Opinion
03 Civ. 9783 (PAC).
October 27, 2005
OPINION ORDER
Plaintiff Arturo Batac brings this action against his former employer, Pavarini Construction Co., claiming that he was discriminated against and unfairly terminated because of his disability, a heart attack, in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq. Defendant now moves for summary judgment on three grounds: (1) Plaintiff is not disabled under the ADA; (2) Plaintiff has not met his burden of establishing that Defendant's legitimate, nondiscriminatory reason for terminating Plaintiff — poor performance — is merely a pretext; and (3) Defendant has provided sufficient evidence to rebut any claims of pretext that Plaintiff has established. The Court finds that Plaintiff is not disabled within the meaning the ADA and implementing regulations. Accordingly, it grants Defendant's motion for summary judgment without considering Defendant's second and third grounds for summary judgment.
I. BACKGROUND
The facts of this case are easily summarized and are not in dispute. Defendant Pavarini Construction Company ("Pavarini") hired Plaintiff Arturo Batac ("Batac") as a Senior Estimator in September 2000. (Pl.'s Opp'n to Def.'s Mot'n for Summ. J. ("Pl.'s Opp'n") ¶ 2 Ex. 1.) Batac's job was to prepare estimates in connection with bids for construction projects. (McGovern Aff. ¶ 2.) Batac worked in this capacity until his termination on February 16, 2001.
On December 7, 2000, Batac suffered a heart attack. (Pl.'s Opp'n ¶ 4 Ex. 2.). Batac underwent coronary artery stenting and was hospitalized until December 12, 2005. (Id.) Batac's recuperation was brief, and he returned to work full time on December 18, 2000. (Id. ¶ 6.) Upon his return to work, Batac was assigned the role of Lead Estimator on the North Pier project, a bid worth approximately $49 million. (Pl.'s Opp'n ¶ 25.)
Batac claims that after his heart attack, he asked his supervisor, Mr. McGovern, to let him work from home for a couple of weeks while recuperating, per his doctor's orders. (Compl. ¶ 8; Pl.'s Opp'n ¶¶ 5 6.) Batac claims that Mr. McGovern denied this request to work from home and told him that he needed to return to work, and this is why he returned so quickly, even though he was not fully recovered. (Compl. ¶ 8; Pl.'s Opp'n ¶ 6 9.).
Prior to his termination, Batac missed work on a few occasions due to his health condition. In addition to his medical check-ups, Defendant had an attack of bronchitis in January 2001, which required antibiotics and rest. On February 6 and February 7, 2001, Defendant was again hospitalized due to fever and dehydration. Other than these absences, however, Batac admitted under oath at his December 22, 2004 deposition that his heart attack did not impair his ability to do his job. (Pl.'s Dep. 109:11-110:9.) He did not have difficulty breathing, walking, eating, talking on the phone or with colleagues, sitting, standing, reading, hearing, or doing any other major life activity. (Pl.'s Dep. 111:3-113:2.)
Batac did state that after his heart attack he began taking multiple medications, some of which make him dizzy. (Pl.'s Dep. 113:3-114:23.) Batac explained, however, that the dizziness lasted approximately 30 minutes to an hour (Pl.'s Dep. 114:19), and then subsided, at which time Batac was able to perform all major life activities and all essential functions of his job "with care." (Pl.'s Dep. 114:24-115:2; Pl.'s Resp. to Def.'s Interrogs. # 8 9.). Subsequently, after Defendant filed its motion for summary judgment, Plaintiff then asserted that his functioning was impaired by his heart attack, stating that he "could not work for long hours, always felt dizzy, [was] not able to sit for a long period of time and [was] on constant diet watch." (Pl.'s Opp'n ¶ 7.) Despite these limitations, Plaintiff has continued to work as an Estimator since his termination, though with smaller companies (October 7, 2005 Oral Argument).
Defendant cites poor job performance as the reason for Plaintiff's termination on February 16, 2001. Plaintiff, on the other hand, claims that his termination is a direct result of his heart attack, in violation of the ADA. On February 26, 2001, Plaintiff filed a Charge alleging discrimination with the New York State Division of Human Rights and, on July 17, 2003, Plaintiff filed a Charge with the Equal Employment Opportunity Commission ("EEOC"). The EEOC issued a Right to Sue Letter on November 11, 2003. Pursuant to the EEOC's letter, Plaintiff filed his action with this Court on December 10, 2003. After an extended period of discovery, on July 28, 2005, Defendant filed its motion for summary judgment.
I. DISCUSSION
A. Standard for Granting Summary Judgment
Summary judgment may be granted only where there is no genuine issue of material fact. Fed.R.Civ.P. 56©. The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (quoting Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). If the moving party establishes the absence of a genuine issue of material fact, "a limited burden of production shifts to the nonmovant, who must `demonstrate more than some metaphysical doubt as to the material facts,' and come forward with `specific facts showing that there is a genuine issue for trial.'" Id. (quoting Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)). If the nonmoving party fails to establish a genuine issue of material fact, summary judgment should be granted. Id.
In determining whether a genuine issue of material fact exists, the Court must examine all evidence in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (2002); Make the Road by Walking, Inc. v. Turner, 378 F.3d 133, 142 (2d Cir. 2004); Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003); Hayut v. State Univ. of New York, 352 F.3d 733, 743 (2d Cir. 2003); Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 253-54 (2d Cir. 2002);Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000);Helfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999);Hemphill v. Schott, 141 F.3d 412, 415 (2d Cir. 1998); Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir. 1997). A material fact is disputed "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248. Consequently, summary judgment on an issue of fact is not appropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the nonmoving party." Lucente, 310 F.3d at 254.
While summary judgment is available to defendants in discrimination cases, see Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001); Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir. 2000), its use is limited to situations in which there is a complete lack of evidence in support of the plaintiff's position, or the evidence is so overwhelming slanted in favor of the defendant "that any contrary finding would constitute clear error." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998). Normally there are factual questions pertaining to the employer's intent and state of mind. See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). But "[c]onclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Niagara Mohawk Power Corp. v. Jones Chemical, Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quotingKerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)). Thus, a pro se plaintiff's bare allegations, without more, are not sufficient to withstand a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Peralta v. Rockefeller Univ., 04 Civ. 1278 (AKH), 2005 WL 1294828, at *2 (S.D.N.Y. May 27, 2005).
Furthermore, when an employment discrimination claim is rooted in the ADA, plaintiff must prove that he is "disabled" as defined under the ADA as part of his prima facie case. See Reeves v. Johnson Controls World Servs., 140 F.3d 144, 149-50 (2d Cir. 1998); Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997). Whether a plaintiff is disabled is a threshold question, which the trier of fact must determine before it may examine the employer's intent and state of mind. See 42 U.S.C. § 12112(a) (protecting employees from discrimination " because of [their] disability" (emphasis added)); Reeves, 140 F.3d 149-50; Stone, 118 F.3d at 96; Baerga v. Hosp. for Special Surgery, No. 97 Civ. 0230 (DAB), 2003 WL 22251294, at *2 (S.D.N.Y. Sept. 30, 2003). Thus, if no reasonable jury could find that the plaintiff is disabled under the ADA, the Court must grant summary judgment for the defendant, without considering whether there are factual questions as to discrimination or pretext.
B. Americans with Disabilities Act
The crux of Plaintiff's case is that Defendant terminated his employment because of his December 7, 2000 heart attack. Plaintiff assumes, without discussing or providing any case citations to support his position, that his heart attack is a disability under the ADA. Defendant moves for summary judgment on basis that Plaintiff's heart attack does not amount to a disability within the meaning of ADA, and therefore is not protected by the Act.
Plaintiff also alleges the Defendant failed to accommodate his disability and created a hostile work environment after he returned from his post-heart attack sick leave, though he provides no documents or witness affidavits to support these allegations.
Plaintiff has had ample opportunity to prove disability under the ADA, yet has not done so. In its Interrogatories and Depositions of Plaintiff, Defendant expressly inquired as to what major life activities Plaintiff believed were impaired after his heart attack and to what degree, but Plaintiff failed to identify any limitations. In fact, instead he indicated that he did all major life activities "with care." In his opposition papers, Plaintiff asserted that the major life activities of sitting, working, and eating were impaired as a result of his heart attack, but did not provide any documentary evidence or affidavits to support these claims. All Plaintiff provided were two letters from his treating physician, Dr. Margaret Sullivan, M.D., that confirmed Plaintiff's heart attack and post-heart attack absences. These letters provide no indication that Plaintiff was substantially limited in his ability to engage in any major life activity after his heart attack.
At oral argument, held on October 7, 2005, the Court gave Plaintiff one last chance to remedy his failure to establish a disability under the ADA. The Court gave Plaintiff ten days to submit additional evidence that his heart attack substantially limited one or more major life activities. On the date Plaintiff's submission was due, Plaintiff requested an extension, claiming that because of the Jewish High Holy Days, his physician, Margaret Sullivan, was unavailable. The Court granted an extension, giving Plaintiff until October 26, 2005 to submit the additional evidence. As that extension expired, Plaintiff tacitly admitted that his doctor refused to provide a affidavit attesting to Plaintiff's disability and asked the Court to issue a subpoena forcing her to produce one. The Court declined to issue the requested subpoena and proceeded to its decision.
The ADA prevents an employer from discriminating against or unfairly terminating a qualified individual with a disability on account of his disability. 42 U.S.C. § 12112(a). The definition of "disability" set forth in the ADA and its implementing regulations does not encompass every possible medical condition or impairment. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195 (2002). The Supreme Court has cautioned that disability "need[s] to be interpreted strictly [under the ADA] to create a demanding standard for qualifying as disabled." Toyota Motor Mfg., 534 U.S. at 197. To effectuate this policy, the courts have held that to establish a prima facie case of discriminatory discharge or failure to accommodate under the ADA, the plaintiff seeking the Act's protection bears the burden of demonstrating, as a threshold matter, that his disability fits into the narrow definition envisioned by the ADA. Id. at 198;Reeves, 140 F.3d at 149-50; Stone, 118 F.3d at 96-97;Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 383 (2d Cir. 1996).
A plaintiff may establish disability in three different ways. The ADA defines a disability as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or © being regarded as having such an impairment." 42 U.S.C. § 12102(2). Plaintiff in this case has not specified which form of "disability" applies to his case, so, out of an excess of caution, the Court will assume that this pro se Plaintiff brings his claim under all three.
1. Having an impairment that substantially limits one or more major life activities
Determining whether a plaintiff has an impairment that substantially limits a major life activity, and is therefore disabled under subpart (A) of the ADA definition of "disability", is a three-step inquiry. Bragdon v. Abbott, 524 U.S. 624 (1998). First, the court must consider whether the plaintiff's disorder or condition amounts to an impairment. Id. at 631. If it does, the court must "identify the life activity upon which [plaintiff] relies . . . and determine whether it constitutes a major life activity under the ADA." Id. Third, tying the first two together, the court must ask "whether the impairment substantially limited the major life activity." Id. (emphasis added). To prevail on a showing of discrimination, a plaintiff must establish all three requirements. Baerga, 2003 WL 22251294, at *3 (quoting Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998)). Thus, "a plaintiff who showed that he had an impairment and that the impairment affected a major life activity would nonetheless be ineligible if the limitations of the major life activity were not substantial." Id.
Defendant's concede that Plaintiff's heart attack is an impairment within the meaning of the ADA. The issue is whether any major life activities are limited to a substantial degree. Heart disease alone does not establish a disability per se. See Baerga, 2003 WL 22251294, at *1; Epstein v. Kalvin-Miller Int'l, Inc., 96 Civ. 8158 (PKL), 100 F. Supp. 2d 222, 228-29 (S.D.N.Y. 2000); see also Taylor v. Nimock's Oil Co., 214 F.3d 957 (8th Cir. 2000) (finding that plaintiff's heart disease, including a prior heart attack, did not substantially impair a major life activity, and therefore was not a disability under the ADA, even though it limited plaintiff's ability to walk long distances, forced plaintiff to miss work on several occasions, and limited the tasks she could perform at her job during her post-heart attack recuperation period); Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220 (11th Cir. 1999) (finding that plaintiff's coronary heart disease did not make her disabled under the ADA, because it did not substantially limit any major life activities, even though it "diminished [plaintiff's] activity tolerance for normal daily activities such as lifting, running, and performing manual tasks"). Thus, in order to survive Defendant's summary judgment motion, Plaintiff was required to establish not only that his heart attack was an impairment, but that his heart attack substantially limited one or more major life activities. Plaintiff's own sworn testimony at his deposition rebuts his current argument.
a. Impairment
The regulations interpreting and implementing the ADA define a "physical impairment" to include a physiological disorder affecting the cardiovascular system. 29 C.F.R. § 1630.2(h)(1). Heart disease falls in this category, and is therefore considered an impairment under the ADA. 45 C.F.R. pt. 84, App. A, subpart (A)(3). Indeed, Defendant does not dispute that Plaintiff's heart attack constitutes an impairment. But, as the Supreme Court has expressly cautioned, not all impairments are disabilities under the ADA. Toyota Motor Mfg., 534 U.S. at 195. Thus, while Plaintiff has succeeded in establishing that he suffers from an impairment, the Court must move to the second stage of theBragdon analysis, identifying whether Plaintiff's heart attack impairs a major life activity.
b. Major Life Activity
The interpretive guidelines provide a number of examples of "major life activities," such as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(I). This list is not exhaustive, intending only to illustrate the types of activities that are of "central importance to daily life." Toyota Motor Mfg., 534 U.S. at 184. The Second Circuit has identified other "major life activities," including "sitting, standing, lifting, or reaching." Colwell, 158 F.3d at 642 (quoting Ryan v. Grae Rybicki, 135 F.3d 867, 870 (2d Cir. 1998)).
Plaintiff does not specifically identify what major life activities have been impaired by his December 2000 heart attack. In fact, in his sworn testimony at his deposition and answers under oath to Defendant's interrogatories, Plaintiff concedes that he was able to breathe, walk, eat, talk on the phone and with colleagues, sit, stand, read, hear, work, and do all other major life activities "with care." (Batac Dep. 111:3-113:2; Pl.'s Resp. to Def.'s Interrogs. # 8 9.). There is no impairment of a major life activity, and Plaintiff is not disabled within the meaning of the ADA.
After Defendant moved for summary judgment, Plaintiff claimed that he "could not work for long hours, always felt dizzy, [was] not able to sit for a long period of time and [was] on constant diet watch" after his heart attack. A party cannot "defeat a motion for summary judgment by responding with affidavits recanting earlier [deposition] testimony." Margo v. Weiss, 213 F.3d 55, 60-61 (2d Cir. 2000); Trans-Orient Marine Corp. v. Star Trading Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991) ("The rule is well-settled in this circuit, that a party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior sworn testimony."). Plaintiff's unsworn statements in his opposition papers contradict his earlier deposition testimony and interrogatory answers. Plaintiff cannot manufacture a genuine issue of material fact by changing his position at this juncture. Accordingly, the Court finds that there is no major life activity that has been substantially limited by Plaintiff's heart attack.
Nonetheless, in light of Plaintiff's pro se status, and the obligation to construe pro se documents liberally, see Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998) (per curiam), the Court will address the unsworn statements made by Plaintiff in his opposition papers concerning post-heart attack limitations to major life activities. Specifically, Plaintiff alleges that he "could not work for long hours, always felt dizzy, [was] not able to sit for a long period of time and [was] on constant diet watch." Sitting, working, and eating are all major life activities. 29 C.F.R. § 1630.2(I) (working); Colwell, 158 F.3d at 642 (sitting); Forest City Daly Hous. v. Town of N. Hempstead, 175 F.3d 144, 151 (2d Cir. 1999) (eating). But Plaintiff's bare allegations that his heart attack limited the major life activities of working, sitting, and eating are not sufficient to establish a disability under the ADA. Plaintiff also had to prove that these major life activities were limited to a substantial degree.
c. Substantial Limitation of a Major Life Activity
An impairment "substantially limits" a major life activity if the plaintiff is:
(I) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.29 C.F.R. § 1630.2(j)(1)(I) — (ii). The factors a court should consider in determining whether an impairment amounts to a disability under the ADA include: "(I) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2)(I) — (iii).
Minor limitations of major life activities are not sufficient to create a disability within the meaning of the ADA. See Colwell, 158 F.3d at 645-46; see also Weber v. Strippit, Inc., 186 F.3d 907, 914 (8th Cir. 1999) (finding that even though plaintiff faced dietary restrictions and difficulty walking long distances or climbing stairs without getting fatigued after his heart attack, "these moderate limitations on major life activities [did] not suffice to constitute a disability under the ADA"). "`Substantially' in the phrase `substantially limits' suggests `considerable' or `to a large degree,' and thus clearly precludes impairments that interfere in only a minor way. . . ." Toyota, 534 U.S. at 196. In fact, the interpretive guidelines expressly state that "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities." 29 C.F.R. Pt. 1630 App., § 1630.2(j). Plaintiff has made no showing whatsoever that these later claimed major life activities are substantially limited in any way.
Difficulty sitting or working for long periods does not create a disability under the ADA. While both sitting and working may be major life activities, limitation of these activities must be substantial to fall within the ambit of the ADA. The Second Circuit has expressly held that "the ability to work is substantially limited . . . [only] if plaintiff is `significantly restricted in the ability to perform either a class of jobs or a broad range of jobs as compared to the average person.'"Colwell, 158 F.3d at 643 (quoting 29 C.F.R. § 1630.2(j)(3)(I)). The inability to perform a single, particular job, either in whole or in part, "does not constituted a substantial limitation in the major life activity of working." Id. Similarly, the major life activity of sitting is substantially limited only if the plaintiff's impairment precludes him from sitting at all, not if the plaintiff's impairment merely makes it more difficult to sit. See Colwell, 158 F.3d at 644 (finding that Plaintiff's inability to sit "too long" was not a substantial limitation under the ADA). Plaintiff does not allege that he was unable to sit or work at all after his heart attack. Indeed, the primary thrust of the Complaint is that he could work at the time of his termination, and can work now. It is clear that Plaintiff's difficulty in sitting and working "for long periods" did not render him disabled under the ADA.
Plaintiff's "constant diet watch" also does not create a disability under the ADA. While eating is a major life activity, dietary restrictions do not "substantially limit" a person's ability to eat. "Not every impediment to the copious and tasty diets our waistlines and hearts cannot endure is a substantial limitation of the major life activity of eating. We must carefully separate those who have simple dietary restrictions from those who are truly disabled." Fraser v. Goodale, 342 F.3d 1032, 1041 (9th Cir. 2003); see Shields v. Robinson-Van Vuren Assocs., Inc., No. 98 Civ. 8785 (DLC), 2000 WL 565191 (S.D.N.Y. May 8, 2000) (finding a plaintiff's assertions as to the modifications he must make to his diet as a result of being diabetic insufficient to create a disability under the ADA); Lorinz v. Turner Construction, 2004 WL 1196699, at *4 (E.D.N.Y. May 25, 2004) (stating that a plaintiff's temporary loss of the desire to eat "does not rise to the level of an ADA disability"). Given the lack of specificity with which Plaintiff discusses his dietary modifications, and Plaintiff's statement in his deposition that he was able to eat after returning to work, the Court must assume that Plaintiff's post-heart "diet watch" means only that he must watch what he eats. Since Plaintiff's dietary modifications merely restricted his ability to eat certain foods, Plaintiff's diet did not substantially impair the major life activity of eating and cannot be the basis for this lawsuit.
Plaintiff's bald assertion of dizziness does not create an ADA disability, even if the Court were to speculate that dizziness might affect Plaintiff's ability to think, concentrate, stand, or engage in other major life activities. Plaintiff alleges none of these consequences. At his deposition, Plaintiff testified that his dizziness was due to a medication that he took once per day, and that the dizziness subsided within thirty (30) minutes to an hour after taking the medication. Thirty (30) minutes to an hour can hardly be described as "always," as Plaintiff now claims in his opposition papers. Plaintiff further testified that once the dizziness subsided, he was able to perform all of his major life functions, including working. Temporary dizziness does not amount to a disability under the ADA. The "duration or expected duration of the impairment" is an important consideration when making a disability determination. 29 C.F.R. § 1630.2(j)(2)(ii). A mere thirty minute to one hour episode of dizziness once a day does not substantially limit any major life activity, as Plaintiff could still stand, sit, work, and conduct all other major life activities the rest of the day.
In light of the foregoing, even when viewing all the evidence of impairment of major life activities in the light most favorable to Plaintiff, Plaintiff fails to show that the impact is substantial. Plaintiff's sworn deposition testimony and his answers to Defendant's interrogatories make clear that his heart attack does not substantially impair any major life activity. His opposition papers do not convince the Court otherwise. No reasonable jury could find in Plaintiff's favor on this point; and Plaintiff's heart attack cannot be a disability under the ADA.
2. "Record of" a disability under the ADA
A plaintiff may also satisfy the disability requirement by demonstrating that he has a "record of" a disability within the meaning of the ADA. 42 U.S.C. § 12102(2)(B). A plaintiff has a "record of" an ADA disability if he has "a history of, or has been misclassified as having, a . . . physical impairment that substantially limits one or more major life activities." 29 C.F.R. § 1630.2(k); see also 29 C.F.R. § 1630 App., § 1630.2(k) ("The intent of this provision, in part, is to ensure that people are not discriminated against because of a history of disability."). Here, the only record that exists is the record that Plaintiff relies on to show that his heart attack substantially limited a major life activity. There is no other history. Accordingly, there is no history of disability to satisfy subpart (B).
3. "Regarded as having" a disability under the ADA
A plaintiff may still gain ADA protection, even if he does not have an impairment that substantially limits a major life activity, if he can prove that his employer treated him as having such an impairment. 42 U.S.C. § 12102(2)(B); 29 C.F.R. § 1630.2(l). This method of establishing an ADA disability "turns on an employer's perception of the employee, a question of intent, not whether the employee [actually] has a disability."Francis v. City of Meridien, 129 F.3d 281, 285 (2d Cir. 1997) (citation omitted). The plaintiff employee must present evidence that his employer treated him as having a disability within the meaning of the ADA (i.e., that the employee had an impairment that substantially limited a major life activity, such as working). Id. Proof that the employer knew of the employee's impairment alone is "insufficient to demonstrate . . . that the employer regarded the employee as disabled."Reeves, 140 F.3d at 153 (quoting Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir. 1996)).
There is no evidence at all in the record that Defendant regarded Plaintiff as having a disability under the ADA. While Defendant knew of Plaintiff's heart attack, mere knowledge of an employee's impairment does not establish that the employer regarded the employee as disabled. Reeves, 140 F.3d at 153. Despite Plaintiff's bare allegations of hostile treatment, there is no evidence in the record that Defendant treated Plaintiff as substantially limited in his ability to work, or perform any other major life activity, as a result of his heart condition. To the contrary, as soon as Plaintiff returned to work, Defendant made Plaintiff Lead Estimator on a multi-million dollar bidding project. This hardly suggests that Defendant regarded Plaintiff as disabled and therefore unable to perform to full capacity.See Baerga, 2003 WL 2225294, at *9 (stating that the fact that Plaintiff was transferred to a more demanding assignment, where he was expected to perform the "full range of physically strenuous tasks required of his job" undermined any inference of perceived substantial limitation). Accordingly, the Court finds that Defendant did not regard Plaintiff as having a disability within the meaning of the ADA, or treat him as such, at any time during his employment.
III. CONCLUSION
Plaintiff has failed to establish disability under any of the three definitions set forth in the ADA, and is not protected by the statute. The Court therefore grants Pavarini Construction's motion for summary judgment in full. The Clerk of the Court is directed to enter judgment in Defendant's favor and close out this case.SO ORDERED.