263 F.3d 208 (2nd Cir. 2001), 00-7919, Lovejoy-Wilson v Noco Motor Fuel Inc.

Docket Nº:Docket No. 00-7919(L), 00-7969(XAP)
Citation:263 F.3d 208
Party Name:DIANE LOVEJOY-WILSON, PLAINTIFF-APPELLANT-CROSS-APPELLEE, v. NOCO MOTOR FUEL, INC., DEFENDANT-APPELLEE-CROSS-APPELLANT.
Case Date:August 31, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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263 F.3d 208 (2nd Cir. 2001)

DIANE LOVEJOY-WILSON, PLAINTIFF-APPELLANT-CROSS-APPELLEE,

v.

NOCO MOTOR FUEL, INC., DEFENDANT-APPELLEE-CROSS-APPELLANT.

Docket No. 00-7919(L), 00-7969(XAP)

United States Court of Appeals, Second Circuit

August 31, 2001

Argued: March 20, 2001

The plaintiff appeals from an order of the United States District Court for the Western District of New York (John T. Curtin, Judge) granting summary judgment in favor of the defendant on the plaintiff's claims of employment discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq., and the New York Human Rights Law, N.Y. Exec. Law § 296 et. seq. The defendant cross-appeals the district court's determination, on a cross-motion for partial summary judgment, that the plaintiff is a qualified individual with a disability under the Americans with Disabilities Act, 42 U.S.C. § 12111(8). We hold that the district court incorrectly granted summary judgment on the plaintiff's claim of failure to promote to the position of assistant store manager, and her retaliation claim. We also hold that we have no jurisdiction to hear the cross-appeal.

Affirmed in part, vacated in part and remanded. Cross-appeal dismissed.

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Mark R. Uba, Connors & Vilardo, Llp (Margaret L. Phillips, of counsel), Buffalo, Ny, for Plaintiff-Appellant-Cross-Appellee.

Linda H. Joseph, Buchanan Ingersoll P.C., Buffalo, Ny, for Defendant-Appellee-Cross-Appellant.

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Susan L. P. Starr, Washington, D.C., for Amicus Curiae Equal Employment Opportunity Commission.

Before: Feinberg, Newman, and Sack, Circuit Judges.

Sack, Circuit Judge

Plaintiff Diane Lovejoy-Wilson, a former employee of defendant NOCO Motor Fuel, Inc. ("NOCO"), brought an action pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et. seq., and the New York Human Rights Law ("NYHRL"), New York Executive Law § 296 et. seq., in the United States District Court for the Western District of New York alleging that NOCO discriminated against her on the basis of her disability by constructively discharging her, failing to accommodate her disability,1 failing to promote her because of her disability, and retaliating against her for complaining about her treatment. The district court (John T. Curtin, Judge) granted summary judgment to the plaintiff with respect to her status as a qualified individual with a disability under the ADA, but granted summary judgment to the defendant on all of the plaintiff's substantive claims.2 We affirm the district court's grant of summary judgment as to the claim for failure to promote to the position of manager; vacate the district court's order granting summary judgment with respect to the plaintiff's claims of discrimination based on failure to promote to the position of assistant manager and retaliation; and dismiss the cross-appeal.3

STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party. See Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), cert. denied, 529 U.S. 1098 (2000). The statement of facts that follows therefore treats the evidence in the light most favorable to the plaintiff. Summary judgment is appropriate where "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law," Fed. R. Civ. P. 56(c), i.e., "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A fact is "material" for these purposes if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

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BACKGROUND

The plaintiff suffers from epilepsy and experiences seizures of varying seriousness on virtually a daily basis. Because of her epilepsy and New York State's requirement that an epileptic be seizure-free for two years in order to obtain a driver's license, the plaintiff is unable to drive.

From August 1992 through September 1994, the plaintiff was employed by NOCO at gasoline service stations and associated convenience stores in the Buffalo, New York area operated by NOCO and its predecessor Cumberland Farms. The plaintiff began her employment with NOCO as a clerk in store number 44 ("S-44"), which is located six blocks from her home. In late 1992, the plaintiff told her supervisors that she suffered from epilepsy. In December of that year, she began applying for a promotion to assistant manager of S-44, but was repeatedly denied the promotion because of her inability to drive. According to NOCO, the reason that assistant managers are required to be able to drive is, inter alia, to permit them to use their automobiles to take their stores' receipts to the bank for deposit.

In or about December 1993, the plaintiff again told her supervisor that she was interested in being promoted to assistant manager at S-44. He told her that she could not be considered for that position because she did not drive.

The plaintiff then put her request for a promotion in writing. On January 5, 1994, Penny Strausberger, NOCO's director of personnel, responded by letter. She told the plaintiff that she was required to have a valid driver's license in order to be able to fulfill various duties of a store's assistant manager, including "banking." Strausberger also told the plaintiff that NOCO did have four locations at which an armored car service picked up the store's receipts and transported them to the bank for deposit. Strausberger said that the plaintiff could be considered for an assistant manager position at one of those stores when one became available.

The plaintiff replied by letter dated January 20, 1994. She asserted that denying her the promotion she sought because of her disability violated the ADA. She also detailed the other occasions on which she claimed she had been denied a promotion because of her inability to drive. And she suggested six possible accommodations of her disability that would in her view be reasonable. In her words:

1. Another manager can pick me up on the way to the bank and we can go together.

2. I can hire a service to drive me when necessary for my job.

3. NOCO can hire a service to drive disabled employees when necessary for management and supervisory positions.

4. I can hire an individual to drive me when necessary for my job.

5. NOCO can hire an individual to drive disabled employees when necessary for management and supervisory positions.

6. Where practical and possible, I can use public transportation when travel is necessary for my job.

On January 26, 1994, NOCO's president, Robert Newman, replied. He accused the plaintiff of "misinterpreting the law." He continued:

Please note the ADA is not for intimidating employers to change non-discriminatory operational policies. Given our past record of accommodating employees with disabilities, I find your position weak at best. After review with counsel, we feel very strongly about our position....

Additionally, your allegations contained within the letter are slanderous. If you continue this behavior, we will have no

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choice but to address your behavior through legal channels.

This is NOCO's final position on this matter and will not [sic] be entertaining further communication on this matter.

He did not respond to the plaintiff's suggestion of possible accommodations.

Approximately one week later, on February 4, 1994, the plaintiff filed a "charge of discrimination" with the federal Equal Employment Opportunity Commission ("EEOC") alleging that NOCO had discriminated against her by failing to promote her, by implementing a promotion policy that had an adverse impact on her and others with disabilities, and by failing to accommodate her disability.

The plaintiff continued to work as a sales clerk at S-44 throughout the winter. Then, on April 8, 1994, she suffered a grand mal epileptic seizure while attending the cash register. She fell, striking her elbow on a cabinet. When she told the store manager about the incident, he asked her to complete an accident report. On April 11, after she fell but before she submitted a report on the accident, the plaintiff again applied to become an assistant manager at S-44. She submitted an accident report on April 12, 1994, and was then, by her account, suspended without pay until April 24, 1994. NOCO contends that the plaintiff was not suspended but was taken off the schedule to ensure that she would undergo an evaluation by a physician.

On April 28, 1994, NOCO again denied the plaintiff's application to be assistant manager at S-44. For the first time, NOCO now cited as the reason for the denial alleged cash shortages at S-44 during the plaintiff's shifts. No mention was made of the plaintiff's inability to drive.

Less than a month later, on May 20, 1994, NOCO nonetheless offered the plaintiff an assistant manager position at store number S-40 ("S-40"), one of the four with armored car service where driving in order to deposit store receipts was unnecessary. The plaintiff replied to NOCO's offer by letter dated May 23, 1994, expressing her reservations about working in the stores serviced by armored cars, referring to their locations as undesirable. She said that assigning her and others with similar disabilities to such stores would result in "a...

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