Rowe v. AAA Western and Central New York, Inc.

Filing 38

MEMORANDUM-DECISION AND ORDERED, that Plaintiff David Rowe shall have sixty (60) days in which to conduct discovery relating to the question whether he was otherwise qualified for the AAA Contact Center position, and within this sixty (60) day period , Rowe shall file a supplemental brief setting out the evidence obtained and its relevance to the issue of his qualifications for the Contact Center position; and it is further ORDERED, that Defendant AAA Western and Central New York, Inc. shall have thirty (30) days after the submission of Rowes supplemental brief to respond to Rowes submission. Signed by Senior Judge Lawrence E. Kahn on December 27, 2016. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DAVID ROWE,
Plaintiff,
-against-

5:15-CV-00063 (LEK/TWD)

AAA WESTERN AND CENTRAL
NEW YORK, INC.,
Defendant.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff David Rowe commenced the present action against Defendant AAA Western

and Central New York, Inc. pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12101–12213. Dkt. Nos. 1 (“Complaint”), 13 (“Amended Complaint”). Presently before the
Court is AAA’s Motion for Summary Judgment. Dkt. No. 27 (“Motion”); see also Dkt. Nos. 27-1
(“Memorandum”), 27-2 (“Statement of Material Facts”), 32 (“Opposition”),1 37 (“Reply”). For
the following reasons, the Court reserves decision on AAA’s Motion pending further
development of the record.
II.

BACKGROUND
A. Factual History
AAA is a not-for-profit member services organization that “provides its members with

travel, insurance, financial, and automotive services.” Mem. at 2. Rowe began working for

1

Because Rowe filed his response to AAA’s statement of material facts, his separate
statement of material facts, and his memorandum of law in one document, the Court refers to that
document as Rowe’s Opposition.

AAA’s East Syracuse, New York, branch as a “Road Problem Solver Technician” around
October 16, 2012. SMF ¶ 2. Rowe’s responsibilities as a road technician included “driving AAA
vehicles and assisting customers by performing battery tests, providing battery boosts, replacing
batteries, repairing battery cables, and performing tire service and changes.” Id. At his deposition,
Rowe stated that battery-related work was an essential part of his job. Id. ¶ 3; Dkt. No. 27-17
(“Exhibit A”) at 106:18–21. Rowe received praise from customers on several occasions for his
work, Opp’n pt. 3, ¶ 2, though AAA disciplined him with some regularity for work-related
issues, including making mistakes on his paperwork, “engaging in a verbal altercation,” leaving
work without telling his supervisor, having trouble performing various aspects of his road
technician job, and “causing damage to a [AAA] member’s vehicle,” Mem. at 3.
Around July 2, 2013, AAA received a fax from Ann M. Roman, a nurse practitioner
working at the oncology practice where Rowe had sought treatment. SMF ¶ 3; Dkt. No. 27-9
(“Exhibit E”). The letter stated that because of issues relating to his colon cancer, Rowe would
have “to be on restricted light duty/office work” since he would no longer be able to change tires
or perform battery-related work. Ex. E at 2. Not long after this, Rowe sent AAA the necessary
paperwork for receiving short-term disability insurance. SMF ¶ 4. The paperwork included a
“Notice of Proof of Claim” filled out by his doctor, and it indicated that Rowe could not work
starting July 2, 2013. Id.; Dkt. No. 27-10 (“Exhibit F”). It also stated that Rowe suffered from
“permanent restrictions.” Ex. F. Rowe soon began receiving the short-term disability insurance
benefits for which he had applied. SMF ¶ 5.
From July 2013 to August 2014, Rowe underwent chemotherapy. Id. ¶ 6. Rowe later
testified that he was able to drive only “on a limited basis” during this time. Id. From July 2013
2

to the day he was fired, Rowe did not tell anybody at AAA when he would be able to work again.
Id. ¶ 7.2
In July 2013, after receiving this information about Rowe’s disability, Esther Renne and
DeAnn Swiatek—two AAA Human Resources employees—“arranged for Rowe to be considered
for a vacant Member Services Position in AAA’s Contact Center.” Id. ¶ 8. The Contact Center
job entailed taking customer service calls and “is less physically demanding than the Road
technician job that Rowe held.” Id. It is Rowe’s belief that AAA never seriously considered him
for the position. Opp’n pt. 2, ¶ 8. As part of his application for the position, Rowe, like the other
applicants, had to take “the customer Contact Center simulation assessment,” which tests
whether an applicant is capable of adequately fulfilling the duties of a Contact Center employee.
SMF ¶ 8. During the assessment, the applicant is required to take several customer service calls.
Id. ¶ 9. Applicants receive a grade based on their performance during the calls, and they must
obtain a score of sixty-two or higher to pass. Id. A passing score shows that the applicant has the
“minimal skills” needed to hold a job in the Contact Center. Id. Rowe failed the assessment,
receiving a score of fifty-eight. Id. Accordingly, AAA determined that Rowe was not qualified
for a job in the Contact Center. Id. Notably, the persons hired for Contact Center jobs around this
time “all scored well above a 62, having received the following scores: 79, 93, 77, 81, 69 and
90.” Id. Rowe later expressed uncertainty about whether he could have successfully performed
the duties associated with a Contact Center position. Id. ¶ 10. Specifically, he said that he was not
sure he could have done the job because AAA never gave him the chance. Ex. A at 136:14–18.

2

Rowe disputes this fact, Opp’n pt. 2, ¶ 7, yet he fails to cite any evidence suggesting
that he did in fact inform someone at AAA when he could return to work.
3

Rowe states that on September 12, 2013, he sent AAA a “medical document” providing
an estimated return-to-work date of March 12, 2014. Opp’n pt. 3, ¶ 10. However, the evidence
cited in support of this statement—a report documenting the findings of a New York State
Division of Human Rights (“NYSDHR”) investigation into Rowe’s case—suggests only that the
medical document was “faxed over to Guardian (3rd party).” Dkt. No. 32-3 (“Exhibit 3”) at 2.
Nowhere does the NYSDHR report confirm that AAA ever received the document.
AAA, which is particularly busy in the winter, usually “begins hiring additional fleet
employees in October and November to ensure that its staff is at full capacity.” SMF ¶ 11. Acting
on the belief that Rowe was suffering from permanent restrictions that kept him from doing
essential parts of his road technician job, AAA fired him on or about October 23, 2013. Id.
According to AAA, Rowe was terminated because it needed to hire someone who could fulfill
the responsibilities of a road technician during the busy winter season. Id. Rowe, on the other
hand, contends that AAA fired him “because of his cancer diagnosis . . . and . . . the challenges
that arose therefrom.” Opp’n pt. 2, ¶ 11.
Since AAA fired Rowe, he has held only one job, working as a bus driver for the
Baldwinsville School District in early 2015 for a few weeks. SMF ¶ 12. At his deposition, Rowe
stated that he had to quit his job as a bus driver because he experienced fatigue in the morning
and afternoon, though he stated elsewhere that he had to leave because his recovery prevented
him from working in the afternoon only. Id. Since his termination, Rowe has not applied to any
jobs other than the bus driver position. Id. ¶ 13. His explanation is that an employer will not hire
him if he is honest about the reason AAA terminated him, namely, his cancer, and if he lies about

4

his medical history, an employer will fire him if it learns of his deception. Dkt. No. 32-1 (“Rowe
Affidavit”) ¶ 14.
Rowe began receiving Social Security Disability Insurance (“SSDI”) benefits soon after
AAA fired him. SMF ¶ 14. In his August 2, 2013 application for SSDI benefits, he stated that he
could no longer work as of July 2, 2013, as a result of his disabling condition. Id. In both his
application for SSDI benefits and his application for the bus driver position, he stated that his job
at AAA had involved installing batteries and changing tires. Id. ¶ 15. Though Rowe’s short-term
disability benefits ended in January 2014, his long-term disability benefits began around March
2014, and he still receives those benefits in addition to SSDI benefits. Id. ¶ 16.
At his deposition, Rowe confirmed that he did not plan to seek employment in the
immediate future. Id. ¶ 17; Ex. A. at 147:19–21. He also stated that he could not say for sure
whether he would ever be able to work again. SMF ¶ 17; Ex. A. at 147:9–18. According to
Rowe, fatigue plus his need to make frequent trips to the bathroom were keeping him from
holding down a job. SMF ¶ 17; Ex. A. at 147:24–148:8.
B. The Summary Judgment Motion
On August 27, 2016, AAA moved for summary judgment, arguing that Rowe fails to
state a prima facie case under the ADA because his cancer rendered him unqualified for the road
technician job and he was never qualified for the Contact Center position. Mem. at 1. In
particular, AAA argues that Rowe was unable to perform essential functions of his road
technician job and failed to meet one of the prerequisites for the Contact Center job, namely,
passing the simulation assessment. Id. AAA further claims that Rowe is estopped from asserting
an ADA claim because he has failed to adequately explain the contradiction between that claim
5

and his application for SSDI benefits, which stated that he was unable to work. Id. at 12. Rowe
responds that the praise he received from customers he served as a road technician demonstrated
his ability to fulfill the responsibilities of a Contact Center position, that AAA refused to make a
good-faith effort to find him a position within the organization that would accommodate his
condition, and that he failed the simulation assessment because he took it soon after he
discovered he had cancer. Opp’n pt. 4, at 14–16.
III.

LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure instructs courts to grant summary

judgment if “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. P. 56(a). Although “[f]actual disputes that are
irrelevant or unnecessary” will not preclude summary judgment, “summary judgment will not lie
if . . . the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Taggart v. Time, Inc., 924
F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact could find in favor of the
nonmoving party should summary judgment be granted.”).
The party seeking summary judgment bears the burden of informing the court of the basis
for the motion and of identifying those portions of the record that the moving party claims will
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Similarly, a party is entitled to summary judgment when the nonmoving party
carries the ultimate burden of proof and has failed “to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id.
at 322.
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In attempting to repel a motion for summary judgment after the moving party has met its
initial burden, the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). At the same time, a court must resolve all ambiguities and draw all
reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000); Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736,
742 (2d Cir.1998). Thus, a court’s duty in reviewing a motion for summary judgment is
“carefully limited” to finding genuine disputes of fact, “not to deciding them.” Gallo v.
Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
IV.

DISCUSSION
A. Rowe’s Qualifications
“Claims alleging disability discrimination in violation of the ADA are subject to the

burden-shifting analysis originally established by the Supreme Court in McDonnell Douglas
Corp. v. Green . . . .” McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir.
2009). To state a prima facie case under the ADA, a plaintiff must demonstrate that “(1) his
employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was
otherwise qualified to perform the essential functions of his job, with or without reasonable
accommodation; and (4) he suffered adverse employment action because of his disability.” Sista
v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (quoting Giordano v. City of New
York, 274 F.3d 740, 747 (2d Cir. 2001)). Failure to reasonably accommodate “the known
physical or mental limitations of an otherwise qualified individual with a disability” constitutes
discrimination under the ADA. 42 U.S.C. § 12112(b)(5)(A); accord McBride, 583 F.3d at 96.
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The EEOC has promulgated regulations3 clarifying the requirement that an ADA plaintiff
show that he was otherwise qualified to perform the essential functions of his job. 29 C.F.R.
§ 1630.2(m). According to the EEOC, “[t]he term ‘qualified,’ with respect to an individual with a
disability, means that the individual satisfies the requisite skill, experience, education and other
job-related requirements of the employment position such individual holds or desires and, with
or without reasonable accommodation, can perform the essential functions of such position.” Id.
(emphasis added). Thus, in determining whether a plaintiff is otherwise qualified, the court must
first “decide whether the individual satisfies the prerequisites for the position, such as having the
appropriate education, employment experience, skills, or license.” Mark v. Burke Rehab. Hosp.,
No. 94-CV-3596, 1997 WL 189124, at *4 (S.D.N.Y. Apr. 17, 1997) (citing § 1630.2(m)). The
next step is to determine whether the plaintiff can perform the essential functions of the job, with
or without a reasonable accommodation. § 1630.2(m). “Although the term ‘essential functions’ is
not defined by the ADA, [EEOC] regulations . . . indicate that it encompasses ‘the fundamental
job duties of the employment position.’” McBride, 583 F.3d at 98 (quoting § 1630.2(n)(1)). “In
determining whether a job function is essential, ‘consideration shall be given to the employer’s
judgment as to what functions of a job are essential.’” Rodriguez v. Steven Schor, Inc., No.
09-CV-2197, 2011 WL 743476, at *3 (E.D.N.Y. Jan. 21, 2011) (quoting § 12111(8)). It is the
plaintiff’s burden to prove that he is otherwise qualified for his job. Adams v. Rochester Gen.
Hosp., 977 F. Supp. 226, 233 (W.D.N.Y. 1997) (citing Borkowski v. Valley Cent. Sch. Dist., 63
F.3d 131, 138 (2d Cir. 1995)).
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EEOC regulations “are entitled to great deference in interpreting the ADA.” Hernandez
v. Int’l Shoppes, LLC, 100 F. Supp. 3d 232, 257 (E.D.N.Y. 2015) (quoting Muller v. Costello,
187 F.3d 298, 312 (2d Cir. 1999)).
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1. The Road Technician Position
There is no genuine dispute that, at the time of his termination, Rowe could not perform
some of the essential functions of his road technician job, thereby rendering him unqualified for
the position. At his deposition, Rowe agreed that battery-related work was one of the essential
functions of his road technician job. Ex. A. at 106:18–21. Moreover, in his applications for SSDI
benefits and for the bus driver position, he described his job at AAA as entailing the installation
of batteries and the changing of tires, SMF ¶ 15, and AAA itself views these tasks as essential
functions of the job, Dkt. No. 27-4 (“Swiatek Affidavit”) ¶ 6. The record before the court thus
permits only one conclusion: changing tires and installing batteries were two of the essential
functions of the roadside technician position.
There is also no genuine dispute that, at the very least, Rowe was unable to perform these
two essential functions. As discussed above, soon after Rowe was diagnosed with cancer, AAA
received a letter from the oncology practice where Rowe sought treatment that indicated he was
unable to “change tires or perform battery work, due to complications associated with
adenocarcinoma of the cecum.” Id. ¶ 3; Ex. E at 2. Moreover, one of Rowe’s doctors informed
AAA that Rowe’s restrictions would be “permanent.” SMF ¶ 4; Ex. F.4 Rowe effectively
concedes that he could not have performed all of the essential functions of the road technician
position when he states in his affidavit that he “could perform 27 out of the 29 essential functions
4

To the extent that Rowe faults AAA for refusing to provide him with a leave of
absence, AAA’s reasonable belief that Rowe’s restrictions were permanent relieved it of any
obligations in this regard. See Alston v. Microsoft Corp., 851 F. Supp. 2d 725, 733–34 (S.D.N.Y.
2012) (“[T]he Second Circuit has explained that where there is no indication of when an
employee will return, an employer has no obligation to grant an employee ‘an indefinite leave of
absence.’” (quoting Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 9 (2d Cir. 1999))),
aff’d, 519 F. App’x 23 (2d Cir. 2013) (per curiam).
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of [that] position.” Rowe Aff. ¶ 13. Although in the same affidavit Rowe also asserts that he
“could have worked part-time during the three-month period before my termination,” id. ¶ 10, he
provides no evidence to support this claim, and it contradicts his own statement that he could not
perform two of the essential functions of the job. Rowe fails to explain how a part-time version
of the road technician job would work for him in light of his inability to perform all of its
essential functions. Thus, Rowe’s statement that he could have held the road technician job on a
part-time basis does not create a triable issue of fact. See BanxCorp v. Costco Wholesale Corp.,
978 F. Supp. 2d 280, 299 (S.D.N.Y. 2013) (“[A] self-serving, contradictory affidavit fails to raise
a triable issue of fact when it conflicts with documentary evidence.” (quoting Christiana Bank &
Tr. Co. v. Dalton, No. 06-CV-3206, 2009 WL 4016507, at *4 (E.D.N.Y. Nov. 17, 2009))); see
also Lee Loi Indus., Inc. v. Impact Brokerage Corp., 473 F. Supp. 2d 566, 570 (S.D.N.Y. 2007)
(“While the Court may not assess credibility on summary judgment, if the evidence is
contradictory or implausible, it may be disregarded.” (citing Trans-Orient Marine Corp. v. Star
Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991))).
Moreover, Rowe fails to point to any reasonable accommodation that would have enabled
him to perform the essential functions of the road technician job. Indeed, Rowe appears to
concede that he was not qualified for the job as a result of his condition. Responding to AAA’s
assertion that it fired him because of its understanding that his condition would permanently
prevent him from performing the essential functions of his job, Rowe states that “Defendant is,
of course, referring to the Roadside Technician Job, which is NOT the job that Plaintiff was
seeking, which was a call center job the essential functions of which Plaintiff COULD indeed
perform.” Opp’n pt. 4, at 14–15. This statement could be construed as an abandonment of the
10

claim that Rowe was otherwise qualified for the roadside technician position. See Wick v.
Wabash Holding Corp., 801 F. Supp. 2d 93, 105 (W.D.N.Y. 2011) (“[T]he court may, in its
discretion, deem Plaintiff’s . . . claim abandoned based on Plaintiff’s failure to argue in
opposition to summary judgment on the claim.” (citing Molinari v. Bloomberg, 564 F.3d 587,
609 n.15 (2d Cir. 2009))). In any event, even if the Court does not deem this claim abandoned,
Rowe has simply failed to produce any evidence of an accommodation relating to the roadside
technician job.
2. The Contact Center Position
But, as the statement quoted above shows, Rowe does propose a different kind of
accommodation: transfer to a vacant Contact Center position, for which he was allegedly “amply
qualified.” Opp’n pt. 4, at 16. The ADA provides that “reassignment to a vacant position” may
constitute a reasonable accommodation. § 12111(9). To prove that reassignment is a reasonable
accommodation, the plaintiff “must demonstrate the existence, at or around the time when
accommodation was sought, of an existing vacant position to which she could have been
reassigned.” McBride, 583 F.3d at 97–98 (citing Jackan v. N.Y.S. Dep’t of Labor, 205 F.3d 562,
566–67 (2d Cir. 2000)). Moreover, the plaintiff must be qualified for the vacant position. Id.
at 98 (citing Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99 (2d Cir. 1999)).
AAA argues that Rowe was not qualified for the Contact Center position. Mem. at 13–14.
AAA emphasizes that Rowe cannot satisfy the first part of the test for determining qualification
under the ADA, namely, the requirement that an ADA plaintiff show that he can meet the
“requisite skill, experience, education and other job-related requirements of the employment
position such individual . . . desires.” § 1630.2(m). “Nothing in the ADA requires an employer to
11

abandon its legitimate, nondiscriminatory company policies defining job qualifications,
prerequisites, and entitlements to intra-company transfers.” Felix v. N.Y. City Transit Auth., 154
F. Supp. 2d 640, 655 (S.D.N.Y. 2001) (quoting Dalton v. Subaru-Isuzu Auto. Inc., 141 F.3d 667,
678 (7th Cir. 1998)); see also Malone v. Shallcross, No. 02-CV-8126, 2004 WL 2534382, at *4
(N.D. Ill. Nov. 8, 2004) (granting summary judgment in favor of defendant-employer where
plaintiff-employee, who could not pass “the required skills test for several of the [vacant]
positions,” failed to identify “any vacant positions for which she was qualified but was denied for
an impermissible reason”).
Based on the evidence before the Court, AAA requires those seeking a position at the
Contact Center to pass the simulation assessment, which “corresponds with the minimal skills
necessary to perform a call center job.” Swiatek Aff. ¶ 12. The document that describes Rowe’s
performance on the test states that “David J Rowe’s overall score of 58 (out of a possible 100)
does not meet the minimum passing score; therefore David J Rowe is not recommended to
proceed further in the selection process.” Dkt. No. 27-11 (“Exhibit G”) at 1. On the other hand,
the documents setting forth the results for the successful applicants, all of whom scored above
sixty-two, noted that these applicants were recommended to proceed further in the selection
process because they passed the assessment. Dkt. No. 27-12 (“Exhibit H”) at 1–6. From the
record before the Court, therefore, it appears that AAA refused to hire applicants who did not
receive a passing score on the assessment.
Rowe has failed to address AAA’s assertion that he did not meet the job-related
requirements for the Contact Center position. He has not provided any evidence suggesting that
he did in fact pass the simulation assessment, or that AAA sometimes hired people for Contact
12

Center positions who failed the test. Instead, he disparagingly refers to the assessment as a
“personality test,” and goes on to say that he failed it because he took it only a few days after he
was diagnosed with cancer, which hindered his ability to perform the assigned tasks. Opp’n pt. 4,
at 16; Rowe Aff. ¶ 13. Yet Rowe’s description of his feelings when he took the test, which is set
forth in his affidavit, contradicts his own deposition testimony, in which he stated that the only
things he could remember from that day were that he took tests of some kind and that he believed
AAA was not serious about hiring him for the position. Dkt. No. 32-2 (“Exhibit 2”) at
121:20–122:25. Thus, Rowe’s self-serving statement in his affidavit that his failing grade on the
assessment can be explained by distress over his recent cancer diagnosis fails to address AAA’s
assertions regarding his qualifications for the Contact Center position. See Brown v. Henderson,
257 F.3d 246, 252 (2d Cir. 2001) (“[F]actual allegations that might otherwise defeat a motion for
summary judgment will not be permitted to do so when they are made for the first time in the
plaintiff’s affidavit opposing summary judgment and that affidavit contradicts her own prior
deposition testimony.” (citing Bickerstaff v. Vassar Coll., 196 F.3d 435, 455 (2d Cir. 1999))).
Rowe argues that he was qualified for the Contact Center position because of his
“excellent customer service skills,” which can be seen in the praise he received from AAA
customers and management. Opp’n pt. 4, at 16. Again, this argument does not address the
evidence in the record demonstrating that Rowe failed to meet one of the prerequisites for
holding a Contact Center position: passing the simulation assessment. The evidence of Rowe’s
customer service skills is more accurately viewed as suggesting that he could perform what
would arguably be an essential function of a Contact Center job—interacting well with
customers. That goes to the second part of the two-part test for determining qualification under
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the ADA, namely, the question whether the plaintiff can perform the essential functions of the
job, with or without a reasonable accommodation. § 1630.2(m). However, even if the Court
accepted that Rowe could perform all of the essential functions of the position—a contestable
proposition given Rowe’s numerous work-related infractions, Mem. at 3—he would still have
failed to establish that he was otherwise qualified on the record before the Court. That is because
he has not satisfied the first part of the test for demonstrating qualification under the ADA,
namely that he met all the job-related requirements for the position in question. § 1630.2(m).
Rowe’s failure to pass the assessment, which he does not dispute was a necessary condition for
obtaining the position in question, means that—based on the record before the Court—he has not
demonstrated that he was qualified for the job.
Rowe has failed to put forth credible evidence suggesting that he was otherwise qualified
for either the roadside technician position or the vacant Contact Center position. Thus, he has
failed to estabish a prima facie case under the ADA. See Serrano v. Shield Inst. of David, Inc.,
No. 94-CV-6745, 1997 WL 167042, at *6 (S.D.N.Y. Apr. 9, 1997) (finding that, even assuming
the plaintiff could establish that he was disabled, he “still would fail to state a prima facie case
under the ADA, because he has failed to show that he was otherwise qualified to perform the job
[in question]”).
Despite Rowe’s failure to adequately address AAA’s assertions regarding his
qualifications for the Contact Center position, the Court elects not to immediately grant summary
judgment. In a joint letter motion filed on May 31, 2016, the parties requested an extension of the
discovery deadline, in part because Rowe’s attorney still intended to depose several AAA
employees. Dkt. No. 25 (“Letter Motion”) at 1–2. The Court granted the extension, Dkt. No. 26,
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yet there it is unclear to the Court whether Rowe’s attorney ever conducted these depositions. In
lieu of deposition transcripts or interrogatories, Rowe’s attorney has filed an affidavit, Rowe
Aff., which also contains customer-service reviews regarding Rowe’s performance as a road
technician, and a copy of the NYSDHR investigation into his case, Ex. 3, which may not even be
admissible evidence in this case, see DeJohn v. Wal-Mart Stores E., LP, No. 09-CV-1315, 2012
WL 3679204, at *1 n.3 (N.D.N.Y. Aug. 17, 2012) (“Whether the [Division of Human Rights]
decision is admissible evidence . . . is subject to the sound discretion of the district court.” (citing
Sadki v. SUNY Coll. at Brockport, 310 F. Supp. 2d 506, 517 (W.D.N.Y. 2004))). Further, the
NYSDHR investigation did not even address the issue of Rowe’s qualifications for the Contact
Center position. See Ex. 3.
Under Rule 56(e)(1) of the Federal Rules of Civil Procedure, “[i]f a party fails to
properly . . . address another party’s assertion of fact . . . the court may . . . give an opportunity to
properly . . . address the fact.” Although Rowe has failed to address material facts asserted by
AAA concerning his qualifications for the Contact Center position, the Court will exercise its
discretion under Rule 56(e)(1) to give Rowe an opportunity to properly do so. See Noel v.
Interpublic Grp. of Cos. Inc., No. 12-CV-2996, 2013 WL 1955879, at *1 (S.D.N.Y. May 13,
2013) (“[E]ven if the moving party satisfies its burden, the Court in its discretion may still
decline to grant summary judgment.” (citing Fed. R. Civ. P. 56(e)(1))). Because Rowe has
effectively conceded that he could not perform all the essential functions of the road technician
job, Rowe Aff. ¶ 13, the Court will not allow further development of the record on that issue.
However, the Court will grant Rowe sixty days to conduct additional discovery relevant to the
question whether he was otherwise qualified for the Contact Center position. Within this sixty15

day period, Rowe may file a supplemental brief setting out the evidence obtained and its
relevance to the issue of his qualifications for the Contact Center position. Thirty days after
Rowe files his supplemental brief, AAA may file a response addressing the newly obtained
evidence. The Court will reserve decision on the pending Motion until it has received this
supplemental briefing and evidence.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Plaintiff David Rowe shall have sixty (60) days in which to conduct

discovery relating to the question whether he was otherwise qualified for the AAA Contact
Center position, and within this sixty (60) day period, Rowe shall file a supplemental brief
setting out the evidence obtained and its relevance to the issue of his qualifications for the
Contact Center position; and it is further
ORDERED, that Defendant AAA Western and Central New York, Inc. shall have thirty
(30) days after the submission of Rowe’s supplemental brief to respond to Rowe’s submission;
and it is further
ORDERED, that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

December 27, 2016
Albany, New York

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