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KEMER v. JOHNSON

October 13, 1995

ERIC N. KEMER, Plaintiff, against ROGER JOHNSON, Administrator, General Services Administration, Defendant.


The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Judge

 Plaintiff Eric N. Kemer, proceeding pro se, filed this action claiming that the General Services Administration ("GSA") unlawfully discriminated against him on the basis of a disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. Defendant now moves to dismiss the plaintiff's ADA claim. In anticipation of this Court's reading of the Amended Complaint to include a claim under the Rehabilitation Act of 1973, as amended ("Rehabilitation Act"), 29 U.S.C. § 701 et seq., Defendant also moves for summary judgment. Plaintiff opposes the motion. For the following reasons, the Defendant's motion is granted.

 I. BACKGROUND

 Plaintiff alleges discrimination in employment on the basis of disability in violation of Title I of the ADA, and seeks retroactive back pay and monetary compensation for pain and suffering. (Am. Compl. at 3.)

 Plaintiff Kemer claims to suffer from a disability. *fn1" (Am. Compl. at 1.) On August 4, 1990, Kemer prepared an employment application at the New York City employment branch of the General Services Administration. (Def.'s Local Rule 3(g) Statement [hereinafter Def. 3(g)] P 1 .) He submitted this application to Gino B. Combi ("Combi"), Chief of the Employment Branch of GSA. (Def. 3(g) P 1.) In or about September 1990, Kemer called Combi regarding the status of his application. (Def. 3(g) P 2.) Combi explained that there were deficiencies in plaintiff's application, (Gerwin Aff. Ex. A (Letter from Kemer to Lowden of 1/31/91), at 1), and asked him to fill out another more completely. (Def. 3(g) P 2; Gerwin Aff. Ex. H (Aff. of Gino B. Combi of 1/11/93) [hereinafter Combi Aff.] P 6.) According to Combi, he specifically asked plaintiff to provide more information regarding previous employment. (Combi Aff. P 6.) Combi sent plaintiff a blank application along with the allegedly incomplete one. *fn2" (Def. 3(g) P 2.) Kemer never submitted a second application. (Def. 3(g) P 3.)

 By letter dated January 31, 1991, Kemer filed a discrimination complaint with the Regional EEO Officer of GSA alleging discrimination based on disability due to Combi's rejection of his application and the return of his application without a written explanation of the alleged mistakes. (Gerwin Aff. Ex. A (Letter from Kemer to Lowden of 1/31/91); Def. 3(g) P 4.) *fn3"

 GSA investigated the incident between February 27 and March 3, 1992. (Def. 3(g) P 7.) On June 2, 1993, Administrative Law Judge Edwina L. St. Rose granted summary judgment against Kemer. (Gerwin Aff. Ex. F (Kemer v. Fischer, EEOC Hearing No. 160-93-8099X, slip. op. of 6/2/93); Def. 3(g) P 8.) GSA issued a final decision on June 17, 1993. (Gerwin Aff. Ex. G (Letter from Latimer to Kemer of 6/17/93); Def. 3(g) P 9.) Kemer then brought this suit in federal court claiming that the GSA discriminated against him on the basis of his disability in violation of Title I of the ADA. (Compl. P 1.)

 In lieu of answering Plaintiff's Amended Complaint, Defendant now moves for dismissal of Plaintiff's ADA claim pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Defendant does not rest on its motion to dismiss, however; recognizing the Court's obligation to deny any motion to dismiss unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," Platsky v. Central Intelligence Agency, 953 F.2d 26, 28 (1991) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 521, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972)), Defendant also moves for summary judgment, pursuant to Fed.R.Civ.P. 56, against an unarticulated Rehabilitation Act claim. *fn4"

 For the reasons stated below, Defendant's motions are granted.

 II. DISCUSSION

 A. Plaintiff's ADA Claim

 "On a motion to dismiss under Rule 12(b)(6), the court must accept as true the factual allegations in the complaint, and draw all reasonable inferences in favor of the plaintiff." Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (1995) (citations omitted). "The district court should grant such a motion only if, after viewing plaintiff's allegations in this favorable light, 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992) (quoting Ricciuti v. New York City Transit Authority, 941 F.2d 119 (2d Cir. 1991)), cert. denied, 507 U.S. 961, 113 S. Ct. 1387, 122 L. Ed. 2d 762 (1993).

 Defendant challenges plaintiff's ADA claim on the basis of the ADA's explicit exclusion of the federal government from coverage, and the fact that the Defendant is an agency of the federal government. The ADA provides that "no covered entity shall discriminate against a qualified individual with a disability because of the disability . . . ." 42 U.S.C. § 12112(a). The term "covered entity" includes employers, 42 U.S.C. § 12111(2), but the United States is specifically excluded from coverage as an employer. 42 U.S.C. § 12111(5)(B)(i).

 The defendant here, Roger Johnson, is sued in his official capacity as the Administrator of the General Services Administration; the General Services Administration is an agency of the United States government. Suits against officers of federal agencies in their official capacities constitute suits against the United States. See B.K. Instrument, Inc. v. United States, 715 F.2d 713, 723 (2d Cir. 1983) ("The suit is indeed against the United States. The complaint names it as a defendant. Even if the complaint had named only the Secretary of Defense and the Commanding General of CECOM, the suit would still have been against the United States.") Accordingly, because plaintiff seeks to sue an agency of the federal government as an employer under the ADA, plaintiff's ADA claim must be dismissed.

 Even though the ADA is the only statute specifically invoked by the plaintiff in his Amended Complaint, *fn5" the entire complaint cannot be dismissed. The Supreme Court and the Second Circuit have been very clear in counseling "district courts to construe pro se complaints liberally and to apply a more flexible standard in determining the sufficiency of a pro se complaint than they would in reviewing a pleading submitted by counsel." Platsky, 953 F.2d at 28; see, e.g., Hughes v. Rowe, 449 U.S. 5, 9-10, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam). "In order to justify the dismissal of a pro se complaint, it must be 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Platsky, 953 F.2d at 28 (quoting Raines v. Kerner, 404 U.S. at 521).

 Though Plaintiff's ADA claim cannot stand because the ADA does not apply to agencies of the United States, the Rehabilitation Act also prohibits discrimination against the disabled in the employment context and the Rehabilitation Act does apply to federal agencies. 42 U.S.C. § 794(a). Accordingly, because he is pro se, Plaintiff's Amended Complaint will be construed by this Court to state a cause of action under the Rehabilitation Act. *fn6"


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