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RIVERA v. HEYMAN

October 7, 1997

AMADOR RIVERA, Plaintiff, against I. MICHAEL HEYMAN, Secretary, Smithsonian Institution, LUIS A. PALAU, and EDWARD G. DOLAN, Defendants.


The opinion of the court was delivered by: LEISURE

 LEISURE, District Judge :

 Before this Court is defendants' motion for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons stated below, the defendants' motion is granted.

 BACKGROUND

 The following facts are taken from the allegations in the complaint, *fn1" which must, for the purposes of this motion, be taken as true. Plaintiff Amador Rivera ("Rivera") has been employed by the Smithsonian Institution's New York Museum Complex as a security officer since 1979. He began work at the Cooper Hewitt Museum in New York and was promoted to the positions of lead guard, sergeant, and lieutenant, his current rank. Rivera serves as an Assistant Chief of Security of the Office of Protection Services of the Smithsonian's New York Branch, and has so served since 1986. Defendant Luis Palau ("Palau") is the Chief of Security of the Smithsonian in New York and defendant Edward Dolan ("Dolan") served in a supervisory capacity over Rivera.

 Rivera provided to both Palau and the Employee Assistance Program (EAP) documentation of his illness and his need to work a reduced schedule that could accommodate his condition. According to Rivera, Palau never accommodated his work needs, forcing him to use his accrued compensatory time to modify his schedule. This led Palau to harass Rivera by closely monitoring his breaks, never allowing Rivera two consecutive days off, and seeming incredulous when Rivera took a sick day. Finally, in December 1993, Palau placed Rivera on leave restriction, *fn2" which led plaintiff to file a complaint with the Office of Equal Opportunity and Minority Affairs (OEMA) of the Smithsonian. Palau subsequently withdrew the leave restriction, but Rivera claims the harassment continued. Plaintiff alleges that Palau scrutinized Rivera's work and took every opportunity to single out Rivera for criticism. Palau insulted Rivera because of his illness, calling him "useless," and then Palau revealed to another Smithsonian employee that Rivera had HIV.

 Rivera's complaint also alleges that Palau directed ethnic slurs at plaintiff. Rivera, who often wore multi-cultural attire to work, claims that Palau said that Rivera was not "Puerto Rican", that Rivera "thought he was a Muslim," and that Rivera "dressed like a Palestinian." Plaintiff complained once again to the OEMA.

 By this time, Rivera was on a reduced schedule that allowed him to have every other Monday free so that he could see his doctor. Rivera's doctor was available only two days per week, one of them being Monday. Rivera alleges that Palau soon thereafter changed Rivera's schedule so that Rivera worked Mondays. Rivera further claims that once he began to take medical leave on Mondays, Palau harassed him and accused him of simply taking long weekends. Palau denied Rivera's further requests for an accommodation of his schedule, so Rivera requested, through the OEMA, a transfer to Audobon Terrace in Manhattan ("Audobon"), another Smithsonian facility. Plaintiff alleges that Palau agreed to a transfer, but sent him to work at the Smithsonian's research station, located in a remote area of the Pelham section of the Bronx. Rivera claims that the research station consists of a series of separate buildings, and his work required him to go outside throughout the day, which worsened his condition.

 Rivera reported this situation to the OEMA, and soon thereafter, Palau transferred Rivera to Audobon on a temporary basis. Shortly after arriving at Audobon, Dolan sent him back to the Bronx facility. Rivera allegedly spoke with Dolan in hopes of remaining at Audobon and, in order to make Dolan understand his needs, revealed his medical condition. *fn3" This effort was to no avail, as Dolan reassigned Rivera to the Bronx station.

 Following numerous requests by Rivera to return to Audobon, Palau and Dolan did transfer him to Audobon, but only on a temporary basis. Then, after a period of administrative leave, the Smithsonian reassigned Rivera to the Bronx station once again. Rivera alleges that he made numerous requests for a transfer, specifically to the Museum of the American Indian at Bowling Green, but that Palau and Dolan refused his requests, stating each time that such a move was "impossible." *fn4"

 Plaintiff alleges that the defendants' actions are in violation of the Federal Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq.; Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. 2000e-3 et seq. ; the New York State Human Rights Law, § 296 of the Executive Law of the State of New York; the City of New York Human Rights Law, § 8-107 of the Administrative Code of the City of New York; and the Federal Tort Claims Act, 26 U.S.C. § 2671. Rivera seeks compensatory damages of not less than $ 800,000, *fn5" punitive damages, injunctive relief, and cost of suit and attorney's fees.

 DISCUSSION

 I. Standards for Judgment on the Pleadings

 "Judgment on the pleadings is appropriate where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988). "In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6)." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). Under the Rule 12(b)(6) standard, a court "must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint 'unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99(1957)); See also Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir. 1995). In deciding a motion for judgment on the pleadings, a court may consider the pleadings and exhibits attached thereto, statements or documents incorporated by reference in the pleadings, matters subject to judicial notice, and documents submitted by the moving party, so long as such documents are either in the possession of the party opposing the motion or were relied upon by that party in its pleadings. See Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).

 II. Plaintiff's Claims Under the Rehabilitation Act

 A. Applicable Provisions

 Rivera has raised four different causes of action under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. ("Rehabilitation Act"). Section 791(b) *fn6" of the Rehabilitation Act is titled "Employment of individuals with disabilities," and requires "each department, agency, and instrumentality (including the United States Postal Service and the Postal Rate Commission) in the executive branch" to hire, place and advance persons with disabilities. 29 U.S.C. § 791(b). Section 794a(a)(1) of the Rehabilitation Act, added in 1978, provides that the rights available to employees under section 717 of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-16, are available to individuals aggrieved by violations of section 791. Id. § 794a(a)(1).

 A cause of action may also arise from violations of section 504 of the Rehabilitation Act. That provision provides in pertinent part:

 Id. § 794(a). Section 794a(a)(2) makes the rights provided to individuals under Title VI, 42 U.S.C. § 2000d, available to any person who alleges a ...


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