DIGGS v. TOWN OF MANCHESTER

OPINION

This eight-count complaint arises out of Plaintiff's termination as afirefighter with the Town of Manchester. Defendants, the Town ofManchester, Town Manager Steven Werbner, Fire Chief Thomas Weber, andAssistant Fire Chief Robert Bycholski (the "Town Defendants") have nowmoved for summary judgment [Doc. # 15] on 21 different grounds.Likewise, Defendants Local 1579 IAFF and David Mayer, the past-Presidentof the Local, (the "Union Defendants") have moved for summary judgment[Doc. # 24] on nine grounds. As discussed below, theDefendants' motions will be granted.

Summary Judgment Standard

The standard for granting a motion for summary judgment iswell-established. A moving party is entitled to summary judgment "if thepleadings, depositions, answers to interrogatories, andPage 2admissions on file, together with the affidavits, if any, show thatthere is no genuine issue as to any material fact and that the movingparty is entitled to a judgment as a matter of law." Fed.R.Civ.P.56(c). The burden of establishing that there is no genuine factualdispute rests with the moving party. See Gallo v. PrudentialResidential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994).In ruling on a summary judgment motion, the Court cannot resolve issuesof fact. Rather, it is empowered to determine only whether there arematerial issues in dispute to be decided by the trier of fact. Thesubstantive law governing the case identifies those facts that arematerial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986). In assessing the record to determine whether a genuine dispute asto a material fact exists, the Court is required to resolve allambiguities and draw all reasonable inferences in favor of the nonmovingparty. Id. at 255; Matsushita Electric Ind. Co. v. ZenithRadio Corp., 475 U.S. 574, 587 (1986).

Factual Background

Plaintiff, Marcus H. Diggs, who is African-American, was employed as afirefighter by the Town of Manchester, Connecticut, for 17 years.Throughout his employment, he was a member of Local 1579 of theInternational Association of Fire Fighters,Page 3IAFF. (Un. St. ¶ 2.)1 The record in this case presents thefollowing chronology concerning Plaintiff's employment history as afirefighter.

Plaintiff commenced his employment as a firefighter with the Town ofManchester on a probationary basis on February 28, 1983. At the time, hewas the only black firefighter for the Town of Manchester. (Pl.'s Dep. at174.) His one-year probationary period was extended three months untilMay 28, 1984, by Chief John C. Rivosa "because of episodes that haveoccurred during his probation." (Un. St. ¶ 5.) At meetings regardingPlaintiff's probationary status, Plaintiff was represented by the LocalUnion. (Id.) On July 5, 1984, Plaintiff was approved forpermanent status as a firefighter. (Un. St. ¶ 6.)

On August 10, 1984, Plaintiff received a warning from Chief Rivosa forpoor driving, tardiness, and for an incident in which he used an "offcolor" remark in a telephone conversation with a member of the public.The Local represented Plaintiff at the pre-disciplinary sessions. (Un.St. ¶ 7.)

On September 30, 1984, Plaintiff received a warning from the Chief forfailing to report to work on time. Union memberPage 4Defendant David Mayer represented Plaintiff at the meeting with theFire Chief. (Un. St. ¶ 8.)

Sometime in the mid-80's, Plaintiff filed a written complaint ofdiscrimination with the City against three firefighters, Krabontka,Bajoris, and Dappollonia, who purportedly told Plaintiff that "he'dbetter keep his mouth shut in the TV room or they would tell the Chiefthat they couldn't work with this n-----." (Pl's Dep. at 26-27.)Plaintiff states that his complaint was investigated and summarilydismissed. (Id. at 27.)

On September 16, 1986, Plaintiff was ordered to reimburse theDepartment for personal phone calls made while on duty. (Un. St. ¶9.) He also received a written reprimand for failure to report to work.(Un. St. ¶ 10.) Dan Huppe, the Local Union Steward, representedPlaintiff at the meeting with Deputy Fire Chief Bycholski. Plaintiffaccepted the discipline relating to the phone calls and did not appealthe discipline relating to his failure to report to work. (Un. St. ¶¶9 & 10.)

On August 18, 1987, Plaintiff was warned about various aspects of hisjob performance by Deputy Chief Bycholski and was temporarily transferredto another station. (Un. St. ¶ 11.)

On December 31, 1987, Plaintiff was suspended for one day and wasrequired to reimburse the Department for four hours of overtime for hisfailure to report to work on December 24th.Page 5(Un. St. ¶ 12.) Plaintiff was represented by Local StewardHuppe. He did not appeal this discipline. (Id.)

On January 8, 1988, Plaintiff was suspended for one week for hisfailure to report to work on January 4, 1988. He was represented by theLocal President Robert Martin and two other Union members. Plaintiff didnot grieve this discipline. (Un. St. ¶ 13.)

On August 10, 1988, Local 1579 filed a grievance on Plaintiff's behalfregarding a denial of Union representation at a disciplinary meeting.(Un. St. ¶ 15.)

On August 25, 1988, the Fire Chief suspended Plaintiff for two days forinsubordination, charging Plaintiff with directing profanities at hissuperior officer. (Un. St. ¶ 16 & Pl's Resp. to ¶ 16.)Plaintiff claims that profanity was used among the firefighters on adaily basis and that white firefighters were not disciplined for similarstatements. Plaintiff disputes whether he received representation fromthe Union at the disciplinary meeting. (Pl.'s Resp. to ¶ 16.)However, on August 29, 1988, Local President Martin filed a grievancealleging that Plaintiff's August 25th discipline was without just cause.(Un. St. ¶ 17.) On January 5, 1989, the Local presented hissuspension grievance at an arbitration before the State Board ofMediation and Arbitration, which upheld the suspension. (Un. St. ¶¶22 & 24.)Page 6

On September 28, 1988, Deputy Fire Chief Bycholski observed Plaintiffdisplaying "extremely erratic behavior, including talking to himself,speaking illogically, excessive swearing, continuous laughing, tossingaround objects and occasional hostility." (Pl.'s Ex. 3, Bycholski Aff.¶ 7;2 Pl.'s Ex. 4, Bycholski 9/28/88 Memo to File of MarcusDiggs3.) Plaintiff was evaluated by a psychologist who, on October 1,1988, involuntarily committed Plaintiff to the Institute for Living. (Un.St. ¶ 18.) Plaintiff remained hospitalized for a month or two. (Pl.'sDep. at 149.) On November 30, 1988, PlaintiffPage 7returned to work after meeting with Fire Chief Rivosa. He wasrepresented in that meeting by Local President Martin. (Un. St. ¶19.) However, the next day, December 1, 1988, Plaintiff failed to reportfor his scheduled shift and eventually showed up 50 minutes late. ChiefRivosa extended Plaintiff's previous one-year probation for failure toreport until January 10, 1990. Plaintiff was represented by the Local anddid not grieve the extended probation. (Un. St. ¶ 20.)

On January 23, 1989, Plaintiff filed a complaint of discriminationbased on race with the Connecticut Commission on Human Rights andOpportunities ("CCHRO") against the Town of Manchester Fire Department.(Un. St. ¶ 21; Un. Ex. D.) This complaint was dismissed by the CCHROon January 16, 1990, and on May 16, 1990, the Equal EmploymentOpportunity Commission ("EEOC") issued its finding of no reasonablecause. (Un. St. ¶¶ 23 & 25; Un. Ex. D.)

On August 24, 1990, Plaintiff received a written reprimand for beingabsent without leave. He was represented at the disciplinary meeting byLocal President Martin and elected not to grieve the discipline. (Un. St.¶ 26.)

On August 17, 1991, Plaintiff filed a grievance charging the FireDepartment with unjust discipline. (Un. St. ¶ 27.) The grievance wassettled with the Fire Chief's granting Plaintiff's requested relief.Plaintiff was again represented at thePage 8grievance meeting by Local President Martin. (Un. St. ¶ 28.)

On July 11, 1994, Plaintiff was involved in a verbal altercation with afellow firefighter, John Tsokalas, who suggested that Plaintiff might bea racist based upon certain derogatory comments Plaintiff made about"white people." (Pl.'s Ex. 5.) The conversation became quite heated andPlaintiff suggested they meet in the park after work "to discuss thisfurther." (Tsokalas claims that Plaintiff said, "We'll go to the park inan hour and I'll show you who's a racist. I'll kick you're a--. I'llf----- kill you.") (Pl.'s Ex. 5 & Pl.'s Dep. at 22.) At that point,Tsokalas lifted a chair over his head and slammed it to the ground,breaking one of the legs. (Id. at 22-23.) Tsokalas states thathe and Plaintiff shouted profanities at each other, and Plaintiffthreatened him several more times. (Pl.'s Ex. 5.) Tsokalas then calledheadquarters. (Id.; Pl.'s Dep. at 23.) Another firefighter wassent to the station to relieve Plaintiff for the last few minutes of hisshift. (Id.) Firefighter Tsokalas provided the Fire Chief witha written account of the incident (Pl.'s Ex. 5), to which Plaintiffresponded. After an investigation, Fire Chief Rivosa concluded thatPlaintiff provoked other employees into arguments and asked Plaintiff tospeak with the Town Nurse. The Chief advised him that no furtherprovocation on his part would be tolerated. "If this problem continues toexist and I find thatPage 9you are at fault, you leave me no other alternative but to reassignyou to Headquarters." (Pl.'s Ex. 6, Rivosa 7/27/94 Ltr. to Diggs.)

On August 7, 1995, Plaintiff was involved in a shouting match withanother firefighter, Mark Lupachino, after Plaintiff had answered atelephone call from Lupachino's wife and either dropped or slammed thephone receiver on the desk. (Pl.'s Ex. 12.) Plaintiff and Lupachinoexchanged profanities. Lupachino called headquarters and complained thatPlaintiff had threatened him. (Pl.'s Ex. 7, Memo from Bycholski dtd.8/7/95 to Rivosa.) Two deputy chiefs, Hughes and Bycholski, responded tothe station and found Plaintiff in an agitated state and yellingprofanities. Plaintiff was relieved of his duty that day, with pay, andreassigned to another station where he could receive more supervisiongiven his history of being uncordial to the public and verbal abuse ofother firefighters. (Pl.'s Ex. 12.) Two days later, Plaintiff consultedwith a psychologist, whom he told that he "fear[ed] for his physicalsafety" and that he was "concerned about his volatile temper." Plaintiffwas placed on medical leave at the direction of his psychiatrist, whodiagnosed him as suffering from "work related stress disorder." (Pl.'sEx. 3, Bycholski Aff. ¶ 10; Pl.'s Dep. at 185.) On August 14, 1995,the Union filed a grievance against the Fire Department on Plaintiff'sbehalf alleging harassment and that Plaintiff hadPage 10been suspended without just cause. (Un. St. ¶ 30.) Plaintiffremained out of work under the care of his psychiatrist until October 17,1995. (Town Ex. I.)

On June 18, 1997, Plaintiff was again warned by the Fire Chief aboutmaking personal long-distance calls from his workstation. (Un. St. ¶31.) On May 20, 1998, Plaintiff received a written reprimand. He declinedUnion representation twice and did not initiate a grievance. (Un. St.¶ 33.)

On November 8, 1997, Plaintiff was warned about vulgar and profanecommunications with a fellow firefighter. Plaintiff was represented by aLocal representative in connection with this matter. (Un. St. ¶ 32.)

On July 1, 1998, Plaintiff received a written reprimand for failure toreport to work on time. Plaintiff declined Union representation and didnot file a grievance. (Un. St. ¶ 34.)

On May 25, 1999, another verbal altercation occurred between Plaintiffand firefighter Eric Borden. According to Plaintiff, he tried to giveBorden a memo as Plaintiff was leaving work. Borden was not interested init and walked away. Plaintiff cursed at Borden. Plaintiff then attemptedto reach around Borden to retrieve a tape from his truck. Borden claimsthat Plaintiff "got in his face" and touched him, which Plaintiff denies.(Pl.'s Dep. at 106-08.) Plaintiff claims that Borden was the aggressor.(Id.) Borden filed a formal complaintPage 11claiming that Plaintiff was yelling and pushing him. (Pl.'s Ex. 8,Memo dtd. 5/25/99 from Borden to Hughes.) The Town investigated theincident but could not determine what had happened and no disciplinaryaction was taken against either firefighter. (Bycholski Aff. ¶ 11.)

In September 1999, there was an altercation between Plaintiff and aConnecticut State Trooper at the scene of a motor vehicle accident. TheState Trooper made a complaint against Plaintiff for disobeying a policeorder. Fire Chief Weber issued Plaintiff a written warning. (Pl.'s Dep.at 78-79.)

On September 13, 1999, Plaintiff received a letter of reprimand forfailing to complete his scheduled work shift and failing to report toaccepted overtime. Plaintiff was represented by the Union and wassuccessful in having this letter of reprimand removed from his personnelfile. (Un. St. ¶ 35.)

On March 7, 2000, Chief Weber issued Plaintiff a written reprimand forviolence in the workplace. (Pl.'s Ex. 9.) The shift commander hadreported that Plaintiff, while at the station, had remarked that he couldkill 67 firefighters and get away with it and that he was going to buy agun. (Pl.'s Ex. 3, Bycholski Aff. ¶ 13.) When approached by anofficer about his comments, Plaintiff responded that he was responding toanother firefighter's comments about layoffs, and that he was jokingabout the fact that 65 or more people would have to get laid offPage 12before he could be terminated. (Pl.'s Ex. 9 & Pl.'s Dep. at56.) The Union filed a grievance on Plaintiff's behalf, complaining thatPlaintiff had been reprimanded for a statement made jokingly to anotherfirefighter. (Pl.'s Ex. 10.) The reprimand was subsequently withdrawn byUnion agreement in order to implement workplace violence training.(Id.)

On March 10, 2000, Plaintiff reported violent comments allegedly madeby Lieutenant John Fusco to two firefighters. The incident wasinvestigated but no formal action was taken. The investigating officerspoke with the two attendants to whom Fusco's alleged threat was made.They stated that they perceived the remarks as funny and enjoyed them asa joke. (Pl.'s Ex. 11 & 13.)

On March 12, 2000, Plaintiff was reported for screaming at severalconstruction workers who, while working at the fire station, had parkedtheir truck in front of Plaintiff's fire engine. Plaintiff reportedlyyelled that "someone was going to die." (Pl.'s Ex. 14.) Plaintiff statesthat was "not what I screamed. I told them they were putting lives atstake, that people could die because of this . . . Like when I got to go,I got to go. You can't park in front of my truck." (Pl.'s Dep. at 62.)The construction workers did not want to pursue a formal complaint and,therefore, no disciplinary action was taken against Plaintiff. DeputyChief MacDonald, however, reported thePage 13incident to Chief Weber and Assistant Chief Bycholski, expressinghis concern that Plaintiff was experiencing "mental or emotional distressthat could lead to a catastrophic situation" and that Plaintiff was inneed of "immediate psychiatric help and [was] not presently fit forduty." (Pl.'s Ex. 14.)

On May 16, 2000, Plaintiff received a three-day suspension forinsubordination and abusive language toward a superior officer, CaptainBurford. (Pl.'s Dep. at 45; Pl.'s Ex. 15.) Plaintiff denies having calledher a "slut" but admits that he gave her an evasive answer when shequestioned him concerning the whereabouts of his partner. (Pl.'s Dep. at45.) After a disciplinary hearing at which Plaintiff was represented bythe Union, his suspension was ultimately reduced to one day by agreement.Plaintiff did not grieve the suspension. (Un. St. ¶ 37.)

In July 2000, Chief Bycholski received reports that Plaintiff haddisplayed inappropriate conduct and had been driving at excessive ratesof speed, running red lights to get to calls. (Pl.'s Ex. 3, BycholskiAff. ¶ 17; Pl.'s Ex. 16, 17 & 18.) In September, there wasanother report of Plaintiff's erratic driving and his unwillingness toparticipate during medical responses. (Pl.'s Ex. 19, 20 & 21.) OnOctober 16, 2000, Plaintiff received a letter of reprimand for"inattentive operation of [his] apparatus on September 14, 2000" and atwo-dayPage 14suspension as a result of his failure to attend to a patient andfor use of profane language at the scene. The Local filed a grievance onPlaintiff's behalf, claiming discipline without just cause. (Un. St.¶¶ 38 & 39.) On November 9, 2000, both of Plaintiff's October 16thgrievances were denied. (Un. St. ¶ 41.)

On October 19, 2000, Plaintiff filed a complaint and affidavit ofillegal discrimination with the CCHRO against the Town of Manchester,alleging discrimination on the basis of race. More specifically, healleged that, because of his race, he was poorly evaluated on May 16,2000, and October 16, 2000,4 he was sexually harassed on May 16,2000,5 he was suspended on May 16, 2000, and October 16, 2000, he washarassed on May 16, 2000, and September 14, 2000, he was warned onOctober 1, 2000, and he was retaliated against in 1995, 1998, 1999, and2000. (Un. St. ¶ 40; Un. Ex. I.)

In November 2000, the Fire Department received two complaints fromfemale ambulance attendants and a female volunteer firefighter regardingincidents where Plaintiff was abusive and used inappropriate language.Assistant Chief Bycholski did not have an opportunity to investigatethese allegations. (Pl.'s Ex. 3, Bycholski Aff. ¶ 19.)Page 15

On the evening of November 16, 2000, Plaintiff, while off-duty, cameto Station 4 for a union meeting, which was cancelled allegedly for lackof a quorum. Plaintiff left but then returned to Station 4 to post a jokethat he had found at home. Plaintiff and firefighter Talbot exchangedwords concerning a racial remark that Plaintiff claimed Talbot had madeseveral years earlier about "how he never saw a black man work so hardsince the end of slavery." Talbot told Plaintiff that he could not recallhaving made this remark, after which Plaintiff became upset and accusedTalbot of being like "all the rest." Plaintiff said that he would "haveall of [their] heads." (Pl's Dep. at 111.) Talbot reported the incidentto the Executive Board and, at their suggestion, reported the incident tothe Lieutenant on duty. After Talbot expressed concern for his safety,Bycholski instructed Deputy Chief Hughes to move Talbot and the otherfirefighter to another station for the remainder of the night. (Pl.'s Ex.3, Bycholski Aff. ¶ 20.) This was the first time in the history ofthe Department that a station had to be closed. (Id.)

The following day, Bycholski reviewed Plaintiff's personnel file andthen held a meeting6 with Plaintiff to discuss his violations of theDepartment's Violence in the Workplace Policy.Page 16(Pl.'s Ex. 3, Bycholski Aff. ¶ 20.) A number of incidents werediscussed. (Pl.'s Dep. at 119-120.) Plaintiff was represented by LocalPresident Mayer and Union Representative Lupacchino, although Plaintiffnotes that there were a number of discussions between the Union and Townoutside of Plaintiff's presence.

The Town presented Plaintiff with a "last chance agreement," whichprovided that in lieu of termination, Plaintiff would receive a five-daysuspension subject to the following conditions: Plaintiff would agree toa fitness for duty evaluation by a psychiatrist and/or psychologist ofthe Town's choosing and Plaintiff would sign all necessary releases toallow the Town access to the results of this examination. Additionally,Plaintiff agreed to see a counselor associated with the Town's EmploymentAssistance Program ("EAP") and attend follow-up counseling sessions, ifnecessary. The Town reserved the right "in its sole discretion and forany reason during the remainder of [Plaintiff's] employment with theTown," if the Town had any concerns associated with Plaintiff's behavioror his ability to perform the required duties of firefighter, or as aresult of the Town's evaluation of his fitness for duty report, toimmediately terminate his employment with the Town. If Plaintiff'semployment were terminated, Plaintiff would have no right to appeal thattermination through the grievance process or to file a claim with anyadministrative agency. Until the TownPage 17received Plaintiff's fitness for duty evaluation, Plaintiff wasplaced on an unpaid leave of absence and was prohibited from visiting anyTown facility. (Town Ex. BB.)

Because the agreement waived Plaintiff's future grievance andarbitration rights, the Union refused to sign it. Plaintiff signed theagreement, allegedly under duress and with the understanding that as longas the Union did not sign the agreement, it would not be binding. (Pl.'sDep. at 118-19.) Plaintiff testified that "it was something that Icouldn't see agreeing to; so we decided that . . . we'd give them mysignature as long as the Union couldn't sign it, and leave the next moveup to Bycholski." (Pl.'s Dep at 122-23.)

Plaintiff claims that he was terminated on November 17, 2000. Whetherhe was actually terminated on that date is disputed by Defendants.Assistant Chief Bycholski states that termination was discussed but neverfinalized. (Pl.'s Ex. 3, Bycholski Aff. ¶ 22.) However, on that day,David Mayer did escort Plaintiff to his locker to retrieve his personalbelongings. Plaintiff also received unemployment compensation (althoughthe Town objected to this on the ground that he was not terminated), andhe was never reinstated as a firefighter. He was never allowed to returnto the firehouse and was told that, if he did return, he would bearrested.

On November 21, 2000, Assistant Chief Bycholski attempted toPage 18send Plaintiff a certified letter (Pl.'s Ex. 29), stating thatwhile it was his strong belief that the totality of Plaintiff's actionsjustified termination proceedings, he was willing to adjust thedisciplinary actions to allow for a continuation of Plaintiff'semployment conditioned upon the terms set forth above. (Pl.'s Ex. 29.)Should Plaintiff fail to comply with any of these conditions, hisemployment would be terminated immediately. (Id.) Plaintiffrefused to accept delivery of this letter. On November 28, 2000,Assistant Chief Bycholski had a second letter hand-delivered to Plaintiffrestating the same conditions, but extending some of the deadlinesslightly. (Pl.'s Ex. 28.)

Despite what he claims to be his "termination," Plaintiff did see theTown's psychiatrist, Dr. Selig, for an initial fitness for dutyevaluation but he never returned for follow-up. Dr. Selig also was neverable to obtain all of Plaintiff's psychiatric records because he wasunable to obtain the necessary authorizations from Plaintiff. (Pl.'s Dep.at 136-37, 145-46.)

Finally, the Fire Chief sent Plaintiff a letter requesting him toattend a hearing on January 24, 2001, to discuss his future employmentstatus. The letter advised him that the absence of the requested medicalinformation and/or his failure to attend the EAP program could lead tohis termination. Plaintiff did not receive the letter until after thehearingPage 19date, although on January 22nd, he did learn of the hearing fromDavid Mayer, President of the Local. Plaintiff, however, did not attend.(Pl.'s Ex. 3, Bycholski Aff. ¶ 26.)

On January 25, 2001, the Fire Chief sent Plaintiff a letter,terminating his employment for failure to complete the fitness for dutyevaluation and failure to sign an authorization for the release of hispsychiatric records.

On December 19, 2000, Plaintiff amended his original CCHRO complaintagainst the Town to add a claim that he had been retaliated against dueto the filing of his original complaint, which led to his termination onNovember 17, 2000. (Un. St. 5 47; Un. Ex. I.) On March 27, 2001,Plaintiff filed another complaint and affidavit of illegal discriminatorypractices against the Town for retaliation and discharge on January 25,2001, based on race and the Town's perception that Plaintiff sufferedfrom a mental disorder. (Un. St. ¶ 50; Un. Ex. I.)

On November 21, 2000, the Union filed termination grievances on behalfof Plaintiff, and on November 30, 2000, the Union filed four additionalgrievances concerning his suspension without pay. On May 14, and May 24,2001, the Local presented Plaintiff's suspension grievances atarbitration proceedings before the State Board of Mediation andArbitration. (Un. St. ¶ 51.) Hearings were held on January 18, andMay 12, 2002. (Un. St. ¶ 52.) Plaintiff was again represented by theUnion. OnPage 20April 2, 2002, the State Board rendered its decision and award,upholding Plaintiff's suspension. (Un. St. ¶ 53; Un. Ex. G.) On May5, 2003, the State Board rendered its decision regarding thearbitrability of Plaintiff's termination grievance rulings, finding thatthey were arbitrable. (Un. St. ¶ 54; Un. Ex. H.) The terminationgrievance remains pending before the State Board of Mediation andArbitration, and the Local continues to represent Plaintiff in thismatter.

To date, Plaintiff has not filed a complaint of discrimination againstthe Local. (Un. St. ¶ 57.)

On June 18, 2002, Plaintiff received a right-to-sue letter from theEEOC. On September 16, 2002, Plaintiff filed the instant lawsuit.

Pursuant to the Town Charter, the general manager is the highestpolicymaking official for the Town. The Fire Chief is charged with theadministration and discipline of the Fire Department under the directionof the Town's general manager. (Town Ex. LL ¶¶ 10-12.)

The Town of Manchester has a policy against discrimination, of whichPlaintiff was aware. (Pl.'s Dep. at 105.) The only discriminationcomplaint filed by Plaintiff with the Town pertained to the incident thatoccurred in the mid-1980's with fellow firefighters, Kravontka andBajoris. (Pl.'s Dep. at 25-28, 105.)Page 21

Discussion

In Counts One, Two, and Three, Plaintiff alleges race discrimination,retaliation, and harassment, in violation of Title VII of the CivilRights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.Counts Four and Five are brought under 42 U.S.C. § 1983 and §1985, respectively, and allege a deprivation of Plaintiff's right toequal protection and a conspiracy by Defendants to interfere withPlaintiff's civil rights. In Count Six, Plaintiff alleges that Defendantsdiscriminated against him and retaliated against him because of hisdisability, in violation of the Americans with Disabilities Act ("ADA")and Section 504 of the Rehabilitation Act of 1973. Counts Seven and Eightare common-law claims for intentional infliction of emotional distressand negligent infliction of emotional distress. All counts are assertedagainst all Defendants.

A. Claims against the Town Defendants

1. Discrimination and Retaliation Claims Against the IndividualDefendants Under Title VII, ADA, and Rehabilitation Act

Title VII prohibits an "employer" from discharging an individual orotherwise discriminating with respect to the employee's compensation,terms, conditions or privileges of employment, because of thatindividual's race or color. 42 U.S.C. § 2000e-2(a). Similarly, it isan unlawful employment practice for a labor organization to discriminateagainst anyPage 22individual because of his race or color. 42 U.S.C. § 2000e-2(c)The critical issue with respect to Plaintiff's Title VII claims againstthe Town's General Manager, the Fire Chief, Assistant Fire Chief, andPresident of the Local Union is whether, as a matter of law, individualscan be held personally liable as an "employer" or a "labor organization"for discriminatory conduct under Title VII.

While some Circuits have chosen to allow liability, the Second Circuithas unambiguously denied it. The Court in Tomka v. SellerCorp., 66 F.3d 1295, 1313-17 (2d Cir. 1995) (abrogated on othergrounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742(1998), and Faragher v. City of Boca Raton, 524 U.S. 775(1998)), addressed this issue in detail and held that individualdefendants with supervisory control over a plaintiff may not be heldpersonally liable under Title VII. See also Wrighten v.Glowski, 232 F.3d 119, 120 (2d Cir. 2000); Cook v. ArrowsmithShelburne, Inc., 69 F.3d 1235, 1241 (2d Cir. 1995); Shephard v.Frontier Communications Services, 92 F. Supp.2d 279, 287 (S.D.N.Y.2000) ("Tomka and the language of Title VII compel a holdingthat only employer-entities have liability under Title VII"); Nadimiv. Brown, No. 3:99CV1305(GLG), 2000 WL 133735, at *1 (D. Conn. Jan.26, 2000) (holding that Tomka includes persons with supervisorycontrol among those who may not be held personally liable underTitle VII). Accordingly, Plaintiff'sPage 23Title VII claims in Counts One, Two, and Three against Werbner,Weber, Bycholski, and Mayer are dismissed as a matter of law.

This reasoning is equally applicable to claims under the ADA andRehabilitation Act against the individual Defendants. The ADA'sprohibition against discrimination is limited to employers, employmentagencies, labor organizations, and labor-management committees.42 U.S.C. § 12111(2). The Rehabilitation Act applies only to programs andactivities receiving Federal financial assistance.29 U.S.C. § 794(a). Neither statute provides for individual liability. SeeHiler v. Brown, 177 F.3d 542, 545 (6th Cir. 1999) (applying Title VII'sdefinition of "employer" to a retaliation claim under RehabilitationAct); Huck v. Mega Nursing Servs., Inc., 989 F. Supp. 1462(S.D. Fla. 1997); Cerrato v. Durham, 941 F. Supp. 388, 395(S.D.N.Y. 1996); Candelaria v. Cunningham, No. 98 Civ. 6273,2000 WL 798636, at *2 (S.D.N.Y. June 20, 2000) (no individual liabilityunder Title II of the ADA or the Rehabilitation Act); Bliss vs.Rochester City School District, 196 F. Supp.2d 314, 338-39(W.D.N.Y. 2002); Winokur v. Office of Court Admin.,190 F. Supp.2d 444, 449-50 (E.D.N.Y. 2002) (dismissing ADA claims againstdefendant in his individual and official capacities); Boise v.Boufford, 127 F. Supp.2d 467, 472 (S.D.N.Y. 2001) (holding thatindividual supervisors may not be held personally liable under the ADA);Menes v. CUNY, 92 F. Supp.2d 294, 306 (S.D.N.Y. 2000) (holdingPage 24that individual defendants may not be held personally liable underthe ADA); see also EEOC v. AIC Sec. Investigations, Ltd.,55 F.3d 1276, 1279-80 (7th Cir. 1995) (noting that ADA and Title VIIstatutes are very similar and that "[c]ourts routinely apply argumentsregarding individual liability to all three statutes interchangeably").Therefore, Plaintiff's claims against the individual Defendants assertedin Count Six are dismissed as a matter of law.

2. Title VII Race Discrimination Claims Against the Town

Plaintiff raises three distinct Title VII claims against the Town— disparate treatment because of his race, racial harassment, andhostile work environment.

a. Disparate Treatment

In Count One, Plaintiff alleges that the Town (and others)discriminated against him because of his race in violation of Title VII.His claim is based on a theory of disparate treatment, which is analyzedunder the burden-shifting test of McDonnell Douglas Corp. v.Green, 411 U.S. 792 (1973). In order to make out a prima facie caseof discrimination under Title VII, Plaintiff must show that he was (1) amember of a protected class; (2) qualified for the job; (3) suffered anadverse employment action; and (4) the adverse employment action occurredunder circumstances giving rise to an inference of discrimination.Stern v. Trustees of Columbia Univ.,Page 25131 F.3d 305, 311-12 (2d Cir. 1997); Shumway v. United Parcel Serv.,Inc., 118 F.3d 60, 64 (2d Cir. 1997). Plaintiff bears the burden ofoffering enough evidence to create an inference that an employmentdecision was based on an illegal discriminatory criterion.International Brotherhood of Teamsters v. United States,431 U.S. 324, 358 (1997). Once Plaintiff meets his prima facie burden, theemployer then must articulate a non-discriminatory reason for itsactions. Abdu-Brisson v. Delta Airlines, 239 F.3d 456, 459 (2dCir. 2001). After the employer has articulated a non-discriminatoryreason for the challenged employment action, the presumption ofdiscrimination vanishes and the burden shifts back to Plaintiff to comeforward with evidence that the employer's proffered explanation wasmerely pretextual and that the actual motivation was more likely than notdiscriminatory. Id.; see Schnabel v. Abramson,232 F.3d 83, 90 (2d Cir. 2000) (adopting a case-by-case approach to determinewhether a discrimination plaintiff has satisfied his ultimate burden ofpersuading the trier of fact that the defendant intentionallydiscriminated against the plaintiff, and rejecting any categorical rulerequiring a discrimination plaintiff to offer, in addition to the primafacie case, further evidence that discrimination was the actualmotivation).

There is no question that Plaintiff is a member of a protected classand that he suffered an adverse employmentPage 26action. For purposes of this motion, the Court will also assumethat Plaintiff was qualified to be a firefighter, a job that he hadperformed for 17 years, although the Court recognizes that at the time ofhis termination there was at least a question as to his fitness for duty,a matter that was never conclusively resolved. The more difficultquestion is whether Plaintiff has provided evidence that his terminationoccurred under circumstances giving rise to an inference ofdiscrimination. An inference of discrimination may arise if Plaintiff canshow that he was treated differently than similarly situated employees ofa different race. Shumway, 118 F.3d at 63.7

Assuming that Plaintiff can meet his prima facie burden, the Town hasproffered a non-discriminatory reason for its actions — Plaintiff'sviolation of its violence in the workplace policy and his failure to meetthe stated conditions for his continued employment.8 See Clarkv. Runyon, 218 F.3d 915, 918 (6th Cir.Page 272000) (finding that actual violence against fellow employees andthreats of violence were legitimate reasons for terminating anemployee).9 Plaintiff maintains that these reasons were clearlypretextual as reflected by the Town's allegedly differential treatment ofother white firefighters. Thus, Plaintiff relies on the same differentialtreatment of other white firefighters to prove pretext as he does toestablish his prima facie case.

Plaintiff also argues, somewhat paradoxically, that his alleged willfulmisconduct, failing to complete the fitness for duty evaluation and tocomply with the conditions for continued employment occurredafter November 17, 2000, (the date on whichPage 28he claims he was terminated), and, thus, these could not be thereasons for his termination. Plaintiff asserts, "[t]he Town cannot . . .terminate Plaintiff a second time for willful misconduct, when in fact,he was not an employee of the Town of Manchester." (Pl.'s Mem. at 11.) Wedo not find this argument persuasive. To the extent that Plaintiff claimshis termination was on November 17th, then the non-discriminatory reasonadvanced by the Town for his termination was his violation of the Town'sviolence in the workplace policy. If the Court accepts the Town'stermination date of January 25th instead, then the additional reasonsproffered by the Town come into play-Plaintiff's failure to complete thefitness for duty evaluation and to comply with the conditions imposed bythe Town on his continued employment. With either date, Plaintiff mustproduce sufficient evidence to create a genuine issue of triable factthat these non-discriminatory reasons were pretextual.

The record before the Court reflects that Plaintiff had a long historyof disciplinary actions relating to verbal altercations with otherfirefighters and his threatening behavior. On two separate occasions,that behavior actually led to his receiving psychiatric care and, at thetime of his termination, he was in the process of being re-evaluated byDr. Selig. In the months leading up to Plaintiff's termination, hisbehavior had grown progressively more violent. In March of 2000,Page 29two incidents were reported in which Plaintiff had remarked that hecould kill 67 firefighters and get away with it, although Plaintiffclaims this was just a joke about his job security in case of layoffs. Inanother incident, he yelled at construction workers words to the effectthat someone was going to die, which he claims was a remark made while hewas attempting to follow a safety directive. In May, he was accused ofbeing verbally abusive and insubordinate to a female officer, a claim heagain denies. In July and September, he was twice reported for erraticdriving. In November, he was reported for abusive and inappropriatebehavior toward female ambulance attendants. Finally, on November 16th,he was involved in another altercation with a firefighter over racistcomments allegedly made years before, which led to his threatening thathe would have all of their heads. When the record is viewed in itsentirety, a clear pattern of escalating disciplinary problems emerges,all leading up to Plaintiff's termination.

None of the other firefighters, whom Plaintiff claims were treateddifferently, were similarly situated to Plaintiff in all materialrespects. Plaintiff claims that the Town had a "zero tolerance" policyfor violence in the workplace and that he was disciplined for things forwhich white firefighters were not disciplined. He cites to his complaintsabout firefighter Fusco and firefighter Tsokalas, who were notdisciplined for theirPage 30alleged violations of the Town's violence in the workplace policy.However, with respect to the Fusco incident, the Town investigated andwas told by the medics to whom the comments were directed that theythought it was a joke. (Town's Ex. B, N & O.) With respect to theTsokalas incident, no formal disciplinary action was taken against eitherPlaintiff or Tsokolas. (Town's Ex. B & E.) Thus, Tsokolas was nottreated differently than Plaintiff. Moreover, this incident occurred in1994, more than six years prior to Plaintiff's termination and, thus, haslittle relevance to the issue of whether Defendants' proffered reasonsfor Plaintiff's termination were pretextual or whether Plaintiff'stermination occurred under circumstances giving rise to an inference ofdiscrimination. Additionally, there is no evidence that either Fusco orTsokalas had a history of threatening and abusive behavior similar tothat for which Plaintiff was disciplined repeatedly over his 17 yearswith the Fire Department and for which he received psychiatric treatment.

Although Plaintiff categorically alleges that he was subjected to a"strict level of scrutiny" because of his race, he has provided noevidence to support his claim that other similarly situated whitefirefighters were not subjected to this same level of scrutiny andreview. He claims that he received written reprimands and sanctions basedon reports from co-workers to his superiors, which were differentsimilarly situated whitePage 31firefighters received, yet he has failed to provide any evidence tosupport this claim.

Thus, the Court finds that Plaintiff has failed to carry his burden ofproving that there were other white firefighters, similarly situated toPlaintiff who were treated differently than Plaintiff. SeeShumway, 118 F.3d at 64 ("To be `similarly situated,' theindividuals with whom [the plaintiff] attempts to compare herself [orhimself] must be similarly situated in all material respects.")(emphasis added). Additionally, to the extent that Plaintiff relies onthe alleged falsity of the Town's proffered reasons for his discharge— that he refused to complete the fitness for duty evaluation andfailed to sign an authorization for the release of his psychiatricrecords — he has produced no evidence whatsoever to support hisclaim that these reasons were false. The only evidence that Plaintiff hasprovided to refute the legitimacy of these proffered reasons is that hedid sign an authorization allowing Dr. Selig access to the records of Dr.Cannon, (Pl.'s Ex. 12), but this did not cover all psychiatricrecords, as Dr. Selig had requested. Additionally, Plaintiff claims thathe complied with the Last Chance Agreement by seeing a counselor with theEAP program on more than one occasion. Nevertheless, Plaintiff does notdispute the fact that he never completed his fitness for duty evaluation.

Having reviewed the record in its entirety, we conclude thatPage 32there are no genuine issues of material fact that the reasonsproffered by the Town for Plaintiff's termination were pretextual, and wegrant summary judgment in favor of the Town on Count One of Plaintiff'sComplaint.

b. Retaliation

Plaintiff has also asserted that his termination was in retaliation forhis filing a charge of discrimination with the EEOC.10 Relying on theproximity in time between the filing of his charge of discrimination andthe date of his termination in November, 2000, Plaintiff argues thatthere are sufficient facts to enable a fact finder to infer a causalconnection between Plaintiff's discrimination complaints and theDepartment's termination of him. (Pl.'s Mem. at 12-13.)

Title VII prohibits an employer from retaliating against an employeebecause he "has opposed any practice made an unlawful employment practiceby this subchapter, or because he has made a charge, testified, assisted,or participated in any manner in any investigation, proceeding, orhearing under this subchapter." 42 U.S.C. § 2000e-3(a). Title VII isviolated when "a retaliatory motive plays a part in adverse employmentactions toward an employee, whether or not it was the sole cause."Cosgrove v.Page 33Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir.1993). "To establish a prima facie case of retaliation, a plaintiff mustshow (1) participation in a protected activity known to the defendant;(2) an employment action disadvantaging the plaintiff; and (3) a causalconnection between the protected activity and the adverse employmentaction." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769(2d Cir. 1998) (internal citations and quotation marks omitted). TheMcDonnell Douglas burden-shifting analysis used in claims ofdiscrimination also applies to retaliation claims under Title VII.Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.1996).

Even assuming that Plaintiff can carry his prima facie burden based onthe temporal proximity of his filing of an EEOC charge (October 20, 2000)and his termination (November 17, 2000, or January 25, 2001), seeQuinn, 159 F.3d at 769, Plaintiff must still prove that the Town'sproffered non-discriminatory reasons for his discharge were pretextual.Treglia v. Town of Manlius, 313 F.3d 713, 721 (2d Cir. 2002).As discussed above, based on the series of threats and violent behaviorexhibited by Plaintiff in the months preceding his termination, andPlaintiff's refusal to comply with the mandated conditions for hiscontinued employment, there is ample evidence to support the Town'sreasons for terminating Plaintiff. The mere temporal proximity of hisfiring to his filing of a discrimination charge in not enough, inPage 34and of itself and under the circumstances, to support a finding ofpretext. See Holtz v. Rockefeller & Co., 258 F.3d 62, 81(2d Cir. 2001). Thus, we grant summary judgment in favor of the Town onPlaintiff's retaliation claim set forth in Count II of the complaint.

c. Hostile Work Environment

Plaintiff's third Title VII claim is that he was subjected to a hostilework environment because of his race. In order to survive summaryjudgment on a claim of hostile work environment harassment, a plaintiffmust produce evidence that "the workplace is permeated withdiscriminatory intimidation, ridicule, and insult, that is sufficientlysevere or pervasive to alter the conditions of the victim's employment."Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993))(internal quotation marks omitted). Isolated instances of harassmentordinarily do not rise to this level. Kotcher v. Rosa & SullivanAppliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir. 1992). Rather, theplaintiff must demonstrate either that a single incident wasextraordinarily severe, or that a series of incidents were "sufficientlycontinuous and concerted" to have altered the conditions of his workingenvironment. Perry v. Ethan Alien, Inc., 115 F.3d 143, 149 (2dCir. 1997) (internal quotation marks and citations omitted). Determiningwhether workplace harassment was severe orPage 35pervasive enough to be actionable depends on the totality of thecircumstances. Cruz, 202 F.3d at 570. The Supreme Court inHarris instructed that a court should look to all thecircumstances, including the frequency of the discriminatory conduct, itsseverity, whether it is physically threatening or humiliating, or a mereoffensive utterance, and whether it unreasonably interferes with theemployee's work performance. 510 U.S. at 23. The hostile environment mustbe both subjectively and objectively offensive: one that a reasonableperson would find hostile or abusive, and that the victim did, in fact,perceive to be so. Id. at 21-22.

Additionally, Plaintiff must show that a specific basis exists forimputing the conduct that created the hostile environment to theemployer. Perry v. Ethan Alien, 115 F.3d at 149; Murray v.New York Univ. College of Dentistry, 57 F.3d 243, 249 (2d Cir.1995). A plaintiff pursuing a hostile environment claim must establish abasis, rooted in common-law agency principles, on which to hold anemployer liable for the acts of its employees. Meritor Savings BankFSB v. Vinson, 477 U.S. 37, 57 (1986). The Second Circuit has heldthat employer liability for a hostile work environment created byco-workers attaches only when the employer has "either provided noreasonable avenue for complaint or knew of the harassment but did nothingabout it." Murray, 57 F.3d at 249 (citing Kotcher,957 F.2d at 63);Page 36see also Quinn, 159 F.3d at 767; Perry v. EthanAlien, 115 F.3d at 149; Torres v. Pisano, 116 F.3d 625,634 (2d Cir. 1997).

The Town asserts that Plaintiff has failed to set forth an actionablehostile work environment claim for two reasons. First, pointing to thefact that most of the racial comments of which Plaintiff complains weremade in the early to mid-1980's, the Town argues that the alleged conductwas not sufficiently severe or pervasive to create an objectively hostileor abusive work environment. Second, the Town claims that there is nobasis for imputing liability to the Town, since none of the allegedcomments were made by his superior officers and, as to the one remarkmade by a fellow firefighter during the last ten years (the Talbotremark), Plaintiff never filed a complaint with the Town regarding thisincident. (Town's Mem. at 27-28.)

Plaintiff, on the other hand, alleges that from the first day he workedfor the Manchester Fire Department, he was subjected to harassmentbecause of his race. He was the first black hired and was subjected to"comments and innuendos from the firemen." (Pl.'s Dep. at 15.) The firstthing he remembers is a joke made by his retired Chief on his arrival atthe station in 1983 about "being in the fire and them asking me to smilebecause they couldn't see me in the smoke." (Id. at 15-16.)About a week later, a firefighter made a joke about a line gun. He saidit was a "nigger stick. It shoots an arrow with a rope attachedPage 37to it because they run so fast you can't chase them. You put themin the back with this and pull them back with a rope." (Id. at16-17.) Plaintiff testified that he could not recall any other commentswhen he was first hired but he testified that it was "pretty much dailyjokes and innuendo. It was constant." (Id. at 17.) Theoffensiveness of these comments is beyond cavil. However, these commentswere made in the early 1980's, more than 15 years before the charge ofdiscrimination that led to the filing of this lawsuit.11

Plaintiff also relates an incident in approximately 1988 when three ofhis fellow firefighters told him to "keep [his] mouth shut in the TV roomor they would go up to Chief's office and tell him that they couldn'twork with this n-----." (Pl.'s Dep. at 26-27.) Plaintiff made a writtencomplaint concerning that incident to Deputy Chief McKay. After aninvestigation, his charge was dismissed. (Id. at 27-28.) Thiswas Plaintiff'sPage 38first complaint about harassment and his only complaint filed withthe Town prior to 1995. (Id. at 28.)

In 1989, he filed his first complaint of discrimination with the CCHROprimarily concerning Deputy Chief Beckwith who, Plaintiff states, alwayshad a complaint about Plaintiff's work. (Id. at 17-18.)Beckwith, however, according to Plaintiff, never made any comments thatwere racially motivated (id. at 18), and after Plaintiff filedhis CCHRO complaint, the harassment by Beckwith stopped for the mostpart. (Id.)

Plaintiff also cites to the incident with Tsokalas in 1994 when hecalled Plaintiff a racist over a comment Plaintiff made about whites inconnection with something they heard on television. That comment, made bya co-worker, was six years prior to Plaintiff's filing his charge ofdiscrimination.

Finally, there was the altercation between Plaintiff and firefighterTalbot, when Plaintiff accused Talbot of making a derogatory racialcomment about Plaintiff several years earlier, which Talbot denied. Thisis the only specific racial comment that was directed toward Plaintiffwithin the last five years of his employment with the Town.

In very general terms, Plaintiff testified that the discrimination thathe faced was "ongoing, but . . . at times it wasn't an issue. . . . Itwas ongoing, but it wasn't something that was a constant. Happened onoccasion." (Pl.'s Dep. atPage 39179.) These vague statements of discrimination happening "onoccasion" are not sufficient to create a triable issue as to whetherPlaintiff was subjected to a racially hostile work environment that isactionable under Title VII. Indeed, despite Plaintiff's claims ofcontinuing harassment, he has produced evidence of only a few sporadic,racially derogatory remarks, which are too isolated to constitutecollectively a hostile work environment.

Plaintiff also states that he was singled out for discipline, such asfor using profanity that he describes as "part of the culture of thefirehouse and was not unique to Plaintiff," whereas other whitefirefighters were not. (Id. at 173.) As discussed above,Plaintiff has failed to cite to any evidence in support of this claim,other than the comments involving firefighter Fusco (which wereinvestigated and determined to have been a joke).

Moreover, Plaintiff has failed to show that the discipline that wastaken against him was either racially motivated and was so pervasive asto alter the terms and conditions of his work environment. In fact, inhis brief in opposition to the Town's Motion for Summary Judgment,Plaintiff blames his verbal confrontations with other firefighters on hiswork related stress syndrome, which subjected him to disciplinaryactions. (Pl.'s Mem. at 18.)Page 40

When Plaintiff was placed under stress, he could verbally respond to the stress, and this verbal response to indignation and discrimination meant that his personnel file would almost prohibit his advancement within the Fire Department, and his personnel records would also be in a position to be utilized against him in both advancement and continued employment. Defendants were all aware that Plaintiff has Work Related Stress Disorder. Defendants also knew or should have known, specifically what types of events on the job, were likely to trigger Plaintiff's Work Related Stress Disorder.

Plaintiff also claims that Assistant Chief Bycholski failed to reviewhis complaints of discrimination in an attempt to resolve them. Plaintiffalleges that Bycholski failed to change the internal customs, practicesand policies that led up to these complaints of discrimination. Thisalleged failure to review complaints and to change practices andprocedures does not establish harassment so "severe or pervasive" as to"alter the conditions of [his] employment and create an abusive workingenvironment," Meritor Savings Bank, 477 U.S. at 67, so as to beconstitute actionable under Title VII.

Therefore, although there is evidence that Plaintiff was subjected tooffensive, racially derogatory remarks in the 19080's, early in hiscareer as a firefighter, these incidents are too remote to support anactionable hostile work environment claim. The remaining incidents aretoo isolated and sporadic to have created a subjectively and objectivelyhostile work environment. See Perry v. Ethan Alien, 115 F.3d at149. WePage 41grant summary judgment in favor of the Town on Count III ofPlaintiff's complaint.

3. 42 U.S.C. § 1983 — Violation of Plaintiff's CivilRights Against Individual Town Defendants and Town

In Count Four, Plaintiff alleges that the Town Defendants discriminatedagainst him on account of his race in violation of his right to equalprotection, as guaranteed by the Fourteenth Amendment.12 Section 1983provides a right of action against any person, acting under color ofState law, deprives another person of a right, privilege or immunitysecured by the Constitution or federal laws. 42 U.S.C. § 1983.Section 1983 does not create substantive rights. It provides a means toredress the deprivation of a federal right guaranteed elsewhere.

With respect to claims against the Town, in Monell v. Departmentof Social Services, 436 U.S. 658, 691 (1978), the Supreme Court heldthat a local government cannot be held liable under § 1983 on atheory of respondeat superior for the actions of its agents oremployees. Rather, before a municipal entity may be found liable, theplaintiff must show that the municipality is "actually responsible" forhis injuries, as through a "policy or custom" of the town. Mandellv. County ofPage 42Suffolk, 316 F.3d 368, 385 (2d Cir. 2003). Here, the only"policies or customs" Plaintiff has alleged are the Town's repeateddenials of his grievances and his discrimination complaint, and the "codeof silence" within the Fire Department, which caused firefighters to"believe that their inequitable, unjust, and discriminatory actions wouldnever be scrutinized." (Pl.'s Mem. at 18.) Plaintiff states in conclusoryfashion that the "Town had customs, rules, regulations, policies andusage of such long standing as to have the force of law." (Id.)

The mere fact that some of Plaintiff's grievances were denied (whileothers were not) does not establish a policy and custom. There has beenno other evidence of any "code of silence" or any other policy or customthat would support a Monell claim against the Town.

With respect to Plaintiff's § 1983 claims against the individualTown Defendants, Werbner, Weber, and Bycholski, in their officialcapacities, the doctrine of qualified immunity protects them from §1983 claims unless their actions violated clearly establishedconstitutional or statutory rights and that a reasonable official in thesame position would have known that his actions violated those clearlyestablished rights. Harlow v. Fitzgerald, 457 U.S. 800, 818(1982). Given Plaintiff's history of disciplinary actions, altercationswith other firefighters, and threats of violence to other firefightersprior to hisPage 43termination, it was objectively reasonable for the individualDefendants to believe that they were not violating a clearly establishedright of Plaintiff in terminating Plaintiff. See Clark, 218F.3d at 919.

With respect to Plaintiff's claims against the Defendants in theirindividual capacities, although Plaintiff alleges that he was treateddifferently than "similarly situated white male counterparts," (Pl.'sCompl. ¶ 79), as discussed above, he has failed to provide evidenceof other white firefighters who were similarly situated and who weretreated differently. This is fatal to his Equal Protection claim. Tostate a prima facie claim under the Equal Protection Clause of theFourteenth Amendment, a plaintiff must demonstrate that (1) he isotherwise similarly situated to members of the unprotected class; (2) hewas treated differently from members of the unprotected class; and (3)the defendant acted with discriminatory intent. See Johnson v. Cityof Fort Wayne, 91 F.3d 922, 944-45 (7th Cir. 1996).

Although not pled in his complaint, Plaintiff for the first timealleges in his opposition papers to the motion for summary judgment thatDefendants violated Plaintiff's due process rights when they denied himcontinued employment. (Pl.'s Mem. at 16.) Whether his claim is for adenial of substantive due process or procedural due process is notstated. Plaintiff states only thatPage 44"[t]he plaintiff is a municipal employee and has a property rightprotected by the Fourteenth Amendment in his continued employment. ThePlaintiff, Mr. Diggs has been deprived of a property right in that he wasdenied his continued employment." (Id.) At this stage of thelitigation, the mere claim of a due process violation in a memorandum inopposition to a summary judgment motion will not create a new cause ofaction under § 1983 nor will it defeat summary judgment.

Therefore, the Town Defendants are granted summary judgment as to CountFour of Plaintiff's Complaint.

4. 42 U.S.C. § 1985 — Conspiracy to Violate Plaintiff'sCivil Rights Against Individual Town Defendants and Town

Section 1985 provides a private rights of action against any person whoconspires to interfere with another's civil rights. The elements are: (1)a conspiracy; (2) for the purpose of depriving, either directly orindirectly, any person or class of persons of equal protection of thelaws; and (3) an act in furtherance of the conspiracy; (iv) whereby aperson is deprived of any right of a citizen of the United States.Brown v. City of Oneota, 221 F.3d 329, 341 (2d Cir. 2000).Defendants assert their entitlement to summary judgment on the samegrounds as set forth above with respect to Plaintiff's § 1983 claim.Plaintiff has not opposed their motion on this claim.

A review of the record reveals no evidence that would support aconspiracy claim under § 1985. For that reason and thePage 45reasons discussed above, summary judgment is granted in favor ofthe Town Defendants on Count Five, Plaintiff's § 1985 claim.

5. Disability Discrimination Claims Against Town

In Count Six, Plaintiff alleges that Defendants discriminated againsthim and retaliated against him because of his disability, in violation ofthe ADA.13 Under both the ADA and the Rehabilitation Act, Plaintiffmust show that he is "disabled," as that term is defined by the Acts. A"disability" is defined as (1) a physical or mental impairment thatsubstantially limits one or more of the major life activities; (2) arecord of such an impairment; or (3) being regarded as having such animpairment. Plaintiff relies on the "regarded as" prong of the definition(42 U.S.C. § 12102(2); 29 U.S.C. § 705(20); see Pl'sDep. at 146), arguing that Defendants regarded him as having a mentaldisability that prevented him from performing the essential functions ofhis job. He cites to the fact that he was required to undergo a fitnessfor duty evaluation.

To qualify as a disability, the relevant impairment must bePage 46of a nature that "substantially limits one or more of the majorlife activities." 42 U.S.C. § 12102(2)(A). "Working" is among thoseactivities. 29 C.F.R. § 1630(i). Where, as here, the activity is"working," the EEOC regulations provide: The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.29 C.F.R. § 1630.2(j)(3); see Sutton v. United Air Lines,Inc., 527 U.S. 471, 491 (1999). The Supreme Court has held that"[t]o be substantially limited in the major life activity ofworking . . ., one must be precluded from more than one type of job, aspecialized job, or a particular job of choice." Sutton, 527U.S. at 492; see Giordano v. City of New York, 274 F.3d 740,747-48 (2d Cir. 2001).

Plaintiff asserts that he was disabled because his employer perceivedhim as having a mental disability that prevented him from performing hisjob. An employer's request for a mental evaluation, however, does notequate to regarding the employee as substantially impaired in the majorlife activity of working. See Cody v. Cigna Healthcare of St. Louis,Inc., 139 F.3d 595, 599 (8th Cir. 1998); Giordano, 274F.3d at 749-50; Colwell v. Suffolk County Police Dep't,158 F.3d 635, 646-47 (2d Cir. 1998),Page 47cert. denied, 526 U.S. 1018 (1999). And, it certainlydoes not mean that the Town regarded him as unable to perform a broadrange of jobs compared to the average person having comparable skills,training and abilities. Giordano, 274 F.3d at 749. At most, theevidence showed that the Town and some of Plaintiff's officers wereconcerned about his ability to perform as a firefighter given thestressful nature of the job. That concern does not equate to theirregarding him as unable to perform a wide range of jobs. Therefore,Plaintiff has filed to establish that he was "regarded as" disabled so asto fall within the protections of the ADA and the Rehabilitation Act.

6. Negligent and Intentional Infliction of Emotional DistressClaims Against Individual Town Defendants and Town

a. Town's Governmental Immunity

In Counts Seven and Eight, Plaintiff has asserted claims forintentional and negligent infliction of emotional distress. The Town ofManchester is immune from liability for damages caused by the willfulmisconduct of its employees. See Conn. Gen. Stat. §52-557n; see Gordon v. Bridgeport Housing Authority,208 Conn. 161 (1988). Likewise, the Town is immune from liability fornegligence unless a statute has abrogated that immunity. Williams v. City ofNew Haven, 243 Conn. 763, 766-67 (1998). Plaintiff has cited nostatutory authority that would abrogate this governmental immunity.Therefore, we find that the Town is entitled to governmental immunity onPlaintiff's claims in CountsPage 48Seven and Eight.

b. Individual Defendants

Plaintiff has also asserted these common-law claims against theindividual Town Defendants, Chief Weber, Assistant Chief Bycholski, andTown General Manager Werbner. With respect to Plaintiff's claim ofintentional infliction of emotional distress by these Defendants,Plaintiff has alleged no acts by any of these individuals that couldsupport such a claim. See Carrol v. Allstate Insur. Co.,262 Conn. 433, 442 (2002). "Liability for intentional infliction of emotionaldistress requires conduct that exceeds all bounds usually tolerated bydecent society." Petyan v. Ellis, 200 Conn. 243, 254 n.5 (1986)(quoting W. Prosser & W. Keeton, Torts § 12, p. 60 (5th ed.1984)). "Liability has been found only where the conduct has been sooutrageous in character, and so extreme in degree, as to go beyond allpossible bounds of decency, and to be regarded as atrocious, and utterlyintolerable in a civilized community. Generally, the case is one in whichthe recitation of the facts to an average member of the community wouldarouse his resentment against the actor, and lead him to exclaim,Outrageous!" Carrol, 262 Conn. at 443 (citing 1Restatement (Second), Torts § 46, cmt. (d), p. 73 (1965)).

Here, Plaintiff asserts in the most general terms that Defendants'conduct was "extreme and outrageous" because theyPage 49breached their duty to Plaintiff when they failed to maintain awork environment safe and free from harassment, retaliation, anddiscrimination. Additionally, Plaintiff asserts that the breach of thisduty caused Plaintiff's work-related stress disorder and that Defendantsacted in reckless disregard of Plaintiff's civil rights. (Pl.'s Mem. at21.) None of these claims, even when construed in the light mostfavorable to Plaintiff, rises to the level of conduct so extreme andoutrageous as to support a common-law tort claim for intentionalinfliction of emotional distress. Therefore, Count Seven will bedismissed as to the individual Town Defendants.

Plaintiff has also asserted a claim for negligent infliction ofemotional distress. The following four elements are necessary to prove aclaim for negligent infliction of emotional distress: (1) the defendant'sconduct created an unreasonable risk of causing the plaintiff emotionaldistress; (2) the plaintiff's distress was foreseeable; (3) the emotionaldistress was severe enough that it might result in illness or bodilyharm; and (4) the defendant's conduct was the cause of the plaintiff'sdistress. Carrol, 262 Conn. at 444. This claim, like theprevious claim for intentional infliction of emotional distress, relieson the Town Defendants' failure to adequately represent Plaintiff andtheir alleged conspiracy with the Town. There is nothing in the recordthat would support Plaintiff's claim thatPage 50these individuals engaged in "unreasonable conduct" that wouldsupport a claim of negligent infliction of emotional distress or that theconduct of a particular Defendant was the cause of Plaintiff's severeemotional distress. See Montenery v. Southern New England TelephoneCo., 175 Conn. 337, 345 (1978). Accordingly, the Court grantssummary judgment in favor of the individual Town Defendants on CountEight of Plaintiff's Complaint.

B. Claims Against Union Defendants

1. Title VII Claims Against the Union Defendants

In Counts One, Two, and Three, Plaintiff claims that Local 1579 and itsPresident, David M. Mayer, engaged in race discrimination, retaliation,and created a hostile work environment in violation of Title VII. We havealready dismissed these claims against Mayer.

It is undisputed that Plaintiff never filed a charge of discriminationagainst the Union. A Title VII claimant may bring suit in federal courtonly if he has filed a timely complaint with the EEOC and obtained aright-to-sue letter. 42 U.S.C. § 2000e-5(e) and (f); Belgravev. Pena, 254 F.3d 384, 386 (2d Cir. 2001); Shah v. N.Y. StateDep't of Civil Servs., 168 F.3d 610, 613 (2d Cir. 1999);Malarkey v. Texaco, Inc., 983 F.2d 1204, 1208 (2d Cir. 1993);Lee v. ITT Standard, 268 F. Supp.2d 315, 335 (W.D.N.Y. 2002).Exhaustion of administrative remediesPage 51through the EEOC is "an essential element" of the Title VIIstatutory scheme and, as such, is a precondition to bringing such claimin federal court. Francis v. City of New York, 235 F.3d 763,768 (2d Cir. 2000). The purpose of this exhaustion requirement is toprovide notice to the defendant and to encourage conciliation andvoluntary compliance. See Butts v. City of New York Dep't of Hous.Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993);Snell v. Suffolk Cty., 782 F.2d 1094, 1101 (2d Cir. 1986).Because it is undisputed that Plaintiff never filed a charge ofdiscrimination against the Union, Plaintiff's Claims in Counts One, Two,and Three against the Union are dismissed.

2. Civil Rights Violations by the Union Defendants

In Count Four, Plaintiff alleges that the Union Defendantsdiscriminated against him on account of his race in violation of hisright to equal protection, as guaranteed by 42 U.S.C. § 1983."Because the United States Constitution regulates only the Government,not private parties, a litigant claiming that his constitutional rightshave been violated must first establish that the challenged conductconstitutes `state action.' " United States v. Int'l Brotherhood ofTeamsters, Chauffeurs, Warehousemen & Helpers of Am.,941 F.2d 1292, 1295-96 (2d Cir. 1991) (citing Blum v. Yaretsky,457 U.S. 991, 1002 (1982)). In order to state a claim under § 1983, aplaintiff must allege thatPage 52he was injured by either a state actor or a private party actingunder color of state law. Parratt v. Taylor, 451 U.S. 527, 535(1981) (overruled on other grounds by Daniels v. Williams,474 U.S. 327 (1986)); Ciambriello v. County of Nassau,292 F.3d 307, 324 (2d Cir. 2002); Spear v. Town of West Hartford,954 F.2d 63, 68 (2d Cir. 1992).

Neither Local 1579 nor its President, David Mayer, were agents of theTown of Manchester, nor were they acting under color of state law at anytime relevant to the claims in Plaintiff's complaint. Plaintiff allegesno facts to the contrary. For this reason, the Union Defendants areentitled to summary judgment on Count Four of Plaintiff's Complaint.

3. The Union Defendants' Conspiracy to Violate Plaintiff'sConstitutional Rights

Plaintiff has also asserted a claim under 42 U.S.C. § 1985 againstLocal 1579 and its President, David Mayer, alleging that they conspiredwith the Town to prevent Plaintiff from exercising his right to equalprotection of the laws through the continual denial of grievances, denialof employment compensation, and failure to adequately advocate forPlaintiff. These conclusory allegations of conspiracy are insufficient tostate a cause of action against the Union Defendants under § 1985. InPowell v. Workmen's Compensation Bd., 327 F.2d 131, 137 (2dCir. 1964), the Second Circuit dismissed a complaint invoking this samesection, holding thatPage 53

[a] complaint in a case like this must set forth facts showing some intentional and purposeful deprivation of constitutional rights. Snowden v. Hughes, 321 U.S. 1 (1944). This complaint does contain some general allegations, framed in broad language closely paralleling that used in Sections 1983 and 1985(3), that defendants successfully conspired to deprive plaintiff of his rights. But plaintiff was bound to do more than merely state vague and conclusionary allegations respecting the existence of a conspiracy. It was incumbent upon him to allege with at least some degree of particularity overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy.Here, Plaintiff has failed to provide evidence of any overt acts bythe Union Defendants in furtherance of an alleged conspiracy to deprivePlaintiff of his constitutional rights.

Additionally, a claim under section 1983 requires proof ofdiscriminatory animus. Brown v. City of Oneota, 221 F.3d 329,341 (2d Cir. 2000). Plaintiff has neither alleged nor produced evidencethat the Union or its President exhibited a racially discriminatoryanimus toward Plaintiff.

Therefore, Count Five of Plaintiff's complaint is dismissed as to theUnion Defendants.

4. Plaintiff's Claims of Disability Discrimination Under Title Iof the ADA and § 504 of the Rehabilitation Act

As discussed above, both the ADA and Rehabilitation Act prohibitdiscrimination against individuals with a perceived disability. UnderTitle I of the ADA, covered entities include labor organizations.42 U.S.C. § 12111(2). There is nothing inPage 54the record that would support a claim of disability discriminationby the Union Defendants. Indeed, Plaintiff alleges no facts concerningeither the Local or its President David Mayer engaging in any activitythat adversely affected his employment because they perceived Plaintiffto be disabled. There simply are no facts in the record to support aclaim of disability discrimination by the Union against Plaintiff.

Therefore, the Union Defendants are entitled to summary judgment onCount Six.

5. Negligent and Intentional Infliction of Emotional DistressClaims Against the Union Defendants

With respect to Plaintiff's claim of intentional infliction ofemotional distress by the Union Defendants, Plaintiff has alleged no actsby either of these Defendants that could support such a claim. SeeCarrol, 262 Conn. 433. In order for Plaintiff to prove a claim ofintentional infliction of emotional distress, four elements must beestablished. It must be shown: (1) that the actor intended to inflictemotional distress or that he knew or should have known that emotionaldistress was the likely result of his conduct; (2) that the conduct wasextreme and outrageous; (3) that the defendant's conduct was the cause ofthe plaintiff's distress; and (4) that the emotional distress sustainedby the plaintiff was severe. Petyan, 200 Conn. at 253. Asdiscussed above, "[l]iability for intentional infliction of emotionaldistress requires conduct that exceeds all boundsPage 55usually tolerated by decent society." Id. at 254 n.5(quoting W. Prosser & W. Keeton, Torts § 12, p. 60 (5thed. 1984)).

Here, Plaintiff argues that the conduct of the Union Defendants wasextreme and outrageous in that, on certain occasions, they breached theirduty to advocate for Plaintiff and then they acted "systematically forthe common objective of the Town." (Pl.'s Mem. at 12.) Plaintiff claimsthat this breach of duty caused Plaintiff's work-related stress disorder.Plaintiff further states that Defendants acted with reckless indifferenceto Plaintiff's civil rights. (Id.) These acts, even whenconstrued most favorably to Plaintiff, do not rise to the level ofconduct so extreme and outrageous as to support the common-law tort ofintentional infliction of emotional distress. Therefore, Count Seven willbe dismissed as to the Union Defendants.

Plaintiff has also asserted a claim for negligent infliction ofemotional distress. The following four elements are necessary to prove aclaim for negligent infliction of emotional distress: (1) the defendant'sconduct created an unreasonable risk of causing the plaintiff emotionaldistress; (2) the plaintiff's distress was foreseeable; (3) the emotionaldistress was severe enough that it might result in illness or bodilyharm; and (4) the defendant's conduct was the cause of the plaintiff'sdistress. Carrol, 262 Conn. at 444. This claim, like theprevious claim for intentional infliction of emotional distress,Page 56relies on the Union Defendants' failure to adequately representPlaintiff and their alleged conspiracy with the Town. In Zrella v.Local 1303-26, No. CV010508213S, 2003 WL 21267127 (Conn. Super. Ct.May 1, 2003), the Court granted summary judgment in favor of the Unionwhere the plaintiff's negligent infliction of emotional distress countwas premised on a breach of the duty of fair representation. Likewise,Plaintiff's allegations against the Union Defendants in this case do notrise to the level of "unreasonable conduct" that would support a claim ofnegligent infliction of emotional distress. See Montenery v.Southern New England Telephone Co., 175 Conn. 337, 345 (1978).Accordingly, the Court grants summary judgment in favor of the UnionDefendants on Count Eight of Plaintiff's Complaint.

Conclusion

For the reasons set forth above, the Defendants' Motions for SummaryJudgment are granted as to all counts of Plaintiff's Complaint. The Clerkis directed to enter judgment accordingly.

SO ORDERED.

1. As used herein, "Un. St. ¶ ___" refers to the UnionDefendants' Local Rule 56(a)1 Statement in Support of their Motion forSummary Judgment [Doc. # 26]. "Town St. ¶ ___" refers to the TownDefendants' Local Rule 56(a)1 Statement [Doc. # 17]. Unless otherwiseindicated, each of the facts taken from these statements has beenadmitted by Plaintiff.

2. The sworn affidavit of Assistant Chief Bycholski has beenseparately docketed as Doc. # 19.

3. In opposition to Defendants' Motions for Summary Judgment,Plaintiff has submitted a number of exhibits that are letters ormemoranda written by other Fire Department personnel. These appear tohave come from Plaintiff's personnel file. These documents have not beenobjected to by Defendants on grounds of hearsay, lack of properauthentication, or otherwise. In fact, many of the same documents havebeen submitted by Defendants. While normally the Court is not permittedto consider hearsay evidence or otherwise inadmissible evidence in rulingon a motion for summary judgment, see Sarno v. DouglasElliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999),in this case, because these documents have been submitted by thenon-moving party and because Defendants have not objected totheir consideration, the Court has considered them in ruling on themotions for summary judgment. See 11 Moore's Federal Practice§ 56.14[2][c] (3d ed. 2003); DeCintio v. Westchester CountyMedical Ctr., 821 F.2d 111, 114 (2d Cir.), cert. denied,484 U.S. 965 (1987); H. Sand & Co. v. Airtemp Corp.,934 F.2d 450, 454-55 (2d Cir. 1991); Perez v. Alcoa Fujikura, Ltd.,969 F. Supp. 991, 998 (W.D. Tex. 1997). The Court would note, however,that for the most part these documents were used to fill in gaps in thefactual background, and none was critical to the disposition of thesemotions.

4. Presumably this refers to the reprimands discussed above. Noother "evaluations" are not part of the record.

5. This refers to the incident with Captain Burford.

6. The Town Defendants characterize this as a pre-terminationmeeting.

7. We recognize that this is not the only way in which a Title VIIplaintiff can meet this burden. See Abdu-Brisson, 239 F.3d at468. Here, however, Plaintiff advances no other proof of disparatetreatment from which an inference of discrimination may be drawn.

8. Plaintiff and Defendants argue extensively about whetherPlaintiff was terminated on November 17, 2000, or on January 25, 2001.For purposes of ruling on this motion, we need not resolve this issue. Tothe extent that Plaintiff was terminated on November 17th, there was atleast some ongoing relationship between the Town and Plaintiff asevidenced by Plaintiff's meeting with the Town psychiatrist. However, asPlaintiff points out, he never returned to work after that date and didcollect unemployment compensation.

9. In Clark, the plaintiff, who was African-American, wasterminated as a mail clerk with USPS for violations of the USPSanti-violence policy, known as the "zero-tolerance" policy. Thetermination was a direct result of an altercation that the plaintiff hadwith white employees on March 27, 1996. The plaintiff had a long historyof problems with USPS, including an involuntary hospitalization by herown psychiatrist after she verbally and physically assaulted a number ofher co-workers. She had also been disciplined for throwing a package at afellow USPS employee, threatening another with bodily harm, and punchinga fellow employee. Prior to her termination, the plaintiff was advisedthat no further violations of the anti-violence policy would betolerated. Not heeding that warning, the plaintiff engaged in a heatedargument with a co-worker, threatening her with bodily harm. She was thenterminated. The plaintiff then filed a Title VII suit alleging race andsex discrimination. The Eighth Circuit affirmed the trial court's grantof judgment as a matter of law on the ground that the plaintiff hadfailed to demonstrate a prima facie case of discrimination because shecould not show that she was treated more severely than similarly situatedwhite employees or, alternatively, that she had not shown that the reasonbeing offered for her termination — her lengthy record of violenceand threats — was a pretext for firing her for a prohibitedreason.

10. Plaintiff filed an earlier charge of discrimination with theCCHRO, in 1989, involving primarily claims that Deputy Chief Beckwith hadbeen overly critical of Plaintiff's work. Plaintiff states that after hefiled the complaint, Beckwith quit harassing him for the most part.(Pl.'s Dep. at 18.)

11. We recognize that hostile work environment claims are differentin kind that discrete acts, since "[t]heir very nature involves repeatedconduct." National Railroad Passenger Corp. v. Morgan,536 U.S. 101, 115 (2002). "Such claims are based on the cumulative effect ofindividual acts." Id. "It does not matter . . . that some ofthe component acts of the hostile work environment fall outside thestatutory time period [300 days]." Id. at 117. While we haveconsidered all of Plaintiff's evidence of hostile work environment, eventhat relating to events in the early 1980's, the fact that many of theincidents occurred more than 15 years earlier is relevant to the weightto be given this evidence and whether these incidents were part of thesame actionable hostile work environment practice. See42 U.S.C. § 2000e-5(e)(1); National Railroad Passenger Corp.,536 U.S. at 120.

12. Although Plaintiff's complaint alleges a violation ofPlaintiff's right to equal protection, he argues in his memorandum inopposition to the motion for summary judgment that his right to dueprocess was violated. Compare Pl.'s Compl. ¶ 71with Pl.'s Mem. at 16.

13. The ADA, like Title VII, requires a plaintiff to first file acharge of discrimination with the EEOC or state or local agency.Exhaustion of administrative remedies is a prerequisite to suit under theADA. Jacques v. DiMarzio, Inc., 216 F. Supp.2d 139, 143-44(E.D.N.Y. 2002); Joseph v. Am. Works, Inc., No. 01 Civ. 8287,2002 WL 1033833, at *5 (S.D.N.Y. May 21, 2002). The only charge ofdiscrimination filed by Plaintiff that references a disability is theamended charge filed in December, 2000.