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November 2, 1996

THOMAS LANE, Plaintiff,

The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 This lawsuit arises out of the claims of the plaintiff, Thomas Lane ("Lane" or the "plaintiff"), that he was discriminated against by his former employer, the defendants, Maryhaven Center of Hope ("Maryhaven") and Mason Bryant ("Bryant," collectively the "defendants"), in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq., the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701 et seq. and related state law. Presently before the Court is the defendants' motion to dismiss several causes of action pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. The plaintiff opposes the motion, maintaining that his claims have been adequately pled.

 I. Background

 The following facts are taken from the Complaint. The plaintiff is a resident of Suffolk County. The defendant Maryhaven, a facility that cares for mentally disabled individuals, is a New York corporation with its principal place of business in Port Jefferson, New York. Bryant was Lane's supervisor at Maryhaven. Lane was employed by Maryhaven as a Direct Care Counselor from November 7, 1991 until November 2, 1994, when he was discharged.

 In January 1994, the plaintiff was diagnosed as a manic depressive. According to Lane, the defendants "had actual and constructive knowledge" of his condition. Further, while Lane admits that during his employment he suffered "mild symptoms of depression," he alleges that his disability never interfered with his work.

 In October 1994, Lane "entered a relapse the caused him to enter an manic state." As a result, his treating physician directed that he take one day off. The plaintiff then advised Bryant that he would need to use his accrued sick time. According to Lane, after the day off, Bryant required him to provide a physician's note documenting the absence or he would not be able to return to work. The plaintiff pleads upon information and belief that other employees who took single sick days were not required to provide similar notes.

 On October 31, 1994, Lane received authorization to take several clients of Maryhaven on a local "outing" to an unspecified location. According to the plaintiff, apparently as a result of this outing, the defendants "fabricated an incident of misconduct" which never occurred, and as a result, on November 2, 1994 Lane was discharged. The details of this "fabricated misconduct" are not set forth in the Complaint. The plaintiff alleges that pursuant to his termination, Bryant insulted him regarding his disability.

 According to Lane, as a result of his discharge, he lapsed into a deep depression during which he attempted to commit suicide. He was subsequently hospitalized for approximately five to six weeks. According to Lane, at all times he performed his duties in a reasonable manner and his disability did not interfere with his responsibilities as a Direct Care Counselor. He claims that his discharge based on the undefined incident of misconduct was "false", and "fabricated" in order to terminate his employment. Lane contends that the "misconduct" charge was designed to disguise the defendants' true reason for his discharge, namely unlawful discriminatory intent based on his disability.

 On May 9, 1996, Lane commenced this action in the federal district court. The Complaint alleges six causes of action for: (1) violation of the ADA; (2) violation of the Rehabilitation Act; (3) violation of the New York Executive Law § 209 et seq.; (4) intentional infliction of emotional distress; (5) defamation; and (6) apparently a claim for prima facie tort. The defendants move to dismiss the federal discrimination claims against Bryant and the common law tort claims. In response to the defendants' motion, Lane withdrew his fourth, fifth and sixth causes of action. Accordingly, the Court need only address the motion with respect to Bryant's individual liability under the ADA and Rehabilitation Act.

 II. Discussion

 A. The standard

 A complaint is to be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); accord Gagliardi v. Village of Pawling, 18 F.3d 188, 191 (2d Cir. 1994); Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). In addition, such a motion is addressed solely to the face of a pleading, and "the court's function . . . is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985).

 In assessing the sufficiency of a pleading on a motion to dismiss, "all factual allegations in the complaint must be taken as true," La Bounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991), and all reasonable inferences must be construed in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988), cert. denied sub nom., Soifer v. Bankers Trust Co., 490 U.S. 1007, 104 L. Ed. 2d 158, 109 S. Ct. 1642 (1989).

 The Court is also mindful that under the modern rules of pleading, the plaintiff need only aver "a short and plain statement showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and that "all pleadings shall be so construed as to do substantial justice." Fed. R. Civ. P. 8(f).

 B. The defendants' ...

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