Molina v. City of Rochester et al

Filing 53

ORDER denying 43 Plaintiff's Motion for Summary Judgment; granting 45 Defendant's Motion for Summary Judgment. Signed by Hon. Jonathan W. Feldman on 03/30/2017. (JKT)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION & ORDER

RICHARD MOLINA,

13-CV-6607

Plaintiff,
v.

CITY OF ROCHESTER,
Defendant.

Procedural History

Plaintiff
"Molina")

Richard

Molina

(hereinafter

"plaintiff"

filed this action alleging unlawful discrimination and

retaliation under the Americans with Disabilities Act of
("ADA")

1990

and discrimination under the New York Human Rights Law

("NYHRL").
moved for

See Am. Compl.

(Docket# 33) at , 29, 35. 1

summary judgment on January 15,

2015,

23, 28) . 2
2015,

Plaintiff

and defendant

cross-moved to dismiss for failure to state a claim

15,

or

(Docket ##

The Court heard oral argument on both motions on July
denying the motions on the record and by brief Order

the following day.

Docket# 37.

The parties thereafter engaged

1

Molina voluntarily dismissed an equal protection claim under §
1983 and a Monnell claim against the City of Rochester.
See
Pl.' s Reply/Response in Opp.
(Docket # 31) at 3 (dismissing
Monell claim); Pl.' s Mot. (Docket # 43) at 4 (dismissing equal
protection claim).
Plaintiff additionally stipulated to the
dismissal of individual named defendants Paul Holahan, Theo
Maxey, Charles Lundy, Thomas Belknap, Bar Mee sh, Karen Simoni,
and Norman Jones. See Stipulation and Order (Docket # 52).
2

In accordance with the provisions of 28 U.S.C. § 636(c), the
parties have consented to the jurisdiction of this Court for all
matters, including dispositive motions. See Docket # 13.

in further discovery,

and plaintiff filed the instant motion,

second motion for summary judgment, on June 14,
Mot.

25 ,

See Def.' s

2 O16 .

Mot.

(Docket #

and both parties

the

reasons

judgment

(Docket

2016

submitted post-hearing briefs

stated

below,

#

is

43)

plaintiff's

denied,

summary judgment (Docket # 45)

Court

(Docket #
to address

See Docket ## 49,

questions that arose during the hearing.
For

The

45) .

heard oral argument on the motions on October 21,
50),

See Pl.' s

2016.

Defendant cross moved for summary judgment

(Docket # 43)

on June

a

and

motion

for

defendant's

51.

summary

motion

for

is granted.

Factual Background
Richard
(hereinafter

Molina
"the

was

City"

hired
or

by

the

"defendant")

City
in

of

the

Rochester

Department

Environmental Services as an ESQ/Trainee in September 2006.
"C"

attached to Def.'s Mot.

(Docket# 45-6).

of
Ex.

He was appointed

to the Solid waste Management Division as an ESO I

on February

12,

The primary

2007.

See

Pl. 's Mot.

(Docket #

duty of this position is to collect

43 -1)

at

1.

refuse and recycling along

established routes within the City of Rochester.
Plaintiff
began his

began

employment

history notes that he
work performance

having

disciplinary

with the
(1)

City.

Id.

issues

His

soon

after

he

employee performance

received a written reprimand for poor

on July 9,

2007;
2

(2)

was

fined

fifty dollars

for poor work performance/violating work on December 13,
received

( 3)

performance/absence
suspension

for

on

poor

April

work

for

reprimand

written

a

8,

2008;

performance

on

July

work

poor

had

( 4)

2007;

a

day

2008;

7,

one

(5)

received a written reprimand for excessive sick leave on August
11,

2008 and another written reprimand on September 2, 2008 for

"MVA-preventable";

( 6)

was

suspended for

three

work performance on January 5, 2009; and (7)
reprimand
attached

for
to

"MVA preventable"

Def.' s

Mot.

#

for

poor

received a written

on August

(Docket

days

9,

45-6)

2010.
Notes

"C 11

EX:.

from

these

infractions describe that plaintiff, among other things, did not
service certain sections on his route, did not clean his truck,
and did not drive safely.

Id.

Plaintiff began to have medical issues related to his job
beginning in 2009.

Plaintiff injured his

working and was placed on a
January

2,

2009.

See

left shoulder while

"light duty"

Pl. 's

Mot.

assignment beginning

(Docket

#

43-1)

at

2.

Plaintiff was out on Worker's Compensation from June 17, 2009 to
June 17, 2010, and had rotator cuff surgery on his left shoulder
in

December

2009.

restrictions.

Plaintiff

returned

in

June

See id.; see also Def.'s Mot.

2010

with

no

(Docket# 45-2) at

2 (timeline of plaintiff's employment history)
Back on the job,
right

shoulder,

on

plaintiff injured his other shoulder, his

August

18,

2010
3

and

was

out

on

Worker's

Compensation from August 19,

2010 to August 31,

2010.

See Ex. #

2 attached to Def. 's Post-Hearing Submission (Docket # 49)

at 1.

He was then placed on light duty or out on Worker's Compensation
Def.'s Mot.

for most of the rest of 2010.
Plaintiff underwent
was

out

on

January 6,

right shoulder surgery in January 2011 and

Worker's
2012.

(Docket# 45-2) at 2.

Compensation

See Ex.

Submission (Docket # 49)
on Worker's Compensation,

#

from

January

20,

2 attached to Def.' s

at 7.

On November 28,

plaintiff

to

Post-Hearing

2011,

received a

2011

while out

letter from the

City stating that his one year leave of absence provided by his
contract 3 would be exhausted on January 7, 2012, at which time he
would be removed from the payroll
regular

duty

assignment.

See

if he did not return to his

Pl. 's

First

Mot.

for

Summ.

J.

(Docket# 23) at 27.
Plaintiff

returned

to

full-duty

work

on

January

with a disability status report from his doctor,
MD,

P.K.

returning him to regular work with no restrictions.

3

6,

2012

Peartree,
See Ex.

Civil ·Service Law § 71 states " [w] here an employee has been
separated from the service by reason of a disability resulting
from occupational injury .
. he shall be entitled to a leave
of absence for at least one year, unless his disability is of
such a nature as to permanently incapacitate him for the
performance of the duties of his position."
N.Y. Civ. Serv. Law
§
71
(McKinney) .
The
law also provides
that,
even if
terminated, an employee can obtain reinstatement to his former
position if a medical examination confirms that he is physically
and mentally fit to return to his former position or a vacant
similar position. Id.
4

# 2 attached to Def.'s Post-Hearing Submission (Docket# 49) at
9.

A

Nurse

"physician's return to work form" completed by Registered
(RN)

New York,
5,

2012,

Samuel

Cappiello of Occupational Health Centers of

an affiliate of Cortcentra Medical Centers, on January
noted that plaintiff had restrictions of never crawling

and never lifting more than sixty pounds.
a

"return

to

(signature
January

evaluation"

illegible)

5,

complaints,

work

at

completed

Concentra

stated

2012,

Id. at 10.

that

Medical

plaintiff

by

a

physician

Center,
had

However,

no

also

present

had full range of motion and strength in the right

shoulder, and repeated that plaintiff had "no limitations."
at 11.

Plaintiff's physician,

letter to Human Resources
plaintiff

on

"ha [d]

Dr.

Peartree,

on February 14,

requested

return

to

Id.

wrote a follow-up
2012,

to

stating that
work

without

restrictions, anticipating a transfer to another department, but
has

continued

pain

in

the

recommendation for

transfer,

accommodations

listed

nor

the

than

the

letter asked for no specific

specific

Ex. "B" attached to Pl.' s Mot.

Other

shoulders."

work

related

restrictions.

(Docket # 43) at 8.

Molina was not transferred, however, and he continued to be
employed as an EOS I upon return from his Worker's Compensation
leave

in

problems

January
and

in

2012.

July

2012

He

continued

received

a

to

have

ten-day

disciplinary

suspension

for

"faulty work performance" and then was cited for "misconduct" on
5

November 19,
45-6).

2012.

Ex.

"C" attached to Def.' s Mot.

(Docket #

A detailed letter from Paul Holahan, Commissioner of the

Department
"faulty

of

work

reciting

Environmental
performance"

incidences

exhibiting rudeness
service

customers,

such

Services,
during

as

the

leaving

towards members
working

described

without

prior

work
of

plaintiff's

three

months,

without

permission,

the public,

failing to

proper

safety

attire,

and

being involved in a motor vehicle accident with a City truck.
See Ex.
21,

"D" attached to Def.'s Mot.

2013,

(Docket # 45-7).

On Jurie

plaintiff received a Notice of Termination from the

City, outlining at least six additional instances of violations
of standards of conduct and procedure.
Def.'s Mot.

See Ex.

"B" attached to

(Docket# 45-5).

Plaintiff's

lawsuit

contends

that

the

City's

failure

to

provide reasonable accommodations constituted discrimination and
retaliation on the basis of his disability,

in violation of the

ADA,

42 U.S.C.

12112 (b) (1), (3) (A)

and the NYHRL,

York

Executive

Law

§§

296,

et.

and
seq.

(5),
See

Amended

New

Complaint

(Docket # 33).

Discussion

Presently before

the Court are the parties'

for summary judgment under Rule 56 (c)
Civil Procedure,

cross-motions

of the Federal Rules of

each alleging that there is no genuine dispute
6

of material fact between the parties.

Plaintiff claims that the

City's

interactive

failure

engage

to

an

in

process

to

accommodate plaintiff's disability was a violation of the ADA,
entitling

him

to

summary

plaintiff

has

failed

to

judgment.
establish

discrimination by failing to show
(2)

a

request

for

an

Defendant
a

(1)

prima

argues

facie

case

that
of

a cognizable disability,

accommodation,

and

(3)

that

he

was

otherwise qualified to perform his job.

Defendant also contends

that,

prima

even

if

this

finds

Court

discrimination under the ADA,

a

facie

case

of

summary judgment should be granted

to defendant because plaintiff has failed to rebut defendant's
proffered

legitimate

and

reasons

non-discriminatory

for

plaintiff's termination.
Summary judgment is appropriate

Summary Judgment Standard:

where "the movant shows that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law."
standard

Fed. R. Civ. P. 56(c).

provides

that

the

mere

"By its very terms, the

existence

of

some

alleged

factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment;

the requirement

is that there be no genuine issue of material fact."
v. Liberty Lobby,
original) .

Inc., 477 U.S. 242, 247-48 (1986)

Anderson

(emphasis in

A dispute of fact is material "only if it has some

effect on the outcome of the suit."
7

Eagley v.

State Farm Ins.

Co., No. 13-CV-66530,
2015)

(citation

2015 WL 5714402, at *6

and

quotation

omitted).

(W.D.N.Y. Sept.
Moreover,

a

29,

genuine

issue exists as to a material fact "if the evidence is such that
a

reasonable

party."

jury

could

Anderson,

judgment

477

motion,

return

U.S.

courts

at

a

verdict

248.

the

nonmoving

When deciding a

resolve

must

for

all

summary

inferences

and

ambiguities in favor of the party against whom summary judgment
is

sought.

Thompson v.

1990);

Donahue v.

54,

(2d Cir.

57

though,
Elec.

896

Windsor Locks Bd.

F.2d

Of

716,

(2d

Cir.

Comm' rs,

Fire

720

834

F.2d

1987).

The reasonableness of those inferences,

on

depends
Indus.

Gjivoje,

record taken as

Co.

"the
v.

Zenith

Radio

a

whole."

Corp.,

475

Matsushita

U.S.

574,

587

(1986)
The burden of showing the absence of any issue of material
fact rests with the movant.

Celotex Corp.

v.

317,

moving

has

323

(1986)

prima facie

Once

entitlement

the
to

party

summary judgment,

Catrett,

477 U.S.

established

the

its

burden shifts

to the non-moving party to "go beyond the pleadings and by .
affidavits,
and

or by the depositions,

p.dmission

there

is

a

on

file,

genuine

issue

citations omitted).

or

that

for

to

specific

trial."

Put differently,

show that materials
dispute,

designate

answers

Id.

interrogatories,

facts
at

showing
324

(internal

the non-moving party must

cited establish "the presence of a

an

adverse

party
8

that

cannot

produce

genuine

admissible

evidence to support the fact." Fed. R. Civ. P. 56(c)

It is not

enough for the non-movant to present evidence that just raises
doubts;

the

non-movant

must

present

"concrete

evidence

from

which a reasonable juror could return a verdict in his favor."
Anderson,
of

477 U.S.

evidence"

at 256.

to

support

The "mere existence of a scintilla
the

non-moving

party's

claims

is

Id.

at

insufficient to defeat a motion for summary judgment.
252.

In analyzing the merits of a summary judgment motion in the
context of a
granting

discrimination claim,

relief

where

the

assessment of individuals'

"

courts must be cautious

conduct

at

issue

"requires

in
an

motivations and state of mind

Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001).

These

are "matters that call for a sparing use of the summary judgment
device because of juries' special advantages over judges in this
area.

11

(internal

Id.

Nevertheless,

"the

avoiding protracted,

quotations

salutary

purposes

expensive,

and
of

citations
summary

omitted).
judgment

and harassing trials - apply no

less to discrimination cases than to commercial or other areas
of

litigation."

1985) .

Indeed,

discrimination
material fact."
40

(2d Cir.

Meiri

v.

Dacon,

759

F.2d 989,

"summary judgment remains
claims

in

Chambers v.

1994);

cases

lacking

available
genuine

TRM Copy Ct rs.

see also Abdu-Brisson v.
9

998

(2d Cir.
to reject
issues

of

Corp. , 4 3 F. 3d 2 9,
Delta Air Lines,

Inc.,

239 F.3d 456,

that

summary

intensive
this

judgment

context

juncture

finding,"

466

of

of
the

(2d Cir.
may

be

2001) ("It is now beyond cavil

appropriate

even

discrimination cases.") .
case,

the

and not resolution,

Court

is

in

the

fact-

Ultimately,

limited

to

at

"issue-

while keeping "in mind that only

by reference to the substantive law can it be determined whether
a disputed fact is material to the resolution of the dispute."
Gallo v.

Prudential Residential Serv., Ltd.,

22 F.3d 1219,

1224

(2d Cir. 1994) .
Discrimination Under the Americans with Disabilities Act:
The

Americans

employer

from

with

Disabilities

discriminating

("ADA" )

Act

against

an

prohibits

otherwise

qualified
See 42

individual with a disability because of that disability.

u.s.c.

12112 (a) .

§

"discriminate

against

According
a

to

qualified

the

statute,

individual

on

the

an

the

term

basis

of

disability" includes
not making reasonable accommodations to the known
physical
or
mental
limitations
of
an
otherwise
qualified individual with a disability who is an
applicant or employee, unless such covered entity can
demonstrate that the accommodation would impose an
undue hardship on the operation of the business.
42 U.S.C.
It
claims

§

is

12112 (b) (5) (A).
well

brought

established

pursuant

to

that

the

ADA

disability
are

discrimination

evaluated

under

the

burden-shifting paradigm set forth in McDonnell Douglas Corp. v.
10

Green,
~'

411 U.S.
583

792
92,

F.3d

Douglas test

(1973).
96

See McBride v.

(2d

Cir.

to ADA claims)

discrimination

under

the

2009)

869

Bank of N.Y.,

bears

ADA

91 F.3d 379,

prima

facie

(2d Cir.

case

must show that:

of

(applying

1998)
383

the

McDonnell

initial

burden

Ryan v. Grae & Rybicki,
(citing Wernick v.

(2d Cir.

1996))

discrimination under

(1)

the

"A plaintiff alleging employment

establishing a prima facie case."
135 F.3d 867,

BIC Consumer ·prods.

the

of

P.C.,

Fed. Reserve

To establish a
ADA,

a

plaintiff

his employer is subject to the ADA;

(2)

he

is disabled within the meaning of the ADA or perceived to be so
by his

employer;

essential

(3)

functions

accommodation;

ahd

because of his
F.3d 740,

747

its

of
(4)

is

otherwise qualified to perform the

his

job

with

or

a

reasonable

own separate

Giordaho v.

New York,

274

is capable of performihg his

plaintiff

job

accommodation -

the

statute

reasonable

City of

third

To prove a

analysis.

factor

prima facie

"a plaintiff must show that:

disability under the meaning of the ADA;
the

reasonable

(2d Cir. 2001)

accommodation case,

by

without

he suffered an adverse employment action

disability.

Proving that
with a

he

had

notice

accommodation,

functions of the job at issue;
to make such accommodations.'"

[his]

of

[he]

(2)

(4)

perform

reasonable
[he has]

a

the

( 3)

with

essential

the employer has refused

Young v.
11

requires

an employer covered

disability;

could
and

'(1)

-

New York City Dep' t

of

Educ.,

No.

13,

2010)

369

F.3d

09 Civ.

113,
a

burden

articulate

of
a

118

(2d

prima

is

Cir.

facie

of

shifts

legitimate

offered,

2004)).
case

production

challenged actions."
reason

2010 WL 2776835,

at *7

(quoting Rodal v. Anesthesia Grp.

established
"the

6621,

Of Onondaga,

Once

the

disability

to

the

the

returns

P.C.,

plaintiff

has

discrimination,
who

must

reason

for

its

If such a

369 F.3d at 118 n.3.

burden

July

defendant,

nondiscriminatory

Rodal,

(S.D.N.Y.

to

the

plaintiff

to

produce adequate evidence to support a rational finding that the
employer's explanation is false and that, more likely than not,
discrimination

was

the

real

reason

for

the

adverse

action.

McDonnell Douglas, 411 U.S. at 802-04.
Analysis:
stipulate

that

For
the

the

purpose

City

of

of

these

Rochester

motions,

is

parties

"covered

a

all

entity"

under, and is subject to, the ADA, satisfying the first prong of
the McDonnell Douglas test.
l;

Def.' s Mot.

See Pl.'s Mot.

(Docket # 45-3) at 8.

(Docket# 43"1)

at

Defendant also agrees that

plaintiff suffered an adverse employment action at prong four,
namely, his termination.

See Def.'s Mot.

(Docket# 45-3) at 9.

Though the crux of plaintiff's motion for summary judgment
centers
that

on reasonable accommodations,

plaintiff's

shoulder

injury

defendant contends
does

disability under the ADA.

Specifically,

letter

doctor,

from

plaintiff's

12

Dr.

not

qualify

first
as

a

defendant points to a
Peartree,

returning

plaintiff
2012.

to

See

full

Ex.

work

"I"

Defendant

states

submitted

by

with

that

Def.' s

there

is

during

limitations,

Mot.

no

his

on

February

(Docket #

medical

from specific
sent

to

2011,

employment

See Def.'s Mot.

shows

that he was

limitations.

the

City's

45-12) .

documentation
showing

any

(Docket# 45-3)

Plaintiff counters that an earlier letter from Dr.

dated March 11,

14,

or present injuries which would have

restricted his employment.
8.

restrictions

attached to

plaintiff

restrictions,

no

Resources

Peartree

disabled and suffered

Plaintiff argues

Human

at

that this

Department,

letter,

constituted

a

request for an accommodation such that the City was required to
engage

in

an

accommodation

"interactive
that

further

letter

to

11

would

allow

(Docket#

43-2)

at

constitutes

a

find

plaintiff

See Pl.'s Mot.
either

process

counters

that

2-3.

request

regardless,

to

a

reasonable

Continue

working.

Defendant denies

that

accommodations,

and

for

plaintiff

has

failed

to

demonstrate that he was otherwise qualified to perform his job.
See

Def.'s

argues

Mot.

(Docket

that

plaintiff

between his

employment

he

the

rebutted

City's

#

has

at

12-13.

not

shown

any

Defendant
causal

proffered

legitimate

finally

relationship

termination and his disability,

reason for his termination.
Plaintiff's

45-3)

nor has

non-discriminatory

Id. at 8-12.

Disability Under

the ADA:

A disability

is

a

"physical or mental impairment that substantially limits one or
13

more

of

U.S.C.
a

the

major

life

12102(1) (A)

§

activities

the ADA,

approach taken by the Supreme
624,

630

New York,
consider

(1998).

287

F.3d

whether

impairment.
claimed
"major

be

life

and

be

seeing,

(2d

in Bragdon v.

plaintiff

2002).
a

must

establish

Id.

Major

§

and

it

importance

1630 .2 (i) (2).

Third,

"substantially

the

life.

111

is

the

major

life

include,

2008

shall not
a

'major

29

activity

C.F.R.

previously

"Whether an impairment substantially limits a

activity

determined

by

severity of the impairment;
and
v.

(3)

considering:
(2)

( 1)

the

nature

Brighton,

(citing 29 C.F.R.

§

732

F.

life
and

the duration of the impairment;

the impairment's permanent or long-term impact."

Town of

§

impairment

identified.
is

a

to whether it is

plaintiff must show that his

limits"

activity

The

the term "major"

daily

mental

communicating,

"[w] hether an activity

to

must

constitutes

1630.2 (i) (1) (i).

is not determined by reference

we

or

activities

lifting,

524

Of City of

physical

that

life

walking,

C.F.R.

Abbott,

First,

identify

and

29

construed,

'central

42

three-step

Board of Educ.

from

to the ADA specifies that

strictly

individual."

we apply the

Cir.

suffers

sleeping,

See

life activity'
of

147

plaintiff

impaired

working.

amendment

138,

activity."

inter alia,

Court

See Weixel v.

Second,

to

[an]

In determining whether an individual has

disability for purposes of

U.S.

of

Supp.

1630.2(j)).
14

2d 263,

278

(W.D.N.Y.

Lundy
2010)

Plaintiff suffered consecutive shoulder injuries during his
employment,

resulting in two surgeries and subsequent leaves of

employment for considerable portions of

2010 and 2011.

While

some of plaintiff's injuries seem to have healed over time and
with surgery,

plaintiff alleges ongoing issues that render him

disabled under the terms of the ADA.

The Court finds it helpful

to discuss plaintiff's injuries

in two distinct

The

the

first

employment
2012,

period
with

the

dates

from

City -

beginning

September 2006

time periods:
of

plaintiff's

through January 5,

the day before plaintiff returned to work from his last

documented leave.

This

first

period includes plaintiff's two

The second period commences on January 6,

shoulder surgeries.

2012, when plaintiff returned to work, and ends with plaintiff's
termination on June 21, 2013.
During

the

first

time

period,

plaintiff

tore

his

left

shoulder in 2008 which was operated on in 2009, and then injured
his right shoulder in 2010 and had surgery on that shoulder in
January 2011.

See Ex.

at 8;

attached to Def.'s Mot.

Ex.

"N"

Plaintiff's physician,
the

City's

Human

"B" attached to Pl.' s Mot.

Dr.

discussing plaintiff's

(Docket # 45-17)

Paul Peartree,

Resources

Department

limitations.

(Docket # 43)

Dr.

at 7.

submitted a letter to
on

March

Peartree

16,

2011,

stated that

"repetitive heavy lifting has led to bilateral shoulder injuries
that have required surgery."

Dr. Peartree opined that plaintiff
15

would
likely
have
some
ongoing
restrictions
with
his
shoulders.
It
is my recommendation that he be
transferred to a different department or position that
does not require repetitive heavy use of his arms.
He
should be able to lift up to 20 pounds continuously
below shoulder level, up to 25 pounds occasionally,
and rarely 50 pounds of over.
Ex.

Aside
medical

from

Medical

this

evidence

A January 20,

to

(Docket # 43).

"A" attached to Pl. 's Mot.
letter,

the

record

contains

the

nature

of

illuminating

2011 assessment

little

Molina's

other

injuries.

from the university of Rochester

Center deferred judgment on whether plaintiff was able

perform

the

restriction to Dr.
(Docket # 49-2)

functions

essential

of

his

job

without

See Def.'s Post-Hearing Submission

Peartree.

at 3.

The assessment diagnosed right shoulder

strain and noted that

plaintiff would be following up with Dr.

Peartree, but indicated no restrictions or limitations.
Thus,
asserts a

Id.

it is based on a very limited record that plaintiff
There

disability under the ADA.
shoulder

injury

is no dispute that

plaintiff's

right

impairment.

He had surgery on both shoulders and testified at

his deposition that he suffers
to

perform

heavy

lifting,

such as pull ups,
to

Def.'s

opinion

Mot.

qualifies

restricted

#

certain

45-17)

plaintiff

a

physical

from ongoing pain and is unable
types

or heavy manual labor.
(Docket

as

at

12,

considerably,
16

of

physical

See Ex.
18.

"N"

Dr.

including

training
attached

Peartree' s
no

heavy

repetitive lifting,

occasional lifting up to twenty-five pounds

and rare lifting over fifty pounds.

Importantly,

Paul Holahan,

the Commissioner of the Department of Environmental Services for
the City of Rochester during plaintiff's employment,

testified

at his deposition that there is no job in Environmental Services
that could be performed by someone permanently needing the type
of

restrictions

contemplated

attached to Def.'s Mot.

by

Dr.

Peartree.

(Docket# 45-13)

at

work.

that

3-4

That's not reasonable accommodation

people

See

light .

can't

work

in

that

"J

11

("It's heavy
can't have

[I]

department.

Ex.

That's

just

too

to

the

. 10 pounds . " ) .

Viewing
plaintiff,

the

I

find

record

in

that

a

a

light

most

reasonable

jury

favorable
could

find

Molina

disabled under the ADA during the period before January 5, 2012,
and thus defendant is not entitled to summary judgment on this
ground.

Based

on

the

lifting

limitations

imposed

by

Dr.

Peartree, plaintiff was substantially limited in his ability to
lift,

and

according

to

limitation

prevented

plaintiff

Environmental Services.

the

head
from

Indeed,

of

his

department,

performing

any

job

unable

to work. 4

4

in

plaintiff was out of work on

Worker's Compensation from January 20, 2011 to January 6,
indicating that he was

that

Plaintiff's

2012,

shoulder

The Court recognizes that the standard for determining
occupational injury under NYS Worker's Compensation Law is
17

injury substantially limited his ability to work.
Town of Islip, No. 12-CV-2984,
Sept.
to

22,

2014)

("[T]o show substantial
the

'significantly
class

of

786

F.

to

ADA

a

restricted

jobs or a

compared
skills,

2014 WL 4700227, at *10

under

work]

the

2d

the

broad range

and abilities.'")
Supp.

plaintiff

in

average

588,

See Morris v.

limitation

must

ability
of

person

jobs

[in ability

prove

to

that

perform

in various

having

(E.D.N.Y.

he

either

classes

comparable

is
a
as

training,

(quoting McDonald v. City of New York,
609

(E.D.N.Y.

2011)

and

29

C.F.R.

§

1630.2(j) (3) (i)).
However,
returned

to

plaintiff's
work

Compensation leave.

on

disability

January

Def.'s

Post-Hearing

2012

changed

from

his

when

he

Worker's

His return was accompanied by a disability

status report completed by Dr.
returning plaintiff

6,

status

to

Peartree dated January 5,

"Regular work

Submission

/

no

(Docket

#

restrictions."
49-2)

at

9.

2012,
See
An

accompanying "physical abilities summary" completed by RN Samuel
Cappiello

noted

minimal

limitations,

including

never

lifting

different from the standard to find disability under the ADA.
The Court only notes plaintiff's Worker's Compensation leave as
one factor contributing to its assessment of his disability, not
as disposi ti ve of that issue.
See EEOC Enforcement Guidance:
Worker's Compensation and the ADA, EEOC Notice Number 915. 002,
July 6, 2000; cf. Williams v. Salvation Army, 108 F. Supp. 2d
303, 312 at n.9 (S.D.N.Y. 2000) (finding estoppel inappropriate
where plaintiff was
denied Worker's
Compensation and then
claimed disability under the ADA, stating "the prior worker's
compensation determination does not entirely resolve the issue
of disability discrimination raised here").
18

over sixty pounds or crawling.

Id.

at 10.

A "return to work

evaluation" completed at Concentra Medical Centers on January 5,
2012 with an illegible doctor's signature states that plaintiff
has no restrictions and no complaints, "full range of motion and
strength of right shoulder, no limitations."
Dr.

Id. at 11.

Peartree supplemented these evaluations with a

dated February 14, 2012.

letter

In his letter Dr. Peartree stated:

Mr. Molina has been a patient of mine for the past 2
years
for bilateral shoulder problems.
He has
undergone surgical procedures on both shoulders.
He
continues to have pain primarily when working in the
recycling department due to repetitive lifting.
He has requested return to work without restriction,
anticipating a transfer to another department, but has
continued pain in the shoulders after being placed
back in his original position.
My recommendation
would be that he be transferred to a different
department within the city of Rochester.
There are no specific restrictions but he will
continue to have issues with his shoulders working in
his current department, and I think it would be in the
best interest of both parties to make this transfer.
Ex.

"B" attached to Pl.'s Mot.

(Docket# 43)

A straightforward

reading of these medical records shows that plaintiff no longer
had the same limitations to his ability to lift and work that he
had in 2011. 5

5

At oral argument, plaintiff's counsel argued that the Court
should disregard Dr. Peartree' s opinion that Mr. Molina had no
restrictions because he was trying to satisfy plaintiff's need
to return to work since his Worker's Compensation had run out.
Counsel asked the Court to make such an assumption based on a
November 28, 2011 letter from the City stating that plaintiff
19

This
record,

assessment

including

is

the

consistent

deposition

with other

testimony

of

evidence
Thomas

in

the

Belknap,

plaintiff's supervisor:
Unless [a light duty request form] was filled out
and considering the evaluation in [the return to work
evaluation from Concentra] on January 5, 2012, would
[plaintiff]
have
been
eligible
for
a
light-duty
assignment?
Q:

A: No.

Q: Why is that?
A: Because his doctor gave him no restrictions.
A
light duty-assignment is a limited time and a limited
number of people for limited ability for
for our
employees.
We' re trying to get the employee back to
work to a full-duty status.
Rick's doctor's statement
there says that he has no restrictions.
He would
never have been offered a light duty assignment.
Ex.

"K" attached to Def.'s Mot.

added).
the City,

Similarly,

(Docket# 45-14)

Theodore Maxey,

testified that Dr.

at 12

assistant superintendent for

Peartree's letter cleared plaintiff

from his injury and returned him to full-duty work.
attached

to

Def.'s

Mot.

(Docket

#

45-15)

at

plaintiff's contentions that he was disabled,
clear

that

plaintiff

was

returned

motion and no restrictions.

(emphasis

to

work

7.

See Ex.

Contrary

''L"

to

the record here is
with

See McDonald v.

full

range

of

City of New York,

had to return to "work at a regular duty assignment on or before
January 7, 2012, [or else he would] be removed from the City"
payroll.
Pl.' s First Mot. for Summ. J. (Docket # 23) at 27.
However, the Court will not draw such assumptions or conclusions
without some admissible evidence on the record.
None is present
here.
20

786

F.

Supp.

2d

588,

608

(E.D.N.Y.

2011)

( "These

vague

and

ambiguous descriptions by plaintiff of his limitations,

coupled

with

by

the

doctor

record

to

finding

walk

evidence
up

a

by

to

that

three

rational

plaintiff

miles

per

was
day

factfinder

cleared
cannot

his

support

plaintiff

that

a

was

substantially limited in the major life activities of walking or
standing.");
6187-CJS,

see also DeMarco v.

2009

WL

656337,

CooperVision,

at

*12

(W.D.N.Y.

("'Plaintiff's mere allegation that she was
supporting medical evidence,

Inc.,

No.

06-CV-

Mar.

11,

2009)

'disabled, '

without

is insufficient to create a genuine

issue as to whether she was substantially limited in any major
life

activity.'"

Office
2014)

of Mental

(citation
Health,

18

omitted));
Supp.

F.

Croons
3d 193,

v.

N.Y.

211-12

State

(N.D.N.Y.

(finding no disability where "examining physicians cleared

plaintiff

to

return

to

work

'immediately'

provided

he

limited

the weight he lifted with his right shoulder and stayed out of
an

environment

people") .

where

Because

there

whether plaintiff was
January 6,
as

to

three

2012,

this
of

he

is

have
no

interactions

genuine

factual

with

violent

dispute

as

to

disabled following his return to work on

I grant defendant's motion for summary judgment

time period.

the

may

McDonnell

Accordingly,
Douglas

the Court turns

analysis

only

for

the

to step
period

prior to January 6, 2012.
Request

for

Reasonable

Accommodation:
21

Having

found

that

Molina

was

suffering

from

a

period prior to January 6,

disability under

2012,

the

ADA

for

the

the Court next assesses whether

plaintiff was able to perform the essential functions of his job
with

an

appropriate

accommodation.

reasonable accommodation case,
[he

has]

a

disability

under

a

prove

meaning

of

employer covered by

the

(3)

accommodation,
of

issue;

essential
has

functions

refused to make

the

had notice

job at

Here,

the

parties

dispute

accommodation was ever made.
Peartree's letters were

requests

Defendant

responds

accommodation,
to a

an

disability;

could perform the
( 4)

the

employer

Anesthesia

(2d Cir. 2004).
a

request

for

an

2011 and February 14,
which

letters

were

anything were requests

the

City

not

ignored.

requests

to be

2012

for

transferred

different department which is not an accommodation but is

instead a
3)

and if

the

his

(2)

"(1)

Plaintiff argues that both of Dr.

accommodation

that

ADA;

Rodal v.

whether

dated March 16,

for

facie

show that

of

and

such accommodations."

Grp. Of Onondaga, P.C., 369 F.3d 113, 118

prima

the

plaintiff

with reasonable

a

plaintiff must

the

statute

To

at

9.

"wholly different job."
Even

accommodation,

if

Dr.

See Def.'s Mot.

Peartree' s

letters

(Docket# 45-

were

requests

plaintiff must also show that he was able,

or without accommodation,

for
with

to perform the essential functions of

the job.
"Generally,

'it

is

the

responsibility
22

of

the

individual

with a disability to inform the employer that an accommodation
is needed.'"
Cir.

2006)

However,
is

not

Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d
(quoting

29

C.F.R.

pt.

1630,

app.

at

363

(2003)).

the notice requirement for a request for accommodation
a

heavy burden.

"Because defendants

possess

superior

access to information regarding their own facilities
are

typically

plaintiff's

in

a

position

proposal

prove otherwise."

as

far

more

unreasonable

Roberts

v.

easily

than

is

to

a

Royal Atlantic

. they
refute

plaintiff

Corp.,

a
to

542

F. 3d

that

Dr.

363, 371 (2d Cir. 2008).
Based

on

the

record

Peartree's March 11,
City on notice
letter,

sent

clearly

an

of

to

before

Court,

I

find

2011 letter sufficiently put the defendant
plaintiff's

the

alert

the

to

City's
the

work-related
Human

City

limitations.

Resources

regarding

Department,

plaintiff's

The
is

physical

limitations.

The letter also contains a request for transfer,

which

can be

considered a

law.

See 42 U.S.C.

§

reasonable

12111(9)(B).

accommodation under

the

The City has not proffered

evidence regarding a standard process for an employee to request
reasonable accommodations. 6

6

Perhaps Dr.

Peartree' s

letter was

Indeed, deposition testimony from Paul Holahan, Commissioner of
the Department of Environmental Services, shows confusion over
what the proper mechanism for requesting an accommodation would
have been.
Holahan testified "hopefully somebody would have
directed him.
If - if there was a process to get started, this
[letter] could, you know, have started the process, but .
. I
23

not sufficient, by itself, to constitute a formal request for an
accommodation; nor was the City necessarily obliged to take the
letter as a

final determination that plaintiff was disabled or

did in fact need accommodation.

But the letter indisputably put

the City on notice such that they had a duty under the ADA to
investigate further,
City

of

North

3352046

which they did not do.

Tonawanda,

(W.D.N.Y.

Mar.

No.

21,

See Mineweaser v.
2016

14-CV-00144-RJA-JJM,

2016)

(finding plaintiff's

WL

written

letter a request for accommodation, though it was reasonable for
the

defendant

to

request

additional

documentation in order to complete a
Graves

v.

Finch

plaintiff's

Pruyn

verbal

&

Co.,

request

457

for

paperwork

and

formal request) ;
F.3d at

unpaid

185

leave

medical
see also

(finding

that

constituted

a

request for an accommodation such that it triggered a duty on
the

part

of

the

employer

"to

investigate

that

request

and

not

complete

the

determine its feasibility").
Satisfying
Court's

the

analysis

test, however.
accommodate,
production

notice

at

the

requirement

does

third prong of

the McDonnell Douglas

Where it is alleged that there was a failure to
"the

and

plaintiff

persuasion

'bears
as

accommodation that would allow
employment.'"

to
[him]

the
the

burdens

of

both

existence

of

some

to perform the

essential

McMillan v. City of New York,

functions of

[his]

don't know."

Ex. "C" attached to Pl.'s Mot.
24

(Docket# 43).

711

F.3d

120,

126

Consumer Prods.,
is

not

heavy:

(2d

Cir.

583 F.3d 92,

'It

96

enough

(2d Cir.

for

McBride

2009))

do not clearly exceed its benefits.'"
(quoting Borkowski v.

F.3d 131, 138

Despite
2011

meet

requests

Though a
a

his

letter is a

department.

of

the

which,

McMillan,

711

School Dist.,

63

no difficulty in finding that plaintiff has
burden

plaintiff's

vaguely

suggest

costs

Valley Cent.

BIC

(2d Cir. 1995)).

Court has
to

the

to

facially,

failed

accommodation,

v.

"This burden

the plaintiff

of

The

plausible

(quoting

existence

F.3d at 127

a

is

2013)

here,

insistence

however

that

Dr.

light

See Ex.

plaintiff
"A"

be

may

be.

March

Peartree's

request for an accommodation,
that

it

11,

the letter only

transferred

to

a

different

(Docket # 43) .

attached to Pl. 's Mot.

request to transfer or be reassigned can be considered

reasonable

maintains

accommodation

the

burden

to

under

establish

the

law,

"that

plaintiff

there

was

a

still
vacant

position into which he could have been transferred pursuant to
then-existing

civil

service

performed."

Jackan v.

562,

(2d

566-67

Cir.

rules

whose

duties

New York State Dept.
2000)

("a

plaintiff

he

could

of Labor,
seeking

to

have

205 F.3d
hold

the

employer liable for failing to transfer her to a vacant position
as a

reasonable accommodation must demonstrate that there was a

vacant

position

(agreeing

with

into
the

which

3d,

7th,

she

might

11th,
25

and

have
D.C.

been

transferred")

Circuits

on

this

point) .
The evidence in the current record supports a finding that
an accommodation was not possible.

For instance, Paul Holahan,

the

of

Commissioner of

testified that

the

Department

"there's no

Environmental

job in environmental

Services,

services that

could have permanent restrictions" such as the ones suggested in
Dr.
and

Peartree's letter
twenty-five

Def.' s Mot.

(lifting only up to ten pounds frequently

pounds

occasionally) .

(Docket # 45-13) at 4.

Ex.

"J"

attached

to

Defendant asserts that "all

tasks of an EOS I were identical and only varied on a day to day
basis," and thus plaintiff could not have been given permanent
lighter duty within his position.
5-6.

Aside

from

Dr.

Peartree's

plaintiff has provided the

Def.'s Resp.
letter

(Docket# 48) at

requesting

Court with no guidance as

transfer,
to what

accommodation would allow plaintiff to continue working,
what position plaintiff is qualified to be transferred. 7

or to
On this

point, plaintiff's "evidence" consists of one internet print-out

7

Moreover, at the time that Dr. Peartree sent his first letter,
plaintiff was out on Worker's Compensation, presumably because
he was unable to work.
" [W] here an employee concedes that he is
unable to work at all, he is per se unable to perform the
essential functions of his position." Daley v. Cablevision sys.
Corp., No. 12-CV-6316 (NSR), 2016 WL 880203, at *5 (S.D.N.Y.
Mar. 7, 2016), aff'd, No. 16-991, 2017 WL 506977 (2d Cir. Feb.
6, 2017) (citations omitted); see also Piccolo v. Wal-Mart, No.
ll-CV-406S, 2012 WL 1965440, at *8 (W.D.N.Y. May 31, 2012)
(medical evidence showed that plaintiff suffered from a "total
disability" which "would have simply excluded him from the
position entirely").
26

page

listing

including,

departments

inter alia,

the

within

"Chief of Staff,"

(Docket#

43).

Rochester,

"About the Department

of Finance," and "Assistant to the Mayor."
Pl.'s Mot.

of

City

Ex.

"G" attached to

It is unclear what plaintiff even

suggests with this exhibit,

but it certainly does not meet the

burden born by him to identify accommodations or other actual
jobs

that

he

is

qualified

to perform.

In short,

the

City's

failure to engage in an interactive process does not alone form
the

basis

of

an

accommodation

ADA

was

claim

in

the

possible.

absence
McBride

See

of
v.

evidence
BIC

that

Consumer

Products Mfg., 583 F.3d at 100 ("the ADA imposes liability fo:t .
discriminatory
accommodation,

not

accommodations
possible")

refusal
mere

where,

in

undertake

end,

the

feasible

explore

possible

no

refusal

a

to

to

accommodation

was

(agreeing with every other circuit as to this point);

see also Sheng v. M&T Bank Corp., 848 F.3d 78, 87 (2d Cir. 2017)
("The regulations implementing the ADA are consistent with our
view

that

a

failure

to

engage

in

a

good

faith

interactive

process is not an independent violation of the ADA.").
Because plaintiff has failed to show the existence of any
accommodation that would make him qualified to perform his job,
defendant's

motion

for

summary

judgment

is

granted

and

plaintiff's motion for summary judgment is denied.
Reasons

for

Termination:

Even
27

assuming,

arguendo,

that

plaintiff could establish a prima facie case of discrimination,
there

is

an

additional

reason

why

the

City

is

entitled

to

summary judgment, namely that no reasonable juror could dispute
that the defendant has proffered legitimate, non-discriminatory,
non-pretextual

reasons

for plaintiff's termination.

"must offer through the

Defendant

introduction of admissible evidence a

non-discriminatory reason for their actions that,

if believed by

the

that

trier

of

discrimination
action.

fact,
was

not

Heyman v.

11

would
a

support
cause

of

a

finding
the

Queens Village Comm.

disputed

unlawful
employment

For Mental Health for

Jamaica Comm. Adolescent Program, Inc., 198 F.3d 68, 72
1999).

"The defendant's burden is

[]

(2d Cir.

The employer need

light.

not persuade the court that it was motivated by the reason it
provides; rather, it must simply articulate an explanation that,
if

true,

would connote lawful behavior."

Hilton Hotel,

143 F.3d 47, 52

Greenway v.

(2d Cir. 1998).

Buffalo

If the defendant

provides such a reason, the presumption of discrimination "drops
out of the picture."
to the plaintiff to
persuasion

that

the

Id.

The ultimate burden then shifts back

"produce evidence and carry the burden of
proffered

intentional discrimination.

reason

Sista v.

is

a

pretext"

for

CDC Ixis North America,

Inc., 445 F.3d 161, 169 (2d Cir. 2006).
This record pays tribute to a finding that the reason for
plaintiff's termination was his poor performance and misconduct
28

at work.

Plaintiff has a long history of misconduct on the job

beginning

in

working

for

(Docket

#

misconduct,
absences

City.

See

A

Paul

profane

equipment,
involving a

than

Ex.

Holahan

to

language
and

to

October

26,

(1)

(5)

he

on

the

job,
to

Mot.

2012

from

Manager

Operations

Karen

2012

and

faulty work performance,

(2)

rudeness

28,

standards,

toward members

failure

( 8)

report a

See Ex.

"D"

to

(7)

wear

motor vehicle

during

a

when asked why he
appointment

at

process

something to eat?

(Docket# 45-8).

left work at 1:07 p.m.

3:30
I

p.m.,
don't

plaintiff

few of

meeting,

suspended for

to attend a

responded

(Docket # 45-9).
2013,

See Ex.

"F"

See

doctor's

"can

know where Penfield is."

ten days.

but

For instance,

Based on this string of disciplinary issues in 2012,
was

use

attached to Def. 's Mot.

documented due

"E" attached to Def.'s Mot.

of

safety

largely failed to rebut the claims of his poor performance.

Ex.

( 4)

accident

Plaintiff provided some insight into a

incidences

began

Def.' s

to obey orders of supervisors,

City vehicle.

(Docket # 45-7).

attached

of various workplace

failure

(9)

after

"C"

Refuse

authorization,
refusal

(6)

year

instances between August

violations

(3)

one

dated

letter

2012 of plaintiff's

without

the public,

these

less

outlines numerous

October 22,

of

the

2007,

45-6)

Commissioner
Simoni

July

Id.

I

get
at 4.

plaintiff

attached Def. 's Mot.

Plaintiff's termination letter dated June 21,

outlines additional

instances of
29

insubordination,

failure

to perform his job adequately, and leaving work early.
"B"

attached

defendant

to

has

Def.'s

Mot.

#

(Docket

provided sufficient

45-5) .

evidence of

See Ex.

In

short,

legitimate non-

discriminatory reasons for terminating plaintiff.
Given

the

misconduct,

the

extensive
burden

record

shifts

to

of

Molina's

plaintiff

to

job
show

related
that

the

reasons given by the City for terminating him are pretext for
discrimination.
disciplinary

Plaintiff

history

and

offers

points

no

to

explanation

no

admissible

for

his

evidence

suggesting that misconduct never occurred or was misunderstood.
Because

plaintiff's

discriminatory
employment,

own

misconduct

justification

for

was

itself

his

a

termination

2005)

nonfrom

summary judgment in favor of the City is warranted.

See Jackson v. Nor Loch Manor Healthcare Facility,
2d 633,

valid

636

(W.D.N.Y.

2004),

297 F. Supp.

aff'd, 134 Fed. App'x 477

(2d Cir.

(granting summary judgment where plaintiff failed to show

that defendant's reason for termination was pretextual,
• [c] ertainly,

stating

an employer is entitled to discharge an employee

who fails to follow company rules and fails to appear for work
without notification");
Of Co-op Educ.

Sys.,

see also Gaidasz v.

791 F.

Supp.

2d 332,

Genesee Valley Bd.
337

(W.D.N. Y.

2011)

(granting summary judgment to defendant where plaintiff failed
to

rebut

defendant's

reasons

for

adverse

employment

action -

plaintiff's poor attitude, lack of cooperation, failure to abide
30

by

standard

safety

failure

procedures,

to

achieve

expected

productivity, and inappropriate use of work time); Brown v.
Pension Boards,
failed

to

488 F.

demonstrate

Supp.

2d 395

defendant's

(S.D.N.Y.
reason

2007)

for

The

(plaintiff

termination

violation of company policy - was pretextual)
Retaliation Claim Under the ADA: Under the McDonnell Douglas
burden shifting framework,
the ADA,

in order to prove retaliation under

plaintiff must first

retaliation
protected

by
by

showing
the

ADA;

"that

establish a prima facie case of
1)

the

2)

he

engaged

employer

in

was

an

aware

activity
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."

Treglia v. Town of

Manlius,

Once plaintiff has

313 F.3d 713,

719

(2d Cir.

made out a prima facie case,
to

articulate

a

"the burden shifts to the defendant

legitimate,

non-retaliatory

challenged employment decision."
must

then

show that

this

2002).

Id.

at

reason

Id.

the

Then plaintiff

721.

non-retaliatory reason

pretext for impermissible retaliation."

for

"is merely a

(citation omitted)

Based on plaintiff's failure to rebut defendant's proffered
reason for his termination,

his retaliation claim is denied and

summary judgment is granted to the defendant.

See Widomski v.

State University of New York (SUNY) at Orange, 748 F.3d 471, 476
(2d

Cir.

2014)

(affirming

summary
31

judgment

for

defendant

on

retaliation claim where

plaintiff

evidence of pretext);

Daley v.

991,

at

2017 WL

summary

506977,

judgment

plaintiff

failed

establish

that

in

*l

(2d Cir.

"present

[defendant's

to provide

Cablevision Sys.

retaliation

to

failed

Feb.

claim

"evidence

6,

Corp.,
2017)

under
that

competent
16-

(affirming

the

ADA

could

non-discriminatory]

No.

where

reasonably

reasons

were

pretextual") .
Discrimination under the

New York Human .Rights

Law:

In

discrimination and retaliation claims brought under the New York
Human Rights

Laws,

federal

courts

See Graves v. Finch Pruyn & Co., 457

burden-shifting framework.
F.3d 181, 184 n.3
of

plaintiff's

analysis

under

(2d Cir. 2006).

NYHRL
the

claim
ADA,

apply the McDonnell Douglas

is

the

Because the Court's analysis

substantially
defendant's

the

motion

same 8
for

as

its

summary

judgment on the NYHRL claim is granted for the same reasons as
set forth in the Court's analysis of the federal claims.

Conclusion

For

8

the

reasons

stated

above,

plaintiff's

motion

for

The Court notes that the NYHRL defines "disability" more
broadly than does the ADA.
See Treglia v. Town of Manlius, 313
F.3d 713, 723-24 (2d Cir. 2002); Weissman v. Dawn Joy Fashions,
Inc., 214 F.3d 224, 233 (2d Cir. 2000) (per curiam).
However,
this does not alter the Court's assessment of reasonable
accommodations under the McDonnell Douglas test, nor does it
affect the fact that plaintiff has failed to rebut defendant's
proffered non-discriminatory reason for plaintiff's termination.
32

summary judgment

(Docket # 43)

for summary judgment

is denied, and defendant's motion

(Docket # 45)

dismissed with prejudice.

The

is granted.

Clerk of

Court

This action is
is directed to

enter a judgment for defendant accordingly.

W. FELDMAN
d States Magistrate Judge

Dated:

March 30, 2017
Rochester, New York

33