         09-4511-cv
         Wega v. Center for Disability Rights Inc.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


              At a stated term of the United                      States Court of Appeals
         for the Second Circuit, held at the                      Daniel Patrick Moynihan
         United States Courthouse, 500 Pearl                      Street, in the City of
         New York, on the 8 th day of October,                    two thousand and ten.

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



         THOMAS J. WEGA,

                                       Plaintiff-Appellant,

                        -v.-                                                09-4511-cv

         CENTER FOR DISABILITY RIGHTS INC.,

                                       Defendant-Appellee.
FOR APPELLANT:    THOMAS C. HARTZELL, SR., Finucane &
                  Hartzell LLP, Pittsford, NY.

FOR APPELLEE: MATTHEW J. FUSCO, Chamberlain, D’Amanda,
              Oppenheimer & Greenfield LLP, Rochester, NY.


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

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

AND DECREED that the judgment of the district court be

AFFIRMED, albeit on different grounds.

    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


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(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


                                 3
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 (2002). 1

    1
      Williams has been expressly superseded by an
intervening act of Congress. ADA Amendments Act of 2008,
Pub. L. No. 110-325, 112 Stat. 3353 (2008) (“ADA
Amendments”). However, there is no indication that Congress
intended the ADA Amendments to have retroactive effect. See
Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006) (noting
“a statute shall not be given retroactive effect unless such
construction is required by explicit language or by
necessary implication”) (internal quotation marks omitted).
Accordingly, we rely on the ADA as it existed at the time of
the relevant events. Moreover, since we hold Appellant has
raised a genuine question for trial as to whether he
suffered from a disability, even assuming arguendo that the

                                4
    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



ADA Amendments applied, they would not affect the outcome of
the case.

                              5
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

failure 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



    2
     Appellant does not satisfy the four-part prima facie
case for discriminatory discharge under the ADA, which
requires Appellant to prove: 1) "employer is subject to the
ADA;" 2) he "suffers from a disability within the meaning of
the ADA;" 3) he "could perform the essential functions of
[his] job with or without reasonable accommodation;" and 4)
he "was fired because of [his] disability." See Ryan, 135
F.3d at 869-70.
    3
     Appellant also does not satisfy the four-part prima
facie case for his failure to accommodate claim which
requires Appellant to demonstrate: "1) he was an individual
who has a disability within the meaning of the statute; 2)
the employer had notice of his disability; 3) he could
perform the essential functions of the job with reasonable
accommodation; and 4) the employer refused to make such
accommodation." See Parker v. Columbia Pictures Indus., 204
F.3d 326, 332 (2d Cir. 2000) (quotation marks omitted).

                                6
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 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. Jonathan Logan, Inc., 653 F.2d 746, 750 (2d Cir.

1981).   With regards to the second argument, there is no


                                 7
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 to 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

     4
      Appellant confuses the arguments bearing on the
exercise of due diligence under Fed. R. Civ. P. 16(b) and
those bearing on the impropriety of granting summary
judgment without presenting facts essential to the case
under Fed. R. Civ. P. 56(f). Because Appellant does not
expressly bring a motion for continuance under Fed. R. Civ.
P. 56(f), we do not address those arguments here. However,
even assuming Appellant had submitted such a motion, he
would not have been successful given that the request was

                              8
    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.


                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




based on speculation as to what would have been discovered.
See Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Stroh
Co., 265 F.3d 97, 117 (2d Cir. 2001).

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