Batts, Judge Deborah A.

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ADAAA Case Repository Labor and Employment Law Program 
2-27-2014 
Farrell Sacks, Plaintiff, v. Gandhi Engineering, Inc., Respondent. 
Judge Deborah A. Batts 
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Farrell Sacks, Plaintiff, v. Gandhi Engineering, Inc., Respondent. 
Keywords 
Farrell Sacks, Gandhi Engineering Inc., 11 Civ. 5778 (DAB)(DCF), Summary Judgment, Disparate 
Treatment, Termination, Disability - Regarded as Having a Disability, Transportation, Employment Law, 
ADAAA 
This article is available at DigitalCommons@ILR: https://digitalcommons.ilr.cornell.edu/adaaa/119 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK
FARRELL SACKS,
X
Plaintiff,
v.
11 Civ. 5778 (DAB)(DCF) 
ADOPTION OF REPORT 
AND RECOMMENDATION
GANDHI ENGINEERING, INC.,
Respondent.
----------------------------------- X
DEBORAH A. BATTS, United States District Judge.
On August 23, 2013, United States Magistrate Judge Debra C. 
Freeman issued a Report and Recommendation ("Report"), 
recommending that Defendant's Motion for Summary Judgment be 
granted in part and denied in part. (Report at 1, 26.) Defendant 
filed timely Objections to the Report. Pro se Plaintiff did not 
respond to Defendant's Objections.
For the reasons set forth below, after conducting the 
appropriate levels of review following Defendant's Objections, 
the Report and Recommendation of Magistrate Judge Freeman dated 
August 23, 2013 shall be ADOPTED in its entirety. Accordingly, 
the Court GRANTS Defendant's Motion for Summary Judgment as to 
Plaintiff's claims of discrimination based on age and religion 
but DENIES Defendant's Motion for Summary Judgment as to 
Plaintiff's claim that Defendant discriminated against him in 
violation of the Americans with Disability Act of 1990 ("ADA").
I. BACKGROUND
The Report sets forth the factual background in great detail 
in the Report. Parties' familiarity with the Report and 
underlying facts is assumed, and this Order recounts the facts 
only to the extent necessary for the resolution of Defendant's 
Objections thereto.
The City of New York Department of Transportation ("DOT") 
hired Defendant to oversee bridge construction projects. (Def. 
56.1 Stmt. 5 8.) Defendant employed Plaintiff from September 7, 
2010 to October 22, 2010 as a Senior Inspector for one of DOT's 
bridge construction projects. (Id. 5 7.) Among his Inspector 
duties, Plaintiff submitted daily work reports, measured 
"Quantities," climbed ladders, measured and photographed 
installations, walked on rebar mat, and performed various 
concrete tests. (Id. 5 24; Pl. 56.1 Stmt. 5 24.) The Parties 
dispute whether Plaintiff sufficiently performed his duties.
(Def. 56.1. Stmt. 5 25; Pl. 56.1 Stmt. 5 25.) Defendant claims 
that Kirti Gandhi ("Gandhi"), the owner of Gandhi Engineering 
Inc., and DOT engineers witnessed Plaintiff not performing 
adequately his job duties. (Frank Decl. Ex. E 55 6-7.)
Therefore, Defendant asserts, he was "terminated due to 
performance." (Id. Ex. F 55 4, 9.) Plaintiff, however, claims 
that his supervisor, Godfrey Passaro ("Passaro"), told him he was
2
fired becuase DOT was unhappy with his "agility." (Pl.'s Add'l 
Points 5 5.) He claims that, although Gandhi told Plaintiff that 
he was "unable to perform his duties as Inspector," nothing in 
his personnel record indicates poor performance. (Pl.'s Add'l 
Points 55 6, 8.)
Plaintiff does not have a disability, nor has he been told 
by a medical provider that he has one or that he has any problems 
with his agility. (Def. 56.1 Stmt. 19, 21 ; Sacks Dep. 75:6-9.) 
He also never informed Defendant that he had a disability or 
needed an accommodation. (Def. 56.1 Stmt. 18, 20.) While 
Defendant has seen a medical practitioner since the beginning of 
this action, it was unrelated to any mobility or agility 
concerns. (Sacks Dep. 130:22-131:15.)
II. DISCUSSION
A. Standard of Review for a Report and Recommendation
"Within fourteen days after being served with a copy [of a 
Magistrate Judge's Report and Recommendation], a party may serve 
and file specific written objections to the proposed findings and 
recommendations." Fed. R. Civ. P. 72(b)(2); accord 28 U.S.C. § 
636(b)(1)(C). The court may adopt those portions of the report 
to which no timely objection has been made, as long as there is 
no clear error on the face of the record. Wilds v. United Parcel 
Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). A
3
district court must review de novo "those portions of the report
or specified proposed findings or recommendations to which 
objection is made." 28 U.S.C. § 636(b)(1)(C). "To the extent, 
however, that the party makes only conclusory or general 
arguments, or simply reiterates the original arguments, the Court 
will review the Report strictly for clear error." Indymac Bank, 
F.S.B. v. Nat'l Settlement Agency, Inc., No. 07 Civ. 6865, 2008 
WL 4810043, at *1 (S.D.N.Y. Nov. 3, 2008). After conducting the 
appropriate levels of review, the Court may accept, reject, or 
modify, in whole or in part, the findings or recommendations made 
by the Magistrate. 28 U.S.C. § 636(b)(1)(C).
B. Legal Standard for Disability Discrimination 
Disability discrimination claims alleged under the ADA are 
examined using the three-step burden-shifting framework set forth 
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Ben- 
Levy v. Bloomberg, 518 F. App'x 17, 19 (2d Cir. 2013). To 
establish a prima facie case of disparate treatment, a plaintiff 
must demonstrate that
(1) the defendant is covered by the ADA; (2) plaintiff 
suffers from or is regarded as suffering from a 
disability within the meaning of the ADA; (3) plaintiff 
was qualified to perform the essential functions of the 
job, with or without reasonable accommodation; and (4) 
plaintiff suffered an adverse employment action because 
of his disability or perceived disability.
4
Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005).
A plaintiff's burden to establish a prima facie case is de 
minimis. Katz v. Adecco USA, Inc., 845 F. Supp. 2d 539, 548 
(S.D.N.Y. 2012).
When a plaintiff brings a claim on the basis of that his
employer regarded him as disabled, "the decisive issue is the
employer's perception of his or her employee's alleged
impairment." Giordano v. City of New York, 274 F.3d 740, 748 (2d
Cir. 2001). A plaintiff therefore must "show not only that the
defendants 'regarded [him] as somehow disabled,' but that they
'regarded [him] as disabled within the meaning of the ADA.'" Id.
(citation omitted). When Congress passed the ADA Amendment Act
("ADAAA") of 2008, it created a more lenient definition of
"regarded as" disabled or perceived disability:
An individual meets the requirement of "being regarded 
as having such an impairment" if the individual 
establishes that he or she has been subjected to an 
action prohibited under this chapter because of an 
actual or perceived physical or mental impairment 
whether or not the impairment limits or is perceived to 
limit a major life activity.
42 U.S.C. § 12102(3)(A); 29 C.F.R. § 1630.2(l)(1).1 Accordingly,
1 Prior to the ADAAA, a plaintiff . . . seeking to avail
himself of the 'regarded as' prong of the definition of 
'disability' needed to show that he was perceived as both 
'impaired' and 'substantially limited in one or more major life 
activity.'" Hilton v. Wright, 673 F.3d 120, 128 (2d Cir. 2012) 
(citation omitted).
5
to survive summary judgment, a plaintiff is required to raise a
genuine issue of material fact as to whether the employer
"regarded him as having a mental or physical impairment."
Hilton, 673 F.3d at 128. A physical impairment includes, inter
alia, a "physiological disorder or condition . . . affecting
. . . [the] musculoskeletal" system. 29 C.F.R. § 1630.2(h)(1).
The impairment only constitutes a disability under the ADA
if it substantially limits the ability of an individual 
to perform a major life activity as compared to most 
people in the general population. An impairment need 
not prevent, or significantly or severely restrict, the 
individual from performing a major life activity in 
order to be considered substantially limiting.2
29 C.F.R. § 1630.2(j)(1)(ii). Major life activities include
walking and bending. 29 C.F.R. § 1630.2(i)(1)(i).
After a plaintiff sustains the prima facie burden, a
defendant must then "proffer a legitimate, nondiscriminatory
reason for the complained of action." Ben-Levy, 518 F. App'x at
19 (citing Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.
2000)). If the employer meets that burden, "[t]his rebuts the
presumption raised by the prima facie case, at which point 'the
burden shifts back to the plaintiff to prove, by a preponderance
2 While the ADA does not set define what constitutes a 
substantial limitation, "post-enactment of the ADAAA, it is clear 
that the standard 'is not meant to be [ ] demanding.'" Graham v. 
Three Village Cent. Sch. Dist., No. 11 Civ. 5182, 2013 WL 
5445736, at *12 (E.D.N.Y. Sept. 30, 2013) (quoting 29 C.F.R. § 
1630.2(j)(1)(i)).
6
of the evidence, that the real reason for the adverse employment
decision was discrimination.'" Kemp v. Metro-North R.R., 316 F. 
App'x 25, 27 (2d Cir. 2009) (citation omitted).
C. Defendant's Objections
Magistrate Judge Freeman recommended that this Court dismiss 
Plaintiff's religion and age discrimination claims because he 
could not establish a prima facie case of discrimination under 
the McDonnell Douglas framework. (Report 14-20.) However, the 
Report recommended to deny Defendant's Motion for Summary 
Judgment as to Plaintiff's disability discrimination claims 
because he made out his prima facie case of disability 
discrimination and there was a triable issue of fact as to 
whether Defendant's explanation for his termination was 
pretextual. (Report 20-26.)
Defendant objects to the Report's findings that (1) agility 
is a physiological condition that can be perceived as a 
disability under the ADA, (2) there was an inference of 
discrimination based upon perceived disability, (3) Defendant did 
not put forth a legitimate non-discriminatory basis for its 
termination decision, and (4) Plaintiff produced sufficient 
evidence to demonstrate pretext. The Court has reviewed for 
clear error the portions of the Report to which no objections
7
have been made and finds none.
Defendant's first Objection relates to the Report's finding 
that Plaintiff set forth sufficient evidence to establish the 
second part of Plaintiff's prima facie case. The Report 
explained that the statements that Plaintiff was terminated due 
to his lack of agility and his inability to perform his job 
tasks, where his job involved walking, climbing, and bending, 
"give rise to an inference that Defendant believed that Plaintiff 
had a physiological condition, most likely involving the 
musculoskeletal system." (Report 23.) Defendant contends that, 
even under the ADAAA standard, agility cannot constitute a 
disability. Defendant also asserts the Report erred in finding 
that Defendant believed Plaintiff had a disability.
As an initial matter, the Report correctly determined that 
the ADAAA "regarded as" standard and not the pre-2008 Amendment 
standard applies. In applying pre-ADAAA law, the Second Circuit 
held that evidence suggesting that the employee "lacked the 
physical strength and agility necessary . . . was insufficient to 
establish that [he] was considered substantially limited in the 
major life activity of 'working.'" Cardo v. Arligton Central 
School District, 473 F. App'x 21, 23-24 (2d Cir. 2012).
Defendant now speculates that the Second Circuit in Cardo would 
have determined that agility was not a disability if the Circuit
8
had applied the ADAAA. Such speculation is not entitled to de 
novo review, especially given that the Report expressly 
considered Cardo. Moreover, Magistrate Judge Freeman never 
determined that lack of agility is a perceived disability and 
instead noted that the agility comment was evidence of 
Defendant's perception of Plaintiff's physical limitations. The 
Court finds no error in Magistrate Judge Freeman's well-reasoned 
analysis.
Defendant's second Objection is the Report erred in finding 
Plaintiff produced sufficient evidence to demonstrate that 
Defendant perceived him as having a disability and therefore his 
termination could not be a result of disability discrimination. 
Under the ADAAA's more lenient perceived disability standard, 
Plaintiff is "'not required to show that the disability [s]he is 
perceived as suffering from is one that actually limits, or is 
perceived to limit, a major life activity.'" Harris v. NYU 
Langone Med. Ctr., No. 12 Civ. 454, 2013 WL 3487032, at *17 
(S.D.N.Y. July 9, 2013) (quoting Davis v. New York City Dep't of 
Educ., No. 10 Civ. 3812, 2012 WL 139255, at *5 (E.D.N.Y. Jan. 18, 
2012)). Nonetheless, a plaintiff is still required to provide 
evidence suggesting that the employer perceived the employee as 
having an impairment. See Hilton, 673 F.3d at 128; see also 
Risco v. McHugh, 868 F. Supp. 2d 75, 108-09 (S.D.N.Y. 2012).
9
In making its Objection, Defendant contends the Report erred
in finding that, given Plaintiff's job involved walking, 
climbing, and bending, the two statements— namely, Passaro saying 
the DOT was unhappy with Plaintiff's agility and Gandhi noting 
that Plaintiff was unable to perform his duties as 
Inspector— gave rise to an inference that Defendant believed 
Plaintiff had a physiological condition, most likely involving 
the musculoskeletal system. However, Defendant's argument merely 
rehashes the same factual assertions it made before the 
Magistrate. The only novel argument propounded by Defendant is 
its citation to Sibilla v. Follett Corp., No. 10 Civ. 1457, 2012 
WL 1077655, at *7 (E.D.N.Y. Mar. 30, 2012). Although Defendant 
contends that the court found that the inability to perform work 
functions such as bending, lifting, and climbing is not a basis 
for determining that the plaintiff had a physiological condition, 
the court made no such determination. Rather, the court 
explained, "The fact that an employer regards an employee as 
obese or overweight does not necessarily mean that the employer 
regards the employee as suffering a physical impairment."
Sibilla, 2012 WL 1077655, at *7 (emphasis added). Here, the 
Report correctly determined that, viewing the evidence in the 
light most favorable to Plaintiff, he established a prima facie 
case of discrimination on the basis of perceived disability.
10
Defendant's third Objection lacks merit as it misstates the
Report's finding. Because the Report found that Defendant 
proffered a legitimate non-discriminatory basis for its 
termination decision, the Report continued to the third step of 
the McDonnell Douglas framework. Thus, Defendant's Objection is 
entitled to only clear error review, and the Court finds none.
Defendant's fourth Objection asserts that Plaintiff did not 
produce sufficient evidence to demonstrate that its legitimate 
reason was pretextual. Defendant claims that the Report erred in 
finding that Gandhi and Passaro's inconsistent statements 
regarding Plaintiff's termination demonstrated pretext. In 
making its arguments, Defendant points to Gandhi's deposition 
explaining the reason for Plaintiff's termination during which 
Ganhi answered, "I told Mr. Sacks that we cannot use his services 
as he is unable to perform his duties." (Obj. 8.) Defendant then 
speculates as to the meaning of "unable" and attempts to explain 
away the other inconsistencies in the record regarding the reason 
for Plaintiff's termination. These arguments are not entitled to 
de novo review. See Azkour v. Little Rest Twelve, Inc., No. 10 
Civ. 4132, 2012 WL 1026730, at *2 (S.D.N.Y. Mar. 27, 2012) 
("[C]ourts generally do not consider new evidence raised in 
objections ... absent a compelling justification for failure to 
present such evidence to the magistrate judge." (citation
11
omitted)). Moreover, arguments that relitigate issues or factual
matters are entitled to review only for clear error, and the 
Court finds none. See IndyMac Bank, F.S.B., 2008 WL 4810043, at 
*1.
Accordingly, the Court ADOPTS the Report's recommendation to 
deny Defendant's Motion for Summary Judgment as to Plaintiff's 
disability discrimination claim.
III. Conclusion
Having conducted the appropriate levels of review of the 
Report and Recommendation of United States Magistrate Judge Debra 
C. Freeman, dated August 23, 2013, this Court APPROVES, ADOPTS, 
and RATIFIES the Report in its entirety. Defendant's Motion for 
Summary Judgment is GRANTED with respect to Plaintiff's religion 
and age discrimination claims but DENIED as to Plaintiff's 
disability discrimination claim.
The Court hereby sets the following schedule for pre-trial 
submissions:
Proposed Requests to Charge and Proposed Voir Dire shall be 
submitted by April 28, 2014. A Joint Pre-trial Statement 
("JPTS") shall be submitted by April 28, 2014. The JPTS shall 
conform to the Court's Individual Practices and Supplemental 
Trial Procedure Rules.
12
Memoranda of Law addressing those issues raised in the JPTS 
shall be submitted by April 28, 2014. Responses to the Memoranda 
shall be submitted by May 12, 2014. There shall be no replies.
SO ORDERED.
Dated: New York, New York
February 27, 2014
13


Farrell Sacks, Plaintiff, v. Gandhi Engineering, Inc., Respondent.

https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1110&amp;context=adaaa

Farrell Sacks, Plaintiff, v. Gandhi Engineering, Inc., Respondent.

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