OPINION
Plaintiff, ARLENE COUSINS, has brought this employmentdiscrimination suit against her former employer, HOWELLCORPORATION, for alleged violations of the federal AgeDiscrimination in Employment Act ("ADEA") and the Americans withDisabilities Act ("ADA"). Plaintiff has also asserted a state-lawclaim for negligent misrepresentation. Defendant has moved forsummary judgment on all counts of plaintiff's amended complaint[Doc. #37]. For the reasons set forth below, defendant's motionwill be GRANTED.
BACKGROUND
The facts relevant to these claims are as follows: Defendant isa small manufacturer of electrical systems for hoists and cranesand, at all times relevant to this complaint, had just over 20employees. In 1994, plaintiff was hired as a customer servicerepresentative1 by defendant's then vice president, RobertBeale, who was in his late 60's. The two other principals of thecompany were in their 80's. Plaintiff was 52 years of age at thetime she was hired. The company had only one other customerservice representative, Anne Fox, who was in her late 50's.
Plaintiff worked in this capacity for over two years and had avery good performance record. Her job performance is not at issuein this case. She was an at-will employee, paid on an hourlybasis, and worked 37 and one-half hours per week.
In June, 1996, plaintiff was diagnosed with gall bladderproblems and was scheduled for gall bladder surgery the followingmonth. She discussed with Beale (now president of the company)her need to take a week or so off for the surgery, which Bealereadily agreed to. On July 1, 1996, following some preliminaryprocedures, plaintiff developed acute pancreatitis and othercomplications, which required emergency surgery and a prolongedhospitalization. At the time of the surgery, plaintiff was givenonly a 50/50 chance of surviving. Needless to say, plaintiff wasout of work much longer than anyone had anticipated due to theseunexpected complications.
Due to the various medical problems plaintiff experienced, hergall bladder surgery was not performed until January 1997. InApril, 1997, plaintiff underwent another surgery to repair ahernia that had developed as a result of her first surgery.Plaintiff states that she was completely incapacitated and unableto work through April, 1997. The severity of plaintiff'sillnesses and her inability to work during this period areundisputed.
Initially during plaintiff's absence, defendant's one othercustomer service representative, Anne Fox, filled in forplaintiff. Fox worked overtime and during her lunch hour to keepup with the work thathad previously been performed by two customer servicerepresentatives. After approximately six weeks, Fox advised Bealethat this was too much for her, and he hired Monica Steyer, age32, on a temporary, part-time basis to fill in for plaintiff.Steyer was an independent contractor who was paid on an hourlybasis for the hours she worked, which ranged from 12 to 35 hoursper week. At the outset, Steyer was only to work for eight weeks,which Beale believed would cover the period of plaintiff'santicipated absence from work. However, when plaintiff remainedunable to return to work, Beale asked Steyer to continue on apart-time basis until plaintiff's return.
In January, 1997, defendant's bookkeeper of over 20 yearsretired at the age of 64, and Fox was promoted to the position ofbookkeeper. Due to a shortage in the customer service area andgiven the uncertainty as to when plaintiff would be able toreturn, Beale hired a replacement for Fox, Sandra Wagner, who was43 years of age.
On March 17, 1997, after plaintiff had been out of work foreight and one-half months, defendant hired Steyer on a permanent,part-time basis to work as a customer service representative forup to 30 hours per week. Beale testified that he gave Steyer apermanent offer not to replace plaintiff but because he neededthe help. (Beale dep. at 70). It is undisputed that, as of March,1997, plaintiff was still unable to work, and it was uncertainhow much longer plaintiff would be out of work.
In early April, 1997, prior to her last surgery, plaintiffspoke with Beale about returning to work on a part-time basis.Beale told plaintiff to call him after her surgery on April 10thand after she had a sufficient recovery to let him know when shewould be able to return to work. (Pl.'s dep. at 61). Plaintiffstates that, at that point, neither she nor her husband wereadvised that Steyer had been hired on a permanent basis. (Pl.'sdep. at 61, 63).
On April 30, 1997, plaintiff called Howell Corporation andspoke with Fox. She told Fox that she would be able to return towork as of May 12th on a part-time basis. Fox advised her thatshe would need to speak with Beale who was on vacation. (Pl.'sdep. at 62, 63). Plaintiff states that she was not feeling onehundred percent physically but she was anxious to return to workand her doctor had released her to return to work as of May 12th.(Pl.'s dep. at 62, 70).
When Beale returned the first week of May, plaintiff spoke withhim about returning to work part-time as of May 12th and easinginto a full-time position thereafter. (Pl.'s dep. at 70). Beale,now 71 years of age, told plaintiff that Steyer was working from9:00 to 3:00 and that he would have to work something out. Id.They discussed dividing hours but did not reach a firm agreement.Beale was to call her once he had made arrangements for herreturn. (Pl.'s dep. at 71, 79).
Plaintiff testified in her deposition that, at this point intime, she was fully able to do the same work that she had donebefore. (Pl.'s dep. at 75). She could care for herself in termsof her everyday activities. She had fully recovered from hersurgeries and was not limited in any way. (Pl.'s dep. at 111,112).2 Plaintiff testified that she requested part-time workuntil she could get her strength back. She considered herself tobe 95% recovered at that point. (Pl.'s dep. at 114).
When plaintiff did not hear back from Beale, on June 5, 1997,she sent him a certified letter again expressing her desire toreturn to part-time work. (Pl.'s dep. at 80). On June 13, 1997,Beale responded by letter, which stated in relevant part:
THE ONLY THING I CAN OFFER YOU IS THREE HOURS A DAY (9:00 A.M.-12:00 P.M.) TO BE PAID ON AN HOURLY BASIS. THE WORK AVAILABLE WOULD BE FILING, PUTTING CATALOGS TOGETHER, ANSWERING PHONES AS A BACKUP TO MONICA AND SANDY.
Plaintiff characterizes his offer as a filing clerkposition.3 Defendant disagrees with plaintiff'scharacterization of the job and claims that this part-timeposition offered was the same as plaintiff had previously held,except it was of shorter duration and some of the afternoonfunctions, such as billing, would not be handled by plaintiff. OnJune 20, 1997, plaintiff met with Beale and told him that hisoffer was unacceptable. (Pl.'s dep. at 103). She considered theposition to be a demotion. Id. According to plaintiff, Bealeresponded that it was all that he could do because he was in apinch since he had hired Monica. Plaintiff felt that her onlyoption was to "take it or leave it." Id.
After plaintiff declined Beale's offer, she asked him to giveher a layoff slip (a "pink slip") so that she could collectunemployment compensation. (Pl.'s dep. at 103, 105). Bealecomplied with her request and gave her a pink slip. Id.Plaintiff did not think that she had been fired. (Pl.'s dep. at105). Plaintiff then filed for unemployment compensation andcollected approximately $8,500. (Pl.'s dep. at 131).
Throughout plaintiff's medical ordeal, on a weekly basis,plaintiff or her husband spoke with Beale or other employees ofdefendant, who expressed their concerns for plaintiff's healthand well-being. Plaintiff and her husband testified that Bealerepeatedly assured them that plaintiff's job would be waiting forher when she was well enough to return. (Pl.'s dep. at 53, 54,58; Robert Cousins' dep. at 28). Defendant denies that Bealepromised to keep her position open. Although Beale denies that hemade these express promises, he testified that plaintiff's jobremained open to her until she requested the pink slip on June20, 1997. (Beale dep. at 70).
DISCUSSION
Summary Judgment Standard
The general principles applicable to summary judgment motionsare well-settled. Under Rule 56(c), Fed.R.Civ.P., summaryjudgment shall be rendered forthwith "if the pleadings,depositions, [and] answers to interrogatories . . . together withthe affidavits . . . show that there is no genuine issue as toany material fact and that the moving party is entitled tosummary judgment as a matter of law." The burden of showing thatthere is no genuine factual dispute rests upon the moving party.See Gallo v. Prudential Residential Servs., Ltd. Partnership,22 F.3d 1219, 1223 (2d Cir. 1994). In assessing the record todetermine if such issues exist, we are required to resolve allambiguities in favor of the party against whom summary judgmentis sought and to draw all permissible inferences in that party'sfavor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). This remedy, whichprecludes a trial, is properly granted only when no rational jurycould find in favor of the non-moving party. Carlton v. MysticTransportation, Inc., 202 F.3d 129, 133 (2d Cir.), cert.denied, ___ U.S. ___, 120 S.Ct. 2718, 147 L.Ed.2d 983 (2000). Inemployment discrimination cases, the Second Circuit has cautionedthat district courts"must be cautious about granting summary judgment to an employerwhen . . . its intent is at issue," Gallo, 22 F.3d at 1224,which, of course, is usually the case.
I. Plaintiff's Age Discrimination Claim
Plaintiff's first claim is for age discrimination under theADEA. Defendant asserts that it is entitled to summary judgmentbecause the undisputed facts establish that plaintiff was neverterminated; instead, she simply quit. Further, even assuming thatshe was terminated, the termination was done by a man in his70's, the same person who hired plaintiff, thus entitlingdefendant to the "same actor" inference. Finally, defendantargues that the only evidence supporting plaintiff's claim is thefact that plaintiff was replaced by a younger worker, which fact,defendant asserts, is insufficient to raise a triable issue ofage discrimination.
Under the ADEA, it is "unlawful for an employer . . . to failor refuse to hire or to discharge any individual or otherwisediscriminate against any individual with respect to hiscompensation, terms, conditions, or privileges of employment,because of such individual's age." 29 U.S.C. § 623(a)(1). TheADEA covers the class of individuals like plaintiff who are overthe age of 40. 29 U.S.C. § 631(a). In a disparate treatment casesuch as this, liability depends on whether the protected trait,age, actually motivated the employer's decision. Hazen Paper Co.v. Biggins, 507 U.S. 604, 607, 113 S.Ct. 1701, 123 L.Ed.2d 338(1993). "That is, the plaintiff's age must have actually played arole in the employer's decisionmaking process and had adeterminative influence on the outcome." Reeves v. SandersonPlumbing Products, Inc., ___ U.S. ___, 120 S.Ct. 2097, 2105, 147L.Ed.2d 105 (2000) (internal citations and quotations omitted).
The evidentiary framework for proving age discrimination is thesame as that for proving discrimination under Title VII. Raskinv. Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997). Thus, we followthe three-step, burden-shifting analysis set forth in McDonnellDouglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d668 (1973).
Defendant's initial argument is addressed to plaintiff's primafacie burden, which requires plaintiff to show that she wassubjected to an adverse employment action under circumstancesgiving rise to an inference of age discrimination. See Brennanv. Metropolitan Opera Association, Inc., 192 F.3d 310, 316 (2dCir. 1999). Defendant claims that plaintiff has failed to carrythis burden because she was neither discharged nor terminated bydefendant.4 While many cases discuss a plaintiff's primafacie burden in terms of requiring the plaintiff to show that heor she was discharged, see, e.g., Carlton v. MysticTransportation, 202 F.3d at 134; Hollander v. American CyanamidCo., 172 F.3d 192, 198 (2d Cir.), cert. denied, ___ U.S. ___,120 S.Ct. 399, 145 L.Ed.2d 311 (1999), this phraseologyundoubtedly reflects the factual context of the particular case.The ADEA does limit actionable age discrimination claims to casesof discharge or termination. Rather, it speaks in terms of arefusal to hire or discharge or "otherwise discriminate . . .with respect to . . . compensation, terms, conditions, orprivileges of employment." 29 U.S.C. § 623(a)(1) (emphasisadded). Thus, the issue as presented by defendant is drawn toonarrowly.
Plaintiff asserts that she was subjected to an adverseemployment action whenSteyer was hired as her replacement in March, 1997, and whenplaintiff was offered a part-time job with fewer jobresponsibilities in June, 1997, which she viewed as ademotion.5 The parties spend a great deal of time on thisissue in their briefs and supporting documents. There clearly arefactual issues in this regard. Because we are required to resolveall ambiguities in plaintiff's favor, we assume for purposes ofthis summary judgment motion that plaintiff was subjected toadverse employment actions by defendant and that plaintiff hasmet her minimal burden of establishing a prima facie case of agediscrimination. See Fagan v. New York State Electric & Gas Co.,186 F.3d 127, 132 (2d Cir. 1999).
The burden now shifts to defendant to articulate a legitimate,non-discriminatory reason for its actions. Defendant points tothe fact that plaintiff had been out of work for an extendedperiod of time, that the one other customer servicerepresentative could not handle both jobs, and that additionalhelp was needed, thus necessitating the hiring of Steyer on apermanent, part-time basis. This is what is often referred to asthe business necessity defense.
The burden then shifts to the plaintiff to offer proof that theproffered reason was not the true reason for the adverse actionbut was a pretext for age discrimination. Texas Dep't ofCommunity Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089,67 L.Ed.2d 207 (1981). Plaintiff does not challenge defendant'sneed for a replacement during the period of her absence. Instead,she argues that defendant's reasons are "clearly pretextual"because the evidence shows that plaintiff and her husband werenot told of Steyer's permanent hire and, once plaintiff beganmaking arrangements to return to her former position, Bealedeliberately avoided her.
As the en banc majority noted in Fisher v. Vassar College,114 F.3d 1332, 1339 (2d Cir. 1997), cert. denied,522 U.S. 1075, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998),6 "discriminationdoes not lurk behind every inaccurate statement."
Individual decision-makers may intentionally dissemble in order to hide a reason that is non-discriminatory but unbecoming or small-minded, such as back-scratching, log-rolling, horse-trading, institutional politics, envy, nepotism, spite, or personal hostility. . . . In short, the fact that the proffered reason was false does not necessarily mean that the true motive was the illegal one argued by the plaintiff.
Id. at 1337-38.
In this case, the fact that Beale may have been avoidingplaintiff does not logically lead to the conclusion that the realreason for his decision to hire a younger replacement wasplaintiff's age. Plaintiff had been out of work for eight andone-half months. She was still unable to work. Beale had abusiness to run and he did not know when, or if, she would bereturning to work. Likewise, Beale's delay in responding toplaintiff request to return on apart-time basis does not in any way suggest that his statedreason was a pretext for discrimination. Beale had been onvacation for the previous two weeks and stated that he was verybusy with a backlog of work. Beale also may have wanted topostpone what he viewed as a difficult decision or an awkwardmeeting; he may have felt badly about his decision in light ofplaintiff's lengthy convalescence; or, he may not have beenavoiding plaintiff at all. Plaintiff testified that Beale was inan awkward position because "all along he kept telling me that myjob would be there for me, that their main concern was that Irecover, get better and when I was ready to be back to work, Iwould have a position . . . Now he hired someone else and therewas no need to have me go back to that position." (Pl.'s dep. at106).
Further, as defendant argues, it is entitled to an inference inits favor based on the fact that Beale, who was over 70, was theperson who hired and "fired" plaintiff, who was over 40 whenhired. This is what the courts have characterized as the "sameactor" inference.7
There simply is nothing in the record to suggest thatplaintiff's age played any role whatsoever in the employmentdecisions that Beale made. As the Supreme Court stated in HazenPaper, 507 U.S. at 609, 113 S.Ct. 1701, a "disparate treatmentclaim cannot succeed unless the employee's protected traitactually played a role in [the decisionmaking] process and had adeterminative influence on the outcome." Plaintiff has failed tooffer even a scintilla of evidence to support her claim thatBeale's decisions were based upon her age, other than theadmitted fact that Steyer was significantly younger thanplaintiff. The courts have reiterated time and again that thereplacement of an older worker with a younger worker does notitself prove unlawful discrimination. Fagan, 186 F.3d at 134;Hollander, 172 F.3d at 199, n. 3; Futrell v. J.I. Case,38 F.3d 342, 348 (7th Cir. 1994) ("Typically, younger workers willreplace older ones; this is an unremarkable phenomenon that doesnot, in and of itself, prove discrimination."). Therefore, wefind no triable issue of fact that Beale or any other person onbehalf of defendant discriminated against plaintiff because ofher age and GRANT summary judgment in favor of defendant on countone of plaintiff's amended complaint.
II. Plaintiff's Disability Discrimination Claim
Plaintiff's second claim is brought under the ADA, whichprohibits discrimination by covered entities, including privateemployers, against qualified individuals with a disability.Specifically, it provides that
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a). A "qualified individual with a disability"is defined as "an individual with a disability who, with orwithout reasonable accommodation, can perform the essentialfunctions of the employment position that such individual holdsor desires." 42 U.S.C. § 12111(8). In turn, "disability" isdefined as: "(A) a physical or mental impairment thatsubstantially limits one or more of the major life activities ofsuch individual; (B) a record of such an impairment; or (C) beingregarded as having such an impairment." 42 U.S.C. § 12102(2).Accordingly, to fall within this definition one must have anactual disability, have a record of a disability, or be regardedas having a disability.
Plaintiff's disability discrimination claim focuses on twoseparate actions of defendant. First, plaintiff alleges thatbetween July 1, 1996, and April, 1997, while she was completelydisabled and unable to work, defendant hired Steyer on apermanent basis to replace plaintiff. Second, plaintiff allegesthat in June, 1997, defendant perceived her to be substantiallydisabled and discriminated against her on the basis of thatperceived disability by terminating her, refusing to reinstateher, and failing to hold her position open because of herdisability.
Defendant argues that it is entitled to summary judgment onplaintiff's ADA claim because plaintiff was not a "qualifiedindividual with a disability" within the meaning of the ADA.8Moreover, defendant asserts, that to the extent that plaintiffrequested an accommodation (part-time work), defendant compliedwith that request. In addressing this argument we must considerplaintiff's disability status at two points in time: on March 17,1997, when Steyer was hired on a permanent basis and, on June 20,1997, when plaintiff was given the part-time offer by Beale,which for purposes of this motion we will assume was a demotion.See Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S.Ct.2139, 2146, 144 L.Ed.2d 450 (1999) (holding that the ADA isproperly read as requiring that a person be presentlysubstantially limited in order to demonstrate a disability).
A. Was Plaintiff Otherwise Qualified in March of 1997
As part of plaintiff's prima facie case, plaintiff must showthat she was a qualified individual with a disability, as thatphrase is defined by the ADA, at the time of the adverseemployment action. Nowak v. St. Rita High School, 142 F.3d 999,1002 (7th Cir. 1998). The regulations set forth a two-prongedtest that must be applied. First, plaintiff must have therequisite skill, experience, education, and other job-relatedrequirements of the job. 29 C.F.R. § 1630.2(m). That is not atissue here. Second, the plaintiff must show that she can performthe essential elements of the position with or without reasonableaccommodation. Id.; Reeves v. Johnson Controls World Servs.,Inc., 140 F.3d 144, 149-50 (2d Cir. 1998); D'Amico v. City ofNew York, 132 F.3d 145, 149 (2d Cir.), cert. denied,524 U.S. 911, 118 S.Ct. 2075, 141 L.Ed.2d 151 (1998).
It is undisputed that, as of March, 1997, plaintiff wasphysically unable to perform her job as a customer servicerepresentative. She describes herself as totally incapacitated,and defendant does not dispute that claim. Defendant argues thatplaintiff has failed to show that she was able to perform theessential functions of the job in spite of her disability with areasonable accommodation.
Plaintiff has failed to suggest any accommodation that couldhave been offered by her employer in March, 1997, that would havemade this possible. The ADA does not require employers to retaindisabledemployees who cannot perform the essential functions of theirjobs with or without reasonable accommodation. Garcia-Ayala v.Lederle Parenterals, Inc., 212 F.3d 638, 649 (1st Cir. 2000).Although in some instances, providing medical leave has been heldto be a reasonable accommodation required by the ADA,29 C.F.R. § 1630.2(o); see Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1110(10th Cir. 1999) (an allowance of time for medical care ortreatment may constitute a reasonable accommodation under theADA); Durant v. Chemical/Chase Bank/Manhattan Bank, N.A., No.97 Civ. 1609(LAK), 1999 WL 1328001 (S.D.N.Y. Dec. 3, 1999)(holding that a leave of absence is a possible reasonableaccommodation under the ADA), the courts have held that medicalleave of indefinite duration is not a required reasonableaccommodation. See, e.g., Mitchell v. Washingtonville CentralSchool Dist., 190 F.3d 1, 9 (2d Cir. 1999) (holding that SchoolBoard was not required to grant plaintiff an indefinite leave ofabsence); Taylor v. Pepsi-Cola, 196 F.3d at 1110 (holding thatindefinite period of medical leave is not a reasonableaccommodation); Watkins v. J & S Oil Co., Inc., 164 F.3d 55, 62(1st Cir. 1998) (holding that, where was no evidence as to whenplaintiff would be able to return to work at the time hisreplacement was hired, the employer was not required to hold theplaintiff's job open indefinitely); Nowak v. St. Rita HighSchool, 142 F.3d at 1004 ("The ADA does not require an employerto accommodate an employee who suffers a prolonged illness byallowing him an indefinite leave of absence."); Monette v.Electronic Data Systems Corp., 90 F.3d 1173, 1187-88 (6th Cir.1996) (same); Rogers v. International Marine Terminals, Inc.,87 F.3d 755, 759-60 (5th Cir. 1996) (same); Hudson v. MCITelecommunications, Corp., 87 F.3d 1167, 1169 (10th Cir. 1996)(same). As the Fourth Circuit stated in Myers v. Hose,50 F.3d 278, 283 (4th Cir. 1995), "[n]othing in the text of thereasonable accommodation provision requires an employer to waitan indefinite period for an accommodation to achieve its intendedeffect."
There is no evidence in the record that, at the time Steyer'sstatus was changed from temporary to permanent, defendant had anyindication of when plaintiff would be returning to work.Plaintiff had already been out of work eight and one-half monthsand was facing another surgery. Beale testified that the reasonhe made Steyer a permanent employee was because of the"uncertainty of Arlene['s] coming back." (Beale dep. at 67). Hefurther testified that it was not until June, 1997, that he hadany idea of when plaintiff would be able to return to work.(Beale dep. at 66). Thus, in March of 1997, even assuming thatplaintiff requested additional unpaid leave as a reasonableaccommodation, it would have been of indefinite duration. Weagree with the cases cited above that this was not a reasonableaccommodation required by the ADA, particularly given defendant'ssmall size and the fact that defendant had already keptplaintiff's job open for eight and one-half months.
Therefore, we find that plaintiff has failed to meet her burdenof establishing she was a "qualified individual with adisability" in March, 1997, since she has not shown that she wasable to perform the essential functions of her job as a customerservice representative with or without reasonable accommodation.Therefore, plaintiff has failed to meet her prima facie burdenunder the ADA, and summary judgment is appropriate in favor ofdefendant on this portion of her ADA claim.
B. Was Plaintiff Regarded As Disabled in June of 1997
Defendant next asserts that plaintiff was not disabled at thetime she met with Beale in June, 1997, and received the part-timejob offer and that, even if she was, defendant provided plaintiffwith her requested accommodation, a part-time position. Asdiscussed above, plaintiff's testimonyis inconsistent with her affidavit concerning whether she wasphysically disabled in June of 1997. See Note 2, supra. Evenif we were to credit her affidavit testimony that she wassubstantially limited in her ability to lift, bend, and sit forprolonged periods of time, plaintiff has failed to produce anyevidence that she was substantially limited in any major lifeactivity. To the contrary, plaintiff's doctor had released her towork part-time as of May 12th, plaintiff thought that she wouldbe able to return to full-time work in a short period of time,and plaintiff believed that she was physically capable ofperforming all of the functions of her former job on a part-timebasis. Thus, we find that plaintiff has not established that shewas physically disabled as that term is defined by the ADA. See29 C.F.R. § 1630.2(j)(3)(i); Colwell v. Suffolk County PoliceDept., 158 F.3d 635, 643 (2d Cir. 1998); Wernick v. FederalReserve Bank of New York, 91 F.3d 379, 383-84 (2d Cir. 1996).
In the alternative, plaintiff asserts that, even if she was nolonger physically disabled, she still met the definition of"disability" under the ADA, 42 U.S.C. § 12102(2), because she wasregarded by defendant as having an impairment that substantiallylimited her ability to work. Defendant argues that plaintiffcannot rely on this prong of the definition of "disability"because there is no evidence that defendant entertained anymisperception about whether plaintiff had regained her abilityand desire to return to work. Once plaintiff advised defendantthat she was ready to return to work, defendant states that itattempted to accommodate that request.
The ADA provides that having a disability includes "beingregarded as having" a physical or mental impairment thatsubstantially limits one or more of the major life activities ofsuch individual. 42 U.S.C. § 12102(2)(C). There are two ways inwhich individuals may fall within this statutory definition: (1)an employer mistakenly believes that a person has a physicalimpairment that substantially limits one or more major lifeactivities, or (2) an employer mistakenly believes that anactual, nonlimiting impairment substantially limits one or moremajor life activities. Sutton v. United Air Lines, 119 S.Ct. at2150. In both cases, it is necessary that the employer entertainmisperceptions about the individual — it must believe either thatthe employee has a substantially limiting impairment that shedoes not have or that she has a substantially limiting impairmentwhen, in fact, the impairment is not so limiting. Id.
Construing the facts in the light most favorable to plaintiff,one could infer that defendant at least questioned plaintiff'sability to perform her former job duties and, thus, offered her aposition with less demanding responsibilities. There is alsoevidence that Anne Fox had expressed concern about plaintiff'sability to return to her former job. (However, there is noevidence that Fox had any input into the Beale's decisionconcerning the part-time job offered to plaintiff.) And, it couldbe inferred that these were misperceptions about plaintiff'sphysical ability to return to her former job. However, that alonedoes not satisfy the ADA's definition of "disability." "Aplaintiff cannot state a claim under the `regarded as' prong ofthe ADA . . . simply by alleging that the employer believes somephysical condition . . . renders the plaintiff disabled."Francis v. City of Meriden, 129 F.3d 281, 285 (2d Cir. 1997).Rather, the employer must regard the plaintiff as disabledwithin the meaning of the ADA. Id. at 285-86 (emphasis added).
Plaintiff must show that defendant considered her as having animpairment that substantially limited a major life activity. Inthis case, the only major life activity that has been alluded tois working. To establish that defendant regarded her assubstantially limited in her ability to work, plaintiff must showthat the defendant regarded her as unable toperform a wide range of jobs suitable for persons of her age,experience, and training. See Colwell v. Suffolk County PoliceDept., 158 F.3d at 647. This plaintiff has failed to do. To thecontrary, plaintiff states that defendant offered her anotherposition with many of her former job duties and responsibilities,although not all of them. According to plaintiff's interpretationof Beale's offer, she was to serve as back-up for the othercustomer service representatives. There is no evidence thatdefendant regarded plaintiff as unable to perform a wide range ofjobs. See Id. (noting that defendant's assigning plaintiffs tolight duty status did not mean that they were regarded asdisabled); Francis, 129 F.3d at 286. Therefore, we find thatplaintiff has failed to adduce evidence to satisfy the "regardedas" prong of the ADA's definition of disability.
Having found that plaintiff has failed to show that she was"disabled," we need not address defendant's final argument thatit provided plaintiff with a reasonable accommodation.
Accordingly, we grant summary judgment in defendant's favor asto plaintiff's claim of disability discrimination relating todefendant's offering her a demotion in June, 1997.
III. Negligent Misrepresentation
Plaintiff's final claim is a state-law claim for negligentmisrepresentation. The alleged misrepresentations at issue arethe statements by Beale, after Steyer was hired, that plaintiffshould not worry, her position would be held open for her uponher recovery and to just get better. Beale denies that he madethese statements, but also states that he did, in fact, hold herjob open.
Plaintiff has alleged that she relied upon theserepresentations in foregoing other job opportunities but hasproduced no evidence of any such job opportunities. She furtheralleges that her reliance on defendant's negligentmisrepresentations was to her detriment and that it caused herdamages. Defendant argues that these representations were sovague, ambiguous and uncertain that no reasonable person would bejustified in relying on them.
In our previous rulings on the motions to dismiss in this case,we discussed at length the elements of a cause of action fornegligent misrepresentation. As we stated, for purposes ofstating a cause of action for negligent misrepresentation, therepresentations do not need to be promissory; they only need tocontain false information. See D'Ulisse-Cupo v. Board ofDirectors of Notre Dame High School, 202 Conn. 206, 218,520 A.2d 217 (1987) (finding that the plaintiff-teacher had stated aclaim for negligent misrepresentation where she alleged thatdefendants made unconditional representations that she would berehired the next year, when in fact they knew or should haveknown that their hiring plans were contingent upon studentenrollments for the following year).
Although there are issues of material fact as to whether Bealeeven made the alleged representations, we must assume forpurposes of this motion that he did represent to plaintiff thather job would be held open. There are also factual issues as towhether these were misrepresentations. From the facts ofrecord, it appears that at least until Steyer was hired on apermanent basis, these representations (if made) were true.Plaintiff's job was held open. Additionally, there are factualissues as to whether Beale, at the time he made these statements,knew or reasonably should have known that they were false.Moreover, even assuming that Beale did in fact misrepresent thatHowell Corporation was keeping plaintiff's job open, plaintiffwas totally incapacitated until the beginning of May, 1997, andas of June 20, 1997, when plaintiff obtained a "pink slip,"plaintiff could no longer rely on these misrepresentations.
Putting these issues aside, we need not reach the merits ofdefendant's summaryjudgment motion because, having dismissed all of plaintiff'sfederal claims, we decline to exercise supplemental jurisdictionover this state-law tort claim. See 28 U.S.C. § 1367(c)(3);Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7,108 S.Ct. 614, 98 L.Ed.2d 720 (1988). This one remaining claim isa matter that should more appropriately be addressed in Statecourt. Therefore, count three of plaintiff's amended complaint isdismissed without prejudice to plaintiff's refiling it in Statecourt.9
CONCLUSION
For the reasons set forth above, the Court GRANTS defendant'smotion for summary judgment as to counts one and two. Havinggranted summary judgment in favor of defendant on both of thefederal claims, the Court declines to exercise supplementaljurisdiction as to plaintiff's state-law claim for negligentmisrepresentation, and dismisses count three. The Clerk isdirected to enter judgment accordingly.
SO ORDERED.
1. Plaintiff describes her job duties as taking orders overthe phone, inputting orders into the computer, billing,troubleshooting over the phone, filing, and assembling catalogs.(Pl.'s dep. at 100).
2. In her affidavit filed in opposition to the motion forsummary judgment, plaintiff states that from April 1997 toOctober 1997, her physical problems precluded her from performingany jobs that required significant or strenuous physical dutiesor jobs that would not permit her prolonged rest periods. (Pl.'sAff. ¶ 14). These inconsistencies in plaintiff's testimony neednot detain us for a party may not create an issue of fact bysubmitting an affidavit in opposition to a summary judgmentmotion that contradicts that party's previous depositiontestimony. Hayes v. New York City Dep't of Corrections,84 F.3d 614, 619 (2d Cir. 1996).
3. The fact that plaintiff would be paid on an hourly basisdid not influence her decision not to accept this offer, sinceshe was always paid on an hourly basis. Rather, plaintiff'sconcern focused on the job duties and Beale's characterization ofher position as "a back-up."
4. In its reply papers, defendant argues that plaintiff alsocannot prove that she was constructively discharged. Plaintiff,however, does not argue that defendant made her workingconditions so intolerable that she was forced to resign — thatis, that she was constructively discharged. She relies instead onthe fact that a replacement was hired and that she was demoted(at least, this is what she perceived).
5. Although plaintiff does not characterize this case as afailure to rehire case, it could be considered as such, whichcould constitute an adverse employment action. See In re LeslieFay Cos., 212 B.R. 747, 777 (Bankr.S.D.N.Y. 1997), aff'd,222 B.R. 718 (S.D.N.Y. 1998), aff'd, 182 F.3d 899 (2d Cir. 1999),cert. denied, ___ U.S. ___, 120 S.Ct. 788, 145 L.Ed.2d 665(2000).
6. The Supreme Court in Reeves v. Sanderson PlumbingProducts, Inc., ___ U.S. ___, 120 S.Ct. 2097, 2109, 147 L.Ed.2d105 (2000), recently clarified plaintiff's burden at this stage.The Court held that in some cases the plaintiff's prima faciecase, combined with sufficient evidence that the employee'sasserted justification for its actions is false, may permit thetrier of fact to conclude that the employer unlawfullydiscriminated. A plaintiff does not always have to introduce"additional, independent evidence of discrimination." Id. "Thatis not to say that such a showing by the plaintiff will alwaysbe adequate to sustain a jury's finding of liability." Id.(original emphasis). However, the final burden is on theplaintiff to show the employer intentionally discriminatedagainst her because of her age. See Id. ___ U.S. ___, 120 S.Ct.at 2108.
7. "When the same actor hires a person already within theprotected class, and then later fires that same person, it isdifficult to impute to [him] an invidious motivation that wouldbe inconsistent with the decision to hire." Carlton v. MysticTransportation, 202 F.3d at 137 (internal citations andquotations omitted). A strong inference that age was not amotivating factor may be drawn when the termination occurs withina relatively short period of time after the hiring. Id. at137-38 (citing cases). However, the inference is less compellingwhen a significant period of time has elapsed between the hiringand firing. Id. at 138. Although three years between hiring andfiring is somewhat longer than the period for which a stronginference usually lies, an inference of non-discrimination maystill be drawn in this case, although not as strong as it wouldhave been had the period been shorter. Of course, an added factorin defendant's favor is that the person doing the hiring and"firing" was in his late 60's and then early 70's.
8. Defendant once again raises the argument that plaintiff wasnot terminated and, therefore, defendant could not have violatedthe ADA. As under the ADEA, adverse employment actions givingrise to an actionable discrimination claim under the ADAencompass far more than just terminations. Indeed, under the ADA,an employer's failure to provide a reasonable accommodation mayconstitute discrimination. See 42 U.S.C. § 12112(b)(5)(A).
9. To the extent that the state statute of limitations mayhave run on this claim, 28 U.S.C. § 1367(d) provides that theperiod of limitations is tolled while the claim is pending infederal district court and for thirty days thereafter, unlessState law provides for a longer tolling period.