Batac v. Pavarini Construction Co.

216 F. App'x 58
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 2, 2007
DocketNo. 06-0677-cv
StatusPublished
Cited by2 cases

This text of 216 F. App'x 58 (Batac v. Pavarini Construction Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Batac v. Pavarini Construction Co., 216 F. App'x 58 (2d Cir. 2007).

Opinion

SUMMARY ORDER

Plaintiff-Appellant Arturo P. Batac, pro se, appeals the judgment of the United States District Court for the Southern District of New York (Paul A. Crotty, Judge) entered on November 29, 2005, granting the motion for summary judgment by Defendant-Appellee Pavarini Construction Co., Inc. (“Pavarini”), and dismissing Batac’s claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et. seq., for failure to establish a disability within the meaning of that Act. We assume the parties’ familiarity with the facts and issues on appeal.

We review an order granting summary judgment de novo, focusing on whether the district court properly concluded that there was no genuine issue as to any material fact and that the moving party was entitled to judgment as a matter of law. Allstate Ins. Co. v. Mazzola, 175 F.3d 255, 258 (2d Cir.1999). “A dispute regarding a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Stuart v. Am. Cyanamid Co., 158 F.3d 622, 626 (2d Cir.1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)), cert. denied, 526 U.S. 1065, 119 S.Ct. 1456, 143 L.Ed.2d 543 (1999). Although the burden of showing that no genuine factual dispute exists rests on the movant, see Nationwide Life Ins. Co. v. Bankers Leasing Assoc., 182 F.3d 157, 160 (2d Cir.1999), a plaintiff “faced with a properly supported summary judgment motion must do more than simply show that there is some metaphysical doubt as to the material facts.” Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.2001) (internal quotation marks omitted). The plaintiff must set forth “evidence sufficient to allow a reasonable jury to find in [his] favor.” Id. Furthermore, “factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiffs affidavit opposing summary judgment and that affidavit contradicts [his] own prior deposition testimony.” Id.

To make out a prima facie case of discriminatory discharge under the ADA, an employee must demonstrate, inter alia, [60]*60that “he suffers from a disability within the meaning of the ADA.” Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 149 (2d Cir.1998). A plaintiff can satisfy this element by presenting evidence of “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). Evidence of an impairment does not per se establish a disability under the ADA; the plaintiff must show that the impairment significantly limits one or more major life activities. See Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 641 (2d Cir.1998), cert. denied, 526 U.S. 1018, 119 S.Ct. 1253, 143 L.Ed.2d 350 (1999); Reeves, 140 F.3d at 151.

In his complaint, responses to written interrogatories, and deposition testimony, Batac did not identify any major life activities that had been impaired by his heart attack. To the contrary, Batac conceded that he was able to work, breathe, walk, sit, stand, and perform other life activities “with care.” It was only in response to Pavarini’s motion for summary judgment that Batac asserted for the first time, in an affidavit which essentially contradicted his prior deposition testimony, that his heart attack had affected his life activities. Thus, the District Court properly concluded that Batac had failed to meet his burden of showing that his heart attack constituted a disability under the ADA. The District Court also correctly determined that Batac had failed to demonstrate that Pavarini regarded him as having a disability. See Reeves, 140 F.3d at 153; see also Giordano v. City of New York, 274 F.3d 740, 749-50 (2d Cir.2001). We therefore affirm the District Court’s dismissal of Batac’s ADA claim.

Batac also appeals the District Court’s refusal to grant his request for a subpoena requiring his physician to testify as to his disability. A district court’s discovery rulings are reviewed for abuse of discretion. See Grady v. Affiliated Cent., Inc., 130 F.3d 553, 561 (2d Cir.1997), cert. denied, 525 U.S. 936, 119 S.Ct. 349, 142 L.Ed.2d 288 (1998). The District Court granted Batac two time extensions to provide information about his disability, and told him that the information was necessary to defeat Pavarini’s motion for summary judgment. Batac failed to meet these deadlines, and admitted that he was unable to get his own physician to certify that he was disabled. We find that in these circumstances, the District Court acted within its permissible discretion in refusing to issue a subpoena to require Batac’s physician to testify. Its judgment on this issue is accordingly affirmed.1

[61]*61Finally, Batac argues that the District Court erred in failing to consider his claim under the New York Human Rights Law (“NYHRL”), N.Y. Exec. Law § 290, et seq. Batac’s complaint appears to be a standardized form provided to pro se litigants for bringing an action for employment discrimination. The first page of the form directs the plaintiff to check the box or boxes that apply to his case; the only three choices provided are: (1) Title VII of the Civil Rights Act of 1964; (2) Age Discrimination in Employment Act of 1967; and (3) Americans with Disabilities Act of 1990. Although the form prompts the plaintiff to describe the facts of his case, it does not ask, or provide a space for, the plaintiff to state any supplemental claims. The form does, however, inquire whether the plaintiff has filed a charge with the New York State Division of Human Rights or the New York City Commission on Human Rights regarding the defendant’s alleged discriminatory conduct. Batac answered that question by filling in the date on which he had filed his charge with the State Division of Human Rights. Batac also attached a copy of the State Division charge to the complaint form. In the charge, Batac asserts, inter alia,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Seeman v. GRACIE GARDENS OWNERS CORP.
794 F. Supp. 2d 476 (S.D. New York, 2011)
Gentile v. Potter
509 F. Supp. 2d 221 (E.D. New York, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
216 F. App'x 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/batac-v-pavarini-construction-co-ca2-2007.