Ryan v. Grae & Rybicki, P.C.

• Decision Date: 04 February 1998
• Docket Number: No. 119,D,119
• Citation: 135 F.3d 867
• Parties: 7 A.D. Cases 1387, 11 NDLR P 357 Jessica RYAN, Plaintiff-Appellant, v. GRAE & RYBICKI, P.C., Defendant-Appellee. ocket 96-9681.
• Court: U.S. Court of Appeals — Second Circuit

Page 867

135 F.3d 867

7 A.D. Cases 1387, 11 NDLR P 357

Jessica RYAN, Plaintiff-Appellant, v. GRAE & RYBICKI, P.C., Defendant-Appellee.

No. 119, Docket 96-9681.

United States Court of Appeals Second Circuit.

Argued Aug. 26, 1997.

Decided Feb. 4, 1998.

John Ware Upton, New York City, for Appellant.

Timothy E. Graulich, Staten Island, NY, for Appellee.

Before: KEARSE, MCLAUGHLIN and GODBOLD, ^* Circuit Judges.

BACKGROUND

MCLAUGHLIN, Circuit Judge:

Jessica Ryan has long suffered from bowel problems. She has experienced frequent and painful diarrhea, stomach cramps, and rectal bleeding. In May 1993, Ryan was diagnosed with ulcerative colitis of the rectum. The symptoms of colitis vary in intensity over time, and the condition is incurable.

Grae & Rybicki ("G & R"), a law firm, hired Ryan as a legal secretary in September 1992. Shortly after her May 1993 diagnosis, Ryan told her supervisor at G & R that she suffered from colitis. Ryan also informed her supervisor that because of her colitis, she was forced to use the bathroom frequently.

Ryan's diarrhea, cramping, and rectal bleeding became markedly worse in the summer of 1993. During this period, Ryan suffered through a nearly continuous cycle of three to four days of constipation followed by three to four days of erratic, bloody and painful diarrhea. Ryan claims that if she could not get to a bathroom within five to ten seconds of an attack she would soil her clothes. Despite these symptoms, Ryan maintains that she was always capable of performing her job as a legal secretary at G & R. Ryan emphasizes that she did not even use her allotted number of sick days or vacation time in 1993.

In June 1993, G & R moved Ryan from the second to the first floor of their offices. G & R contends that Ryan had been a secretary of marginal quality when working on the second floor and that after the move her performance became "appreciably unsatisfactory." G & R claims that one attorney, John O'Dowd, repeatedly reprimanded Ryan for misspelling words, failing to attach papers to motions, and forgetting to place enclosures in correspondence.

In the summer of 1993, another attorney, Michael Gaffney, met with Ryan to discuss her abrasive behavior toward a co-worker. In September 1993, at G & R's monthly paralegal/attorney meeting, one paralegal complained of Ryan's performance problems and her repeated use of the phone for personal reasons. Ryan responds that, despite G & R's claims, her performance was never sub-standard and that she was always a competent secretary.

On September 9, following the paralegal/attorney meeting, Gaffney and Thomas Rybicki met with Ryan to warn her that if her behavior and performance did not improve within two weeks, G & R would fire her. Rybicki then went on vacation for two weeks. When he returned to the office, he was informed that Ryan's performance had not improved. G & R claims that a decision was made then to fire Ryan in the near future.

On September 26, Ryan experienced severe stomach pain and heavy rectal bleeding. She was treated overnight at Staten Island Hospital. When she returned to work on September 28, 1993, she informed her supervisor that she had been hospitalized.

On October 1, Rybicki called Ryan into his office. Gaffney and Fredric Grae, the other senior partner of G & R, were also in attendance. Rybicki told Ryan that she was fired. According to Ryan, Rybicki also said, "I think this job is too stressful for you because you have colitis." Rybicki denies making this statement and claims that he did not even know that Ryan had colitis. Gaffney and Grae both attest that the word "colitis" was never used. Both parties agree that during this meeting, Grae told Ryan that G & R would provide her with a good employment recommendation.

On November 29, 1993, Ryan filed a complaint against G & R with the New York State Division of Human Rights, alleging that she was fired solely because she had colitis, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (McKinney 1993) ("HRL"). Ryan received a Right to Sue Letter from the U.S. Equal Employment Opportunity Commission ("EEOC") on August 4, 1994. On August 10, 1994, Ryan filed suit in the United States District Court for the Eastern District of New York (Glasser, Judge), alleging that G & R violated the ADA and HRL. After a period of discovery, G & R moved for summary judgment dismissing Ryan's claims.

Judge Glasser granted G & R's motion on the ground that Ryan could not make out a prima facie case of employment discrimination because Ryan is not disabled under the ADA. As an alternative ground, Judge Glasser held that even if Ryan is disabled, G & R showed that Ryan was terminated for a legitimate, nondiscriminatory reason. Having granted summary judgment on Ryan's federal ADA claim, Judge Glasser declined to exercise supplemental jurisdiction over Ryan's state HRL claim. Ryan now appeals.

DISCUSSION

We review a district court's award of summary judgment de novo, drawing all inferences and resolving all ambiguities in favor of the nonmoving party. See Schwapp v. Town of Avon, 118 F.3d 106 (2d Cir.1997). Summary judgment is proper only "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).

A plaintiff alleging employment discrimination under the ADA bears the initial burden of establishing a prima facie case. See Wernick v. Federal Reserve Bank of N.Y., 91 F.3d 379, 383 (2d Cir.1996). In order to establish a prima facie case of discriminatory discharge, a plaintiff must show that: (1) her employer is subject to the ADA (2) she suffers from a disability within the meaning of the ADA; (3) she could perform the essential functions of her job with or without reasonable accommodation; and (4) she was fired because of her disability. See Bates v. Long Island R.R. Co., 997 F.2d 1028, 1035 (2d Cir.1993); see also Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir.1994), cert. denied, 513 U.S. 1147, 115 S.Ct. 1095, 130 L.Ed.2d 1063 (1995).

For purposes of this appeal, G & R does not dispute that it is subject to the ADA or that Ryan was able to do her job. However, G & R argues that Ryan is not "an individual with a disability" under the ADA.

Under the ADA:

The term "disability" means, with respect to an individual--

(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).

For the purposes of this appeal, G & R also concedes that Ryan suffers from an "impairment." Ryan, on appeal, does not claim to have had a record of an impairment. Thus, in order to present a prima facie case that she was disabled, Ryan had to make either one of two showings: (1) that her colitis substantially limited a major life activity; or (2) that G & R regarded her colitis as a substantially limiting impairment.

A. Substantial Limitation of Major Life Activity

The ADA does not define "major life activities" or "substantial limit[ation]." However, the regulations promulgated by the EEOC under the ADA explain these terms. While these regulations are not binding, they provide us with guidance in interpreting the ADA. See, e.g., Francis v. City of Meriden, 129 F.3d 281, 283 n. 1 (2d Cir.1997) (great deference owed EEOC regulations interpreting ADA).

The regulations define "major life activities" 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). The listed activities are "examples only," and "other major life activities include, but are not limited to, sitting, standing, lifting, or reaching." U.S. Equal Employment Opportunity Commission, Americans with Disabilities Act Handbook I-27 (1992) ("ADA Handbook").

"Substantially limits" is defined 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.

29 C.F.R. § 1630.2(j)(1).

The regulations further counsel that:

[t]he following factors should be considered in determining whether an individual is substantially limited in a major life activity:

(i)The nature and severity of the impairment;

(ii)The duration or expected duration of the impairment; and

(iii)The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

Id. § 1630.2(j)(2).

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. See, e.g., 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 presents two arguments in support of her claim that her colitis substantially limits a major life activity. First, she maintains the ability to control the elimination of waste is a major life activity, although the regulations do not define it as such, and that her colitis substantially limits this activity. Second, she asserts that her colitis substantially limits her...