Davila v. the City of New York

Full title: MAUREEN JOHNS-DAVILA, Plaintiff, v. THE CITY OF NEW YORK, et al.…

Court: United States District Court, S.D. New York

Date published: Nov 20, 2000

99 Civ. 1885 (RMB)(AJP) (S.D.N.Y. Nov. 20, 2000)

Opinion

99 Civ. 1885 (RMB)(AJP).

November 20, 2000.

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge:

To the Honorable Richard M. Berman, United States District Judge:

Plaintiff Maureen Johns-Davila brings this action under the Americans with Disabilities Act ("ADA") and the New York State Human Rights Law ("NYSHRL"),¹ alleging that the City Human Resources Administration ("HRA") unlawfully discriminated against her because of her disability when it terminated her employment. (E.g., Dkt. No. 1: Compl. ¶¶ 29, 33.) Specifically, Davila complains that the HRA refused to grant her work accommodations of fifteen-minute rest periods every hour-and-a half to two hours to perform physical therapy to control her disability. (Davila Br. at 1.) Defendants have moved for summary judgment, arguing that Davila has not established a prima facie case of disability discrimination. (E.g., City Br. at 2.)

1 Davila's complaint (Dkt. No. 1) also asserted claims pursuant to the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2617, and Title VII, 42 U.S.C. § 2000e. (Compl. ¶¶ 1, 30-31, 34-35.) Davila voluntarily dismissed with prejudice her FMLA and Title VII claims. (Dkt. Nos. 9 12: Stipulation Orders, dated 6/7/00 6/9/00). Thus, only plaintiff's ADA and related NYSHRL disability claims remain.

For the reasons set forth below, defendants' summary judgment motion should be granted on Davila's ADA claim, and her NYSHRL discrimination claim should be dismissed without prejudice.

FACTS

Davila's Employment and Termination

Davila began employment with HRA as a Senior Community Liaison in August 1985. (Compl. ¶ 3, 6; City 56.1 Stmt. ¶ 1; Davila Aff. ¶ 3.)² In October 1988, Davila was diagnosed with fibromyalgia. (Compl. ¶ 7; Dkt. Nos. 19 24: City Davila 56.1 Stmts. ¶ 2.) This condition requires Davila to perform regular exercise to strengthen and condition her neck and shoulders. (Compl. ¶ 7; City Davila 56.1 Stmts. ¶ 3.) According to the complaint, Davila alleges that her "fibromyalgia is a permanent condition and impairs her from performing consistent, vigorous exercise." (Compl. ¶ 8; accord, City Davila 56.1 Stmts. ¶ 3.)

2 Despite the August 1985 date in the Complaint, plaintiff now claims that she was hired by HRA in October 1987. (Davila 56.1 Stmt. ¶ 1.) The dispute as to Davila's start date has no significance for this summary judgment motion.

On April 18, 1997, Davila requested a medical hardship transfer to a different location as an accommodation. (Compl. ¶ 11; City Davila 56.1 Stmts. ¶ 5; Kitzinger 6/16/00 Aff. Ex. C: 4/18/97 Transfer Request.) In May 1997, HRA informed Davila that there were no vacancies at other sites, "[m]edical documentation does not indicate a hardship transfer is necessary," and therefore that her transfer request was denied. (Compl. ¶ 12, 13; City Davila 56.1 Stmts. ¶¶ 7-8; Kitzinger 6/16/00 Aff. Ex. D: 5/13/97 HRA Letter.) Davila insists, however, that she was aware of vacancies for which she was qualified. (Davila 56.1 Stmt. ¶ 18; Davila Aff. ¶ 48.)

Davila requested and was granted a medical leave of absence from June 9, 1997 to August 14, 1997. (Compl. ¶ 15; City Davila 56.1 Stmts. ¶¶ 9-10; see also Butler Aff. Ex. A Kitzinger 6/16/00 Aff. Ex. E: 6/17/97 Dr. de la Hoz Letter.) On August 12, 1997, Davila requested an extension of her medical leave, which was denied. (Compl. ¶¶ 16-17; City Davila 56.1 Stmts. ¶¶ 11-13; Kitzinger Aff. Ex. G: 8/12/97 Extension Request Letter.)

Davila insists that the reason she did not return to work after August 14, 1997 was because the City would not allow her to return unless she had fully recovered from her disabling condition. (Compl. ¶¶ 21, 22, 24; see City Davila 56.1 Stmts. ¶ 14; Davila Aff. ¶ 39, 44, 46, 47, 49.) In particular, Davila requested that she be transferred to another work location (building) that was clean, well-maintained and had adequate ventilation, and she requested fifteen minute break periods. (Davila Aff. ¶ 39.)

Since Davila did not return to work at the conclusion of her medical leave, HRA considered her absent without leave. (Compl. ¶ 24; City Davila 56.1 Stmts. ¶ 14.) The City notified Davila that her employment would be terminated, and she was served with charges and specifications alleging that she was absent without leave. (Compl. ¶ 24; City Davila 56.1 Stmts. ¶ 14; Kitzinger 6/16/00 Aff. Ex. H: 2/19/98 Notification of Charge Letter.) Davila was found guilty of being absent without leave, and her employment with the City was terminated effective September 22, 1999. (City Davila 56.1 Stmts. ¶¶ 15, 16; Kitzinger 6/16/00 Aff. Ex. I: 5/14/99 Determination of Grievance Letter; Kitzinger 6/16/00 Aff. Ex. J: 9/22/99 Notice of Termination Letter.)

Davila's Medical Condition

Davila asserts that fibromyalgia is a permanent condition that is sensitive to atmospheric and environmental changes. (Compl. ¶ 7.) She also claims that the condition "impairs her from performing consistent, vigorous exercise." (Compl. ¶ 8.) Her complaint states that she "can perform sedentary and clerical work as long as allowances are made for opportunities for momentary (less than ten minutes) of stretching once or twice during an eight hour shift." (Id.) In opposition to the City's summary judgment motion, Davila has submitted affidavits and letters from her doctors elaborating on her condition. Dr. Michael Belmont explains that:

Fibromyalgia is a chronic disorder producing chronic pain and musculoskeletal dysfunction. . . . Periodic exacerbations of this illness are to be expected. However, these exacerbations are unpredictable although both physical and psychological stressors may be responsible. I expect Ms. Johns-Davila to continue to work full-time and anticipate only rare exacerbations . . .

(Belmont Aff. Ex. D: 4/3/97 Letter.) Dr. Belmont's affidavit asserts, however, that Davila can not work in a "sick building" since that exacerbates her fibromyalgia:

8. Although Ms. Davila is "high functioning" under normal circumstances, she is totally unable to work in a "sick building." Normally, she can only perform sedentary and clerical work as long as allowances are made for opportunities for stretching at every 1.5 to 2 hours each day. She is unable to climb stairs, she cannot lift or carry heavy files, sit for long periods of time or perform work on computers due to the lack of flexibility in her hands. Where a "sick building" is present, Ms. Davila cannot even perform sedentary and clerical work.

9. Beginning in April 1997, Ms. Johns-Davila visited my office complaining of exacerbations of her medical condition. . . . [O]n June 9, 1997, I found Ms. Davila to be totally disabled and that her impairment precluded her from performing her occupational duties.

. . . .

11. Based on her office visits, I learned that Ms. Johns-Davila had visited the Bellevue Occupational and Environmental Clinic with respect to her increasingly disabling condition. After receiving a report from the Clinic indicating that a survey of Ms. Davila's work location indicated that Ms. Davila's work location was improperly ventilated and contained pollutants normally associated with "sick building syndrome," I wrote a note dated August 28, 1997 indicating that her expected date of return to work was September 17, 1997 but only if she was placed in a new work location.

12. I examined Ms. Davila on September 5, 1997, September 15, 1997, September 29, 1997 and several times thereafter. I provided Ms. Davila with monthly medical notes on [twelve occasions in 1998 and 1999], each one indicating that Ms. Davila could return to work with ventilation, preferably a new work location, and rest.

(Belmont Aff. ¶¶ 8-9, 11-12, emphasis added; see also Butler Aff. Ex. A: 10/13/97 Dr. de la Hoz Letter.)

ANALYSIS

I. SUMMARY JUDGMENT STANDARDS IN EMPLOYMENT DISCRIMINATION CASES

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).³

3 See also, e.g., Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *4 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Greenfield v. City of New York, 99 Civ. 2330, 2000 WL 124992 at *3 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 352 (S.D.N.Y. 1999); Douglas v. Victor Capital Group, 21 F. Supp.2d 379, 387 (S.D.N.Y. 1998) (Stein, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *6 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendants. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).⁴ The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.⁵

4 See also, e.g., Carbonell v. Goord, 2000 WL 760751 at *4; Greenfield v. City of New York, 2000 WL 124992 at *3; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 352; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *6.

5 See also, e.g., Carbonell v. Goord, 2000 WL 760751 at *4.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986).⁶ Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356.⁷

6 See also, e.g., Carbonell v. Goord, 2000 WL 760751 at *4.

7 See also, e.g., Carbonell v. Goord, 2000 WL 760751 at *4.

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513.⁸ The Court draws all inferences in favor of the nonmoving party — here, Davila — only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987).⁹ "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM, 43 F.3d at 37.¹⁰

8 See also, e.g., Chambers v. TRM, 43 F.3d at 36; Gallo v. Prudential, 22 F.3d at 1223; Carbonell v. Goord, 2000 WL 760751 at *4; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *6.

9 Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *4; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 388; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.

10 Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 1907 S.Ct. 1570 (1987).¹¹ To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510.¹² While "disputes over facts that might affect the outcome of a suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510 (citations omitted).¹³

11 Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387.

12 Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387.

13 See also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12; Carbonell v. Goord, 2000 WL 760751 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387.

When a case turns on the intent of one party, as employment discrimination claims often do, a "trial court must be cautious about granting summary judgment." Gallo v. Prudential, 22 F.3d at 1224.¹⁴ Because the employer rarely leaves direct evidence of its discriminatory intent, the Court must carefully comb the available evidence in search of circumstantial proof to undercut the employer's explanations for its actions. E.g., Gallo v. Prudential, 22 F.3d at 1224; Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990).¹⁵ "[S]ummary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. . . . There must either be a lack of evidence in support of the plaintiff's position . . . or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998); accord, e.g., Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 354. Nonetheless, when an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment to the employer. E.g., Budde v. HK Distrib. Co., No. 99-9449, 216 F.3d 1071 (table), 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995).¹⁶ In other words, to defeat summary judgment, "the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia Univ., 131 F.3d at 312; see, e.g., Schnabel v. Abramson, No. 99-9385, 2000 WL 1676601 at *7 (2d Cir. Nov. 8, 2000); Weinstock v. Columbia University, 224 F.3d 33, 42 (2d Cir. 2000) (The question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, '[i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination."); Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not simply 'some' evidence, but 'sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not [discrimination] was the real reason for the discharge'").¹⁷

14 Accord, e.g., Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("in an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary judgment"); McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) ("caution must be exercised in granting summary judgment where motive is genuinely in issue"); Cardozo v. Healthfirst Inc., 98 Civ. 3050, 1999 WL 782546 at *1-2 (S.D.N.Y. Sept. 30, 1999) (Berman, D.J.); see also, e.g., Chambers v. TRM, 43 F.3d at 40; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 388; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.

15 See also, e.g., Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 388; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.

16 See also, e.g., Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 354; Douglas v. Victor Capital Group, 21 F. Supp.2d at 388; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7; Engelmann v. National Broad. Co., 94 Civ. 5616, 1996 WL 76107 at *7 (S.D.N.Y. Feb.22, 1996).

17 See also, e.g. Budde v. HK Distrib. Co., 2000 WL 900204 at *1; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 354; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7; Scaria v. Rubin, 94 Civ. 3333, 1996 WL 389250 at *5 (S.D.N.Y. July 11, 1996) (Peck, M.J.), aff'd, 117 F.3d 652, 654 (2d Cir. 1997).

II. DAVILA HAS NOT SHOWN A PRIMA FACIE CASE OF DISABILITY UNDER THE ADA¹⁸

18 The Court, therefore, need not reach defendants' claim that Davila did not timely file a charge before the EEOC (see City Br. at 58), nor Davila's "continuing violation" response (see Davila Br. at 7-8).

A. ADA Standards

ADA Standards The ADA prohibits discrimination by covered employers against qualified individuals with a disability. 42 U.S.C. § 12112(a); see, e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471, 477-78, 119 S.Ct. 2139, 2144 (1999). "To establish a prima facie case of discrimination under the ADA, plaintiff must show by a preponderance of the evidence that (1) [her] employer is subject to the ADA; (2) [she] was disabled within the meaning of the ADA; (3) [she] was otherwise qualified to perform the essential functions of [her] job, with or without reasonable accommodation; and (4) [she] suffered adverse employment action because of [her] disability." Heyman v. Queens Village Comm. for Mental Health for Jamaica Community Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir. 1999).¹⁹

19 Accord, e.g., Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 149-50 (2d Cir. 1998); Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998); Pace v. Paris Maintenance Co., 107 F. Supp.2d 251, 259 (S.D.N.Y. 2000); Williams v. Salvation Army, 108 F. Supp.2d 303, 311 (S.D.N.Y. 2000) (Berman, D.J.); Shields v. Robinson-Van Vuren Assoc., Inc., 98 Civ. 8785, 2000 WL 565191 at *3 (S.D.N.Y. May 8, 2000); McLean-Nur v. Department of Transport., 98 Civ. 819, 2000 WL 297176 at *5 (S.D.N.Y. March 21, 2000).

As the Second Circuit has made clear, ADA claims, like Title VII claims, are analyzed using the McDonnell Douglas burden shifting analysis:

In analyzing a discriminatory discharge claim under the ADA, we apply the burden-shifting analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, plaintiff bears the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. The burden of production then shifts to defendants, who must offer through the introduction of admissible evidence a non-discriminatory reason for their actions that, if believed by the trier of fact, would support a finding that unlawful discrimination was not a cause of the disputed employment action. Plaintiff then must show that the proffered reason was merely a pretext for discrimination, which "may be demonstrated either by the presentation of additional evidence showing that the employer's proffered explanation is unworthy of credence, or by reliance on the evidence comprising the prima facie case, without more."

Heyman v. Queens Village, 198 F.3d at 72 (citations omitted).²⁰

20 See, e.g., Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994) (Rehabilitation Act), cert. denied, 513 U.S. 1147, 115 S.Ct. 1095 (1995); Pace v. Paris Maintenance Co., 107 F. Supp.2d at 259; Williams v. Salvation Army, 108 F. Supp.2d at 314-15; Shields v. Robinson-Van Vuren Assoc., Inc., 2000 WL 565191 at *3; McLean-Nur v. Department of Transp., 2000 WL 297176 at *5-6; Douglas v. Victor Capital Group, 21 F. Supp.2d 379, 390 (S.D.N.Y. Oct. 13, 1998) (Stein, D.J. Peck, M.J.) (citing cases); Johnson v. St. Clare's Hosp. Health Ctr., 96 Civ. 1425, 1998 WL 236235 at *6 (S.D.N.Y. May 13, 1998) (Mukasey, D.J. Peck, M.J.), aff'd, No. 98-7831, 175 F.3d 1008 (table), 1999 WL 97232 (2d Cir. Feb. 24, 1999).

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 (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2); see, e.g., Sutton v. United Air Lines, Inc., 527 U.S. at 478, 119 S.Ct. at 2144.²¹

21 See also, e.g., Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 563, 119 S.Ct. 2162, 2167 (1999); Schaefer v. State Ins. Fund, 207 F.3d 139, 142 (2d Cir. 2000); Heyman v. Queens Village, 198 F.3d at 72; Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998), cert. denied, 526 U.S. 1018, 119 S.Ct. 1253 (1999); Reeves v. Johnson Controls World Servs., Inc., 140 F.3d at 150; Ryan v. Grae Rybicki, 135 F.3d at 870; Williams v. Salvation Army, 108 F. Supp.2d at 311; Douglas v. Victor Capital Group, 21 F. Supp.2d at 390-91; Johnson v. St. Clare's Hosp. Health Ctr., 1998 WL 236235 at *7.

The EEOC defines the term "substantially limits" as:

"(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 particular 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."

Heyman v. Queens Village, 198 F.3d at 72 (quoting 29 C.F.R. § 1630.2(j)(1)); see, e.g., Sutton v. United Air Lines, Inc., 527 U.S. at 480, 119 S.Ct. at 2145; Muller v. Costello, 187 F.3d 298, 312 (2d Cir. 1999); 187 F.3d at 312; Colwell v. Suffolk County Police Dep't, 158 F.3d at 643; Ryan v. Grae Rybicki, 135 F.3d at 870; Williams v. Salvation Army, 108 F. Supp.2d at 312 n. 11.²²

22 The EEOC is primarily responsible for the enforcement of the ADA, and EEOC regulations are accorded great deference in interpreting the ADA. See, e.g., Heyman v. Queens Village, 198 F.3d at 72; Muller v. Costello, 187 F.3d at 312 n. 5 (2d Cir. 1999); Reeves v. Johnson Controls World Servs., Inc., 140 F.3d at 150 n. 3; Ryan v. Grae Rybicki, 135 F.3d at 870.

EEOC regulations define a "major life activity" as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i); see also, e.g., Sutton v. United Air Lines, Inc., 527 U.S. at 480, 119 S.Ct. at 2145; Heyman v. Queens Village, 198 F.3d at 73; Reeves v. Johnson Controls World Servs., Inc., 140 F.3d at 150; Ryan v. Grae Rybicki, 135 F.3d at 870; Shields v. Robinson-Van Vuren Assoc., Inc., 2000 WL 565191 at *4.

In determining whether an impairment substantially limits a major life activity, three factors are considered: "'(i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; (iii) the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment.'" Colwell v. Suffolk County Police Dep't, 158 F.3d at 643 (quoting 29 C.F.R. § 1630.20(j)(2)); see, e.g., Ryan v. Grae Rybicki, 135 F.3d at 570; Muszak v. Sears, Roebuck Co., 63 F. Supp.2d 292, 299 (W.D.N.Y. 1999); Kirkendall v. United Parcel Serv. Inc., 964 F. Supp. 106, 109-10 (W.D.N.Y. 1997); Hazeldine v. Beverage Media, Ltd., 954 F. Supp. 697, 703 (S.D.N.Y. 1997).

Not every physical or mental impairment is an ADA disability, because not every physical or mental impairment substantially limits a major life activity. See, e.g., 29 C.F.R. Pt. 1630, App. (1998) ("Many impairments do not impact an individual's life to the degree that they constitute disabling impairments. An impairment rises to the level of disability if the impairment substantially limits one or more of the individual's major life activities."); Colwell v. Suffolk County Police Dep't, 158 F.3d at 641 (A "plaintiff who showed that he had an impairment and that the impairment affected a major life activity would nonetheless be ineligible if the limitation of the major life activity was not substantial."); Reeves v. Johnson Controls World Servs., Inc., 140 F.3d at 151; Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995) ("not every impairment that affect[s] an individual's major life activities is a substantially limiting impairment"); Ryan v. Grae Rybicki, 135 F.3d at 870 ("Although almost any impairment may, of course, in some way affect a major life activity, the ADA clearly does not consider every impaired person to be disabled. Thus, in assessing whether a plaintiff has a disability, courts have been careful to distinguish impairments which merely affect major life activities from those that substantially limit those activities."); Williams v. Salvation Army, 108 F. Supp.2d at 311; Douglas v. Victor Capital Group, 21 F. Supp.2d at 390-91 ( cases cited therein).

B. Davila is Not Disabled Within the Meaning of the ADA

1. Exercise Is Not A Major Life Activity

In her complaint, Davila claims that exercise is a major life activity. (Compl. ¶ 8.) Davila is incorrect as a matter of law. See, e.g., Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 643 (2d Cir. 1998) (Activities such as gardening, shoveling snow and "engag[ing] in other physical exercise . . . clearly fall outside the range of 'major' life activities."), cert. denied, 526 U.S. 1018, 119 S.Ct. 1253 (1999); Rosa v. Brinks Inc., 103 F. Supp.2d 287, 290 (S.D.N.Y. 2000) ("sports activities are not major life activities"); Epstein v. Kalvin-Miller Int'l, Inc., 100 F. Supp.2d 222, 226 (S.D.N.Y. 2000) ("'strenuous activity' . . . clearly does not constitute a major life activity"); Yeskey v. Pennsylvania, 76 F. Supp.2d 572, 577 (M.D.Pa. 1999) (strenuous exercise is not a major life activity); Piascyk v. City of New Haven, 64 F. Supp.2d 19, 26 (D.Conn.) ("sports activities do not constitute major life activities"), aff'd mem, 216 F.3d 1072 (2d Cir. 2000); Kirkendall v. United Parcel Serv., Inc., 964 F. Supp. 106, 111 (W.D.N.Y. 1997) ("Courts also have recognized that the inability to engage in leisure activities and sports, which require a great deal of physical vigor, does not equate with the inability to engage in normal everyday activities or job-related duties."); Hazeldine v. Beverage Media, Ltd., 954 F. Supp. 697, 703-04 (S.D.N.Y. 1997) (inability to "shovel snow or engage in other strenuous physical exercise" does not constitute a substantial limitation on major life activity).

2. Working is a Major Life Activity, But Davila's Complaint Does Not Allege An Inability to Work

In her papers opposing defendants' summary judgment motion, Davila claims that her fibromyalgia (as exacerbated by sick building syndrome) substantially limits her ability to work. (Davila Br. at 10-13.)

Obviously, working is a major life activity. See 29 C.F.R. § 1630.2(i) ("major life activity" defined as including "working"); see also, e.g., Bartlett v. New York State Bd. of Law Examiners, 226 F.3d 69, 79-80 (2d Cir. 2000) (holding that working is a major life activity).

However, because plaintiff Davila's complaint — prepared by counsel — only alleges that her fibromyalgia condition limits her ability to exercise (Compl. ¶ 8) and does not allege an inability to work, she cannot rely on an alleged inability to work in opposition to summary judgment. See, e.g., Adams v. Strombecker Corp., No. 97-7018, 153 F.3d 726 (table), 1998 WL 381028 at *1 (10th Cir. July 6, 1998) (affirming district court's refusal to consider on summary judgment ADA plaintiff's claim that he was "regarded as" disabled where plaintiff did not plead a "regarded as" claim in his complaint); McAllister v. New York City Police Dep't, 49 F. Supp.2d 688, 697-98 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Harvey v. New York City Police Dep't, 93 Civ. 7563, 1997 WL 292112 at *2 n. 2 (S.D.N.Y. June 3, 1997) ("To the extent plaintiff attempts to assert new claims in his opposition papers to defendants' motion, . . . the Court finds that 'it is inappropriate to raise new claims for the first time in submissions in opposition to summary judgment' and accordingly disregards such claims."); Giova v. Kiamesha Concord, Inc., 92 Civ. 3935, 1993 WL 539530 at *5 (S.D.N.Y. Dec. 23, 1993) (allegations absent from pleadings cannot be considered on a summary judgment motion); Burke v. Jacoby, 89 Civ. 1695, 1991 WL 221417 at *5 (S.D.N.Y. Oct. 10, 1991) (refusing to consider allegations omitted from amended complaint on a summary judgment motion), aff'd, 981 F.2d 1372 (2d Cir. 1992), cert. denied, 508 U.S. 909, 113 S.Ct. 2338 (1993); Martin Ice Cream Co. v. Chipwich, Inc., 554 F. Supp. 933, 940 n. 15 (S.D.N.Y. 1983) (refusing to consider allegation first raised in reply papers, and not suggested in the complaint); Medical Arts Pharmacy of Stamford, Inc. v. Blue Cross Blue Shield of Connecticut, Inc., 518 F. Supp. 1100, 1109 (S.D.N.Y.), aff'd, 675 F.2d 502 (2d Cir. 1981).

3. Even if Davila's Alleged Inability to Work Were Properly Pleaded in the Complaint, Defendants Are Entitled to Summary Judgment Based on Davila's Deposition Testimony

Even if Davila's claim that her fibromyalgmia interfered with her ability to work were properly pleaded in her complaint (which it was not), defendants still would be entitled to summary judgment, because the admissible evidence on this motion does not demonstrate that Davila was substantially limited in her ability to work.

Davila's complaint admits that she could perform sedentary and clerical work as long as she could stretch once or twice in an eight-hour shift. (Compl. ¶ 8.) At her deposition, Davila conceded that her fibromyalgia only caused hesitation for a few seconds and otherwise did not interfere with her ability to work:

Q. . . . [W]hat parts of your job were you unable to perform because of the fibromyalgia?

A. Perform? Well, maybe I was, like when the, when the fingers would cramp up or I was experiencing stiffness, in terms or reaching for something, I might hesitate because I would feel the pain and then reach for it.

If I was getting up from the desk to go call a client, I may be raising from the seat and feel the stiffness, or like your knees kind of get tight and then you go on into a raised position then I would go, be able to go call the client to bring them back to start the interview.

Q. You said you sometimes would hesitate before you would grab a file, but you were able to grab the file?

A. Eventually, I would be able to pick it up, or the form or the paper that I was reaching for.

Q. How long would this hesitation last? . . . Would you hesitate for a second or would you have to wait five minutes, ten minutes, an hour?

A. Oh, no, no, no, nothing like an hour. Oh, never. Maybe a couple of seconds.

Q. Okay. And what about standing up and sitting down?

A. I may hesitate.

Q. For how long?

A. A couple of seconds. That's why, Mr. Kitzinger, I'm saying that at times. I never really timed it or looked.

Q. But it was a very short period of time?

A. Yes. You feel a pinch or a pain and then you keep moving or you keep going; you know, you feel it internally and then, then you stop.

Q. But you were able to work through it?

A. Yes.

(Kitzinger 7/13/00 Supp. Aff. Ex. D: Davila Dep. at 63-65, emphasis added.)

In opposition to defendants' summary judgment motion, Davila has submitted opposition papers and affidavits that contradict her prior deposition testimony. Davila now claims that she is unable to work (Davila Br. at 10) and that she has difficulty working due to severe pain, stiffness and muscle spasms (Davila Aff. ¶¶ 10, 12). Davila claims that she "was having an increasingly difficult time working through the day due to the physical discomfort of headaches, swelling of the hands and feet, sweltering temperatures, sweating, pain in the legs and body stiffness." (Davila Aff. ¶ 12.) Davila also submitted affidavits and correspondence from her physicians, claiming that she was unable to work. (See, e.g., Belmont Aff. Ex. D: 9/5/97 Letter ("[Ms. Davila's] condition has disabled her from performing her occupational duties.").)

The Court, however, must disregard affidavits, such as those submitted here by Davila, that contradict the complaint and Davila's deposition testimony. It is black letter law that affidavits which contradict prior deposition testimony are disregarded on a summary judgment motion. E.g., Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir. 1997) ("[W]e follow the rule that 'a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony.'"); see, e.g., Bickerstaff v. Vassar College, 196 F.3d 435, 455 (2d Cir. 1999), cert. denied, 120 S.Ct. 2688 (2000); Hayes v. New York City Dep't of Corrections, 84 F.3d 614, 619 (2d Cir. 1996); Buttry v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995); Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987) ("It is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment."); McAllister v. New York City Police Dep't, 49 F. Supp.2d 688, 698 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.) ("It is black letter law that affidavits which contradict prior deposition testimony are disregarded on a summary judgment motion."); EEOC v. Johnson Higgins, Inc., 93 Civ. 5481, 1998 WL 778369 at *7 (S.D.N.Y. Nov. 6, 1998) (Peck, M.J.).²³

23 See also, e.g., Cousins v. Howell Corp., 113 F. Supp.2d 262, 264 n. 2 (D.Conn. 2000) (plaintiff testified at deposition that, upon returning to work in May 1997, she had fully recovered from her surgeries and was not limited in any way, but then submitted affidavit stating that from April 1997 to October 1997, her physical problems precluded her from performing jobs that required significant or strenuous physical duties or jobs that would not permit her prolonged rest periods; "These inconsistencies in plaintiff's testimony need not detain us for a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that contradicts that party's previous deposition testimony."); Sherman v. Peters, 110 F. Supp.2d 194, 198 (W.D.N.Y. 2000); Shields v. Robinson-Van Vuren Associates, Inc., 98 Civ. 8785, 2000 WL 565191 at *4 (S.D.N.Y. May 8, 2000); Needle v. Alling Cory, Inc., 88 F. Supp.2d 100, 106 (W.D.N.Y. 2000); Varre v. City of Syracuse, 96 Civ. 1792, 2000 WL 270966 at *4 (N.D.N.Y. March 6, 2000); Pomilio v. Wachtell Lipton Rosen Katz, 97 Civ. 2230, 1999 WL 9843 at *1 n. 2 (S.D.N.Y. Jan. 11, 2000); Nweke v. Prudential Insurance Co., 25 F. Supp.2d 203, 227 (S.D.N.Y. 1998) ("Nweke alleges — for the first time in her June 5, 1998, affidavit in response to summary judgment . . . — that from the date she returned to work on March 2, 1994, to March 24, 1995, when she was discharged, her depression substantially limited her major life activities of sleep, appetite, motivation (including focus and concentration), desire to socialize, and work. Yet her own words assessing her condition in 1994 contradict the assertions of substantial limitation she now makes in affidavit form. '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 testimony.'"); Douglas v. Victor Capital Group, 21 F. Supp.2d 379, 386 n. 7 (S.D.N.Y. 1998) (Stein, D.J. Peck, M.J.); SEC v. Softpoint, Inc., 958 F. Supp. 846, 860 (S.D.N.Y. 1997) (Sotomayor, D.J.), aff'd mem., 159 F.3d 1348 (2d Cir. 1998); Buti v. Impressa Perosa, S.R.L., 935 F. Supp. 458, 471-72 (S.D.N.Y. 1996) (Schwartz, D.J. Peck M.J.) (citing cases), aff'd, 139 F.3d 98 (2d Cir.), cert. denied, 525 U.S. 826, 119 S.Ct. 73 (1998); Keiser v. TKR Cable Co., 96 Civ. 7697, 1997 WL 811533 at *2 n. 2 (S.D.N.Y. Aug. 28, 1997); Ergotron, Inc. v. Hergo Ergonomic Support Sys., Inc., 94 Civ. 2732, 1996 WL 143903 at *6 (S.D.N.Y. March 29, 1996).

In short, because plaintiff Davila's complaint, prepared by counsel, claims only that Davila is limited in her ability to exercise, and because Davila's deposition testimony does not claim any inability to work, her later-submitted affidavits that she is substantially limited in her ability to work cannot be considered.

Thus, based on Davila's deposition description of the way in which fibromyalgia affects her work — brief hesitation for a few seconds and pain that she was able to "work through" — she is not disabled under the ADA. See, e.g., Weber v. Strippit, Inc., 186 F.3d 907, 914 (8th Cir. 1999) ("moderate limitations on major life activities do not suffice to constitute a 'disability' under the ADA"), cert. denied, 120 S.Ct. 794 (2000); Streifel v. Dakota Boys Ranch Ass'n, No. 99-1765, 221 F.3d 1344 (table), 2000 WL 559205 at *1 (8th Cir. May 9, 2000) (experiencing pain from walking, climbing, and other activities is only a moderate limitation which does not constitute an ADA disability); Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 186 (3d Cir. 1999) (ability to walk is not significantly limited simply because plaintiff requires ten-minute hourly breaks when standing or walking and walks with a slight limp); Berg v. Norand Corp., 169 F.3d 1140, 1145 (8th Cir.) (suffering from continuous joint pain is not substantially limiting on the major life activity of working), cert. denied, 120 S.Ct. 174 (1999); Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir. 1999) (walking with a limp and moving at a "significantly slower pace than the average person" does not reach "the level of a substantial impairment"); Penny v. United Parcel Serv., 128 F.3d 408, 415 (6th Cir. 1997) (walking with moderate difficulty or pain is not a substantially limiting disability); Muszak v. Sears, Roebuck Co., 63 F. Supp.2d 292, 299 (W.D.N.Y. 1999) (plaintiff with lumbar strain was not disabled within meaning of ADA where her back condition presented some difficulties for her in working, but there was no evidence that she was unable to work); McKenzie v. Target Stores, No. C.A. 3:95-2787-23, 1998 WL 1048361 at *5 (D.S.C. June 24, 1998) (performing tasks more slowly than others because of cerebral palsy does not qualify plaintiff as substantially limited in the life activity of working); Kirkendall v. United Parcel Serv., Inc., 964 F. Supp. 106, 110-11 (W.D.N.Y. 1997) (no finding of disability where evidence indicated that plaintiff's back condition was permanent, but it was only a partial and relatively moderate impairment); Hazeldine v. Beverage Media, Ltd., 954 F. Supp. 697, 704 (S.D.N.Y. 1997) ("It is . . . clear that plaintiff's ability to engage in physical activity was sufficient . . . to allow her to carry on her daily life: commuting to work every day, shopping for herself, caring for herself, and completing household tasks, albeit with some difficulty. At most, plaintiff must pace herself when engaging in such physical activity by stopping and resting after five city blocks or twenty minutes of exertion; but this degree of limitation is far from the 'substantial' or 'significant' restriction contemplated by the ADA. . . ."); Aquinas v. Federal Express Corp., 940 F. Supp. 73, 77-78 (S.D.N.Y. 1996) (occasionally having trouble lifting packages at work due to considerable pain from fibromyalgia is not substantially limiting).

In order for Davila to be found substantially limited in the major life activity of working, she must be "unable to work in a broad class of jobs." Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 2151 (1999).²⁴ Accordingly, "[t]he inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(i). Rather, the "ability to work is substantially limited . . . if the plaintiff is 'significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.'" Colwell v. Suffolk County Police Dep't, 158 F.3d at 643 (quoting 29 C.F.R. § 1630.2(j)(3)(i)).

24 Accord, e.g., Muller v. Costello, 187 F.3d 298, 312 (2d Cir. 1999); Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 643 (2d Cir. 1998), cert. denied, 526 U.S. 1018, 119 S.Ct. 1253 (1999); Ryan v. Grae Rybicki, Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 872 (2d Cir. 1998); Varre v. Syracuse, 2000 WL 270966 at *5; Treglia v. Manlius, 68 F. Supp.2d 153, 158 (N.D.N.Y. 1999); Hoffman v. Town of Southington, 62 F. Supp.2d 569, 572 (D.Conn. 1999).

Davila contends that she is unable to engage in repetitive motions. "If I'm experiencing a flareup or an exacerbation, repetitive motions, like I might have some difficulty reaching for something or filing; that's, I really can't do that for long periods of time." (Thomas Aff. Ex. 14: Davila Dep. at 62.) A restriction on repetitive motions, however, has been found to not be substantially limiting. See, e.g., Helfter v. United Parcel Service, Inc., 115 F.3d 613, 618 (8th Cir. 1997) (restriction from performing jobs that require a significant amount of continuous repetitive motion and heavy lifting does not render plaintiff disabled); McKay v. Toyota Motor Mfg., USA, Inc., 110 F.3d 369, 372 (6th Cir. 1997) (plaintiff's carpal tunnel syndrome which restricted her from positions requiring repetitive motion or frequent lifting was insufficient to establish that her condition disqualified her from a broad range of jobs); Zarzycki v. United Tech. Corp., 30 F. Supp.2d 283, 286, 289-293 (D.Conn. 1998) (plaintiff not significantly limited with respect to ability to work where physician restricted plaintiff from, inter alia, repetitive lifting or bending); Kirkendall v. United Parcel Serv., Inc., 964 F. Supp. at 110-11 (no substantial limitation on any life activity, including ability to work, where doctors had advised plaintiff that repetitive bending and lifting were not good for his back). Davila does not allege, and cannot demonstrate, that she is prevented from performing whole categories of employment. Accordingly, even assuming that Davila suffers from a physical condition that causes her discomfort, pain, and to hesitate while performing certain tasks, she is not disabled within the meaning of the ADA.

Finally, in opposition to summary judgment, Davila's physician,

Dr. Belmont, submitted an affidavit which stated the following:

Although Ms. Davila is "high functioning" under normal circumstances, she is totally unable to work in a "sick building." Normally, she can only perform sedentary and clerical work as long as allowances are made for opportunities for stretching at every 1.5 to 2 hours each day. She is unable to climb stairs, she cannot lift or carry heavy files, sit for long periods of time or perform work on computers due to lack of flexibility in her hands. Where a "sick building" is present, Ms. Davila cannot even perform sedentary and clerical work.

(Belmont Aff. ¶ 8.) Dr. Belmont's elaboration on Davila's condition contradicts Davila's own deposition testimony and thus is not admissible. See cases cited at pages 20-21 n. 23 above. Even considering Dr. Belmont's affidavit, however, it still does not render Davila disabled under the ADA. An impairment which only restricts a plaintiff from working in a particular location does not satisfy the disability requirement under the ADA. E.g., Manzi v. DiCarlo, 62 F. Supp.2d 780, 791 (E.D.N.Y. 1999); see, e.g., Weber v. Strippit, Inc., 186 F.3d at 913 (claiming only to be unable to relocate to a particular location and not to be prevented from working in an entire class or broad range of jobs does not qualify as a disability under the ADA); Tuten v. Clariant Corp., No. 98-1299, 173 F.3d 852 (table), 1999 WL 137644 at *2 (4th Cir. 1999) (while plaintiff's asthma condition restricts him from working in defendant's building, it does not disqualify him from a range of employment positions); Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 723 (2d Cir. 1994) (fumes within hospital blood bank that exacerbated plaintiff's asthma does not substantially limit life activity of working); Gupton v. Virginia, 14 F.3d 203, 205-07 (4th Cir.) (where plaintiff's allergy to tobacco smoke prevented her from working in the particular smoke-filled workplace at issue, court dismissed claim because there was "no evidence that her allergy foreclosed her generally from obtaining jobs in her field"), cert. denied, 513 U.S. 810, 115 S.Ct. 59 (1994).²⁵

25 See also, e.g., Nugent v. The Rogosin Instit., 105 F. Supp.2d 106, 113 (E.D.N.Y. 2000) (asthmatic condition, mainly triggered by allergens at defendant's workplace, does not substantially limit plaintiff's ability to work since she is only limited in working at that particular location); Horvath v. Savage Mfg. Inc., 18 F. Supp.2d 1296, 1303 (D.Utah 1998) ("It is true that [plaintiff]'s asthma may impair him from painting in the conditions present at [defendant's workplace], but this is insufficient to qualify as a substantial impairment of the major life activity of working under the ADA."); Benson v. Lawrence Livermore Nat'l Lab., No. C95-2746, 1997 WL 651349 at *4-5 (N.D.Cal. Oct. 14, 1997), aff'd mem., 165 F.3d 605 (9th Cir. 1998); Bellom v. Neiman Marcus Group, Inc., 975 F. Supp. 527, 533-34 (S.D.N.Y. 1997); Castro v. Local 1199, 964 F. Supp. 719, 725 (S.D.N.Y. 1997) (plaintiff's asthma that was exacerbated by extreme temperature "did not limit her employment opportunities generally; rather, it only restricted plaintiff's work capabilities in the narrowest sense. . . . [S]uch a minimal limitation does not rise to the level of a disability under the ADA."); Mobley v. Board of Regents, 924 F. Supp. 1179, 1187, vacated on other grounds, 26 F. Supp.2d 1374 (S.D.Ga. 1996); Huffman v. Ace Elec. Co., Civ. A. No. 94-2030, 1994 WL 583113 at *5 (D.Kan. 1994) (plaintiff who claimed sensitivity to unknown industrial irritants at one particular job does not have a substantial limitation of the major life activity of working).

Davila has not presented any admissible evidence as to how many buildings in the New York area are "sick buildings" and thus how many jobs are foreclosed to her by her condition. On the record, Davila's restriction from working in a "sick building" does not constitute a work disability within the meaning of the ADA.²⁶

26 Davila also argues that the defendant regarded her as disabled on the basis that it would not allow her to return to work until she could return to work with no restrictions. Her argument is as follows:

The defendant concluded, based on its "no restrictions" policy, that Ms. Davila was incapable of performing any job in the City of New York as long as she had restrictions on her ability to return to duty. The fact that the defendant regarded her as unable to perform any job within the employ of the City of New York, and indeed, would not allow her to return to work with restrictions, at the very least creates a genuine issue of material fact as to whether defendant perceived Ms Davila as unable to perform a class or broad range of jobs.

(Davila Br. at 15.)
Defendant's alleged "no restrictions" policy if applied to an individual who is actually disabled within the meaning of the ADA would constitute an ADA violation. It, however, is not evidence that the City of New York regarded Davila as disabled.

III. DAVILA'S NYSHRL DISABILITY CLAIM SHOULD BE DISMISSED WITHOUT PREJUDICE

Davila also claims that her termination violated the New York State Human Rights Law ("NYSHRL"). (Compl. ¶ 33; see Davila Br. at 20-23.) While disability discrimination under the ADA and NYSHRL is analyzed similarly, disability is defined more broadly under NYSHRL. See, e.g., Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 233 (2d Cir. 2000); Scott v. Flaghouse, Inc., No. 97-9431, 159 F.3d 1348 (table), 1998 WL 536764 at *2 (2d Cir. July 7, 1998); Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 154-56 (2d Cir. 1998) (NYSHRL defines a disability more broadly than does the ADA; the NYSHRL does not require the impairment to the plaintiff to identify substantially limited a major life activity); Vaughnes v. United Parcel Serv., Inc., 97 Civ. 5849, 2000 WL 1145400 at *11 (S.D.N.Y. Aug. 14, 2000) ("Although the New York Human Rights Law generally tracks the ADA, . . . the New York statute adopts a broader definition of disability."); Nugent v. Rogosin Inst., 105 F. Supp.2d 106, 115 (E.D.N.Y. 2000); Epstein v. Kalvin-Miller Int'l, Inc., 100 F. Supp.2d 222, 229-30 (S.D.N.Y. 2000); Menes v. CUNY, 92 F. Supp.2d 294, 305 (S.D.N.Y. 2000); Cole v. Uni-Marts, Inc., 88 F. Supp.2d 67, 74 (E.D.N.Y. 2000).²⁷

27 See also, e.g., Mora v. Danka Office Imaging Co., 98 Civ. 4485, 1999 WL 777888 at *5 (S.D.N.Y. Sept. 29, 1999); Roberts v. New York State Dep't of Correctional Servs., 63 F. Supp.2d 272, 290 (W.D.N.Y. 1999); Sacay v. Research Foundation of the City University of New York, 44 F. Supp.2d 496, 502-03 (E.D.N.Y. 1999) ("'the range of impairments that may potentially qualify as a disability is broader under the NYSHRL . . . and 'covers a range of conditions varying in degree from those involving the loss of a bodily function to those which are merely diagnosable medical anomalies which impair bodily integrity and thus may lead to more serious conditions in the future'"); Zuppardo v. Suffolk County Vanderbilt Museum, 19 F. Supp.2d 52, 55 (E.D.N.Y. 1998), aff'd mem., 173 F.3d 848 (2d Cir. 1999); Glowacki v. Buffalo General Hospital, 2 F. Supp.2d 346, 353 (W.D.N.Y. 1998); Glowacki v. Buffalo General Hospital, 2 F. Supp.2d 346, 353 (W.D.N.Y. 1998); Hazeldine v. Beverage Media, 954 F. Supp. 697, 706 (S.D.N.Y. 1997) ("an individual can be disabled under the [New York] Executive Law if his impairment is demonstrable by medically accepted techniques; it is not required that the impairment substantially limit that individual's normal activities.").

Thus, dismissal of Davila's ADA claim does not automatically lead to dismissal of Davila's NYSHRL claim.

A district court may exercise pendent jurisdiction over state law claims "whenever the federal-law claims and state-law claims in the case 'derive from a common nucleus of operative fact' and are 'such that [a plaintiff] would ordinarily be expected to try them all in one judicial proceeding.'" Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349, 108 S.Ct. 614, 618 (1988) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138 (1966)); see also, e.g., Buti v. Impressa Perosa, S.R.L., 935 F. Supp. 458, 475 (S.D.N.Y. 1996) (Schwartz, D.J. Peck, M.J.), aff'd, 139 F.3d 98 (2d Cir.), cert. denied, 525 U.S. 826, 119 S.Ct. 73 (1998). The decision whether to exercise pendent jurisdiction, however, is within the discretion of the district court, which should consider such factors as "judicial economy, convenience, fairness and comity." Carnegie-Mellon, 484 U.S. at 349-50, 108 S.Ct. at 618-19.²⁸

28 See also, e.g., Block v. First Blood Assocs., 988 F.2d 344, 351 (2d Cir. 1993); Amsterdam Tobacco Inc. v. Philip Morris Inc., 107 F. Supp.2d 210, 221-22 (S.D.N.Y. 2000) (Berman, D.J.); Berman v. Parco, 986 F. Supp. 195, 219 (S.D.N.Y. 1997) (Wood, D.J. Peck, M.J.); Buti v. Impressa Perosa, S.R.L., 935 F. Supp. at 475; In re Towers Fin, Corp. Noteholders Litig., 93 Civ. 0810, 1996 WL 393579 at *20 (S.D.N.Y. July 15, 1996) (Knapp, D.J. Peck, M.J.); Sheridan v. Jaffe, 94 Civ. 9344, 1996 WL 345965 at *10 (S.D.N.Y. June 24, 1996) (Knapp, D.J. Peck, M.J.); Shain v. Duff Phelps Credit Rating Co., 915 F. Supp. 575, 584 (S.D.N.Y. 1996) (Knapp, D.J. Peck, M.J.).

When the federal claims are dismissed before trial, the Supreme Court has stated that the District Court ordinarily should decline the exercise of jurisdiction by dismissing the state claims without prejudice. E.g., Carnegie-Mellon, 484 U.S. at 350 n. 7, 108 S.Ct. at 619 n. 7 ("in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims."); Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139 ("if the federal claims are dismissed before trial . . . the state claims should be dismissed as well.").²⁹

29 See also, e.g., Amsterdam Tobacco Inc. v. Philip Morris Inc., 107 F. Supp.2d at 221-22; Berman v. Parco, 986 F. Supp. at 219; Buti v. Impressa Perosa, 935 F. Supp. at 475; In re Towers Fin. Corp. Noteholders Litig., 1996 WL 393579 at *20; Sheridan v. Jaffe, 1996 WL 345965 at *10; Shain v. Duff Phelps Credit Rating Co., 915 F. Supp. 575, 584 (S.D.N.Y. 1996) (Knapp, D.J. Peck, M.J.).

Thus, I recommend that in the exercise of its discretion, the Court dismiss plaintiff's pendent NYSHRL disability claim without prejudice. See, e.g., Scott v. Flaghouse, 1998 WL 536764 at *3.³⁰

30 See also, e.g., Vaughnes v. United Parcel Serv., Inc., 2000 WL 1145400 at *11 (declining to exercise jurisdiction over NYSHRL claim where ADA claim had been dismissed); Weixel v. Board. of Educ., 97 Civ. 9367, 2000 WL 1100395 at *8 (S.D.N.Y. Aug. 7, 2000) (same); Mazza v. Bratton, 108 F. Supp.2d 167, 177 (S.D.N.Y. 2000) (same); Nugent v. Rogosin Inst., 105 F. Supp.2d at 115 (same); Nweke v. Prudential Ins. Co., 25 F. Supp.2d 203, 231 (S.D.N.Y. 1998) (same); Ryan v. Grae Rybicki, No. 96 CV. 3731, 1996 WL 680256 at *7 (E.D.N.Y. Nov. 13, 1996) (same), aff'd, 135 F.3d 867 (2d Cir. 1998); Buckley v. Consolidated Edison Co. of New York, Inc., 934 F. Supp. 104, 106 n. 1 (S.D.N.Y. 1996) (same), aff'd, 155 F.3d 150 (2d Cir. 1998); Wernick v. Federal Reserve Bank, 93 Civ. 2606, 1996 WL 598973 at *2 (S.D.N.Y. Oct. 10, 1995) (same), aff'd, 91 F.3d 379 (2d Cir. 1996).

CONCLUSION

For the reasons set forth above, defendant should be granted summary judgment on plaintiff Davila's ADA claim, and the Court should dismiss without prejudice plaintiff Davila's NYSHRL discrimination claim.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Berman. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).