GLENN T. SUDDABY, Chief District Judge.
Currently before the Court, in this employment discrimination action filed by Stephen Boyd ("Plaintiff") against Broome Community College ("Defendant") based on his race, age and disability, is Defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 19.) For the reasons set forth below, Defendant's motion is granted, and Plaintiff's Complaint is dismissed.
Because this Decision and Order is intended primarily for the review of the parties, and they have (in their memoranda of law) demonstrated an adequate understanding of allegations underlying Plaintiff's claims against Defendant, the Court will not recite those allegations in this Decision and Order, but will merely summarize Plaintiff's claims.
Generally, Plaintiff's Complaint asserts the following four claims against Defendant: (1) a claim that Defendant fired Plaintiff in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; (2) a claim that Defendant discriminated against Plaintiff on the basis of his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq.; (3) a claim that Defendant deprived Plaintiff of his right to Equal Protection under the 14
Generally, in its memorandum of law, Defendant argues that it is entitled to summary judgment for two reasons. (Dkt. No. 19, Attach. 23.)
First, Defendant argues, all of Plaintiff's claims must be dismissed because, pursuant to the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (which governs all of Plaintiff's claims), even assuming Plaintiff has established a prima facie case of discrimination, Defendant has met its burden of showing (and indeed Plaintiff is collaterally estopped from denying) the existence of a legitimate, non-discriminatory reason for its action (i.e., Defendant had previously determined it needed to reorganize Plaintiff's department, Defendant was facing fiscal challenges due to a reduction in New York State funding and a decline in student enrollments, and Plaintiff's position was among the twenty-eight positions that were no longer needed), and Plaintiff has not produced evidence showing that Defendant's asserted reason is pretextual (and for claims under the Rehabilitation Act, that the sole reason for Defendant's action was unlawful discrimination). (Id.)
Second, Defendant argues, Plaintiff's claim under the Rehabilitation Act must be dismissed for the alternative reason that Plaintiff does not suffer from a disability as defined by the Rehabilitation Act (and indeed, when a physician released him to return to work in October of 2011, the physician released him with no work restrictions). (Id.)
Generally, in his opposition memorandum of law, Plaintiff asserts three arguments. (Dkt. No. 24.)
First, Plaintiff argues, he has produced seven pieces of evidence showing that Defendant's asserted reasons for his termination were pretextual: (a) the fact that his termination (in January of 2013) closely followed his rejection (in November of 2012) of Defendant's offer to settle its charges of workers compensation fraud against him in exchange for his waiving all future workers' compensation claim rights in connection with his slip-and-fall injuries, indicating a nexus between the termination and the charges; (b) the fact that Defendant's claim of severe fiscal challenges from 2011 to 2014 is refuted by the fact that the number of approved full-time positions during that time remained constant, any decrease in tuition due to declining student enrollment was offset by increase State aid, and College President Kevin Drumm testified in a deposition that "[f]rom my thinking" the university's decision to terminate Plaintiff was "[n]ot all [due to] fiscal challenges"; (c) the fact that Defendant's claim that Plaintiff's salary of $34,223 was saved is refuted by the fact that it was reallocated to two new positions that incorporated duties similar to those incorporated in his position but cumulatively costed $94,000; (d) the fact that, as an African-American over the age of fifty, Plaintiff was the only employee who was classified as a "layoff" from the entire College staff during the 2012-2103 year; (e) the fact that Defendant's claim that Plaintiff's position was obsolete is refuted by the fact that its assigned duties were reallocated to new positions; (f) the fact that, although Defendant considered creating a "mini" version of Plaintiff's position (involving work only six hours per week), Defendant would have offered it to Plaintiff only if it was titled the same as his prior position, showing no indication that Defendant would have considered Plaintiff for the position had it not had the same title as his prior position (despite requiring the same duties); and (g) the fact that, in general, minorities have "regularly" made up a very small composition of Defendant's workforce (for example, African-Americans approximately 2.0 percent in 2011, and 2.5 percent in 2012, compared to the percentage of African-Americans in the population generally, which he asserts is 10 percent), evidencing "institutional racism" by Defendant. (Dkt. No. 24.)
Second, argues Plaintiff, neither the Article 78 decision nor the Workers' Compensation Board decision referenced by Defendant is entitled to collateral estoppel effect over Plaintiff's Title VII, ADA and Rehabilitation Act claims, because (a) the Article 78 decision resolved issues different from those raised in the current action, (b) the Workers' Compensation Board decision is not entitled to preclusive effect in a Title VII proceeding unless it has been affirmed by a state court judgment (which it has not yet been), and (c) the Workers' Compensation Board decision was preceded by a contrary decision and in any event is now being appealed. (Id.)
Third, argues Plaintiff, he is disabled within the meaning of the Rehabilitation Act, because (a) he fell on a wet floor while working and suffered serious physical injuries on August 25, 2011, (b) he was out of work until October 31, 2011, and (c) he continues to suffer a number of physical restrictions in his daily life as a result of his injuries, including mandatory restrictions placed by doctors on August 25, 2011, and October 7, 2014, regarding his lifting, pulling, stooping and standing. (Id.)
Generally, in his reply memorandum of law, Defendant assert three arguments. (Dkt. No. 25.)
First, Defendant argues, the seven pieces of evidence adduced by Plaintiff do not show that Defendant's asserted reasons for his termination were pretextual: (a) Plaintiff's assertion of a nexus (between his termination and Defendant's fraud charges) is contradicted by the finding of the Workers' Compensation Board that no such nexus existed and that Defendant had a legitimate business reason for the termination; (b) his reliance on the constant number of approved full-time positions during the time in question ignores that twenty-one of those positions were unfunded in 2011-2012 and twenty-eight of those positions were unfunded in 2012-2013 and 2013-2014, his assertion that any decrease in tuition was offset by an increase State aid is not supported by the record (which shows that, even with increased State aid, Defendant had to reduce personnel costs by more than $1.0 million to balance its budget), and his reliance on page 86 of President Drumm's deposition testimony (stating that the decision to terminate Plaintiff was not all due to fiscal challenges) ignores page 72 of that deposition testimony (explaining that the decision was also due to the previously determined need to reorganize two departments and the fact that it would be unethical to keep a person in a position that one does not need); (c) Plaintiff's assertion that his position (which paid $34,223) was similar to one or both of two new positions (which cumulatively paid $94,000) was previously made to, and rejected by, the New York State Supreme Court, collaterally estopping him from making it again in this action; (d) his reliance on the fact that, as an African-American over the age of fifty, he was the only employee who was classified as a "layoff" from the entire College staff during the 2012-2103 year is undermined by the evidence that 58 percent of the employees at the College were age fifty and over (eleven of whom were African-American) as of January 2013, Defendant first hired Plaintiff when he was 49 and continued to employee him through his mid-fifties, he was not replaced in the Audio Video Services Manager position, his job was eliminated due to economic necessity, and the New York State Supreme Court found no evidence of race of age discrimination in his termination; (e) his assertion that his position could not have been obsolete because its assigned duties were reallocated to new positions was made to, and rejected by, the New York State Supreme Court, collaterally estopping him from making it again in this action; (f) his assertion that Defendant did not offer him any of the new positions based on his race and/or age is undermined by the fact that the New York State Supreme Court found that no race or age discrimination in its treatment of him, and that the Court must respect Defendant's discretion to select other qualified candidates; and (g) in Broome County, African-Americans constituted only 4.8 percent of the population in 2010 and only 5.7 percent of the population in 2014 (much less than the 10-percent figure asserted by Plaintiff) and, in any event, the statistics cited by Plaintiff (which, incidentally, show that 58 percent of the employees at the College were age fifty and over as of January 2013) do not account for relevant variables such as the pool of applicants and the number of African-Americans who met the minimum education requirements for positions at the College, rendering the statistics unreliable. (Id.)
Second, Defendant argues, the decisions of the New York State Supreme Court and Workers' Compensation Board preclude Plaintiff's claims, because (a) the New York State Supreme Court decision contained factual findings of litigated issues identical to issues raised in the current action with regard to all of Plaintiff's claims including those under Title VII and the ADEA, (b) the Workers' Compensation Board decision (which found a legitimate business reason for the elimination of Plaintiff's position) is binding on Plaintiff's claims under 42 U.S.C. § 1983 and the Rehabilitation Act (as evident by the fact that the cases cited by Plaintiff do not regard the preclusion of claims under 42 U.S.C. § 1983 or the Rehabilitation Act), and (c) to the extent the Workers' Compensation Board decision is not preclusive, the Court may and should accord substantial weight to the decision regarding the validity of Defendant's reasons for terminating Plaintiff (and the Court should accord no weight to the Administrative Law Judge's decision given that it was reversed on appeal by the Workers' Compensation Board). (Id.)
Third, Defendant argues, the evidence adduced by Plaintiff in his response does not establish that he had a disability under the Rehabilitation Act at the time his position was eliminated on January 25, 2013, for two reasons: (1) the emergency room report dated August 25, 2011, which is unsworn, identifies injuries less severe than those required to constitute a disability and in any event are contradicted by the papers from Plaintiff's doctor received by Defendant when Plaintiff returned to work on October 31, 2011, without work restrictions; and (b) the independent medical examination dated October 7, 2014, which was based primarily on records from 2013 and 2013, post-dates the date that his employment ended by nearly two years. (Id.)
Unless otherwise noted, the following facts were asserted and supported by Defendant in its statement of material facts and admitted by Plaintiff in his response thereto. (Compare Dkt. No. 19, Attach. 22 [Def.'s Rule 7.1 Statement] with Dkt. No. 23 [Plf.'s Rule 7.1 Response].)
1. Plaintiff was hired by Broome Community College ("the College") for the position of Audio-Visual Services Manager in March 2006.
2. At the time he was hired, Plaintiff was forty-nine years old.
3. In 2011, President Kevin Drumm charged Vice President Regina Losinger with the task of coming up with a plan to reorganize both the Information Technology Department and Web and Media Services Department. President Drumm assigned Ms. Losinger this task because he had been hearing complaints on campus for more than a year regarding confusion between the two departments and their inability to function efficiently.
4. At the time, the College was facing fiscal challenges due to a reduction in New York State funding and a decline in student enrollments (and tuition revenues).
5. For the 2011-2012 school year, the College experienced a $2.6 million cut in New York State funding.
6. For the 2011-2012 to 2013-2014 school years, the College experienced a decline in full-time equivalent student enrollment by approximately 10 percent.
7. The College's 2012-2013 budget asserts that each 1 percent drop in student enrollment results in a $330,000 loss of operating revenues (reasoning that each percentage of student enrollment brings in $330,000 in operating revenues).
8. To address these lost revenues, the College took several steps. In the 2011-2012 budget, the College did not fund twenty-one full-time positions approved for 2011-2012 or five percent of its total full-time positions for 2011-2012.
9. In the same budget, the College also reduced contractual expenses by more than $1.1 million. In addition, the College doubled its fund balance appropriation, increasing it from $1.0 million to $2.0 million.
10. As a result, the College's total revenues were reduced by 0.8 percent as compared to 2010-2011.
11. In 2012-2013, the College addressed its budget issues by not funding an additional seven full-time positions approved for 2012-2013, bringing the total number of full-time, not-funded positions to twenty-eight, or seven percent of its total full-time positions.
12. The College reduced its personnel costs by approximately $1.0 million. In addition, the College reduced its fund balance appropriation by $622,854 as compared to 2011-2012.
14. The College's total revenues for 2012-2013 decreased by 0.3 percent as compared to 2011-2012.
15. In the 2013-2014 budget, the College continued to not fund twenty-eight full-time positions approved for 2013-2014.
16. Between the 2011-2012 budget year and the 2013-2014 budget year, student enrollment declined by approximately 10 percent.
17. The personnel cuts made by the College in 2012-2013 resulted in a $1.0 million savings to the College.
18. In addition, the College commenced reorganizing the Information Technology Department and Media Services Department.
19. President Drumm believed that there were many disputes between the two departments over who was responsible for certain duties.
20. As part of the reorganization, Ms. Losinger looked for where functions should be placed within the two departments and what positions, if any, were no longer needed. While the original purpose of the reorganization did not include eliminating positions, each position was evaluated to determine if it was currently needed.
21. During this time, the College did not keep every open position vacant. Instead, the College determined if an open position was needed going forward. In the case of the Audio-Visual Services Manager position, the College determined that it was obsolete.
22. This determination was based on several factors, including changing technological advances, new software systems eliminating the need for an individual to log in paper work orders, standardization of media equipment on campus, and permanent installation of media equipment in classrooms. The College believed that what duties remained accounted for about four to six hours of work a week and could be absorbed by other employees at the College.
23. When Plaintiff's position was eliminated, he was placed on a preferred eligible list pursuant to the Civil Service Law.
24. The position of Audio-Visual Services Manager remains eliminated.
25. On January 25, 2013, Plaintiff was laid off.
26. On August 25, 2011, Plaintiff fell in the on-campus cafeteria and was injured.
27. Plaintiff was out of work until October 31, 2011.
28. Plaintiff's physician indicated that Plaintiff was temporarily totally disabled.
29. Plaintiff's physician released him to return to work on October 31, 2011.
30. Plaintiff was released to work with no work restrictions.
31. Plaintiff continued to work full time from October 31, 2011, until his employment ended on January 25, 2013.
32. After his position was eliminated, Plaintiff commenced a proceeding under New York CPLR Article 78 challenging the elimination of his position. In a Decision and Order dated October 3, 2013, the New York Supreme Court found that Plaintiff did not satisfy his burden to "eliminate bona fide reasons for the elimination of the position, show no savings were accomplished or [show] that someone was hired to replace him."
33. Plaintiff also filed a complaint with the New York Workers' Compensation Board alleging a violation of Section 120 of the New York Workers' Compensation Law. In a decision dated September 9, 2015, the Workers' Compensation Board Panel found that there was a legitimate business reason for the elimination of the Audio-Visual Services Manager position.
34. In 2013, Plaintiff submitted applications for the Assistant Director of Technical Services position and a full-time Technical Assistant position.
35. Both positions were filled through the use of search committees.
46. It is a regular procedure for the College to use search committees made up of College faculty and staff to evaluate candidates and make a recommendation to the administration regarding the best candidate.
37. Separate search committees were created for the two openings. Paige Sedlacek, the College's Affirmative Action/Title IX Officer, participated in both searches. She was a voting member of the search committee for the Assistant Director position, and a non-voting member of the search committee for the Technical Assistant position.
38. Plaintiff was one of the six candidates selected for an interview with the committee for the Assistant Director position.
39. The search committee did not recommend Plaintiff as one of the finalists for either position. The search committee did not feel that Plaintiff's interview was as strong as that of the other candidates who were recommended for the position.
40. Some of the concerns the committee members had were that Plaintiff talked around the answers to questions and did not give concrete examples.
41. The names of the finalists were forwarded to the College's Director of lnformation Technology, John Petkash. Mr. Petkash interviewed the finalists and recommended Fermin Romero for the position of Assistant Director for Technology Services.
42. A separate search committee reviewed the applications for the full-time Technical Assistant position.
43. Plaintiff did not submit an application for the part-time Technical Assistant position.
44. Upon the initial review of the candidates' resumes, Plaintiff was not selected for an interview for the full-time Technical Assistant position. Plaintiff received one "maybe" vote from the committee.
45. Most of the candidates selected for an interview had at least four positive votes.
46. On December 19, 2012, Plaintiff stated in an email to Ms. Losinger that he knew there were "no guarantees" that he would receive either position.
47. The decision to hire other candidates for these two positions was based on their qualifications.
Because the parties have demonstrated (in their memoranda of law) an accurate understanding of the legal standard governing motions for summary judgment, the Court will not recite that well-known legal standard in this Decision and Order, but will direct the reader to the Court's recent decision in Pitts v. Onondaga Cty. Sheriff's Dep't, 04-CV-0828, 2009 WL 3165551, at *2-3 (N.D.N.Y. Sept. 29, 2009) (Suddaby, J.), which accurately recites that legal standard.
Because the parties have demonstrated (in their memoranda of law) an accurate understanding of the relevant points of law contained in the legal standards governing Plaintiff's claims in this action, the Court will not recite, in their entirety, those legal standards in this Decision and Order, which (again) is intended primarily for review by the parties. (See generally Dkt. No. 19, Attach. 23 [Def.'s Memo. of Law]; Dkt. No. 24 [Plf.'s Opp'n Memo. of Law]; Dkt. No. 25 [Def.'s Opp'n Memo. of Law].)
After carefully considering the matter, the Court grants Defendant's motion for each of the numerous reasons stated in its memoranda of law, the Court's prior summary of which is hereby incorporated by reference in this part of its decision. See, supra, Parts I.B.1. and I.B.3. of this Decision and Order. To those reasons, the Court adds the following analysis, which is intended to supplement not supplant Defendant's reasons.
With regard to the first piece of evidence that Plaintiff relies on to show that Defendant's proffered reasons for his termination were pretextual (i.e., the asserted nexus between Plaintiff's termination and Defendant's fraud charges against him), the Workers' Compensation Board expressly found that "the decision to eliminate [Plaintiff's] position . . . was not the result of discrimination or retaliation against [Plaintiff] for his workers' compensation claim and injuries." (Dkt. No. 19, Attach. 5, at 7.) The Board made this finding as part of its determination of whether Plaintiff had demonstrated "a causal nexus between his intent to claim workers' compensation benefits and [Defendant's] alleged retaliatory conduct." (Id.) As a result, the Court finds that this issue (which hinged on Plaintiff's November 2012 rejection of Defendant's alleged offer to withdraw its fraud charge if he waived all future workers' compensation claim rights in connection with his slip-and-fall injuries) is identical to the issue raised by Plaintiff in the current action. Moreover, the Court finds that Plaintiff had a full and fair opportunity to litigate the issue in the Board proceeding; the issue was actually litigated and decided; and the issue was necessary to support a valid and final judgment on the merits. This finding is binding of Plaintiff's claims under 42 U.S.C. § 1983 and the Rehabilitation Act. See, e.g., Kosakow v. New Rochelle Radiology Assoc., P.C., 274 F.3d 706, 728 (2d Cir. 2001).
Moreover, even setting aside the preclusive effect of the Board finding, Plaintiff's nexus argument is fatally flawed. Plaintiff argues that his termination was caused not by the reasons offered by Defendant (i.e., the consolidation of two departments, the fiscal challenges facing Defendant, and the obsolescence of Plaintiff position) but by "Defendant's charges against him." (Dkt. No. 24, at 10 [attaching page "7" of Plf.'s Opp'n Memo. of Law].)
With regard to the second piece of evidence that Plaintiff relies on to show that Defendant's proffered reasons for his termination were pretextual (i.e., conflicting financial data and deposition testimony from President Drumm), not only is Plaintiff's attempt at minimizing the fiscal challenges from 2011 to 2014 not supported by the record, it does not render the proffered reason by Defendant false. Regardless of whether the financial data were actually as bad as Defendant perceived them to be, the fact cannot reasonably be denied that Defendant faced fiscal challenges of at least some magnitude requiring it to reduce its personnel costs by approximately $1.0 million; nor can it be reasonably denied that, between approximately 2012 and 2013, it did not fund twenty-eight full-time positions, among them Plaintiff's position of Audio-Visual Services Manager; nor can it be reasonably be denied that Plaintiff's position remains eliminated; nor can it reasonably be denied that in 2011 (approximately two years before Plaintiff's position was eliminated) President Drumm determined that the Information Technology Department and Web and Media Services Department needed to be reorganized due to confusion and inefficiency. This last fact warrants some emphasis because it is the rather obvious reason President Drumm testified in his deposition that the decision to terminate Plaintiff was not all due to fiscal challenges.
With regard to the third piece of evidence that Plaintiff relies on to show that Defendant's proffered reasons for his termination were pretextual (i.e., the fact that Plaintiff's salary was not saved but was simply reallocated to two new positions, which purportedly incorporated duties similar to those incorporated in Plaintiff's position), Plaintiff's reliance ignores (1) the prior determination that two departments (including his department) needed to be reorganized, (2) the evidence that, while some or perhaps all of the duties of his prior position may have been assigned to two new positions, the two new positions involved some duties not involved in his prior position (justifying their creation), and (3) the evidence that more than two dozen other approved full-time positions were not funded (freeing up funds for the funding of the two new positions and preserving the savings from the elimination of Plaintiff's position). Moreover, Plaintiff's argument (that his position incorporated duties similar to those duties incorporated in two new positions) was previously made to, and rejected by, the New York State Supreme Court, collaterally estopping him from making it again in this action. Specifically, in considering and rejecting Plaintiff's argument that when it abolished his position Defendant created substantially similar new positions resulting in no net savings, the New York State Supreme Court ruled as follows:
(Dkt. No. 19, Attach. 4, at 2-3.)
With regard to the fourth piece of evidence that Plaintiff relies on to show that Defendant's proffered reasons for his termination were pretextual (i.e., the fact that he was the only employee who was classified as a "layoff" during the 2012-2103 year), Plaintiff's evidence is unaccompanied by (1) evidence of any racial or age-related comments, (2) evidence of the retention of a single Caucasian worker and/or a worker under the age of fifty in either Information Technology Department and Web and Media Services Department (both of which President Drumm had previously determined needed reorganization) whose job was also found to be obsolete, or (3) evidence that he was replaced by anyone, much less a Caucasian worker and/or a worker under the age of fifty. Moreover, Plaintiff's reliance ignores fact that more than two-dozen other approved full-time positions (at least some of which presumably would have been filled by Caucasians or workers under age fifty) were also unfunded. Simply stated, a rational factfinder could not infer from Plaintiff's fourth piece of evidence that Defendant's proffered reasons for his termination were pretextual.
With regard to the fifth piece of evidence that Plaintiff relies on to show that Defendant's proffered reasons for his termination were pretextual (i.e., the fact that his assigned duties were reallocated to new positions, meaning that his position could not have been obsolete), Plaintiff's implicit argument (that a position cannot be obsolete where it has been divided into two positions) ignores the fact that a position may become obsolete precisely because its duties have so evolved as to now be more efficiently performed by two or more separate positions (such as that of an alchemist, whose duties are now performed by specialists such as metallurgists, chemists and pharmacists, or that of a scribe, whose duties are now performed by specialists such as secretaries, publishers and librarians, or that of a switchboard operator, whose jobs are now performed by specialists such as directory assistance operators, customer service representatives and receptionists). In any event, again, Plaintiff's underlying premise (that his assigned duties are now performed by new positions) has been considered and rejected by the New York State Supreme Court, which expressly found that "the newly created positions are not the same or substantially similar to that of the Audio Visual Services Manager," because the duties of the former and the latter "are clearly different in nature." (Dkt. No. 19, Attach. 4, at 2-3.)
Skipping the sixth piece of evidence that Plaintiff relies on to show that Defendant's proffered reasons for his termination were pretextual (to which the Court has nothing to add), and turning toward the seventh piece of evidence that Plaintiff relies on (e.g., the fact that African-Americans have "regularly" made up between 2.0 and 2.5 percent of Defendant's workforce compared to the asserted 10 percent of African-Americans in the population generally, evidencing "institutional racism" by Defendant), by itself the statistical evidence cited by Plaintiff is insufficient to permit a rational factfinder to infer that Defendant's proffered reasons for his termination were pretextual. Granted, it is well settled that an individual disparate treatment plaintiff may use statistical evidence regarding an employer's general practices at the pretext stage to help rebut the employer's purported nondiscriminatory explanation. For the sake of brevity, the Court will assume that the sample size of two years (2011 and 2012) is large enough (when one also considers such factors as the number of years Defendant has existed, the frequency of employee turnover, etc).
Finally, with regard to the third argument asserted in Plaintiff's opposition memorandum of law (i.e., he suffered serious physical injuries on August 25, 2011, he was out of work until October 31, 2011, and he continues to suffer a number of physical restrictions, including mandatory restrictions placed by doctors on his lifting, pulling, stooping and standing), the Court finds that (1) any impairment identified by one of his physicians (Tracey Reilly, M.D.) when Plaintiff was discharged from a hospital emergency department on August 25, 2011, had improved by October 31, 2011, when he was released to work by one of his other physicians (Douglas R. Kerr, M.D.) with no work restrictions, and (2) by the time Plaintiff was examined on September 30, 2014, by a third physician (Bradley D. Wiener, M.D.), more than 20 months had elapsed since his termination on January 25, 2013. Such a delay is simply too long to create a genuine dispute of material fact, especially in light of the undisputed fact that Plaintiff had no work restrictions less than fifteen months before his termination (on October 31, 2011), and the lack of contemporaneous record evidence that Plaintiff experienced a turn for the worse in his condition between October 31, 2011, and January 25, 2013. Indeed, Plaintiff's own record evidence indicates that the turn for the worse occurred after January 25, 2013. (See, e.g., Dkt. No. 29, Attach. 4, at 3-4 [indicating that Dr. Eric Seybold imposed a 10-pound lifting restriction on Plaintiff on August 21, 2013, and that Dr. Wiener imposed a 15-pound lifting, carrying, pushing or pulling restriction on Plaintiff on September 30, 2014].) Under the circumstances, Plaintiff has not adduced evidence from which a rational factfinder could not infer that, in January of 2013, Plaintiff suffered from a physical or mental impairment that substantially limited a major life activity. In any event, even if he has adduced evidence of such an impairment at that time, the Court finds (for the reasons set forth above) that he has not adduced evidence from which a rational factfinder could infer that the sole reason for Defendant's action was discrimination based on his disability.
