensation,” which was a
“legitimate, non-discriminatory reason” for
the Town’s actions. (Id. ¶ 29; see NYSDHR
Finding, Finkel Aff. Ex. F.) Accordingly,
NYSDHR found no probable cause and
dismissed the complaint. (Def. 56.1 ¶ 30.)

3

It is uncontroverted that the Town assigned Morris
the same type of work upon his return to surgery as
he had been assigned prior to his surgery, including
the following tasks: installation of a fan and electrical
switch, installation of electrical switches for lighting
replacement of ceiling tiles, rewiring a fuse and
changing a bulb at the marina, removing piping from
a roof, repairing an exit light, fixing flood lights,
examining breakers and dryers, and installing ceiling
fans and new lights. (Def. 56.1 ¶¶ 48–49.)
4

Helpers also were provided before the injury. (See
Morris Dep. at 143:9–14 (Q: Well, didn’t the helpers
work with you before you were injured? A: Yes. Q:
So nothing changed after your injury. A: No. They
still helped me.”).)

Plaintiff returned to work on or about
June 9, 2009. (Id. ¶ 31.) Upon his return, he
provided the Town with medical
4

leave. (Def. 56. 1 ¶ 56.) On July 21, 2009,
plaintiff filed a grievance relating to that
denial. (Id. ¶ 57.) He wrote, “I feel I am
being singled out due to my shop steward
duties and past grievance. I would like the 8
hours I was docked [pay] returned.” (Id.
¶ 58; Leave Request Grievance, Abbate Aff.
Ex. P.) The grievance did not allege
disability discrimination. The Town held a
hearing on the grievance in late 2009 or
early 2010. (See Def. 56.1 ¶ 60.) At the
hearing, Morris explained why he used the
paid emergency personal day. (Id. ¶ 61.) The
Town then rescinded the denial, granted
plaintiff’s request, and restored the eight
hours of pay that had been docked for using
the day without explanation.5 (Id. ¶ 62.)

145:4–10.) His supervisors provided a
requested helper if it was “feasible”—unless
“there were some freak thing where a lot of
people were out or something like that, but
for the most part it wasn’t a problem getting
me a helper.” (Id. at 145:13.) A helper was
assigned to Morris twenty of the twenty-nine
days that he worked before his injury on
July 23, 2009. (Def. 56.1 ¶ 44.) During this
time, Bobby Powers was the only other
MMIII who performed electrical work. (Id.
¶ 45.) Powers handled the “bigger jobs” and
was only assigned helpers on nine of the
thirty-one days that he worked during the
same time period. (Id. ¶¶ 45–47.)
3.

Emergency Personal Leave Day

On or about April 29, 2009, the Acting
Commissioner of Public Works issued a
memorandum to employees advising them
that, in accordance with the Collective
Bargaining
Agreement,
“Emergency
Absences (PV or Personal Leave Day) with
less than three (3) days notice will require an
explanation and/or documentation,” and the
failure to provide an explanation “may result
in the denial of the paid leave.” (Id. ¶ 50;
Emergency Absences Notice, Abbate Aff.
Ex. M.) During 2009, the Commissioner
requested
explanations
from
other
employees twenty-nine times, twelve of
those coming before July 9, 2009. (Def. 56.1
¶ 53.) Employees provided various reasons
for their requests (which were approved),
including child care issues, car trouble, or
home maintenance concerns. (Id. ¶ 54; see
Leave Requests, Abbate Aff. Ex. N.)

4.

July 2009 Injury and Discharge

On July 23, 2009, Morris suffered
another shoulder injury while working at the
marina. (Id. ¶ 63.) He had been assigned a
helper on that day. (Id. ¶ 64.) Since then, by
his own account, Morris has been “totally
disabled” and not been physically capable of
performing the job duties of an MMIII, even
with a helper. (Id. ¶ 65.) Plaintiff’s
orthopedist corroborated this physical
condition. (Id. ¶ 66; see Physician’s Notes,
Abbate Aff. Exs. S, T, U, V, W, X, Y, Z,
AA (stating that plaintiff is totally disabled
and may not return to work).) In November
2009, plaintiff applied to New York State
for a permanent disability retirement
pension. (Def. 56.1 ¶ 67.) At that time,
plaintiff had no intention of ever returning to
5

On July 9, 2009, plaintiff took a day off,
requesting that it be considered a paid
emergency personal day. (Def. 56.1 ¶ 51.)
The Town asked plaintiff to explain his
request. (Id. ¶ 52.) He stated, “I took an
emergency personal day.” (Id. ¶ 55; Morris
Leave Request, Abbate Aff. Ex. O.) The
Town then denied plaintiff’s request for

According to a letter from Robert Finnegan, the
Director of the Office of Labor Relations and
Personnel, during the hearing, Morris did not raise
anti-union issues, refer to any past grievance, or
argue that the policy was a change in practice or
contract. (Finnegan Letter, Abbate Aff. Ex. Q.)
Instead, Morris said he took the day off because of
the emergency hospitalization of an immediate
family member. (Id.) Finnegan, therefore, found that
Morris had satisfied the disclosure requirements. (Id.)
5

P. 56(a); Gonzalez v. City of Schenectady,
728 F.3d 149, 154 (2d Cir. 2013). The
moving party bears the burden of showing
that he or she is entitled to summary
judgment. Huminski v. Corsones, 396 F.3d
53, 69 (2d Cir. 2005). “A party asserting that
a fact cannot be or is genuinely disputed
must support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The court “is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

work. (Id. ¶ 68.) He represented to the
State’s examining physician that he was
unable to perform his job duties. (Id. ¶ 69.)
As of August 24, 2010, plaintiff had not
returned to work. (Id. ¶ 71.) By then, he had
been absent from work for more than one
continuous year. (Id. ¶ 72.) As a result of
that continued absence, the Town separated
plaintiff from his employment, sending him
a letter stating, “In accordance with the
agreement between the Town of Islip and
International Brotherhood of Teamsters,
Local #237, and pursuant to Section 71 of
the Civil Service Law, you will be removed
from the payroll as of August 31, 2010.” (Id.
¶ 73; see Separation Notice, Abbate Aff. Ex.
BB.) New York granted plaintiff’s
permanent disability retirement pension in
May 2011, finding him “permanently
incapacitated from the performance of his
duties.” (Def. 56.1 ¶ 70; see Disability
Services Letter, Abbate Aff. Ex. CC.)
B.

Procedural Background

Plaintiff filed the complaint on June 14,
2012. Defendant moved to dismiss the New
York State Human Rights Law claims on
September 19, 2012. The Court granted the
motion during a telephone conference on
November 26, 2012. Defendant filed its
answer on January 7, 2013. Defendant
moved for summary judgment on February
4, 2014. Plaintiff opposed on March 19,
2014. Defendant replied on April 2, 2014.
The Court held oral argument on May 7,
2014. The Court has fully considered the
submissions of the parties.
II.

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (alteration and emphasis in
original) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986)). As the Supreme Court
stated in Anderson, “[i]f the evidence is

STANDARD OF REVIEW

Pursuant to Federal Rule of Civil
Procedure 56(a), a court may grant a motion
for summary judgment only if “the movant
shows that there is no genuine dispute as to
any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ.
6

retaliation
for
filing
a
disability
discrimination complaint against the Town
in April 2009; (2) Claim 4: plaintiff was
assigned overhead and elevated work in
retaliation for the filing; (3) Claim 6: the
Town denied plaintiff’s paid emergency
personal day request in retaliation for the
filing; and (4) Claim 7: after his second
injury in July 2009, the Town retaliated
against plaintiff by harassing him to come in
for evaluation for light duty assignments and
by discharging him without proper notice.
(Id. ¶¶ 30, 39, 44, 52, 63.) The Court
addresses each claim in turn.

merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249–50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties alone will not defeat an otherwise
properly supported motion for summary
judgment.” Id. at 247–48 (emphasis in
original). Thus, the nonmoving party may
not rest upon mere conclusory allegations or
denials but must set forth “‘concrete
particulars’” showing that a trial is needed.
R.G. Grp., Inc. v. Horn & Hardart Co., 751
F.2d 69, 77 (2d Cir. 1984) (quoting SEC v.
Research Automation Corp., 585 F.2d 31, 33
(2d Cir. 1978)). Accordingly, it is
insufficient for a party opposing summary
judgment “‘merely to assert a conclusion
without supplying supporting arguments or
facts.’” BellSouth Telecomms., Inc. v. W.R.
Grace & Co., 77 F.3d 603, 615 (2d Cir.
1996) (quoting Research Automation Corp.,
585 F.2d at 33).
III.

A.

ADA Discrimination Claims

The first, third, and fifth causes of action
center on events alleged to have occurred
between June 9, 2009, and July 23, 2009.
The seventh cause of action arises from
events alleged to have taken place after July
23, 2009. Defendant argues that the first
three causes of action must be dismissed
because (1) plaintiff did not have an ADAqualifying disability; (2) the failure to
accommodate claim fails as a matter of law
because not only was the Town not
obligated
to
provide
reasonable
accommodations for his essential job
functions, but plaintiff also cannot show
that, even if reasonable accommodations
were needed in order for him to complete
the essential job functions, defendant did not
provide him with such; (3) defendant did not
have to eliminate essential job functions;
and (4) the temporary denial of the paid
emergency personal day is not actionable as
a matter of law. Defendant argues that the
seventh cause of action must be dismissed
because (1) after the July 2009 injury,
plaintiff was not otherwise qualified to
perform the essential functions of his job,
with
or
without
a
reasonable
accommodation; (2) the Town requested that
plaintiff report for evaluation and also
discharged him pursuant to the Collective

DISCUSSION

Plaintiff’s first, third, fifth, and seventh
causes
of action allege disability
discrimination: (1) Claim 1: upon his return
from a work-related injury in June 2009, the
Town refused to assign plaintiff a helper as a
reasonable accommodation; (2) Claim 3:
upon his return from a work-related injury in
June 2009, the Town “regularly” assigned
plaintiff “elevated or overhead work”; (3)
Claim 5: upon his return from a workrelated injury in June 2009, the Town denied
plaintiff’s request for an emergency personal
day; and (4) Claim 7: after his second injury
in July 2009, the Town repeatedly directed
plaintiff to be evaluated for light duty at a
time when he was “totally disabled and
unable to work,” and then discharged him
without proper notice. (Complaint ¶¶ 37, 41,
50, 62.) Plaintiff’s second, fourth, sixth, and
seventh causes of action allege retaliation:
(1) Claim 2: plaintiff was denied helpers in
7

Bargaining Agreement and N.Y. Civ. Serv.
Law § 71; and (3) plaintiff otherwise failed
to exhaust his available administrative
remedies. For the reasons set forth below,
the Court agrees with defendant.
1.
a.

Sch. Dist., No. 11-CV-5182, 2013 WL
5445736, at *10 (E.D.N.Y. Sept. 30, 2013).
The ADA Amendment Act of 2008
(“ADAAA”) defines “disability” as:
(A) a physical or mental impairment
that substantially limits one or more
major life activities of such
individual;

Claims 1, 3, and 5

Whether Plaintiff Had an ADAQualifying Disability

(B) a record of such an impairment;
or

The ADA provides that “[n]o covered
entity shall discriminate against a qualified
individual on the basis of disability in regard
to job application procedures, the hiring,
advancement, or discharge of employees,
employee compensation, job training, and
other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). The
plaintiff “bears the initial burden of proving
by a preponderance of the evidence a prima
facie case of discrimination.” Heyman v.
Queen Vill. Comm. for Mental Health for
Jamaica Cmty. Adolescent Program, Inc.,
198 F.3d 68, 72 (2d Cir. 1999); see also
Wernick v. Fed. Reserve Bank of N.Y., 91
F.3d 379, 383 (2d Cir. 1996) (“A plaintiff
who raises a disability discrimination claim
bears the initial burden of establishing a
prima facie case.”). To make out a prima
facie case, a plaintiff must show that (1) the
employer is subject to the ADA;6 (2) the
plaintiff was a person with a disability
within the meaning of the ADA; (3) the
plaintiff was otherwise qualified to perform
the essential functions of her job, with or
without reasonable accommodation; and (4)
the plaintiff suffered adverse employment
action because of her disability. Shannon v.
N.Y.C. Transit Auth., 332 F.3d 95, 99 (2d
Cir. 2003) (citing Ryan v. Grae & Rybicki,
P.C., 135 F.3d 867, 869–70 (2d Cir. 1998)).

(C) being regarded as having such an
impairment.
42 U.S.C. § 12102(1).
As relevant in this case, “no failure to
accommodate claim can be made, as a
matter of law, for an individual who was
‘regarded as’ disabled, rather than who was
actually disabled. In other words, the
‘regarded as’ theory of disability is no
longer actionable in the context of a failure
to accommodate claim.” Graham, 2013 WL
5445736, at *11 (citing 42 U.S.C.
§ 12201(h)); see also Powers v. USF
Holland, Inc., 667 F.3d 815, 823 n.7 (7th
Cir. 2011) (“[T]he ADAAA clarified that an
individual ‘regarded as’ disabled (as
opposed to actually disabled) is not entitled
to a ‘reasonable accommodation.” (quoting
42 U.S.C. § 12201(h))). Further, with
respect to the other pre-July 23, 2009
discrimination claims, there is no evidence
from which a reasonable jury could
conclude that that plaintiff was regarded by
the Town as having an ADA-qualifying
disability from June 9 to July 23, 2009, as
required. See Sutton v. United Airlines, Inc.,
527 U.S. 471, 489 (1999) (for purposes of
the “regarded as” prong, requiring the
covered entity to “believe either that one has
a substantially limiting impairment that one
does not have or that one has a substantially
limiting impairment when, in fact, the

A threshold question is whether the
plaintiff has a disability within the meaning
of the ADA. Graham v. Three Vill. Cent.
6

This is undisputed in this case.
8

impairment is not so limiting”).7 Dr. Dines
cleared plaintiff to return to work and did
not list any limitations, and there is no
evidence that the Town knew or thought that
plaintiff had any restrictions from work.
(See Def. 56.1 ¶¶ 31–40.) Plaintiff was
assigned and performed the identical work
as before his surgery, and nothing indicates
that the Town changed its expectations of
his performance, either. (See id. ¶¶ 48–49.)
In fact, plaintiff did not specifically raise a
“regarded as” theory of liability in his
opposition. Thus, for purposes of the first
three discrimination claims, this Court only
addresses in more detail below whether
there is evidence from which a rational jury
could find that plaintiff was disabled or had
a record of disability.
i.

reading,
concentrating,
thinking,
communicating, and working.” 42 U.S.C.
§ 12102(2). Major life activities also may
include “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.” Id.
Notably,
post-ADAAA,
“major
life
activities no longer need to be of ‘central
importance.’” D’Entremont v. Atlas Health
Care Linen Servs., Co., No. 12-CV-0060
(LEK/RFT), 2013 WL 998040, at *6
(N.D.N.Y. Mar. 13, 2013) (quoting SamSekur v. Whitmore Grp., Ltd., No. 11-CV4938, 2012 WL 2244325, at *6 (E.D.N.Y.
June 15, 2012)); see also 42 U.S.C.
§ 12102(2)(A).

Whether Plaintiff Had a Physical
Impairment that Affects a Major Life
Activity

The ADA does not define what
constitutes a substantial limitation. See
Kravtsov, 2012 WL 2719663, at *10 (stating
that “[t]he ADA does not define the term
‘substantially limited,’ but post-ADAAA
regulations” clarify the term). However, it is
clear that the standard “is not meant to be []
demanding,” 29 C.F.R. § 1630.2(j)(1)(i),
and “should not demand extensive analysis,”
id. 1630.2(j)(1)(iii). Thus, an impairment
will be considered a disability under the
ADA “if it substantially limits the ability of
an individual to perform a major life activity
as compared to most people in the general
population.” Risco v. McHugh, 868 F. Supp.
2d 75, 108 n.47 (S.D.N.Y. 2012) (quoting
29 C.F.R. § 1630.2(j)1)(1)(ii)) (internal
quotation marks omitted). 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.”
Kravtsov, 2012 WL 2719663, at *10
(quoting 29 C.F.R. § 1630.2(j)(1)(ii))
(internal quotation marks omitted); see also
Brandon v. O’Mara, No. 10-CV-5174(RJH),
2011 WL 4478492, at *7 (S.D.N.Y. Sept.

For a plaintiff to establish that she has a
disability under the statute’s first subsection,
she must “(1) show that [she] suffers from a
physical or mental impairment, (2) identify
the activity claimed to be impaired and
establish that it constitutes a major life
activity, and (3) show that [her] impairment
substantially limits the major life activity
previously identified.” Green v. DGG Props.
Co., No. 11-CV-1989 (VLB), 2013 WL
395484, at *9 (D. Conn. Jan. 31, 2013)
(quoting Kravtsov v. Town of Greenburg,
No. 10-CV-3142(CS), 2012 WL 2719663, at
*10 (S.D.N.Y. July 9, 2012)) (internal
quotation marks omitted). Pursuant to the
ADAAA, major life activities include, but
are not limited to, “caring for oneself,
performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning,
7

Sutton was superseded by statute on other grounds.
See, e.g., Young v. Precision Metal Prods., Inc., 599
F. Supp. 2d 216, 223 (D. Conn. 2009).
9

work, or perform any other major life
activity.” Id. at 609 (discussing claimed
limitation of inability to lift weighs
exceeding twenty pounds); see also Colwell
v. Suffolk Cnty. Police Dep’t, 158 F.3d 635,
644 (2d Cir. 1998) (finding two plaintiffs’
inability to lift “very heavy objects” or
“anything heavy,” respectively, insufficient
to establish substantial limitation on ability
to lift as compared to average person); Snow
v. Ridgeview Med. Ctr., 128 F.3d 1201,
1207 (8th Cir. 1997) (explaining that a
“general lifting restriction imposed by a
physician, without more, is insufficient to
constitute a disability within the meaning of
the ADA”); Williams v. Channel Master
Satellite Sys., Inc., 101 F.3d 346, 349 (4th
Cir. 1996) (same, for twenty-five pound
lifting limitation); Aucutt v. Six Flags, Over
Mid–Am., Inc., 85 F.3d 1311, 1319 (8th Cir.
1996) (same, for twenty-five pound lifting
restriction); Gittens v. Garlocks Sealing
Techs., 19 F. Supp. 2d 104, 111 (W.D.N.Y.
1998) (same, for thirty pound lifting
restriction).8

28, 2011) (“[T]he revised EEOC regulations
provide that [a]n impairment is a
disability . . . if it substantially limits the
ability of an individual to perform a major
life activity as compared to most people in
the general population[; t]hat is, while [a]n
impairment
need
not
prevent,
or
significantly or severely restrict, the
individual from performing a major life
activity in order to be considered
substantially limiting, . . . the substantially
limits analysis is comparative.” (second and
fourth alterations in original) (citation and
internal quotation marks omitted)).
Plaintiff claims that the injury to his
shoulder rendered him “unable to lift his
right arm over his head” and prompted his
doctor to “restrict[] him from lifting more
than 15 pounds.” (Complaint ¶ 32.)
Defendant argues that there is no evidence
that this alleged impairment substantially
limited a major life activity. The Court
agrees with the Town.
In the instant case, plaintiff’s selfserving, conclusory allegation of disability is
belied by “the record evidence that plaintiff
was cleared by his doctor,” and, thus,
standing alone, it “cannot support a finding
by a rational fact finder that plaintiff was
substantially limited” in a major life activity.
McDonald v. City of New York, 786 F. Supp.
2d 588, 608 (E.D.N.Y. 2011) (“These vague
and ambiguous descriptions by plaintiff of
his limitations, coupled with the record
evidence that plaintiff was cleared by his
doctor to walk up to three miles per day
cannot support a finding by a rational
factfinder that plaintiff was substantially
limited in the major life activities of walking
or standing.”). In addition, with respect to
the claimed lifting limitation, numerous
courts have held, “as a matter of law, that
the weight limitation similar to that claimed
by plaintiff is insufficient to establish a
substantial limitation on one’s ability to lift,

8

Plaintiff’s reliance on the NYSDHR’s finding of
“probable cause,” as to his second complaint in 2010,
is unavailing. As a threshold matter, plaintiff has not
shown that the finding of probable cause would have
preclusive effect in New York State courts or in this
Court, particularly because there was no final
administrative determination, and no state court
reviewed the NYSDHR’s findings. See Macer v.
Bertucci’s Corp., No. 13-CV-2994 (JFB)(ARL),
2013 WL 6235607, at *4–6 (E.D.N.Y. Dec. 3, 2013)
(detailing claim preclusion standard). Moreover,
plaintiff did not submit the entire NYSDHR report
and, thus, the Court does not know what information
the NYSDHR had before it in reaching that initial
determination. Thus, the NYSDHR’s finding itself
has no probative value, especially in light of the
uncontroverted evidence that defendant has submitted
to this Court regarding the disability and retaliation
claims. As the Second Circuit has noted, under such
circumstances, that initial finding is not enough to
preclude summary judgment:
Plaintiffs assert that the mere existence of
the initial CCHR “probable cause”
determination, later reversed, is enough to
10

Moreover, to the extent plaintiff may
claim a limitation with respect to work,

returned to work in June 2009, he was “for
the most part” able to perform the essential
functions of his job title. (Def. 56.1 ¶ 37.)
He described “lifting and reaching” as his
“biggest problem,” but he performed
overhead work to the best of his ability. (Id.
¶¶ 38–39.) This uncontroverted evidence
record precludes any rational finding that
plaintiff’s alleged impairment significantly
limited his ability to perform a class of jobs
or a broad range of jobs in various classes.
See, e.g., Young, 599 F. Supp. 2d at 225–26
(finding that plaintiff’s ability to maintain a
fulltime job that is apparently similar to his
previous job undermines the argument that
plaintiff is significantly restricted in
working); see also Ongsiako v. City of New
York, 199 F. Supp. 2d 180, 185–86
(S.D.N.Y. 2002) (finding absence of
evidence “from which a rational juror could
infer that [plaintiff’s] impairment precluded
him from performing a broad class of jobs,”
where evidence “leads to only one rational
inference: plaintiff’s back impairment . . .
prevented him only from working as a City
construction laborer or in other jobs for
which heavy lifting was an essential
function”); Gittens, 19 F. Supp. 2d at 111
(granting summary judgment and finding
that plaintiff has “failed to plead that he has
a disability within the meaning of the ADA”
where “plaintiff has not been limited from
employment in general, and in fact has
remained employed by defendant”).

to show substantial limitation in this
activity under the ADA a plaintiff
must prove that he is “significantly
restricted in the ability to perform
either a class of jobs or a broad range
of jobs in various classes as
compared to the average person
having comparable training, skills,
and abilities. The inability to perform
a single, particular job does not
constitute a substantial limitation in
the major life activity of working.”
McDonald, 786 F. Supp. 2d at 609 (quoting
29 C.F.R. § 1630.2(j)(3)(i)). However, “[a]n
impairment that disqualifies a person from
only a narrow range of jobs is not
considered a substantially limiting one.”
Muller v. Costello, 187 F.3d 298, 313 (2d
Cir. 1999) (internal quotation marks and
citation omitted). Here, Morris has not
shown that his alleged impairment
significantly restricted his ability to perform
a class of jobs, or a broad range of jobs in
various classes, during the relevant time
period. He has presented no evidence to
suggest that he was disqualified from
performing even the essential functions of
his own job. By his own account, when he
preclude summary judgment, but an initial
finding which does no more than simply
repeat facts alleged elsewhere and
conclusorily states that the facts reflect
discrimination does not create a genuine
issue of material fact. This is particularly so
where, as here, factual determinations are
entirely
absent
from
the
initial
determination.

In sum, the Court concludes that plaintiff
has failed to submit evidence that raises a
genuine issue of fact to whether he suffered
from a disability, prior to July 23, 2009,
within the meaning of the ADAAA. Plaintiff
was able to perform his alleged major life
activities, including his own pre-surgery job
requirements, with little to no restriction.
There is no medical evidence to the
contrary. For these reasons, the Court
concludes that plaintiff has failed to produce
evidence from which a rational jury could

Hines v. City of New York, 159 F.3d 1346, 1998
WL 514323, at *2 (2d Cir. 1998) (summary
order) (citing Goldberg v. B. Green & Co., 836
F.2d 845, 848 (4th Cir. 1988) (holding
Commission’s probable cause finding not
sufficiently probative to create a genuine issue of
fact on age discrimination claim)).
11

held that a plaintiff’s personal testimony
which describes the alleged limits that affect
a major life activity, without supporting
medical testimony, simply is not sufficient
to establish his prima facie case under the
ADA.” (quoting Sussle v. Sirina Prot. Sys.
Corp., 269 F. Supp. 2d 285, 301 (S.D.N.Y.
2003)) (internal quotation marks omitted);
Cody v. Cnty. of Nassau, 577 F. Supp. 2d
623, 642 (E.D.N.Y. 2008) (concluding that
plaintiff’s “record of impairment” claim
fails, in part, because plaintiff “offers no
evidence to support a finding that she has a
record of an impairment that substantially
limits a major life activity,” and that “the
only statement offered by plaintiff that even
addresses this argument is contained in the
affidavit of her counsel”). Moreover, even if
plaintiff had provided such materials,
records of hospitalization or other medical
treatment do not per se establish a record of
an ADA-qualifying disability; rather, the
evidence must establish a physical
impairment that substantially impaired a
major life activity. See, e.g., Colwell, 158
F.3d at 645 (record of previous hospital stay
did not, by itself, constitute a record of
impairment); Dupre v. Charter Behavioral
Health Sys. of Lafayette, Inc., 242 F.3d 610,
615 (5th Cir. 2001) (health screening form,
which indicated that new employee was
under care of physician and had undergone
surgery, did not show that plaintiff’s
impairment substantially limited any major
life activity, and therefore, was insufficient
as record of disability); Hilburn v. Murata
Elecs. N. Am., Inc., 181 F.3d 1220, 1229–30
(11th Cir. 1999) (employer record that
employee missed work following heart
attack and in following years did not
establish that employee had record of
disability); Dicara v. Conn. Rivers Council,
663 F. Supp. 2d 85, 93 (D. Conn. 2009)
(noting that fact that employee underwent
surgery and was hospitalized was
insufficient to create record of substantially

conclude that his alleged impairment with
respect to a major life activity was
substantially limiting. Accordingly, even
construing the evidence most favorably to
plaintiff, he cannot demonstrate a disability
under subsection one of the ADAAA for the
time period before July 23, 2009. See
Graham, 2013 WL 5445736, at *14–15
(finding that plaintiff did not suffer from
disability under ADAAA definition based
upon own testimony and lack of any medical
evidence to support contrary finding).
ii.

The “Record” of a Disability Prong

Even if a plaintiff cannot show a
substantial limitation of a major life activity,
she still may be able to establish an ADAqualifying disability if she can show “a
record” of such an impairment. See 42
U.S.C. § 12102(1)(B). According to the
Equal
Employment
Opportunity
Commission (“EEOC”), this “part of the
definition is satisfied if a record relied on by
an employer indicates that the individual has
or has had a substantially limiting
impairment. The impairment indicated in the
record must be an impairment that would
substantially limit one or more of the
individual’s major life activities.” Colwell,
158 F.3d at 645 (quoting 29 C.F.R. pt. 1630
App., § 1630.2(k)) (emphasis added). In
other words, “a record reflecting a plaintiff’s
classification as disabled for other purposes
or other standards is not enough.” Id.
Morris claims that “[t]here are numerous
medical records establishing [his] disability,
and the Town of Islip were fully aware of
[his] injuries and limitations.” (Opposition,
at 9.) This is insufficient, because plaintiff
points to no supporting documentation in the
record for the time period at issue. See
Jeffries
v.
Verizon,
No.
10–CV–
2686(JFB)(AKT), 2012 WL 4344197, at
*10 (E.D.N.Y Aug. 31, 2012) (“District
courts in the Second Circuit have repeatedly
12

temporary denial of a paid leave day was an
adverse employment action (or retaliatory).

limiting impairment). Finally, as noted
supra, Dr. Dines authorized plaintiff’s return
to work, without indicating that plaintiff had
any disability or limitations or restrictions.
Dr. Dines also refused to provide plaintiff
with a letter indicating that he was limited or
restricted in any way. (Def. 56.1 ¶ 29.)

i.

With respect to a claim under the ADA
for failure to accommodate, an employer
may be liable if it “fails to make ‘reasonable
accommodations to the known physical or
mental limitations of an otherwise qualified
individual with a disability who is . . . an
employee.’” Cody, 577 F. Supp. 2d at 643
(quoting Sussle, 269 F. Supp. 2d at 312). “A
plaintiff can state a claim for discrimination
based upon an employer’s failure to
accommodate her disability by alleging facts
showing: (1) that she has a disability within
the meaning of the [ADA]; (2) that the
defendants, who are covered by the ADA,
had notice of her disability; (3) that with
reasonable accommodations she could
perform the essential functions of the
position sought; and (4) that defendant
refused to make such accommodations.”
Feeley v. N.Y.C. Police Dep’t, No. 97-CV02891-RJD, 2001 WL 34835239, at *9
(E.D.N.Y. Sept. 4, 2001). Once a plaintiff
has set forth a prima facie case, “the burden
shifts to the employer to demonstrate that
the employee’s proposed accommodation
would result in an undue hardship.” Scalera
v. Electrograph Sys., Inc., 848 F. Supp. 2d
352, 360 (E.D.N.Y. 2012). For the following
reasons, and assuming that plaintiff had a
disability and the Town had notice of the
disability, the accommodation claim cannot
survive summary judgment because plaintiff
does not show that, “even if reasonable
accommodations were needed in order for
[him] to complete [his] essential job
functions (which, based on plaintiff’s own
testimony, seems clear was not, in fact, the
case), defendant did not provide [him] with
such.” Graham, 2013 WL 5445736, at *19
(footnote omitted).

Accordingly, even construing the record
in plaintiff’s favor, the first, third, and fifth
causes of action cannot survive summary
judgment, because no rational jury could
find that plaintiff, between his return to
work and departure in late July 2009, had a
physical impairment that substantially
affected a major life activity, or that plaintiff
had a record of impairment, particularly
where plaintiff’s own treating physician
refused to provide such evidence.
b.

Failure to Accommodate Claim

Alternative Grounds

The Court’s analysis of the first three
discrimination claims may properly end
here, because plaintiff has failed the first
requirement of such claims. See Cody, 577
F. Supp. 2d at 643 (concluding that because
plaintiff had failed to show she had an
ADA-qualifying disability under her
disability
discrimination
claim,
her
reasonable accommodation claim could not
prevail). The Court, however, in an
abundance of caution, will address the other
grounds raised by the defendant. As detailed
below, the Court concludes that, even
assuming arguendo that there was sufficient
evidence from which plaintiff could
establish that he had a disability within the
meaning of the ADAAA, plaintiff’s pre-July
23, 2009 claims also fail on several other
grounds: (1) no rational jury find that
defendant failed to provide plaintiff with a
reasonable accommodation; (2) no rational
jury could find that plaintiff’s essential job
functions did not include overhead work;
and (3) no rational jury could find that the

13

During his deposition, plaintiff admitted
that he was able to perform the core
functions of an MMIII upon his return, that
he was able to perform overhead work, and
that he only requested helpers if there was a
“big” job for him to do. (Def. 56.1 ¶¶ 30, 32,
33.) He also admitted that when he did
request a helper, the Town provided one
unless “there was some freak thing where a
lot of other people were out or something
like that.” (Id. ¶ 34.) The Town’s records
confirm that plaintiff had a helper on twenty
of the twenty-nine days he worked after his
return in June 2009. The only other
individual sharing plaintiff’s title and
responsibilities had helpers on nine of thirtyone days. The Court also notes that there is
no evidence that plaintiff specifically
requested help because of an impairment,
rather than because there was a “big” job for
him to do, which also weighs against a
finding of failure to accommodate. See
Taylor v. Phoenixville Sch. Dist., 174 F.3d
142, 162 (3d Cir. 1999) (describing possible
actions that might reflect interactive process
between employer and employee as
“meet[ing] with the employee who requests
an accommodation request, request[ing]
information about the condition and what
limitations the employee has, ask[ing] the
employee what he or she specifically wants,
show[ing] some sign of having considered
[the] employee’s request, and offer[ing] and
discuss[ing] available alternatives when the
request is too burdensome”). Thus, no
reasonable factfinder could conclude that the
Town did not honor, where feasible,
plaintiff’s requests for accommodation (if
any).9 Accordingly, based on the

uncontroverted
evidence,
including
plaintiff’s own testimony, the Court grants
summary judgment to defendant on the
failure to accommodate claim on this
ground, as well.
ii.

Assignment of Essential Job
Function

Plaintiff claims that he suffered an
adverse employment action because he was
assigned a greater percentage of overhead
work after his injury. (Opposition, at 13.)
This does not establish an adverse
employment action sufficient to support the
third cause of action. “Adverse employment
actions include discharge, refusal to higher,
refusal to promote, demotion, reduction in
pay, and reprimand.” Wrobel v. Cnty. of
Erie, 692 F.3d 22, 31 (2d Cir. 2012); see
also Graham, 2013 WL 5545736, at *22
(explaining that, for purposes of retaliation
claim, adverse employment actions include
termination of employment, demotion, less
distinguished title, material loss of benefits,
or significantly diminished material
responsibilities). “Courts have continuously
found that employers are not required to
assign existing employees or hire new
employees to perform certain functions or
duties of a disabled employee’s job which
the employee cannot perform by virtue of
his disability.” Bratten v. SSI Servs., Inc.,
185 F.3d 625, 632–33 (6th Cir. 1999) (citing
Cochrum v. Old Ben Coal Co., 102 F.3d
908, 913 (7th Cir. 1996)).
Therefore, no reasonable factfinder
could conclude that plaintiff’s essential job
functions did not include these duties and
that the Town impermissibly assigned
plaintiff such work. Moreover, there is no

9

Plaintiff argues that “[p]rior to the injury, he had a
helper nearly every day, especially when he was
doing any sort of sizeable job. After he returned
subsequent to the first injury, he was sometimes
denied helpers under the guise of helpers being
needed elsewhere, only to find out later that said
helpers were assigned where they were not needed to
prevent Mr. Morris from getting the help he needed.”

(Opposition, at 13.) Plaintiff, however, points to no
admissible evidence to support this conclusory
allegation. Any temporal proximity, standing alone,
cannot overcome defendant’s showing and plaintiff’s
own testimony.
14

was denied. After filing a grievance and
providing an explanation at the hearing for
his request to use an emergency personal
day, the denial was rescinded, and the eight
hours of pay that had been docked for using
the day without an explanation were restored
to him. Under these circumstances, no
rational jury could find that plaintiff suffered
an adverse employment action, either under
a disability discrimination claim, or under
the more liberal standard for adverse action
under a retaliation claim. Moreover, plaintiff
points to nothing to indicate that defendant’s
legitimate, non-discriminatory reason for the
temporary denial was a pretext for
discrimination
or
for
retaliation.
Accordingly, the Court also grants summary
judgment to defendant on the fifth cause of
action on these independent grounds.

evidence that would allow the factfinder to
compare the distribution of plaintiff’s work
before and after his injury to ascertain the
merits of the above allegation. Accordingly,
the Court grants summary judgment to
defendant on plaintiff’s third cause of action
on this ground, as well.
iii.

Emergency Personal Day

Finally, the Court concludes that the
temporary denial of the paid leave day,
which the Town later rescinded, does not
constitute an adverse employment action
sufficient to sustain a discrimination claim
as a matter of law. See, e.g., Lieberman v.
Reisman, 857 F.2d 896, 900 (2d Cir. 1988)
(stating that where defendants have denied
plaintiff pay for compensatory and vacation
time, “to survive a motion for summary
judgment, plaintiff must present evidence
demonstrating that she was entitled to and
denied a benefit, and that the reason for that
denial was [unlawful discrimination]”); Kalp
v. Kalmon Dolgin Affiliates of Long Island
Inc., No. 11-CV-4000 (JG), 2013 WL
1232308, at *6 (E.D.N.Y. Mar. 27, 2013)
(“The denial of a single vacation request,
without any indication that there was an
absolute prohibition against plaintiff taking
any vacation time, is not a material adverse
employment action. . . . Kalp has not
demonstrated that the denial of her vacation
request was a complete bar to her taking
vacation. In fact, she took March 7, 2011 as
a vacation day.” (internal quotation marks
and citation omitted)). The uncontroverted
evidence in the record is that, in initially
denying one day of paid leave, defendant
was applying a written policy that was part
of the Collective Bargaining Agreement,
which required an explanation for a request
for a paid emergency personal day.
Specifically, it is undisputed that plaintiff
initially provided no explanation other than
to state, “I took an emergency personal
day,” and his request for one day paid leave

2.

Claim 7

The seventh cause of action alleges that
the Town discriminated against plaintiff by
directing him to come in to be evaluated for
light duty assignments “when it knew or
should have known” that he “was totally
disabled and unable to work,” and for
discharging him without proper notice.
(Complaint ¶ 62.)10 The claim covers events
subsequent to July 23, 2009.
As a threshold matter, the claim fails
because it is undisputed that, as a result of
the July 23, 2009, injury, plaintiff was not
otherwise qualified to perform the essential
functions of his job, with or without a
reasonable accommodation. See Shannon,
332 F.3d at 99. “Essential functions” are
defined under EEOC regulations to mean the
“‘fundamental’ duties to be performed in the
position in question, but not functions that
are merely ‘marginal.’” Stone v. City of
10

In his opposition, plaintiff only addresses the light
duty requests, not his discharge. (See Opposition, at
19–21.) Plaintiff also does not address most of
defendant’s arguments for summary judgment.

15

Cioce disagreed as to whether he was
required to submit to these examinations
does not support his claim of discrimination
based on his disability.”); Honey v. Cnty. of
Rockland, 200 F. Supp. 2d 311, 321
(S.D.N.Y. 2002) (finding that requests for
medical evaluations to ascertain fitness to
work all three shifts as required by job was
not adverse employment action under ADA
because requests did not materially change
plaintiff’s working conditions).

Mount Vernon, 118 F.3d 92, 97 (2d Cir.
1997) (citing 29 C.F.R. § 1630.2(n)(1)
(1996)). Plaintiff testified that since July 23,
2009, he has been incapable of performing
his duties, even with a helper (Def. 56.1
¶ 54), and medical evidence supports the
conclusion that plaintiff is totally disabled
(id. ¶¶ 55, 56). Plaintiff also told the State’s
examining physician that he is unable to
perform his job functions. See Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 795, 806
(1999) (“[A] plaintiff’s sworn assertion in an
application for disability benefits that she is,
for example, ‘unable to work’ will appear to
negate an essential element of her ADA
case—at least if she does not offer a
sufficient explanation.”). Thus, because
plaintiff was not “otherwise qualified”
subsequent to July 23, and he does not
proffer a sufficient explanation, plaintiff
cannot establish a prima facie case of
disability discrimination under the ADA.

Similarly, defendant claims that plaintiff
was separated from his employment
pursuant to N.Y. Civil Service Law § 71,
which “permits a civil service employer to
terminate an employee who has been
separated from service for more than one
year by reason of disability resulting from
occupational injury.” O’Leary v. Town of
Huntington, No. 11-CV-3754 (JFB)(GRB),
2012 WL 3842567, at *12 (E.D.N.Y. Sept.
5, 2012) (quoting Santiago v. Newburg
Enlarged City Sch. Dist., 434 F. Supp. 2d
193, 195 (S.D.N.Y. 2006)). This provision is
a legitimate, non-discriminatory basis for the
termination. Hatter v. Fulton, No. 92 CIV.
6065(WK), 1997 WL 411623, at *7
(S.D.N.Y. 1997) (stating that upon
defendant’s assertion of right to terminate
under Civil Service Law § 71, burden shifts
to plaintiff to show that proffered reason
was pretextual), aff’d sub. nom. Hatter v.
N.Y.C. Housing Auth., 165 F.3d 14 (2d Cir.
1998). “No presumption of discrimination
arises when an employer makes a decision
explicitly provided for by the Civil Service
Law. Bresloff-Hernandez v. Horn, No. 05
Civ. 0384(JGK), 2007 WL 2789500, at *6
(S.D.N.Y. Sept. 25, 2007) (citing Syken v.
New York, 02 Civ. 4673, 2006 WL 3771095,
at *9 (S.D.N.Y. Dec. 21, 2006)). Plaintiff
has not presented any evidence that
defendant’s proffered reason was pretextual.

In addition, according to the Town, the
predicate for its requests to evaluate plaintiff
for light duty assignments was a provision in
the Collective Bargaining Agreement
between the Town and its workforce. Even
assuming arguendo that plaintiff otherwise
was qualified to perform the essential
functions of his job, the enforcement of such
a provision cannot support a claim of
discrimination based on disability. See Cioce
v. Cnty. of Westchester, 128 F. App’x 181,
184 (2d Cir. 2005) (“Even assuming
arguendo that his allegations support his
claim that he is disabled as that term is
defined under the ADA, Cioce’s allegations
and submitted evidence indicate that his
receipt of benefits for his injuries—pursuant
to the collective-bargaining agreement
(“CBA”) between Westchester County and
the
Correction
Officers
Benevolent
Association—was terminated because of his
failure to submit to independent medical
examinations as required by the CBA, and
not because of his disability. The fact that

Lastly, the discharge-related claim also
fails because plaintiff has not exhausted his
16

determining whether a claim is “reasonably
related” to the EEOC charge, “‘the focus
should be on the factual allegations made in
the [EEOC] charge itself’” and on whether
those allegations “gave the [EEOC]
‘adequate notice to investigate’” the claims
asserted in court. Williams v. N.Y.C. Hous.
Auth., 458 F.3d 67, 70 (2d Cir. 2006)
(quoting Deravin v. Kerik, 335 F.3d 195,
201–02 (2d Cir. 2003)).

administrative remedies by raising a
termination claim before the NYSDHR or
EEOC. To bring a Title VII discrimination
claim in federal court, a plaintiff must first
exhaust administrative remedies by filing an
administrative
charge
alleging
discrimination within 300 days of the
alleged discriminatory conduct. O’Grady v.
Middle Country Sch. Dist. No. 11, 556 F.
Supp. 2d 196, 199 (E.D.N.Y. 2008) (citing
Ruhling v. Tribune Co., No. 04 Civ.
2430(ARL), 2007 WL 28283, at *8
(E.D.N.Y. Jan. 3, 2007)). This statutory
filing period is “analogous to [ ] statute[s] of
limitations,” Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 712 (2d Cir. 1996),
and, as such, “a failure to timely file a
charge acts as a bar to a plaintiff’s action.”
Butts v. N.Y.C. Dep’t of Hous. Pres. & Dev.,
No. 00 Civ. 6307(KMK), 2007 WL 259937,
at *6 (S.D.N.Y. Jan. 29, 2007); see also
McPherson v. N.Y.C. Dep’t of Educ., 457
F.3d 211, 214 (2d Cir. 2006).

Plaintiff’s termination allegations arose
subsequent to the filing of his NYSDHR
complaint. There is no evidence that
plaintiff ever brought a termination
allegation to the NYSDHR and EEOC, and
the Court concludes that such an allegation
is not “reasonably related” to the other
discrimination allegations in the April 2009
NYSDHR complaint. As a matter of law,
then, plaintiff’s claim expands the scope of
the charge to encompass “new unlawful
employment practices or bases for
discrimination,” rather than “additional acts
which constitute unlawful employment
practices related to or growing out of the
subject matter of the original charge.” Holtz
v. Rockefeller & Co., Inc., 258 F.3d 62, 83
(2d Cir. 2001) (citations omitted); see Lyles
v. District of Columbia, 777 F. Supp. 2d
128, 136 (D.D.C. 2011) (“Plaintiff’s EEO
charges outline three allegedly retaliatory
acts of discrimination. The first is denial of
promotions, the second is a threat to place
plaintiff on leave, and the third is plaintiff’s
reassignment to the Day Treatment Program.
As neither complaint raises the elimination
of plaintiff’s position in any way, the current
claim has
not
been
exhausted.”).
Accordingly, the Court grants summary
judgment to defendant on plaintiff’s
discharge-related discrimination claim on
this ground, as well.

Nevertheless, “‘claims that were not
asserted before the EEOC [or an appropriate
State or local agency] may be pursued in a
subsequent federal court action if they are
reasonably related to those that were filed
with the agency.’” Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 177 (2d
Cir. 2005) (quoting Legnani v. Alitalia Linee
Aeree Italiane, S.P.A., 274 F.3d 683, 686
(2d Cir. 2001) (per curiam)). “Reasonably
related conduct is that ‘which would fall
within the scope of the EEOC investigation
which can reasonably be expected to grow
out of the charge that was made.’” Id.
(quoting Fitzgerald v. Henderson, 251 F.3d
345, 358 (2d Cir. 2001)); see also
Mathirampuzha v. Potter, 548 F.3d 70, 77
(2d Cir. 2008) (stating that claim is
reasonably related where “administrative
complaint can be fairly read to encompass
the claims ultimately pleaded in a civil
action or to have placed the employer on
notice that such claims might be raised”). In
17

B.
1.

Retaliation Claims

meet this burden, the plaintiff may rely on
evidence presented to establish the prima
facie case as well as additional evidence.
Such additional evidence may include direct
or circumstantial evidence of discrimination.
Desert Palace, Inc. v. Costa, 539 U.S. 90,
99–101 (2003). It is insufficient, however,
for a plaintiff merely to show that she
satisfies “McDonnell Douglas’s minimal
requirements of a prima facie case” and to
put forward “evidence from which a
factfinder could find that the employer’s
explanation . . . was false.” James v. N.Y.
Racing Ass’n, 233 F.3d 149, 157 (2d Cir.
2000). Instead, the key is whether there is
sufficient evidence in the record from which
a reasonable trier of fact could find in favor
of plaintiff on the ultimate issue, i.e.,
whether the record contains sufficient
evidence to support an inference of
discrimination. See id.; Connell v. Consol.
Edison Co., 109 F. Supp. 2d 202, 207–08
(S.D.N.Y. 2000).

Legal Standard

Retaliation claims brought under the
ADA are examined under the same
McDonnell
Douglas
burden-shifting
framework. See, e.g., Treglia v. Town of
Manlius, 313 F.3d 713, 719 (2d Cir. 2002).
To establish a prima facie case of retaliation
under the ADA, the plaintiff must show the
following elements: “(1) he engaged in an
activity protected by the ADA; (2) the
employer was aware of this activity; (3) the
employer took adverse employment action
against him; and (4) a causal connection
exists between the alleged adverse action
and the protected activity.” Id. If the
plaintiff establishes a prima facie case of
unlawful discrimination, the burden then
shifts to the defendant to set forth “some
legitimate, nondiscriminatory reason” for
the complained-of conduct. McDonnell
Douglas, 411 U.S. at 802; see also Fincher,
604 F.3d at 720 (stating that where the
plaintiff succeeds in establishing a prima
facie case, “then a presumption of retaliation
arises and the employer must articulate a
legitimate, non-retaliatory reason for the
action that the plaintiff alleges was
retaliatory”).
Where
the
defendant
articulates such a reason, then the
presumption of discrimination is rebutted,
and it “simply drops out of the picture.” St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
510–11 (1993) (citation omitted). The
burden then shifts back to the plaintiff to
show, without the benefit of any
presumption, that a reasonable jury could
conclude by a preponderance of the
evidence that the employer’s explanation is
merely a pretext for impermissible
retaliation. Treglia, 313 F.3d at 721.11 To

The Supreme Court has defined an
“adverse employment action” in the Title
VII retaliation context (distinct from and
broader than the standard in the Title VII
an open question in this Circuit whether an ADA
plaintiff must now show that disability discrimination
(or the plaintiff’s protected activity, in a retaliation
claim) was a but-for cause of the adverse
employment action. See Castro v. City of New York, -- F. Supp. 2d ----, No. 10-CV-4898 (NG) (VVP),
2014 WL 2582830, at *14 n.34 (E.D.N.Y. June 5,
2014) (“[T]he question of whether the heightened,
‘but-for’ standard of causation for Title VII
retaliation claims . . . applies to claims asserted under
the ADA, is one that has not yet been addressed by
the Second Circuit.”); see also Tse v. New York
Univ., No. 10-CV-7207 (DAB), 2013 WL 5288848,
at *18 n.18 (S.D.N.Y. Sept. 19, 2013); Najjar v.
Mirecki, No. 11-CV-5138 (KBF), 2013 WL 3306777,
at *7 (S.D.N.Y. July 2, 2013). This Court need not
resolve that issue in this case because, as discussed
infra, plaintiff has not produced sufficient evidence
from which a rational jury could find that he was
retaliated against, even under the “motivating factor”
standard.

11

Following the Supreme Court’s decisions in
University of Texas Southwestern Medical Center v.
Nassar, 133 S. Ct. 2517 (2013), and Gross v. FBL
Financial Services, Inc., 129 S. Ct. 2343 (2009), it is
18

336, 356–57 (E.D.N.Y. 2010) (citing Gomez
v. Laidlaw Transit, Inc., 455 F. Supp. 2d 81,
90 (D. Conn. 2006)); Gomez, 455 F. Supp.
2d at 90 (“To the extent plaintiff claims that
defendant’s ongoing failure to accommodate
her constituted retaliation, this claim is also
insufficient as a matter of law. Requesting
accommodation inevitably carries the
possibility that the employer will not honor
the request. If the prospect that an employer
might not honor the request would deter a
reasonable employee from even making the
request, reasonable employees would not
request accommodation. For this reason, a
failure to accommodate cannot constitute
retaliation for an employee’s request for
accommodation.”). The Court also notes
that, even assuming plaintiff established a
prima facie case of retaliation based on
temporal proximity, he fails to proffer any
evidence that defendant’s legitimate nondiscriminatory reason—no helper was
provided on days when no MMI was
available—is a pretext for retaliation.

discrimination context) to mean an action
that is “materially adverse” and that “well
might have dissuaded a reasonable worker
from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(internal citations omitted). The same
definition applies to retaliation claims under
the ADA. Platt v. Inc. Vill. of Southampton,
391 F. App’x 62, 64 (2d Cir. 2010); Ragusa
v. Malverne Union Free Sch. Dist., 381 F.
App’x 85, 90 (2d Cir. 2010).
2.

Application

In his opposition, plaintiff only
addresses the denied emergency personal
day and the request that he report for a light
duty evaluation. (Opposition, at 18.)
Although it appears that plaintiff has
abandoned his other claims, see Marache v.
Akzo Nobel Coatings, Inc., No. 08. Civ.
11049, 2010 WL 908467, at *15 (S.D.N.Y.
Mar. 12, 2010) (finding a claim abandoned
by virtue of plaintiff’s failure to address it in
opposition to motion for summary
judgment), out of an abundance of caution,
the Court addresses all the retaliation
allegations. For the following reasons, the
Court concludes that plaintiff’s retaliation
claims are without merit.
a.

b.

Overhead Work

Similarly, there simply is no evidence
that plaintiff’s NYSDHR complaint in April
2009 motivated defendant to assign plaintiff
overhead and elevated work after he
returned from surgery. For instance, there is
no evidence whatsoever that the Town
disproportionately assigned plaintiff such
projects after he complained to the
NYSDHR, much less any statements or
evidence that would allow a reasonable jury
to conclude that the existence of such
projects was a pretext for retaliation.

Alleged Failure to Provide a Helper

As discussed supra, plaintiff’s testimony
and the Town’s uncontroverted records
show that plaintiff was provided with a
helper unless none were available. Thus,
there is no evidence that defendant actually
took negative employment actions against
plaintiff, or that there was any change in his
working conditions, when he did not have a
helper. Moreover, defendant’s “alleged
failure to accommodate [plaintiff’s]
disability subsequent to an ADA . . .
protected request cannot be bootstrapped
into a viable disability retaliation claim.”
Missick v. City of New York, 707 F. Supp. 2d

c.

Emergency Personal Day

As discussed supra, after plaintiff was
denied the paid leave day, he filed a
grievance, was afforded a hearing, and had
the denial reversed, with ultimately no loss
to him. Plaintiff does not dispute the
existence of the Town’s policy with respect
19

d.

to emergency days. In his opposition,
plaintiff states that other employees were
allowed to take emergency leave without
offering any details. (Opposition, at 19.)
Plaintiff, however, does not show that those
employees requested the leave fewer than
three days before taking it, and he ignores
the documentary evidence that supports
defendant’s claim that they neutrally applied
the policy to all employees. Therefore, the
Court concludes that plaintiff fails to
establish a prima facie case of retaliation
with respect to the emergency personal day.
See Chin-McKenzie v. Continuum Health
Partners, 876 F. Supp. 2d 270, 286
(S.D.N.Y. 2012) (“It is, simply, not a
material adverse change in a term or
condition of employment to require an
employee to go to the EHS or ED after
having an on-the-job allergy attack, to notify
a supervisor before leaving duty, or to
undergo a fitness examination. Nor did
Chin–McKenzie incur a materially adverse
change in work conditions when she
received an “average” performance rating,
was compelled to document the reason for a
bereavement leave, or was denied requested
days off. These are the sort of ‘minor
annoyances’ that do not rise to the level of
actionable retaliation under Title VII.”
(internal citation and footnote omitted)); see
also Pierre v. Napolitano, 958 F. Supp. 2d
461, 480 (S.D.N.Y. 2013) (concluding that
temporary denial of Law Enforcement
Availability Pay benefits, which was
rescinded as soon as supervisor realized
error in interpretation of preconditions for
benefits, “were more disruptive than a mere
inconvenience” and did not “demonstrate
that [the plaintiff] suffered an adverse
employment action” (citations and internal
quotation marks omitted)). Moreover, even
if plaintiff had established prima facie case,
he proffers no proof to suggest that his
NYSDHR filing motivated defendant to
initially deny the request.

“Light Duty” Evaluation Requests

Plaintiff proffers no evidence or
authority that the requests for him to discuss
the potential of light duty from August 2009
through January 2010 constituted “an
employment action disadvantaging the
plaintiff.” Terry, 336 F.3d at 141 (2d Cir.
2003). As a threshold matter, it is not even
clear from the record that plaintiff complied
with these requests by coming to the office
to be evaluated. It appears from his
deposition that he simply submitted a note
from his doctor saying he was unable to
come to work. (Morris Dep. at 228.) Given
the lack of any consequences to plaintiff, no
rational jury could find that these requests
would reasonably dissuade an employee
from making a charge of discrimination.
Moreover, it is uncontroverted that
NYSDHR found that the Town’s attempt to
monitor and evaluate plaintiff’s physical
condition and capacity to perform light duty
work was in accordance with the procedures
in the Collective Bargaining Agreement.
(Def. 56.1 ¶ 29.) Plaintiff proffers no
admissible evidence to show this was a
pretext for retaliation.12
Therefore, even viewing the facts in the
light most favorable to plaintiff, the Court
concludes that no reasonable jury could find
that defendant retaliated against plaintiff in
response to his NYSDHR complaint in April
2009.13 Accordingly, the Court grants
12

Plaintiff claims that his union representative told
plaintiff that he would be left alone if he dropped his
claims with NYSDHR. (Opposition, at 21.) This
testimony is hearsay, and plaintiff’s argument that the
representative was speaking on behalf of a member
of the Town is wholly speculative and cannot
establish a genuine dispute of material fact.

13

In his opposition papers and at oral argument,
plaintiff alleged that defendants’ investigators
conducted surveillance of his activities in March and
April 2009, while he was on workers’ compensation
because of surgery. As a threshold matter, although
these allegations are contained in the background

20

summary judgment to defendant
plaintiff’s retaliation claims.
IV.

on

PLLC, 1399 Franklin Avenue, Suite 200,
Garden City, NY 11530.

CONCLUSION

For the foregoing reasons, the Court
grants defendant’s motion for summary
judgment in its entirety. Plaintiff’s
complaint is dismissed in its entirety. The
Clerk of the Court shall enter judgment
accordingly and close this case.
SO ORDERED.

_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: September 22, 2014
Central Islip, NY
***
Plaintiff is represented by Damon Andrew
Hagan, Mayer, Ross & Hagan, 178 East
Main Street, Patchogue, NY 11772.
Defendant is represented by Ernest Stolzer,
Jessica Moller, Lauren Darienzo, and
Richard Finkel, Bond Schoeneck & King,

section of the complaint, they are not mentioned in
connection with any of the specific causes of action.
Moreover, to the extent plaintiff has attempted to
assert a cause of action based upon this alleged
conduct, defendant correctly argues that those same
allegations were raised before the NYSDHR in
plaintiff’s first complaint and, subsequent to its
dismissal based upon a finding of no probable cause,
plaintiff did not bring a timely action based upon
those allegations. Thus, any such claim would be
time-barred. In any event, those allegations could not
be the basis for a plausible retaliation claim. Plaintiff
alleges that the surveillance, including the March 24,
2009 incident at the school, began prior to his April
2009 filing with the NYSDHR. Thus, on the issue of
causation, no rational jury could find that
surveillance that began prior to the filing was
retaliation for that filing.
21