LURANA S. SNOW, United States Magistrate Judge.
Plaintiff, James Carper ("Carper"), commenced this action against his former employer, Defendant TWC Services, Inc. ("TWC"), on December 17, 2010, in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida alleging a single count of disability discrimination and failure to accommodate under the Florida Civil Rights Act, Fla. Stat. ch. 760 ("FCRA"). The case was removed to this Court on January 19, 2011 based on diversity of citizenship. Defendant moves for summary judgment on Plaintiff's disability discrimination claim on the ground that he is not disabled within the meaning of the FCRA and, thus, unable to satisfy his burden of establishing a prima facie case of discrimination under the Act.
The following facts are pertinent to the resolution of Defendant's Motion for Summary Judgment and are generally undisputed. Where a major fact is in dispute, such dispute is noted. Additionally, where there is any discrepancy in the record, the Court views the evidence in the light most favorable to the Plaintiff.
Defendant is a service provider for heating, ventilating and air conditioning (HVAC) systems in the Southeast United States. At the time in question, Plaintiff was employed by Defendant as a service manager in the Defendant's Ft. Lauderdale Branch from about April 2007 until his termination on December 8, 2008. At all times in question, Plaintiff reported to Debra Held ("Held"), the branch manager at that location and Plaintiff's supervisor. As a service manager, Plaintiff's duties included supervising and dispatching technicians, preparing proposals, ordering parts, conducting performance reviews of
The record establishes that at least until April 2008, Plaintiff performed his job satisfactorily. A May 2008, job assessment of Plaintiff's performance shows that Plaintiff met or exceeded requirements in all but one of the twenty-eight individual assessment areas (below requirements rating only in the area of "communications") and that he was making progress towards all of his goals.
The e-mail evidence speaks for itself and while a portion of the e-mails may refer to routine matters, the vast majority of them are critical of Plaintiff's job performance.
Held testified at deposition that sometime in 2008 Plaintiff's job performance started to decline and the incidence of e-mails critical of Plaintiff's performance increased. According to Held, rather than improving, Plaintiff's performance grew worse, resulting in an October 14, 2008 meeting between Held and Plaintiff. The record is undisputed that at that meeting, Held relayed her concerns over certain perceived deficiencies in Plaintiff's job performance and presented Plaintiff with a list of specific items that she wanted him to address in a plan of action.
The record contains an October 14, 2008 e-mail communication from Held to her supervisors purporting to be a follow-up to
It is unclear when Held first learned of Plaintiff's heart condition and his alleged need for accommodation. Plaintiff alleges that he first told Held about his heart condition in May of 2008, and at about that same time, informed her about the need to accommodate his condition, which prevented him from climbing ladders and from being outside in the heat. Held testified that she was not certain when Plaintiff first notified her of his heart-related health issues, but does recall Plaintiff telling her of his need for surgery approximately one month before the surgery took place in November 2008. As for the requested accommodation, Held admits that Plaintiff requested, and she agreed to accommodate Plaintiff's heart condition by allowing him to refrain from climbing ladders and from being outside in the heat, but she does not indicate the date of this request.
For purposes of the instant motion, the Court assumes, consistent with Plaintiff's allegations and testimony, that during the relevant time period Plaintiff's heart condition resulted in shortness of breath, dizziness and fatigue, preventing Plaintiff from walking long distances, spending long periods of time in the heat, or climbing a ladder; that these limitations were made known to Defendant in May 2008; and that upon such disclosure, Defendant accommodated Plaintiff by allowing Plaintiff to avoid these limiting activities.
It is undisputed that Plaintiff's heart surgery took place on November 20, 2008 and that Plaintiff was absent from work for approximately two and one-half weeks during the surgery and recuperation. According to Held's testimony, while Plaintiff was on medical leave, she was forced to perform some of Plaintiff's duties and for the first time comprehended the full extent of Plaintiff's sub-standard performance.
Plaintiff returned from medical leave on December 8, 2008. At or around that time Plaintiff provided Defendant with a doctor's note which released him to full duty work with no restrictions. Held terminated Plaintiff on the morning of December 8, 2008, the day he returned to work. According to Held, upon being told of his termination, Plaintiff asserted that Defendant "could not fire him because he had just returned from medical leave, and claimed he could "sit [there] and do nothing" and she could not "touch" him.
While Plaintiff was in the hospital and later when he was at home following his surgery, Held forwarded Plaintiff proposals and other work for him to review. She also left Plaintiff numerous telephone and e-mail messages requesting advice and information on work-related matters, some of which went unanswered. Held testified that it was Plaintiff who asked Held to forward him proposals to work on during his recovery, but Plaintiff denies this and his testimony is corroborated by the testimony of at least one colleague, H. Petit, who testified that it was Held and not Plaintiff who suggested Plaintiff work during his recovery.
Plaintiff contends that Held was angry and upset at him for not returning her phone calls and e-mails while he was on medical leave, and that his lack of attention to Held's demands during that time was a substantial motivating factor in her decision to terminate Plaintiff.
On or about May 14, 2009, approximately five months after Plaintiff was terminated, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). The EEOC Charge was dismissed on August 31, 2010. The basis for the EEOC's dismissal is irrelevant for purposes of this Order and has not been considered by the Court.
Pursuant to Fed.R.Civ.P., Rule 56(c), summary judgment is mandated when the pleadings, affidavits and discovery materials on file demonstrate there is "no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Id. The moving party bears the burden of meeting this exacting standard by informing the court of the basis for its motion, and identifying those portions of the pleadings and evidence which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In determining whether the moving party has
Notably, mere allegations or denials in the non-movant's pleadings will not suffice to meet this burden, nor will a mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Rather, there must be evidence on which the jury could reasonably find for the non-movant. Id. at 252, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (to successfully establish the existence of a genuine factual dispute, the non-moving party must demonstrate more than "some metaphysical doubt as to the material facts... [it] must come forward with `specific facts showing that there is a genuine issue for trial'")(quoting Fed.R.Civ.P.56(e)). On a motion for summary judgment, a court cannot try issues of fact; it can only determine whether there are issues to be tried. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The function of the court at this stage is not to weigh the evidence and determine what is true, but rather to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (1986). A dispute about a material fact is genuine and summary judgment is inappropriate if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. To pose a jury question, however, there must exist a conflict in substantial evidence. Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).
The Florida Civil Rights Act (the "FCRA" or the "Act") provides that it is unlawful for an employer:
Fla. Stat. § 760.10(1)(a). Because the FCRA is nearly identical to the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (the "ADA"), Federal law interpreting the ADA is applicable to claims arising under the FCRA and visa versa. Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir.2007); Cohen v. Carmel, 2010 WL 2991558, *2 (S.D.Fla. July 27, 2010). Accordingly, the undersigned shall look to case law construing the ADA and related regulations for guidance. See Greene v. Seminole Elec. Co-op., Inc., 701 So.2d 646, 647 (Fla. 5th DCA 1997)(noting that in the disability discrimination case before it under the FCRA, the court would be construing the FCRA in conformity with its federal counterparts including the ADA and related regulations).
The ADA is comprehensive legislation that addresses discrimination against disabled individuals.
To establish a case of intentional discrimination in violation of the ADA, a plaintiff may rely on direct or circumstantial evidence, and the type of evidence before the court affects the allocation of evidentiary burdens:
Loperena v. Scott, 2009 WL 1066253, *9 (M.D.Fla. April 21, 2009).
In a direct evidence case, an unconstitutional motive has been deemed to have been a determinative factor in an employment decision, and the burden is on the defendant to prove by a preponderance of the evidence that the same decision would have been reached even absent the discriminatory motive. Id.; Farley v. Nationwide Mut. Ins., Co., 197 F.3d 1322, 1335 (11th Cir.1999). Because of the exceedingly high burden of proof placed on the employer in a direct evidence case, "a finding that direct evidence of discrimination exists, standing alone, is normally sufficient to defeat a motion for summary judgment." Id. On the other hand, in a case where the evidence relied upon is circumstantial, courts apply Title VII's burden-shifting analysis, which requires the plaintiff to prove a prima facie case of disability discrimination by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802-803, 93 S.Ct. 1817. Once the employee's prima facie burden is established, the employer's "burden on rebuttal is to produce a legitimate, nondiscriminatory reason for the challenged employment decision.... This burden is merely one of production, not persuasion, and is exceedingly light." Quick v. Tripp, Scott, Conklin and Smith, PA, 43 F.Supp.2d 1357, 1364 (S.D.Fla.1999)
In the instant case, Plaintiff asserts that he has presented a direct evidence case, and therefore the McDonnell Douglas burden-shifting analysis is inapplicable and Defendant may prevail only by proving that it would have made the same decision even if it had not allowed discrimination to play a role. See Haynes v. W.C. Caye & Co., 52 F.3d 928, 931 (11th Cir. 1995). However, Plaintiff's case is not, as he contends, based on direct evidence. The Eleventh Circuit defines direct evidence in the employment context as, "evidence that, if believed, proves the fact of discriminatory animus without inference or presumption." Kilpatrick v. Tyson Foods, Inc., 268 Fed.Appx. 860, 861-862 (11th Cir.2008)(internal citations and quotations omitted). Under this definition "only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of a protected classification, constitute direct evidence." Id. To qualify, such direct evidence must reflect "`a discriminatory
Here, Plaintiff has presented no direct evidence of discrimination whatsoever. Essentially, Plaintiff asks the Court to construe three e-mails from Held dated November 29, December 3 and December 8, 2008,
As the Kilpatrick court observed, only blatant remarks constitute direct evidence. Id. 268 Fed.Appx. at 861-862. Here, the statements themselves are benign, demonstrating merely that Held is annoyed at Plaintiff for not returning her phone calls and e-mails. To the extent that Held mentions Plaintiff's impairment or surgery, it is merely for the purpose of establishing context, e.g. "[t]hough [Plaintiff] was not fully released back to work until 12/08/08, he made no attempt to return any of my phone calls or e-mails,"
Also insufficient for purposes of establishing direct evidence of discrimination, is the testimony Plaintiff attributes to Defendant's President and Regional Manager, Messrs. Morrison and McDaniel, respectively, that in their view it was "inappropriate" for Held to send e-mails to Plaintiff while he was on medical leave.
Id. at 1247 (citation omitted).
In summary, the Court has carefully considered all of the evidence presented and does not find any direct evidence of discrimination, so as to relieve Plaintiff of his obligation to establish a prima facie case of disability discrimination under the Act. Accordingly, the McDonnell Douglas burden-shifting analysis applies in this case, which requires the Plaintiff to prove a prima facie case of disability discrimination by a preponderance of the evidence. Kilpatrick, 268 Fed.Appx. at 861-862.
To establish a prima facie case of disability discrimination under the ADA, a plaintiff must show that: (1) he has a disability; (2) he is a qualified individual; and (3) he was subjected to unlawful discrimination because of his disability. Id. An inability to satisfy any one of the above three prongs is fatal to a plaintiff's claim. Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220, 1226 (11th Cir.1999). Plaintiff shoulders the additional burden of demonstrating that the employer had either actual or constructive knowledge of the disability or considered the employee to be disabled. Morisky, 80 F.3d at 448. In all cases alleging disability discrimination, the threshold issue is whether at the time of the complained of employment action, Plaintiff had a qualifying disability. Id.
Viewing all of the facts and inferences in Plaintiff's favor, the Court finds that Plaintiff cannot sustain his burden of establishing a prima facie case of disability discrimination because he is unable to show that he is disabled within the meaning of the Act.
To establish a disability under the first definition provided under the Act, Plaintiff must demonstrate that he has a physical impairment that "substantially limits" one or more of his "major life activities." While the ADA does not define the terms "substantially limits" or "major life activities," the court is directed to look for
The relevant EEOC Regulations define "major life activities" to include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2(i) (2008). A "substantial limitation" occurs when an individual is "[significantly restricted as to the condition, manner, or duration under which [he/she] can perform a particular major life activity as compared to the ... average person." 29 C.F.R. § 1630.2(j) (2008) The Regulations also instruct the court to take into account "(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact ... from the impairment." Id. at § 1630.2(j)(2). These provisions require a substantial limitation on a major life activity and exclude individuals with minor impairments which merely affect the ability to satisfy the singular demands of a particular job, Cash v. Smith, 231 F.3d 1301, 1306 (11th Cir.2000); Gupton v. Commonwealth of Virginia, 14 F.3d 203 (4th Cir.), cert, denied, 513 U.S. 810, 115 S.Ct. 59, 130 L.Ed.2d 17 (1994); Forrisi v. Bowen, 794 F.2d 931, 933-34 (4th Cir. 1986), and individuals with only temporary impairments, Sutton v. Lader, 185 F.3d 1203, 1209 (11th Cir.1999)("A temporary inability to work while recuperating from surgery is not such a permanent or long-term impairment and does not constitute evidence of a disability covered by the Act.") (citation omitted). Further, courts hold that an individual who "functions only moderately below average is not substantially limited ... [a] diminished activity tolerance for normal daily activities such as lifting, running and performing manual tasks, as well as a lifting restriction, does not constitute a disability under the ADA." Reis v. Universal City Dev. Partners, Ltd., 442 F.Supp.2d 1238, 1245 (M.D.Fla.2006)(internal quotations omitted)
Plaintiff argues that he is disabled under the Act by virtue of his coronary heart disease which necessitated surgery and the implantation of a pacemaker. According to Plaintiff, the fact that heart disease has been included in the non-exclusive list of conditions identified in the Code of Federal Regulations as a qualifying impairment "for the past 14 years" coupled with the fact that in his case, such heart condition resulted in surgery, constitutes "evidence of disability." See Pltff's Resp.(D.E. 34-1, p. 6) (citing 45 C.F.R. pt. 84, App. A, Sub. Pt. (A)(3)). However, the law is clear that while heart disease is a qualifying physical impairment, heart disease standing alone, is not necessarily a disability. Hilburn, 181 F.3d at 1227-28 (cardiac issues may be a serious medical condition, but such issues do not automatically constitute a disability). To constitute a disability contemplated by the Act, the qualifying impairment must still be shown to "substantially limit a major life activity." Id.; Accord Carroll v. Neumann, 204 F.Supp.2d 1344, 1355 (S.D.Fla.2002)(granting summary judgment for employer because employee failed to establish a genuine issue of material fact regarding whether he is disabled, despite having had five life-threatening cardiac episodes); Reis, 442 F.Supp.2d at 1245-48 (holding that plaintiff's congenital heart disease does not limit a major life activity, including functioning in extreme temperatures, standing, lifting or working).
Nonetheless, even accepting these facts as true, Plaintiff has still failed to specify a major life activity in which he is substantially limited and has offered no evidence of such a limitation. Plaintiff has alleged he suffers from shortness of breath, dizziness and fatigue, which results in him being unable to walk for long distances, spend long periods of time in the heat, or climb a ladder, but he has not demonstrated that these symptoms have restricted any of his major life activities. Thus, while these alleged symptoms can be expected to have an adverse impact on Plaintiff's life, there is no evidence that they have limited him in any major activity of his life. See Cash v. Smith, 231 F.3d 1301, 1306 (11th Cir.2000)(affirming grant of summary judgment against ADA plaintiff who suffered from seizures, diabetes, migraines, and depression because though her ailments "have had an adverse impact on [plaintiff's] life, there is no evidence that they have limited her in a major life activity.").
Nor has Plaintiff shown that his heart condition and subsequent surgery requiring the implantation of a pacemaker has substantially limited his performance of the major life activities of walking, performing manual labor and/or working. While the record is replete with conclusory statements about Plaintiff's limitations, there has been no hard evidence provided in support. Further, Plaintiff's own testimony concerning the activities he performed both while employed by Defendant and currently, are inconsistent with Plaintiff's claim that his impairments result in a substantial limitation on his major life activities. Thus, while the Court does not doubt that Plaintiff's impairments have had an adverse impact on his life, there is no evidence that they have substantially limited him in any major life activity so as to constitute a disability as defined by the Act. Indeed, based on the post-surgery letter from Plaintiff's treating physician releasing Plaintiff to return to work on a full-time basis with "no restrictions," the opposite appears to be the case.
Significantly, Plaintiff's own conduct and deposition testimony belie the claim that he is disabled as that term is defined in the Act. The record establishes that at all times material to the instant motion, in addition to working full time, Plaintiff performed all of the daily activities necessary to care for himself including driving, cooking, walking, dressing, and assisting his girlfriend around the house.
As expected, Plaintiff's level of activity was reduced during the brief 18-day leave he took from Defendant's employ to recover from his heart surgery. Nonetheless, the record is clear that during that time, Plaintiff visited the grocery store, cooked and frequented the casino.
Perhaps the greatest evidence of the non-limiting nature of Plaintiff's heart condition comes in the form of Plaintiff's own treating physician who, upon signing a release form authorizing Plaintiff to return to work on December 8, 2008, just 2 1/2 weeks after his surgery, stated that Plaintiff could return to work full-time with "no restrictions." As Defendant correctly observes, such a brief leave of absence combined with a release to return to work on a full-time basis with no restrictions "is not the `permanent or long-term limitation' contemplated by [the regulations and case law]." Cooke v. Advanced Fire Prot. Servs., 2010 WL 148462, *3 (N.D.Fla. Jan. 13, 2010)(noting "short" two-week leave of absence "is not the `permanent or long term limitation' contemplated by the Act").
The law is well-established that "conclusory allegations without specific supporting facts have no probative value." Evers v. General Motors Corp., 770 F.2d 984, 986 (11th Cir.1985). In the absence of any record evidence to support Plaintiff's conclusory allegation that he is disabled based on a substantial limitation in one or more major life activities, the Court concludes that summary judgment in Defendant's favor is warranted on this claim.
Similarly, Plaintiff has not and can not possibly establish a "disability" under the Act based on having a "record of such impairment," as provided by Sub-Section (B) of § 12101(2).
Since Plaintiff has failed to support his claim that he is disabled by virtue of a substantial limitation in one or more of his major life activities, Plaintiff's "record of impairment" claim also must fail. Cribbs v. City of Altamonte Springs, 2000 WL 33310904, *4 (M.D.Fla. Oct. 18, 2000)(granting summary judgment in favor of employer on plaintiff's disability discrimination claim and noting "the `record of impairment' standard is satisfied only if [plaintiff] actually suffered a physical impairment that substantially limited one or more of his major life activities.")(citing Hilburn, 181 F.3d at 1229); Palmer v. Albertson's, 2010 WL 785652, *5 (N.D.Fla. March 3, 2010)(in granting summary judgment in favor of employer on employee's disability discrimination claim, court noted that "the record of impairment definition,... requires an individual to have actually suffered an impairment that substantially limited one or more of the individual's major life activities" and since plaintiff's impairment was already found not to have been substantially limiting with respect to Plaintiff's major life activities, Plaintiff was precluded from relying on the "record of impairment" definition to establish his claimed disability under the Act).
Summary judgment on this aspect of Plaintiff's case is warranted for the additional reason that the record is devoid of any evidence that Defendant was even in possession of Plaintiff's medical records, let alone relied on any such record of Plaintiff's impairment in making its decision to terminate him. The only "record" of impairment was in the form of one doctor's note generated approximately two months before Plaintiff's surgery explaining that Plaintiff would be undergoing surgery 2 months hence and another note from Plaintiff's treating physician provided to Defendant after Plaintiff's surgery authorizing Plaintiff's return to work on a full-time basis with "no restrictions." To succeed on a "record of impairment" theory, it is necessary to prove that the "record relied on by an employer indicates that the individual has or has had a substantially limiting impairment." Hilburn, 181 F.3d at 1229. Clearly, neither of the two doctor's notes mentioned above support the view that Plaintiff's impairment, although requiring surgery, is "substantially limiting" as that term is defined in the Act. The first note refers only to a temporary limitation soon to be remedied by surgery, and the second note effectively states the exact opposite of what Plaintiff claims, namely, that Plaintiff is "not" disabled as he is free to return to full-time work with "no restrictions."
To establish a disability under this final definition under the Act, Plaintiff must demonstrate that the Defendant regarded him as disabled. 42 U.S.C. § 12101(2)(C). "An employer may regard
In order to overcome summary judgment on a "regarded as" theory of disability Plaintiff must produce sufficient evidence for a reasonable trier of fact to conclude that Defendant perceived him, however erroneously, as having an impairment that substantially limited one or more of his major life activities. Sutton, 185 F.3d at 1208 (to establish a prima facie case of disability discrimination based on "regarded as" theory of disability, plaintiff must be able to show that, as with a real impairment, the perceived impairment is "substantially limiting" and significant). In this regard it is not enough for Plaintiff to show that Defendant perceived him as temporarily disabled or unable to perform a single particular job. Rather, Plaintiff has the burden of proving that his perceived impairment extended beyond his one particular job to a class of jobs or a broad range of jobs in various classes and that it extended long-term into the future. 29 C.F.R. § 1630.2(j)(3)(I); Sutton, 527 U.S. at 491-93, 119 S.Ct. 2139; Palmer, 2010 WL 785652, *5.
From the evidence of record it is abundantly clear that Defendant never regarded Plaintiff as substantially limited in any major life activity, and Plaintiff has not produced a scintilla of contrary evidence. Instead, Plaintiff relies on Defendant's alleged knowledge of his impairment and accommodations it extended to him. See Plaintiff's Response (D.E. 34-1, p. 8). But the law is clear that the mere fact that an employer is aware of an employee's impairment and offers accommodation is insufficient to demonstrate either that the employer regarded the employee as disabled or that said perception caused the adverse employment action. See Sutton, 185 F.3d at 1209 ("The mere fact that an employer is aware of an employee's impairment is insufficient to demonstrate that the employer regarded the employee as disabled"); Rivera, 2000 WL 33176009, *7 (same).
Indeed, Defendant's actions evidence Defendant's belief that Plaintiff could perform his job with accommodation. Thus, in Scarbrough v. Columbus Consol. Government, 2011 WL 2938503, *6 (M.D.Ga. July 19, 2011), the plaintiff, who claimed that her employer incorrectly "regarded" her as an alcoholic, argued that her employer's requirement that she sign a self-referral agreement demonstrated that the employer regarded her as an alcoholic incapable of performing her job. The court rejected this argument, holding "to the contrary" the evidence "rebuts any such perception" on the employer's part because far from treating the employee as disabled, such accommodation shows that the employer perceived the plaintiff as perfectly capable of performing her job as long as she received accommodation. See also Nyrop v. Independent School Dist., 616 F.3d 728, 736 (8th Cir.2010)(employer's
Moreover Defendant's representatives, Held, Morrison and McDaniel, testified that they did not regard Plaintiff as having a disability,
Plaintiff's failure to accommodate claim rests entirely on Plaintiff's conclusory assertion that Defendant "never entered into any dialogue to reasonably accommodate Plaintiff." Pltff's Compl. (D.E. 1-2, ¶ 23). As Defendant correctly observes, because Plaintiff was not disabled under the Act, Defendant was not obliged to enter into a dialogue with Plaintiff regarding any accommodation. See Cooke, 2010 WL 148462, *4 ("[Defendant's failure to provide only identified `accommodation' does not establish an ADA violation because Plaintiff was not an individual with a disability as defined in the Act.").
Furthermore, even assuming such an obligation to accommodate did exist, summary judgment would still be warranted because Plaintiff has failed to identify, let alone establish, any request for accommodation which Defendant failed to provide. The undisputed facts of record establish that sometime prior to his surgery, Plaintiff requested and received an accommodation from Defendant permitting him to refrain from climbing ladders and spending long periods in the heat. Additional undisputed record evidence reveals that Plaintiff requested and was granted a leave of absence to undergo surgery, and that he returned from that leave with a note from his treating physician which indicated "no restrictions." These are the only accommodations referenced in the pleadings and the record before the Court. Accordingly, there are no facts in dispute on the Plaintiff's claim of denied accommodation, and summary judgment in favor of Defendant on this claim is warranted.
Viewing the record evidence in the light most favorable to Plaintiff, the Court concludes that Plaintiff is not disabled within the meaning of the Act on any of the three bases that he advances here: there is no evidence of a disability; there is no evidence of a record of disability; and, no evidence of a perceived disability. Thus, Plaintiff's failure to make out his prima facie case of disability discrimination mandates the entry of summary judgment for Defendant on this claim. Similarly, the Court finds that as a matter of law Plaintiff was not entitled to an accommodation, and that even if he was so entitled, he has failed to adduce sufficient evidence from which a trier of fact could conclude that Plaintiff requested an accommodation from Defendant that was denied. Accordingly, summary judgment in favor of Defendant on Plaintiff's failure to accommodate claim is likewise mandated
Based on the above and foregoing, and on the inability of Plaintiff to offer even an inference that he is disabled within the meaning of the Act or that Defendant failed to offer him an accommodation to which he was entitled, it is hereby,