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JONES v. INTER-COUNTY IMAGING CTR.

June 16, 1995

EARLSTON E. JONES, Plaintiff, against INTER-COUNTY IMAGING CENTER, and DIANE DEMERS, Defendant.


The opinion of the court was delivered by: BARRINGTON D. PARKER, JR.

 BARRINGTON D. PARKER, JR., U.S.D.J.

 This action for employment discrimination in violation of the Americans with Disability Act of 1990, 42 U.S.C. § 12101 et. seq. ("ADA"), and the New York Human Rights Law, Executive Law § 290 et.seq., is before this Court on the Defendants' motion to dismiss for failure to state a claim upon which relief can be granted and lack of subject matter jurisdiction, pursuant to Rules 12(b) (6) and 12(b) (1) of the Federal Rules of Civil Procedure.

 The Plaintiff, Earlston Jones ("Jones"), has been diagnosed with sickle cell disease. He alleges that his employer, the Defendants Inter-County Imaging Center ("ICIC") and Diane Demers ("Demers"), offered him a promotion from a part-time position to a full-time position as an ultrasound technician. While out of work on sick leave, however, he was notified that the full-time position had been filled and that his part-time position had been eliminated. Jones alleges that he was terminated because the Defendants wished to avoid additional medical insurance costs and believed that his sickle cell condition would adversely affect his attendance.

 No discovery has occurred. The Defendants move to dismiss the complaint on the grounds that (1) ICIC is not a proper party because it did not employ Jones, (2) the entity employing Jones is not an "employer" under the ADA, (3) Demers is not an "employer" under the ADA, (4) Demers was not named as a "discriminating party" in the administrative charge, and (5) this Court lacks subject matter jurisdiction over the state law claim. *fn1"

 1. Legal Standard for Rule 12(b) (6) Motion

 Because matters outside the pleadings have been presented to the court, the motion to dismiss for failure to state a claim, pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure, shall be treated as one for summary judgment and disposed of as provided in Rule 56 of the Federal Rules of Civil Procedure.

 Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment if:

 
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

 The Court's responsibility is to perform "the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).

 The responding party "must set forth facts showing that there is a genuine issue for trial." Fed.R.Civ.P.56(e). A summary judgment motion cannot be defeated through mere speculation or conjecture. See Pollis v. New School for Social Research, 829 F. Supp. 584, 586 (S.D.N.Y. 1993) (citing Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (other citations omitted)). Rather, the responding party must show the existence of a disputed material fact in light of the substantive law. See Anderson, 477 U.S. at 248. In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See McNeil, 831 F. Supp. at 1082 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962) (per curium) (other citations omitted)). See also Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991) (citing Knight v. U.S. Fire Ins., 804 F.2d 9 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L. Ed. 2d 762 (1987)) (other citations omitted).

 Rule 56(f) of the Federal Rules of Civil Procedure provides that where a person opposing a motion for summary judgment is unable to present by affidavit facts essential to justify his opposition, the court should provide for discovery of the information from which such party will be able to formulate appropriate affidavits in opposition to the motion. See Burlington Coat Factory Warehouse Corporation v. Esprit de Corp., 769 F.2d 919 (2d Cir. 1985).

 2. Failure to State a Claim against ICIC

 The Defendants argue that Jones has improperly named ICIC as Defendant in this action. The Defendants assert that Jones was employed and paid by the limited partnership of North Bronx Services Group ("NBSG"). Pursuant to a management agreement, NBSG provides personnel and leases equipment and space to a radiology professional corporation, Yonkers ...


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