O'Leary v. Town of Huntington

WILLIAM O'LEARY, Plaintiff,

v.TOWN OF HUNTINGTON, ET AL., Defendants.

No. 11-CV-3754 (JFB)(GRB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Date: September 5, 2012

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

William O'Leary ("O'Leary" or "plaintiff") filed this action against the Town of Huntington ("the Town"), the Town of Huntington Highway Department, William Naugton, Frank P. Petrone, Mark Cuthbertson, Susan A. Berland, Mark Mayoka, and Glenda Jackson on August 3, 2011. On December 8, 2011, plaintiff filed an amended complaint alleging that defendants: (1) violated the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12112-12117; (2) deprived him ofhis constitutional rights pursuant to "29 U.S.C. §§ 1983 and 1988" (presumably 42 U.S.C. §§ 1983 and 1988); (3) violated plaintiff's First, Fifth, and Fourteenth Amendment rights; (4) violated the New York State Human Rights Law § 290 et seq.; (5) violated 42 U.S.C. § 1981a; (6) violated the New York State Constitution; and (7) violated the New York State Civil Service Law § 71.¹ With respect to plaintiff's federal constitutional claims, plaintiff asserts that defendants violated his First Amendmentright to free speech, association, and to petition the government, his Fifth and Fourteenth Amendment rights to due process, and his Fourteenth Amendment right to equal protection under the law. Specifically, plaintiff alleges that defendants discriminated against him by terminating him after he had taken disability leave. Plaintiff seeks a declaratory judgment that the Town's employment practices are unconstitutional, reinstatement with backpay, front pay, compensatory and punitive damages, an injunction against violating applicable laws and retaliating against plaintiff, and attorney's fees.

Defendants move to dismiss the complaint, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, on the following grounds: (1) plaintiff's ADA claims are untimely; (2) Sections 1983 and 1988 do not create substantive rights; (3) plaintiff's First Amendment claim fails as a matter of law; (4) plaintiff's due process claims are contrary to well-settled law; (5) plaintiff's equal protection claim is barred as a matter of law; (6) plaintiff's constitutional claims fail as against the individual defendants because plaintiff has not alleged personal involvement; (7) the individual defendants are entitled to qualified immunity; (8) plaintiff's claims under the New York Human Rights Law are barred due to plaintiff's election of remedies; (8) Section 1981a does not create an independent cause of action; (9) plaintiff's claims under the New York State Constitution must be dismissed; and (10) plaintiff is barred from pursuing a claim under Section 81 of the Civil Service Law.

As discussed below, defendants' motion to dismiss plaintiff's federal claims is granted.² The Court declines to exercise supplemental jurisdiction over plaintiff's state law claims, and thus, these claims are dismissed without prejudice.

I. BACKGROUND

A. Factual Background

The following facts are taken from the amended complaint filed on December 8, 2011 ("Am. Compl."), and are not findings of fact by the Court. Instead, the Court will assume the facts in the amended complaint to be true and, for purposes of the pending motion to dismiss, will construe them in a light most favorable to plaintiff, the non-moving party.

Plaintiff was employed as a Laborer/Driver by the Town and its Highway Department from April 2, 2002 until october 29, 2008. (Am. Compl. ¶ 18.) At all relevant times, plaintiff was qualified for his position. (Id.) During his employment, plaintiff suffered three or more on-the-job injuries in 2004, 2006 and 2007. (Id. ¶ 20.) After the first two injuries, plaintiff returned to work and resumed his duties. (Id. ¶ 21.)

On or about October 19, 2007, plaintiff suffered a dislocation of his shoulder and rotator cuff tear due to an on-the-job injury. (Id. ¶ 22.) The injury necessitated his absence from work. (Id. ¶ 23.) Plaintiff also suffers from coronary heart disease and had a blockage in his artery necessitating that stents be surgically placed in his chest. (Id. ¶ 24.) Plaintiff's disabilities are chronic,permanent, and constitute medical impairments which substantially affect and limit him in one or more major life activities, including not being able to lift more than twenty-five pounds continuously. (Id. ¶ 25.) Plaintiff's disabilities and impairments substantially limit or restrict him from performing some jobs. (Id. ¶ 27.)

Notwithstanding his disabilities and impairments, plaintiff made efforts to recover and rehabilitate himself in an effort to return to work as quickly as possible. (Id. ¶ 34.) On June 23, 2008, August 4, 2008, and March 29, 2011, plaintiff submitted medical documentation certifying that plaintiff was fit to return to work with a reasonable accommodation that he not lift more than twenty-five pounds continuously. (Id.) Each time plaintiff submitted the medical documentation, he requested that he be permitted to return to work. (Id. ¶ 36.) Each request was ignored or denied by defendants. (Id. ¶ 37.)

Following the onset of his injuries, plaintiff was advised to obtain certification as a security guard; after plaintiff obtained this certification, he advised the Town that he would be flexible with his pay grade in order to pursue a security position. (Id. ¶ 42; Am. Compl. Ex. 4, Letter Dated April 2, 2008.) Plaintiff also expressed to agents for the Town that he was willing to work anywhere in the Town where a vacancy existed. (Am. Compl. ¶ 43.)

On September 11, 2008, plaintiff underwent and passed a stress test at defendants' request. (Id. ¶ 38.) On October 2, 2008, plaintiff informed a member of the Town Personnel Office that he was ready to return to work with a reasonable accommodation. (Id. ¶ 39.) Following that conversation, Lisa Baisley informed plaintiff that he needed to see a Town doctor on October 8, 2008 about the stents placed in his chest. (Id. ¶ 40.) Plaintiff scheduled an appointment, but Baisley contacted him prior to the appointment to inform him that the appointment was cancelled. (Id.) Baisley informed plaintiff that he could not return to work; the only reason given was that plaintiff could not shovel asphalt. (Id. ¶¶ 40-41.)

On October 14, 2008, plaintiff delivered a letter requesting a reasonable accommodation and requesting to return to work as soon as possible. (Id. ¶ 52.) In that letter, drafted by plaintiff's counsel, plaintiff's counsel noted that there was a "well-established past practice by the Town where employees who have disabilities or impairments have been permitted to work with reasonable accommodation." (Am. Compl. Ex. 6, Letter Dated October 14, 2008.) The letter detailed the Town's past practice of allowing employees with disabilities to work with a reasonable accommodation. (Am. Compl. ¶ 53.) The letter threatened legal action against defendants. (Id. ¶ 64.)

On October 15, 2008, plaintiff reported to work at his usual start time. (Id. ¶ 59.) Plaintiff was not permitted to work and was told to leave. (Id.) Plaintiff inquired if he could return the next day, and plaintiff was advised that he could not come back at all. (Id.)

The Town informed defendant, by letter dated October 29, 2008, that if plaintiff was unable to return to work by the expiration of his one-year leave of absence, the Town would terminate his employment as of that date. (Id. ¶ 57.) The letter stated that plaintiff was on a one-year leave of absence and, because he was absent for more than one year since his October 19, 2007 injury, he would be terminated from employment.(Id. ¶ 56.) The letter stated that plaintiff was being terminated pursuant to New York State Civil Service Law § 71 and Article 18 of the collective bargaining agreement between the Town and the "Local 342." (Id. ¶ 56.)

Plaintiff filed a complaint with the New York State Division of Human Rights ("DHR") on October 7, 2009. (Id. ¶ 14.) The Equal Employment Opportunity Commission issued to plaintiff a Notice of Right to Sue which plaintiff received on or about May 10, 2011. (Id. ¶ 15.)

B. Procedural Background

Plaintiff filed the complaint in this action on August 3, 2011. Plaintiff filed the amended complaint on December 8, 2011. Defendant filed a motion to dismiss on February 3, 2012. Plaintiff filed his opposition to the motion to dismiss on April 3, 2012. Defendant filed a reply to plaintiff's opposition on April 23, 2012. Oral argument was held on July 13, 2012. The Court has fully considered the arguments and submissions of the parties.

II. STANDARD OF REVIEW³

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). "In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient 'to raise a right to relief above the speculative level.'" Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This standard does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth a two-pronged approach for courts deciding a motion to dismiss. 556 U.S. 662, 129 S. Ct. 1937 (2009). The Court instructed district courts to first "identify[ ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." 129 S.Ct. at 1950. Though "legal...