The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Samuel Maggio has sued Konica-Minolta Business Solutions U.S.A., Inc. ("KMBS") alleging discrimination, wrongful termination, hostile work environment, and retaliation under the Americans with Disabilities Act ("ADA"). KMBS has moved for summary judgment. For the reasons below, the Court grants the motion in part and denies it in part.
Maggio claims to have had a physical disability since 1969. He was wounded twice in Vietnam by shrapnel from mortars, and he suffers from rheumatoid arthritis and hypertension. He allegedly has a difficult time walking long distances, lifting large items, climbing stairs, and standing for extended periods of time because of the shrapnel wounds and arthritis.
KMBS is a company that provides document imaging machines and systems to businesses. It exists as the result of a merger between the Minolta and Konica companies in 2003. Maggio worked for Minolta prior to the merger.
Maggio began his employment with Minolta in December 1997 as a Technical Representative III Field Technician ("field tech"). He was responsible for making service calls at customer locations to install, repair and maintain equipment. He worked as a field tech until the spring of 1999, when Minolta put him on probation due to customer complaints about his work.
During his probation, Maggio sent a letter to Allen Hans, Minolta's vice president and general counsel, advising that he was limited in his ability to stand, walk, and lift, and that he could not climb stairs with his tools, activities that were often necessary to fulfill his field tech duties. Partly as an accommodation for Maggio's alleged impairments, Minolta offered Maggio a full time position as an In-House Shop Technician ("shop tech"), which he accepted and began in August of 1999.
Shop techs repair imaging units, refurbish older models for resale, repair demonstration machines used by the sales department, pre-install programs on copy machines, rebuild seriously damaged machines, and reinstall missing parts on new machines. Unlike in his field tech position, as a shop tech Maggio handled service repairs at a single location. As an accommodation to Maggio's impairments, Minolta assigned Maggio to work on smaller copiers and imaging unit components. The size of these machines were such that Maggio could work on them while sitting at his desk. Due to his physical limitations, Maggio was also given an assigned parking space at the shop where he worked.
Even with these accommodations, Maggio claims, he was subject to discriminatory conduct based on his impairments. According to Maggio, he suffered various forms of verbal abuse, including other workers calling him names for his use of a handicapped parking space. Herbert Johnson, a Minolta regional service trainer who managed the shop where Maggio worked, and Ray Wiemuth, the Shop techs' supervisor, also allegedly "cracked" and "blew up" at him about his disability. Maggio also contends that his co-worker Terry Stover called him a "fat ass" and that over the course of his employment, he received abusive notes that said such things as, "F---you, Sam." Maggio also claims that the company discriminated against him when Stover or Wiemuth asked another co-worker, James Bednarz ("Bednarz"), to take pictures of Maggio to assess his disability level.
In addition, Maggio alleges that he was excluded from the use of company computers, which were used for training. The shop's work carts, which he used and considered to be an accommodation for his impairments, were also stolen throughout his employment, he claims. These carts were the bottom cabinets of larger copy machines upon which smaller machines could be placed so he could work on them at eye level while sitting.
The discriminatory conduct that Maggio cites also included a "provisional" performance evaluation and the denial of a raise, overtime work, and his ultimate termination. Shop techs are evaluated with a standard form on eleven different criteria. For each criterion, shop techs can be rated, from lowest to highest, as "provisional," "satisfactory," "commendable," and "outstanding," receiving one to four points depending on the rating. The overall rating a shop tech receives is the aggregate of the eleven ratings. A shop tech earns a "provisional" overall rating if he receives a total of eleven to nineteen points, a "satisfactory" overall rating if he receives from twenty to twenty-nine points, and a "commendable" rating if he receives between thirty and forty- one points.
On September 11, 2002, Maggio received his 2002 performance evaluation, which rated his performance in Minolta's lowest category - "provisional" - with a score of nineteen points. The evaluation also noted that Maggio needed to increase his production to a rate of 2.36 pieces of equipment per day to 3.5 pieces per day. Because of his "provisional" performance review, Maggio did not go up a level in seniority and as a result did not receive a salary increase.
Prior to this performance evaluation, Johnson, whose duties included evaluating the shop techs, produced a separate evaluation for the same time period. This evaluation was unsigned and was not presented to Maggio. In that evaluation, Johnson rated Maggio's performance as "satisfactory" with a score of twenty points. Johnson's supervisor, director of service Robert Antczak, lowered Maggio's overall performance rating to "provisional" status. According to KMBS, it was Antczak's job as Johnson's supervisor to review performance evaluations. He allegedly lowered Maggio's score because of Maggio's daily performance statistics and his observations of Maggio failing to focus on his work while in the shop.
Sometime in August 2003, KMBS contends, Antczak was told to eliminate a shop tech position as part of a reduction in force associated with the merger of Konica and Minolta. Because Konica and Minolta each had its own service shop, which were merging into a single service department, Minolta needed to reduce its own service workforce. According to KMBS, Antczak was not told which employees he should eliminate. Rather, he received direction from Carol Ceralli, Minolta's human resources manager, to consider an employee's performance and seniority in selecting whom to terminate. In preparation for the termination, information was compiled about each shop tech's date of hire, 2002 performance evaluations, and production statistics from January 2003 through July 2003. The results of the compiled data ranked Maggio as the least senior and lowest rated employee. KMBS claims it terminated Maggio for this reason. It terminated him on September 8, 2003.
Maggio denies that he was terminated because of the Konica-Minolta merger. Rather, he contends, he was terminated due to his disability and claims and complaints he made to various government agencies, particularly his worker's compensation claim and a complaint he made to the Occupational Safety and Health Administration (OSHA). Between November 2000 and March 2004, Maggio filed seven claims against KMBS and its predecessor Minolta with various governmental agencies, including an anonymous complaint with OSHA in July 2002, an Office of Federal Contract Compliance Programs (OFCCP) complaint in December 2002 alleging disability discrimination, a February 17, 2003 ...