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June 26, 1996

PETER CASTELLANO, et al., Plaintiffs, against THE CITY OF NEW YORK, et al., Defendants.

The opinion of the court was delivered by: STEIN

 SIDNEY H. STEIN, District Judge.

 Plaintiffs in these 16 consolidated actions are approximately 2,000 disabled former New York City police officers who allege that the practice of providing supplemental benefits to police officers who retire after twenty years of service while denying those same benefits to officers who retire because of a disability discriminates against plaintiffs "by reason of" their disabilities in violation of Titles I and II of the Americans with Disabilities Act ("ADA"), see 42 U.S.C. § 12101 et seq., and section 504 the Rehabilitation Act, see 29 U.S.C. § 791 et seq. Plaintiffs also assert claims pursuant to the Age Discrimination in Employment Act ("ADEA"), see 29 U.S.C. § 621 et seq., and various state laws. Defendants are numerous individuals and entities, who allegedly are responsible for creating, implementing or administering the New York City Police Department benefit programs.

 Currently before the Court are motions by defendants to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Because plaintiffs are not protected parties and seek preferential treatment rather than nondiscriminatory treatment, plaintiffs' ADA and Rehabilitation Act claims should be dismissed. Because plaintiffs have failed to file a complaint with the Equal Employment Opportunity Commission, their ADEA claims should be dismissed. Last, because this Court in its discretion declines to exercise supplemental jurisdiction over the plaintiffs' state law allegations, those claims should also be dismissed.


 For purposes of this motion, the factual allegations in the complaint are assumed to be true. See, e.g., Annis v. County of Westchester, N.Y., 36 F.3d 251, 253 (2d Cir. 1994). Plaintiffs are all disability retirees who receive benefits from the New York City Police Pension Fund and are not eligible to receive certain additional benefits known as "Variable Supplements." Pursuant to the New York City Administrative Code, a police officer may retire with benefits for a number of reasons; the reason for the retirement will affect the amount of benefits the retiree will receive. See generally Castellano v. Board of Trustees of the Police Officers' Variable Supplements Fund, 937 F.2d 752, 753 (2d Cir.), cert. denied, 502 U.S. 941, 112 S. Ct. 378, 116 L. Ed. 2d 329 (1991).

 These actions involve three types of retirements: (1) "ordinary disability" retirement; (2) "accident disability" retirement; and (3) "for service" retirement. "Ordinary disability" retirement is available for an officer who is "physically or mentally incapacitated for the performance of duty and ought to be retired." N.Y.C. Admin. Code § 13-251. "Accident disability" retirement is available for an officer who is physically or mentally incapacitated and that incapacitation is "a natural and proximate result" of police duties. Id. at § 13-252. "For service" retirement is available for officers who retire after serving twenty years on the force. Id. at § 13-246. See also Castellano, 937 F.2d at 753.

 Plaintiffs all retired with either an "ordinary disability" or an "accident disability." (Complaint, P 2.) Plaintiffs are therefore ineligible to receive what are known as Variable Supplements, which are payments from either the Police Officer's Variable Supplements Fund or the Police Superior Officers' Variable Supplements Fund (collectively, the "Variable Supplements Funds"). See N.Y.C. Admin. Code §§ 13-268, 13-278. The Variable Supplements Funds are funded from the investment earnings of the Police Pension Fund. Any excess earnings in the Police Pension Fund in a given year -- calculated as the actual earnings of equity investments less (1) the hypothetical earnings that would have been realized if the equities had instead been invested in fixed income investments and (2) prior year offsets -- are transferred from the Police Pension Fund to the Variable Supplements Funds. See N.Y.C. Admin. Code § 13-232. These Variable Supplements are paid in addition to all other benefits already being received by the retiree, but are paid only to "for service" retirees. N.Y.C. Admin. Code § 13-268(5). They are not paid to "ordinary disability" or "accident disability" retirees.

 Plaintiffs claim that the exclusion of "ordinary disability" and "accident disability" retirees from participating in the payments from the Variable Supplements Funds violates the ADA, the Rehabilitation Act, the ADEA and various state law protections. For the reasons that follow, defendants' motions to dismiss the complaint are granted.


 In reviewing a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a district court's role is to assess the legal feasibility of the complaint; it is not to weigh the evidence which might be offered at trial. See Festa v. Local 3, Int'l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990); Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980); Odom v. Columbia Univ., 906 F. Supp. 188, 193 (S.D.N.Y. 1995). In considering the legal feasibility of the complaint, a court may only consider "the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference and matters of which judicial notice may be taken." Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). All factual allegations in the complaint must be accepted as true and the complaint must be viewed in the light most favorable to the plaintiff. See LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988), cert. denied, 490 U.S. 1007, 109 S. Ct. 1642, 104 L. Ed. 2d 158 (1989). A motion to dismiss should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief." Staron v. McDonald's Corp., 51 F.3d 353, 355 (2d Cir. 1995) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957)); Walker v. City of N.Y., 974 F.2d 293, 298 (2d Cir. 1992) (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)).

 A. ADA and Rehabilitation Act Claims

 Plaintiffs allege federal disability discrimination claims pursuant to Title I and Title II of the ADA and section 504 of the Rehabilitation Act. Although each statute provides distinct causes of action, there is significant overlap between them. See Lyons v. Legal Aid Soc'y, 68 F.3d 1512, 1515 (2d Cir. 1995) (citing Staron, 51 F.3d at 255-56); Vande Zande v. State of Wis. Dep't of Admin., 44 F.3d 538, 542 (7th Cir. 1995); Collings v. Longview Fibre Co., 63 F.3d 828, 832 n.3 (9th Cir. 1995), cert. denied, 116 S. Ct. 711, 133 L. Ed. 2d 666 (1996); Pottgen v. Missouri State High Sch. Activities Assoc., 40 F.3d 926, 930 (8th Cir. 1994). Title I of the ADA prohibits discrimination by a "covered entity" against a "qualified individual with a disability because of the disability" in all of the terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a); 29 C.F.R. pt. 1630. Title II of the ADA prohibits a "public entity" from discriminating against "a qualified individual with a disability" because of the disability in "the benefits or the services, programs, or activities" of the public entity. 42 U.S.C. § 12132; 28 C.F.R. pt. 35. Section 504 of the Rehabilitation Act prohibits discrimination by recipients of federal funds against a "qualified person with a disability" because of the disability "under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a).

 Under each of those statutes, in order to state a claim, a plaintiff must allege sufficient facts to show that he or she is a qualified individual with a disability. See, e.g., Flight v. Gloeckler, 68 F.3d 61, 63-64 (2d Cir. 1995). Title I of the ADA defines such a person as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). The Rehabilitation Act's definition in the employment context is essentially the same. See Lyons, 68 F.3d at 1515 (quoting 45 C.F.R. § 84.3(k)(1)(1994)); cf. 29 C.F.R. § 1614.203(a)(6). The statutory language and the case law indicate that these provisions do not provide protection for all disabled individuals; instead, protection is limited to those persons who are "able to meet all of a program's requirements in spite of [their] handicap." Southeastern ...

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