Stalter v. Board of Co-Op. Educ. Services

235 F.Supp.2d 323

James D. STALTER, Jr., Plaintiff, v. BOARD OF COOPERATIVE EDUCATIONAL SERVICES OF ROCKLAND COUNTY Defendant.

No. 02 CIV. 5513(CM).

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

December 13, 2002.

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Neal Brickman, New York City, for Plaintiff.

MEMORANDUM DECISION

MCMAHON, District Judge.

Plaintiff James D. Stalter, Jr. ("Stalter") sued defendant Board of Cooperative Educational Services of Rockland County ("BOCES") under the Americans with Disabilities Act ("ADA") and the New York Executive Law, claiming that BOCES discriminated against him because he had cerebral palsy and could not speak. BOCES moves for summary judgment (under Federal Rule of Procedure 56) and dismissal for failure to state a claim (under Federal Rule of Civil Procedure 12(b)(6)).¹ Stalter has voluntarily withdrawn his state law claims as well as his claims for punitive damages under the ADA.

For the reasons stated below, BOCES's motion is denied.

I. The Undisputed Facts

Stalter first began working for BOCES in 1963, and has worked as a custodian for BOCES since 1986.² His job consisted primarily of cleaning the interior of the Kaplan School, including the building's fixtures and equipment.

Stalter has suffered from cerebral palsy since birth. As a result of this illness, he has a diminished ability to speak coherently — an affliction that remained unchanged throughout his employment with BOCES. Stalter has learned to communicate by using other forms of communication, such as using audible sounds, written signs, hand spelling, and directional movements. In addition, Stalter has acquired, at his own cost and expense, an "augmentative communication device" that enhances his ability to communicate. BOCES requested, through a letter dated November 16, 2001, that Vocational Education Services program Stalter's communication device to say "an ambulance is needed," "fire equipment is required," and "police are needed." Through these alternative communication techniques and his augmentative communication device, Stalter is able to communicate effectively without speaking.

In October 2000, BOCES employees informed Stalter that he would begin receiving overtime.³ Stalter worked overtime in Buildings Number 3 and 9 on seven separate occasions — between December 2, 2000 and April 28, 2002 — and once refused an offer to work overtime in those buildings. Stalter also worked overtime in Building Number 10 on eight separate occasions — between January 19, 2002 and August 17, 2002 — and twice refused offers to work overtime in that building.

II. Stalter's Claim

Stalter claims that BOCES treated him less favorably than other employees due to his disability or perceived disability. In particular, he claims that (1) he was restricted to working at the Kaplan School, which is generally considered to be an undesirable assignment; (3) he was not afforded the same overtime opportunities as other custodians; and (3) his request for a change to another, more desirable shift was denied, and a less senior, nondisabled custodian was assigned to the shift instead.

Stalter alleges that around October of 2001 he approached his immediate supervisor, William Gerard, about obtaining more equitable treatment. When he requested the opportunity to work in Building Number 10, Stalter claims, Gerard told him that he could not work there because he was unable to speak. [Stalter Aff. ¶ 11]. According to Stalter, that conversation alerted him to the reason why BOCES had treated him inequitably. He thereafter contacted attorneys to advise him of his legal rights and in January of 2002 he filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). In April of 2002 he received a "Right to Sue" letter, and he commenced this action in July of 2002.

III. Summary Judgment Standard

A party is entitled to summary judgment when there is no "genuine issue of material fact" and the undisputed facts warrant judgment for the moving party as a matter of law. Fed.R.Civ.P. 56(c), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When considering a motion for summary judgment, "the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in [its] favor." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has made such a showing, the nonmoving party must present "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The party opposing summary judgment "may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). Moreover, not every disputed factual issue is material in light of the substantive law that governs the case. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

IV. BOCES's Arguments

In order to establish a prima facie case of discrimination under the ADA, a plaintiff must establish that (1) his employer is subject to the ADA; (2) he suffers from a disability within the meaning of the ADA; (3) he could perform the essential functions of his job with or without reasonable accommodation; and (4) he suffered an adverse employment decision. See Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 150 (2d Cir.1998); Valentine v. Standard & Poor's, 50 F.Supp.2d 262, 281-82 (S.D.N.Y.1999) (Sotomayor, C.J.).

BOCES asserts three main arguments to support its motion for summary judgment. First, BOCES argues that Stalter fails to satisfy the first requirement — i.e., that he suffers from a disability within the meaning of the ADA — because (1) he does not have a physical or mental impairment that substantially limits one or more of his major life activities; and (2) BOCES did not regard him as having such an impairment.

Second, BOCES argues that Stalter did not suffer an adverse employment decision because (1) the undisputed facts establish that he was not denied overtime, and (2) denial of a shift change does not constitute an adverse employment action.

Third, BOCES argues that even if this Court finds that denial of a shift change constitutes an adverse employment action, it must still dismiss Stalter's "shift change denial" claim because he did not file his EEOC complaint within 300 days of the allegedly discriminatory act.

A. Whether Plaintiff Suffers From a "Disability" Within the Meaning of the ADA

The ADA defines "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). Plaintiff does not claim to have a record of impairment. Rather, he argues that he is disabled either because he has a physical impairment that substantially limits a major life activity or because he was regarded as having such an impairment by BOCES. Genuine issues of material fact exist as to whether Stalter has, as well as whether BOCES regarded him as having, such an impairment.

1. Physical or Mental Impairment That Substantially Limits a Major Life Activity

Courts apply a three-part test to determine whether a plaintiff has an actual disability under the ADA. See Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, ___, 122 S.Ct. 681, 690, 151 L.Ed.2d 615 (2002); Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 641 (2d Cir.1998); Epstein v. Kalvin-Miller Intern., Inc., 100 F.Supp.2d 222, 225 (S.D.N.Y.2000). First, the plaintiff must show the presence of a "mental or physical impairment." The plaintiff must then show that the impairment affects a "major life activity." Third, the plaintiff must show that the impairment "substantially limits" that major life activity.

BOCES does not contest that cerebral palsy constitutes a mental or physical impairment.⁴ Nor does BOCES contest that speaking is a major life activity.⁵ In fact, BOCES does not even contest that plaintiff's ability to speak is substantially limited. Rather, BOCES argues that Stalter's impairment does not substantially limit his ability to "communicate." According to the EEOC regulations, "substantially limit[ed]" means "[u]nable to perform a major life activity that the average person in the general population can perform'" or "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular 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) (2001), cited in Toyota, 122 S.Ct. at 690.

To assess whether an impairment is substantially limiting, courts in this Circuit typically look to three factors: (1) the nature and severity of the impairment, (2) the duration or expected duration of the impairment, and (3) the permanent or long-term impact resulting from the impairment. See id. at 643 (citing 29 C.F.R. § 1630.20(j)(2)(i)-(iii)). A person is not disabled, however, where an impairment may be corrected by medications or other measures. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 482, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999); Muller, 187 F.3d at 314. Overall, determining whether plaintiff's impairment "substantially limits" a major life activity is an individualized, fact-specific inquiry. Colwell, 158 F.3d at 643.

BOCES argues that the Supreme Court's decision in Sutton compels summary judgement in...