At some point Kemer visited Combi's office and attempted to meet with Combi. Kemer claims that during this visit Combi called him a "bastard" several times in front of other federal employees and a friend of Kemer's. (Am. Compl. P 4.) Combi testifies by affidavit that he does not recall referring to Combi as a "bastard," but that Kemer did appear in Combi's office on one occasion without an appointment "in a very excited and agitated state," that Combi was too busy to meet with him, and that after Kemer ignored Combi's request that he leave, Combi told Kemer to leave "in a very firm voice." (Combi Aff. P 11.)
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.)
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.
For the reasons stated below, Defendant's motions are granted.
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,
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.
In anticipation of this result, Defendant has moved for summary judgment against any Rehabilitation Act claim that Plaintiff's Amended Complaint may be read to contain.
B. Plaintiff's Rehabilitation Act Claim
1. Summary Judgment Standards
Pursuant to Fed.R.Civ.P. 56(c), summary judgment may be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A court must view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "However, where the nonmoving party bears the burden of proof as to a particular issue, the moving party may satisfy his burden under Rule 56 by demonstrating an absence of evidence to support an essential element of the nonmoving party's claim." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). "Where the moving party has attempted to demonstrate that the nonmoving party's evidence is insufficient as a matter of law to establish his claim, the burden shifts to the nonmoving party to come forward with persuasive evidence that his claim is not 'implausible.' The question then becomes, is there sufficient evidence to reasonably expect [sic] that a jury could return a verdict in favor of the nonmoving party." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988).
2. Plaintiff's Claims
Kemer alleges that he was discriminated against, both by the application of qualifying standards that screen out the disabled, (Am. Compl. PP 1-2) (focusing in paragraph 2 on employment gaps attributable to Plaintiff's disability), and by verbal abuse from Combi, (Am. Compl. P 4). According to the Amended Complaint, "the main issue here are [sic] gaps in my employment record used by a heartless beaucrat [sic] to deny me a mere trainee position." (Am. Compl. at 3.) In other papers, Kemer complains that Combi failed to assist him in completing an application for employment with the GSA. (Pl.'s Aff. dated Oct. 21, 1994, at 4; Combi Aff. P 8.)
In response to these allegations of discrimination, now under consideration as claims made pursuant to the Rehabilitation Act, Defendant moves for summary judgment claiming: (1) that Plaintiff cannot demonstrate that he was disabled, and thus cannot make out a prima facie case; (2) that Plaintiff cannot demonstrate that he was otherwise qualified, and thus cannot make out a prima facie case; and (3) that even if Plaintiff makes out a prima facie case, Plaintiff cannot show that defendant's legitimate, nondiscriminatory reason for not awarding Plaintiff an interview is pretextual or that he was not awarded a position as a result of discriminatory animus.
3. Rehabilitation Act Standards
The Rehabilitation Act of 1973, 29 U.S.C. § 794, provides, in pertinent part:
No otherwise qualified individual with a disability in the United States, as defined in Section 706(8) of this title, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency . . . .
29 U.S.C. § 794(a).
The Second Circuit has made clear that
the plaintiff in a Rehabilitation Act suit bears the initial burden of establishing a prima facie case under the Act. The burden then shifts to the employer. If the employer asserts a neutral reason, unrelated to plaintiff's handicap, for its employment decision, then its burden is to 'articulate a legitimate non-discriminatory reason for discharging the employee.' See Gallo [v. Prudential Residential Servs., 22 F.3d 1219, 1224-25 (2d Cir. 1994)]. The burden then shifts back to the plaintiff to show that the employer's stated reason is really a pretext for discrimination. Id. But if the employer relies on plaintiff's handicap as the reason for the adverse employment decision, then its burden is 'to rebut the inference that the handicap was improperly taken into account by going forward with evidence that the handicap is relevant to qualifications for the position.' Doe v. New York Univ., 666 F.2d 761, 776 (2d Cir. 1981). The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that she is qualified despite her handicap.