ALVIN CHARLES, Plaintiff-Appellant, v. D & F MASON INC.,, (2nd Cir. 2000)

Docket Number: 00-7101

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 27th day of September , two thousand.

PRESENT:

Hon. John M. Walker, Jr., Hon. Pierre N. Leval, Hon. Fred I. Parker, Circuit Judges.

ALVIN CHARLES, Plaintiff-Appellant, v. No. 00-

D & F MASON INC., Defendant-Appellee.

APPEARING FOR APPELLANT: ALVIN CHARLES, pro se Brooklyn, NY APPEARING FOR APPELLEE: WILLIAM J. DEALY, Esq., Dealy &

Trachtman, LLP, New York, NY Appeal from the United States District Court for the Eastern District of New York (Raggi, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.

Plaintiff-appellant Alvin Charles appeals from the January 10, 2000 order of the district court granting summary judgment in favor of defendant-appellee D & F Mason ("D&F") on his discrimination claim under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (the "ADA").

Charles, a mason tender, filed suit against D&F, his former employer, alleging that D&F had discriminated against him and failed to accommodate his disability, a fractured toe he sustained on the job, by failing to rehire him when he returned to work following his recuperation.

After efforts to settle the case failed, D&F filed a motion for summary judgment. The district court granted the motion finding that Charles had failed to establish that he was disabled within the meaning of the ADA. On appeal, Charles challenges the district court's refusal to enforce a settlement agreement reached in open court in May 1999, and asserts that the district court erred in granting summary judgment in favor of D&F.

We reject Charles' argument that the district court should have enforced the settlement agreement. By a letter to the district court dated June 2, 1999, Charles unequivocally rejected the terms of the settlement offer. Upon that rejection, there was no settlement agreement to enforce, thus the district court made no error.

We also reject Charles' argument that the district court erred in granting summary judgment in favor of D&F. We review the grant of summary judgment de novo, Cronin v. Aetna Life Ins.

Co., 46 F.3d 196, 203 (2d Cir. 1995), and will uphold the district court's decision when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, Quinn v. Green Tree Credit Corp., 159 F.3d 759, 764 (2d Cir. 1998).

In order to make out a prima facie case of discriminatory discharge under the ADA, a plaintiff must show, inter alia, that (1) he suffers from a disability within the meaning of the ADA; (2) he could perform the essential functions of his job with or without reasonable accommodation; and (3) he was discharged because of his disability. Reeves v. Johnson Controls World Servs., 140 F.3d 144, 149-50 (2d Cir. 1998). A disability under the ADA is defined as a (1) physical or mental impairment which (2) substantially limits (3) a major life activity. Id. at 150.

Charles failed to put forth any evidence that he was disabled within the meaning of the ADA. Indeed, at oral argument on D&F's motion for summary judgment, Charles conceded to the district court that he was not disabled when he returned to D&F for duty and that he could perform his job duties. That Charles was out of work for five weeks while recovering from his injury is insufficient to support his claim of disability. See Adams v. Citizens Advice Bureau, 187 F.3d 315, 316 (2d Cir. 1999)

(temporary impairment of a few months too short in duration to be substantially impairing). Charles' inability to establish the first prong of his prima facie claim under the ADA entitled D&F to summary judgment.

For the reasons set forth above, the judgment of the district court is hereby AFFIRMED.