WEGA v. CENTER FOR DISABILITY RIGHTS INC., 395 Fed.Appx. 782 (2nd Cir. 2010)

No. 09-4511-cv.United States Court of Appeals, Second Circuit.
October 8, 2010.

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Appeal from the United States District Court for the Western District of New York (Telesca, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED ANDDECREED that the judgment of the district court beAFFIRMED, albeit on different grounds.

Thomas C. Hartzell, Sr., Finucane Hartzell LLP, Pittsford, NY, for Appellant.

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Matthew J. Fusco, Chamberlain, D’Amanda, Oppenheimer Greenfield LLP, Rochester, NY, for Appellee.

PRESENT: ROSEMARY S. POOLER, RICHARD C. WESLEY, GERARD E. LYNCH, Circuit Judges.

SUMMARY ORDER
Thomas J. Wega (“Appellant”) commenced this action against his former employer, the Center for Disability Rights (“CDR”), asserting various claims under the Americans with Disabilities Act (“ADA”). 42 U.S.C. § 12101, et. seq. Appellant alleges, inter alia, that he was discriminated against on the basis of a disability when he was terminated by CDR in August of 2004. On September 30, 2009, the United States District Court for the Western District of New York (Telesca J.) granted CDR’s motion for summary judgment, denied Appellant’s cross-motion for summary judgment, and dismissed Appellant’s claims in their entirety. Appellant challenges that decision, along with: (1) a decision and order dated March 31, 2008, by Magistrate Judge Payson, denying Appellant’s motion to disqualify CDR’s counsel; and (2) a decision and order dated August 29, 2009, also by Magistrate Judge Payson, denying Appellant’s motion to extend the discovery deadline. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

Having conducted a de novo review of the record, we affirm the district court’s grant of summary judgment to CDR, albeit on different grounds. Although we ultimately agree with the grant of summary judgment, we disagree with the lower court insofar as it found that Appellant “failed to establish that he is a qualified individual with a disability under the ADA.”Wega v. Ctr. for Disability Rights, No. 06-CV-6375, 2009 WL 3199684, at *9 (W.D.N.Y. Sept.30, 2009).

Appellant makes two claims under the ADA. First, he claims that he was discriminated against on the basis of his disability, alleging that he was “discharged from his position of employment because of his disability.” Second, he alleges that his employer failed to provide a reasonable accommodation for his disability, as required by the ADA. The first claim fails because Appellant cannot show that his disability, rather than his poor job performance, was the reason for his discharge. The second claim fails because Appellant never properly sought any accommodation from his employer, and because, even on appeal, he provides no evidence that any accommodation would have enabled him to perform his job adequately.

To prevail on either claim, Appellant must first show that he qualified as an individual with a disability under the ADA. A “disability” under the ADA includes “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). The ADA defines “major life activities” to include “caring for oneself,” as well as “thinking, communicating, and working.” Id.
§ 12102(2)(A). However, “[m]erely having an impairment does not make one disabled for purposes of the ADA.” Toyota Motor Mfg. v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002).[1]

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Appellant suffered a stroke, the effects of which appear permanent. Appellant presents substantial evidence demonstrating that as a direct result, he experiences weakness on his left side, including a slight limp and reduced movement, which impacts daily activities that involve two hands and that require stamina. Appellant also provides evidence that he experiences an inability to prioritize, a lack of focus, and a lack of organizational abilities. Testimony from Vocational and Educational Services for Persons with Disabilities (“VESID”) counselors who worked with Appellant averred that these are standard effects of a stroke and that they are experienced by Appellant.

Appellant thus presents substantial evidence showing he experiences both mental and physical impairments that have substantially limited his ability to take care of himself and maintain a job, having lost three separate employment positions after his stroke. Accordingly, we conclude that Appellant has presented sufficient evidence to permit a reasonable jury to find that he is a qualified individual with a disability under the ADA.

Nevertheless, summary judgment for Appellee was appropriate. Appellant’s discriminatory discharge claim fails because he offers no evidence that “he was fired because of [his] disability.” Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 870 (2d Cir. 1998).[2] Appellant’s claim of faDure to accommodate is also unsuccessful, because Appellant did not offer evidence sufficient to permit a reasonable jury to find that he requested, or was denied, any sort of accommodation.[3] Moreover, before terminating his employment, CDR provided him with additional time to complete assignments and reduced his responsibilities without decreasing his salary. It is therefore unclear what type of additional accommodations CDR could have provided. Accordingly, even assuming that a properly instructed jury could have found that Appellant suffered from a disability, Appellant has failed to present sufficient evidence to permit a reasonable jury to find that CDR violated the ADA. For these reasons we affirm the district court’s dismissal of his claims.

We also find no fault in Magistrate Judge Payson’s decision and order dated March 31, 2008, denying Appellant’s motion to disqualify CDR’s counsel. Appellant urges that CDR’s lead counsel, Matthew J. Fusco (“Fusco”), should have been disqualified pursuant to 1) his previous contacts with defendant’s lawyer and firm, and 2) Disciplinary Rule 5-102 of the ABA

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Code of Professional Responsibility, commonly known as the “attorney-witness rule.” D.R. 5-102. Both arguments are baseless. With regards to his first contention, the record indicates only limited contact between Appellant and Fusco during the course of Fusco’s representation of CDR on an unrelated legal matter. See Glueck v. JonathanLogan, Inc., 653 F.2d 746, 750 (2d Cir. 1981). With regards to the second argument, there is no reason to conclude that Fusco is capable of providing testimony that might be especially useful to support or rebut Appellant’s allegations of disability — much less that he “ought t be called” to do so. See J.P. Foley Co., Inc. v. Vanderbilt, 523 F.2d 1357, 1359 (2d Cir. 1975).

Finally, we hold that Magistrate Judge Payson acted within her discretion when she denied Appellant’s motion to extend discovery in order to depose another witness. Because Appellant did not submit evidence to show that the prospective witness’s testimony would be relevant and non-duplicative, and neglected to exercise due diligence in locating the witness prior to the discovery deadline, he failed to establish “good cause” for an extension under Rule 16(b) of the Federal Rules of Civil Procedure. See Grochowski v. Phoenix Const, 318 F.3d 80, 86 (2d Cir. 2003) (“A finding of good cause depends on the diligence of the moving party.”).[4]

We have considered Appellant’s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.