Opinion
16-CV-5110 (WFK) (ST)
2019-09-27
Jonathan M. VELDRAN, Plaintiff, v. Megan J. BRENNAN, Postmaster General, Defendant.
Jonathan M. Veldran, Queens, NY, pro se. Matthew J. Modafferi, US Attorney's Office, Brooklyn, NY, for Defendant.
Jonathan M. Veldran, Queens, NY, pro se.
Matthew J. Modafferi, US Attorney's Office, Brooklyn, NY, for Defendant.
DECISION & ORDER
WILLIAM F. KUNTZ, II, United States District Judge:
Jonathan M. Veldran ("Plaintiff") brings this action pro se against Megan J. Brennan ("Defendant"), alleging claims of discrimination under the Americans with Disabilities Act ("ADA"), New York State Human Rights Law, and New York City Human Rights Law. Defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Notice of Mot., ECF No. 32 ; Def.'s Mem. in Supp. of Mot. for Summary Judgment ("Def. Mem."), ECF No. 33. Plaintiff opposes Defendant's motion. See Pl.'s Opp. to Mot. for Summary Judgment ("Pl. Mem."), ECF No. 37-3. For the reasons that follow, Defendant's motion for summary judgment is GRANTED. BACKGROUND AND PROCEDURAL HISTORY
The following facts are drawn from the parties' Local Rule 56.1 Statements, declarations, deposition testimony, and other evidence submitted in support of the motion. Fed. R. Civ. P. 56(c). See generally Def. St. of Undisputed Material Facts ("Def. St."), ECF No. 34 ; Consolidated 56.1 St., ECF No. 40 ; Pl. St. of Undisputed Material Facts ("Pl. St."), ECF No. 37-2. The facts are undisputed or construed in the light most favorable to Plaintiff, the non-moving party, "with all factual ambiguities resolved and all reasonable inferences drawn in his favor." Capobianco v. City of New York , 422 F.3d 47, 50 n.1 (2d Cir. 2005).
Citations to a party's Rule 56.1 statement and memorandum incorporate by reference the documents cited therein. The Court takes to be true facts stated in a party's Rule 56.1 statement supported by testimonial or documentary evidence and denied by the other party with only a conclusory statement without citation to conflicting testimonial or documentary evidence. E.D.N.Y. Local Rules 56.1(c)–(d).
I. Facts
A. Plaintiff's Employment with Defendant
On August 22, 2015, Plaintiff was hired by the United States Postal Service ("USPS") as a City Carrier Assistant ("CCA"). Def. St. ¶ 1. A CCA is a probationary employee for the first 90 days of employment and is required to deliver mail for approximately seven hours a day and stand and case the mail for up to three hours a day. Id. ¶¶ 2, 22. It is the responsibility of the carrier to check all equipment, including the mail cart, before going out to the street to perform his or her employment duties. Id. ¶ 12.
Plaintiff was primarily tasked with delivering express mail in the Flushing Collections Unit, then he transferred to deliver mail on foot in the Bayside Annex Post Office. Id. ¶¶ 4, 8. Plaintiff had no physical limitations when he started working for USPS. Id. ¶ 3.
He did however tear the meniscus in his right knee and underwent surgery in 2001. Def. St. ¶ 33. As a result of this injury, he receives a 10% disability benefit from the U.S. Veteran's Administration. Id. ¶ 34.
B. October 26, 2015 Incident
On October 26, 2015, Plaintiff was delivering mail when he injured his right knee and right index finger by attempting to stop his mail cart from going downhill. Id. ¶ 11. That same day, Dr. Rodger Hamer conducted x-rays of Plaintiff's right hand and right knee, which revealed no evidence of injury. Id. ¶¶ 15-17. Dr. Hamer diagnosed Plaintiff with a right index finger sprain and a right knee strain and permitted Plaintiff to resume light work with limited lifting, walking, and standing and limited use of his right hand. Id. ¶¶ 16-18. On October 30, 2015, Dr. Vikas Vishnoi examined Plaintiff and cleared him to return to full duty the next day with no physical limitations. Id. ¶¶ 24-26.
On October 31, 2015, Plaintiff was terminated for unsatisfactory, unsafe work performance and for failing to meet the safety requirements for his position. Id. ¶¶ 27-29.
II. Procedural History
On September 12, 2016, Plaintiff filed a complaint, proceeding pro se , in the Eastern District of New York. See Compl., ECF No. 1. In the Complaint, Defendant cited the ADA as the basis for jurisdiction. Id. at 3. Defendant alleged USPS discriminated against him on October 27, 28, 30, and 31, 2015 due to a military disability and a physical disability caused by an on-the-job injury. Id. at 6. After the completion of discovery on June 21, 2018, Defendant requested a pre-motion conference in anticipation of filing a motion for summary judgment. See ECF Nos. 27-28. The motion was fully briefed on October 19, 2018. See ECF Nos. 32-40.
LEGAL STANDARD
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law" by citation to materials in the record. Fed. R. Civ. P. 56(a)–(c). A genuine dispute exists if a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Lovejoy-Wilson v. NOCO Motor Fuel, Inc. , 263 F.3d 208, 212 (2d Cir. 2001). Courts must "construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant" when evaluating summary judgment motions. Brod v. Omya, Inc. , 653 F.3d 156, 164 (2d Cir. 2011) (citation and internal quotation marks omitted). The role of the district court is not to weigh the evidence and to determine the truth of the matter, but rather to answer "the threshold inquiry of determining whether there is the need for a trial." Anderson , 477 U.S. at 249-50, 106 S.Ct. 2505.
If the moving party carries its preliminary burden, the burden shifts to the non-movant to raise the existence of " ‘specific facts showing that there is a genuine issue for trial.’ " Cityspec, Inc. v. Smith , 617 F. Supp. 2d 161, 168 (E.D.N.Y. 2009) (Wexler, J.) (quoting Matsushita Elec. Indust. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). "The mere existence of a scintilla of evidence" in support of the non-movant will not alone defeat a summary judgment motion. Anderson , 477 U.S. at 252, 106 S.Ct. 2505. Rather, the non-moving party must make a showing sufficient to establish the existence of each element constituting its case. See Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("[A] complete failure of proof concerning an essential element of the nonmov[ant]'s case necessarily renders all other facts immaterial."). Conclusory statements, devoid of specifics, are insufficient to defeat a properly supported motion for summary judgment. See Bickerstaff v. Vassar Coll. , 196 F.3d 435, 452 (2d Cir. 1999) ; Scotto v. Almenas , 143 F.3d 105, 114 (2d Cir. 1998).
DISCUSSION
Defendant concedes his state law claims fail as a matter of law and does not argue them further. See Pl. Mem. at 3. For the reasons discussed below, considering all the facts in a light most favorable to Plaintiff, his remaining claim under the Rehabilitation Act fails to raise a genuine dispute of material fact and must be dismissed.
A federal employee's "sole claim for discrimination on the basis of disability is under the Rehabilitation Act." Rivera v. Heyman , 157 F.3d 101, 103 (2d Cir. 1998).
I. Applicable Law
Section 504 of the Rehabilitation Act (the "Act") provides in relevant part:
No otherwise qualified individual with a disability .... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ....
29 U.S.C. § 794(a). To survive a motion for summary judgment, a plaintiff bears the burden of establishing a prima facie case of discrimination under the Act. To do so, a plaintiff must show: "(1) she is disabled within the meaning of the Act; (2) she was otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation; (3) she suffered an adverse employment action due solely to her disability; and (4) her employer receives federal financial assistance." Heilweil v. Mt. Sinai Hosp. , 32 F.3d 718, 722 (2d Cir. 1994) ; see also Gentile v. Potter , 509 F. Supp. 2d 221, 235 (E.D.N.Y. 2007) (Glasser, J.). Failure to establish even one of these four elements "is fatal to a claim of employment discrimination." Reidy v. Runyon , 971 F. Supp. 760, 768 (E.D.N.Y. 1997) (Spatt, J.). Because the Court determines Plaintiff fails to establish the first element of his prima facie case—that he is an individual with a disability within the meaning of the Act—the Court limits its inquiry to that issue. Amendola v. Henderson , 182 F. Supp. 2d 263, 273 (E.D.N.Y. 2001) (Seybert, J.).
II. Plaintiff is not an Individual with a Disability
In order for a plaintiff to be deemed "disabled" at the first element, the plaintiff must: (1) have a physical or mental impairment which substantially limits one or more of such person's major life activities; (2) have a record of such an impairment; or (3) be regarded as having such an impairment. 29 U.S.C. § 705(20)(B). The burden is on the plaintiff to demonstrate his disability fits within the narrow definition of the Act. See Gentile , 509 F. Supp. 2d at 235-36. "Merely having an impairment does not make one disabled." Toyota Motor Mfg., Ky. Inc. v. Williams , 534 U.S. 184, 195, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002) ; see also Ryan v. Grae & Rybicki, P.C. , 135 F.3d 867, 870 (2d Cir. 1998) ("[T]he ADA clearly does not consider every impaired person to be disabled ... [and] courts have been careful to distinguish impairments which merely affect major life activities from those that substantially limit those activities." (emphasis in original)). Furthermore, "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities." Amendola , 182 F. Supp. 2d at 274.
"The ADA's definition of disability is drawn almost verbatim from the definition of ‘handicapped individual’ included in the Rehabilitation Act .... Congress' repetition of a well-established term carries the implication that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations." Bragdon v. Abbott , 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998).
a. Impairment Which Substantially Limits Major Life Activities
The U.S. Supreme Court set forth a three-step analysis for evaluating disability claims under the first definition of "individual with a disability." Bragdon v. Abbott , 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). First, the court must consider whether the plaintiff has suffered a physical impairment. Id. Next, the court must identify the major life activity which might have been limited by the impairment. Id. Major life activities may include "caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 45 C.F.R. § 84.3(j) (2(ii). Finally, the court must consider whether the impairment "substantially limited" that major life activity. Bragdon , 524 U.S. at 631, 118 S.Ct. 2196.
Plaintiff's injury fails to survive the test of an impairment which substantially limits any major life activity. Nowhere in Plaintiff's pleadings or opposition papers does he identify which major life activity is affected by his injury. His injury did not affect his work as a major life activity because he was able to report to work less than a week after the accident with no physical restrictions at all. Def. St. ¶ 26. Plaintiff himself appears to question "whether or not the impairment limits or is perceived to limit a major life activity" in his opposition to Defendant's motion. See Pl. Mem. at 19. Although the injury imposed some minor physical restrictions on his ability to work for a few days, courts in this circuit have rejected disability claims with much longer periods of temporary impairment. See, e.g. , Adams v. Citizens Advice Bureau , 187 F.3d 315, 316-17 (2d Cir. 1999) (per curiam) (holding temporary impairment of three and a half months did not make employee "disabled" within the meaning of the ADA); Colwell v. Suffolk Cty. Police Dep't , 158 F.3d 635, 643 (2d Cir. 1998) ("[A] seven-month impairment of [plaintiff's] ability to work ... is of too short a duration and too vague an extent to be ‘substantially limiting.’ ").
Even if the Court were to consider Plaintiff's injury affecting his work as a major life activity, it certainly did not substantially limit his work. As noted, he was able to return to work with no limitations at all days after the accident. He currently reports being healthy and having no restrictions. The medical evidence supports the temporary nature of Plaintiff's injury because the x-rays taken the day of the accident revealed no evidence of injury. Def. St. ¶ 16. Days later, Dr. Vishnoi conducted a full physical examination and found Plaintiff to be in good physical health with normal range of motion in his right knee. Id. ¶ 25. Without evidence to the contrary, Plaintiff cannot argue a major life activity was substantially limited by his right knee injury.
In the alternative, Plaintiff claims he is "disabled" within the meaning of the Act because he receives a 10% disability benefit from the Veteran's Administration. Pl. Mem. at 9-10. The receipt of a disability benefit does not establish Plaintiff has a disability within the meaning of the Act. See Schapiro v. N.Y.C. Dep't of Health , 25 F. App'x 57, 61 n.2 (2d Cir. 2001) (summary order) ("While [administrative records such as Workers' Compensation awards] may establish a record of the physical impairment, they do not establish a record that the physical impairment created a substantial limitation."). Plaintiff cites no case law to the contrary. Even so, Plaintiff's 2001 knee injury did not substantially limit a major life activity either. Plaintiff does not dispute he had no physical impairments when he began his employment at USPS. In fact, he worked and delivered mail without any limitations from the day he started, August 22, 2015, until the day of the accident, October 25, 2015. Id. ¶¶ 1, 3, 19. Moreover, he currently feels healthy and is without physical limitations. Id. ¶ 31. Neither the 2001 knee injury nor the instant injury caused, nor were they ever expected to cause any permanent or long-term impact on his abilities.
Even if Plaintiff asserted the instant injury caused a substantial limitation on one or more major life activities, he has failed to point the Court to any medical testimony or any evidence to support such a position. His personal testimony, without more, is insufficient. See Sussle v. Sirina Prot. Sys. Corp. , 269 F. Supp. 2d 285, 301 (S.D.N.Y. 2003) (Knapp, J.) ("District courts in the Second Circuit have repeatedly held that a plaintiff's personal testimony which describes the alleged limits that affect a major life activity, without supporting medical testimony, simply is not sufficient to establish his prima facie case under the ADA.").
b. "Regarded as Having" an Impairment
Plaintiff also cannot show he was "regarded as having such an impairment" by USPS. An individual is regarded as having an impairment if he: (1) has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer as constituting such a limitation; (2) has an impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (3) has none of the impairments but is treated by an employer as having a substantially limiting impairment. 29 C.F.R. § 1630.2(7) ; Gentile , 509 F. Supp. 2d at 237. "Without knowledge of [a plaintiff's] disability, it is logically impossible" for an employer to discriminate against a plaintiff as a result of his disability. Pace v. Paris Maintenance Co. , 107 F. Supp. 2d 251, 262 (S.D.N.Y. 2000) (Sweet, J.), aff'd , 7 F. App'x 94 (2d Cir. 2001) (summary order). Furthermore, "[a]n individual cannot be regarded as disabled under the ADA where the impairment is transitory and minor." Thomson v. Odyssey House , 14-CV-3857, 2015 WL 5561209, at *17 (E.D.N.Y. Sept. 21, 2015) (Brodie, J.) (internal quotation marks omitted). A transitory impairment is one lasting six months or less. Hernandez v. Int'l Shoppes, LLC , 100 F. Supp. 3d 232, 250 (E.D.N.Y. 2015) (Weinstein, J.).
There is no evidence on the record before the Court to support Plaintiff's contention by his supervisors, or anyone from USPS, regarded him as having a disability. Although they learned of the instant injury, for the reasons discussed above, Plaintiff could not be regarded as having a disability because his injury was a transitory impairment, since Plaintiff returned to work in four days with no restrictions. With respect to Plaintiff's contention USPS regarded him as having a disability when they "knew that he suffered from a previous military injury," see Pl. Mem. at 10, "a plaintiff must prove more than an employer's simple awareness of an employee's impairment," Pierre v. N. Shore Univ. Hosp , 08-CV-2246, 2010 U.S. Dist. LEXIS 43963, at *27 (E.D.N.Y. Apr. 28, 2010) (Platt, J.). Nothing on the record shows his supervisors regarded him to have a disability because of his 2001 injury. Plaintiff worked without limitations until the day of the accident, therefore there was no reason to believe Plaintiff had a disability that substantially limited his work because of his Veteran's Administration disability benefit. Indeed, none of Plaintiff's supervisors knew or believed he had any physical disability. Def. St. ¶ 30.
* * *
Accordingly, drawing all reasonable inferences in favor of Plaintiff, the Court cannot find Plaintiff was under a disability within the meaning of the Act or was regarded has having a disability within the meaning of the Act. Gentile , 509 F. Supp. 2d at 238. Plaintiff has therefore failed to establish a prima facie case of disability under the Rehabilitation Act, and the Court must dismiss his claims arising under the Act.
CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment, ECF No. 32, is GRANTED. The Clerk of Court is respectfully instructed to terminate the motion pending at ECF No. 32 and close this case.