Title VII requires a claimant who desires to bring a suit in
federal court to file a charge of discrimination with the EEOC
within 180 days "after the alleged unlawful employment practice
occurred," or within 300 days of the alleged discrimination if
the claimant "has initially instituted proceedings with a State
or local agency with authority to grant or seek relief . . . or
to institute criminal proceedings."*fn4 42 U.S.C. § 2000e-5(e).
Title VII further provides that "a civil action may be brought
against the respondent named in the charge . . . by the person
claiming to be aggrieved" within 90 days of receipt of what is
known as a "right-to-sue" letter from the EEOC.
42 U.S.C. § 2000e-5(f)(1). Although a right-to-sue letter is not a
jurisdictional requirement, see Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982);
Farrell v. State of New York, 946 F. Supp. 185, 190 (N.D.N Y
1996); Nurse v. City of New York, 739 F. Supp. 811, 811
(S.D.N.Y. 1990), it is a statutory prerequisite for a Title VII
action. Here, plaintiff has attached and made reference only to
the right to sue letter issued by the EEOC with respect to his
1997 DHR Complaint.
Defendant argues that this Court lacks jurisdiction over
plaintiff's Title VII claims that are based on allegations in the
1993 DHR Complaint because plaintiff failed to receive a right to
sue letter relating to that complaint. Plaintiff's opposition
papers fail to address this issue, and, more importantly, do not
allege that a right to sue letter was ever requested or received
with respect to the 1993 DHR Complaint.
The plaintiff has an obligation to produce a right to sue
letter as a prerequisite to filing a Title VII action. See
Niroomand v. Erie County Med. Ctr., 1996 WL 328183, at *7 n. 20
(W.D.N.Y. June 4, 1996) (citing Nurse, 739 F. Supp. at 811-12);
Styles v. Philadelphia Elec. Co., 1994 WL 245469, at *1
(E.D.Pa. June 6, 1994); see also McCullough v. CSX Transp. R.R.
Co., 1995 WL 141494, at *4 (E.D.Pa. March 31, 1995)
("[D]iligence requires that [plaintiff] must either have
attempted to obtain a determination letter from the EEOC or have
raised the failure to issue the letter with the EEOC before
filing suit."). To waive or toll the statutory requirement,
plaintiff must show or allege that he made an effort to procure
the right to sue letter or that he raised the failure to issue a
right to sue letter with the EEOC prior to filing this action.
See Styles, 1994 WL 245469, at *1 (citing Nurse, 739 F. Supp.
at 811). Where, however, the plaintiff can not demonstrate such
an effort, the case should be dismissed. See id.
Despite the absence of a record that can confirm or deny the
1993 DHR Complaint, there is no evidence that plaintiff made any
attempt to secure such a letter. See Farrell, 946 F. Supp. at
190 ("Significant to the Court's decision not to toll or waive
the statutory requirement was the fact that `there [was] no proof
that [plaintiff] made any attempt to procure such letter.'")
(quoting Nurse, 739 F. Supp. at 811). Furthermore, it was
incumbent upon plaintiff to state that he requested a right to
sue letter and that the there was a failure on the part of the
EEOC to issue a letter, if indeed there was such a failure, prior
to the commencement of his suit in federal court.*fn5 Because
there exists no reason to toll or waive the statutory
requirement, those Title VII claims based upon allegations
contained in the 1993 DHR Complaint are dismissed. To the extent
plaintiff includes those same allegations in his 1997 DHR
Complaint, those Title VII claims are similarly dismissed as
time-barred. See 42 U.S.C. § 2000e-5(e)(1).
Title VII provides in pertinent part:
(a) It shall be an unlawful employment practice for
an employer —
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or
national origin. . . .
42 U.S.C. § 2000e-2 (West 1994).
Title VII does not, by its express terms, prohibit all arbitrary
employment practices. Rather, it is directed only at specific
impermissible bases of discrimination such as race, color,
religion, sex, or national origin. See Garcia v. Gloor,
618 F.2d 264, 269 (5th Cir. 1980), cert. denied, 449 U.S. 1113, 101
S.Ct. 923, 66 L.Ed.2d 842 (1981); Stroud v. Delta Air Lines,
Inc., 544 F.2d 892, 894 (5th Cir.) ("Title VII does not purport
to ban all discriminations, but only the specific forms
enumerated by statute."), cert. denied, 434 U.S. 844, 98 S.Ct.
146, 54 L.Ed.2d 110 (1977); King v. Seaboard Coast Line R.R.
Co., 538 F.2d 581, 583 (4th Cir. 1976) ("Title VII is limited in
application to discrimination in employment based on race, color,
religion, sex, or national origin; it does not cover other types
of discrimination, however unfair they may be."); Colesanti v.
St. Patrick's Home, 1992 WL 167389, at * 2 (S.D.N.Y. June 26,
1992); Rogers v. American Airlines, Inc., 527 F. Supp. 229, 232
In the present case, plaintiff cannot establish a prima facie
case of discrimination or retaliation under Title VII because he
is not a member of any protected class under the statute.*fn6
Plaintiff's federal Complaint does not allege discrimination
based on any of these improper considerations, but rather,
discrimination based on being regarded as a person associated
with persons living with HIV/AIDS, and as a person living with
HIV/AIDS. See Compl. at ¶ 20. Plaintiff may have a remedy for
such discrimination, but the avenue for such a remedy is the ADA,
not Title VII. See Rivera v. Heyman, 982 F. Supp. 932, 940
(S.D.N.Y. 1997) (holding that discrimination based on plaintiff's
HIV status constituted discrimination on the basis of disability,
which is not covered under Title VII), rev'd, in part, on other
grounds, 157 F.3d 101, 105 (2d Cir. 1998) (affirming district
court's dismissal of plaintiff's Title VII claims). Because
plaintiff fails to allege a prima facie case under Title VII,
defendants' motion to dismiss plaintiff's Title VII claims must
D. Plaintiff's ADA Claims
Plaintiff's federal Complaint also alleges violations under the
ADA based on plaintiff's association with persons with HIV/AIDS,
and as a person living with HIV/AIDS. See Compl. at ¶¶
The enforcement provisions of Title VII of the Civil Rights Act
of 1964, as amended, are applicable to actions brought under the
ADA against employers. See 42 U.S.C. § 12117(a); Rosquist v.
New York Univ. Med. Ctr., 1998 WL 702295, at *5 (S.D.N.Y. Oct.7,
1998); McNight v. The Dormitory Auth. of the State of New York,
995 F. Supp. 70, 81 (N.D.N.Y. 1998); Lacoparra v. Pergament Home
Centers, Inc., 982 F. Supp. 213, 225 (S.D.N.Y. 1997) Spurlock v.
NYNEX, 949 F. Supp. 1022, 1029 (W.D.N.Y. 1996) Lillien v.
M.A.B.S.T.O.A. (MTA), 1996 WL 711495, at *2 (S.D.N.Y. Dec.11,
1996). Accordingly, because plaintiff filed a complaint with the
DHR, he must file a charge of discrimination with the EEOC within
300 days of the alleged discriminatory action, see
42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a), and must file suit in
federal court within 90 days of receiving his right to sue
letter. See 42 U.S.C. § 2000e-5(f).
Here, plaintiff's failure to secure a right to sue letter with
respect to his 1993 DHR Complaint similarly bars him from
asserting a claim under the ADA in his federal Complaint based
upon those allegations contained in the 1993 DHR Complaint. To
the extent that allegations in the 1993 DHR Complaint are
realleged in the 1997 DHR Complaint, those allegations may not
form the basis of an ADA claim because they are time-barred.
42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a).
Plaintiff filed his 1997 DHR Complaint on February 12, 1997.
Any claim under the ADA must be brought within 300 days of the
alleged discriminatory act(s) otherwise it is time-barred and may
not be the basis for relief in federal district court. See Nweke
v. The Prudential Ins. Co. of Am., 25 F. Supp.2d 203, 216
(S.D.N.Y. 1998). Thus, in the absence of factors that would
warrant tolling or otherwise extending the filing period, any
alleged discriminatory events which occurred outside the 300-day
period are time-barred.*fn8 See Talyansky v. Mercury Print
Prods., 25 F. Supp.2d 151, 153 (W.D.N.Y. 1998); Demers v.
Niagara Mohawk Power Corp., 1996 WL 293162, at *2 (N.D.N.Y. May
24, 1996). Accordingly, the Court will only consider those
allegations contained in plaintiff's federal Complaint relating
to events occurring on or after April 1996.*fn9 These events
include, inter alia,: (1) denial of provisional promotions when
similarly situated auditors held their posts for extended periods
and (2) not considering plaintiff for permanent promotions on at
least thirteen occasions
although he was highly qualified and scored fourth on a
competitive examination used for determining promotions. See
Compl. at ¶¶ 16, 20, 38, 42, 52-53. Plaintiff alleges that these
events were based on "the perception that [he] belonged to a
group associated with high risk behaviors for HIV/AIDS," id. at
¶¶ 19-20, and were motivated, in part, by plaintiff's efforts to
report defendants' alleged discriminatory practices. See id. at
¶¶ 16, 20, 38, 52-53.
Applying a liberal reading to plaintiff's pro se federal
Complaint, see Spencer v. Doe, 139 F.3d 107, 112 (2d Cir.
1998); Branham v. Meachum, 77 F.3d 626, 629 (2d Cir. 1996), the
Court finds that the federal Complaint alleges discrimination
under the ADA based on: (1) plaintiff being regarded as a person
with HIV/AIDS, see 42 U.S.C. § 12112(a); (2) plaintiff's
association with persons known to have HIV/AIDS, see
42 U.S.C. § 12112(b)(4); and (3) defendants' retaliation against plaintiff
for reporting alleged acts of discrimination to the DHR, see
42 U.S.C. § 12203(a).
1. Discrimination in Advancement and Other Terms, Conditions
and Privileges of Employment
The ADA, which governs employment relationships, provides, in
relevant part, that:
No covered entity shall discriminate against a
qualified individual with a disability because of the
disability of such individual in regard to job
application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges
42 U.S.C. § 12112(a)
To establish a prima facie case of discrimination relating to
advancement and other terms, conditions and privileges of
employment, plaintiff must establish that: (1) the employer is
subject to the statute under which the claim is brought; (2)
plaintiff is an individual with a disability within the meaning
of the statute in question; (3) plaintiff could perform the
essential functions of the job, with or without reasonable
accommodation; and (4) the adverse employment actions occurred
because of plaintiff's disability. See Reeves v. Johnson
Controls World Servs., Inc., 140 F.3d 144, 149 (2d Cir. 1998);
Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir.
1998); Lyons v. Legal Aid Society, 68 F.3d 1512, 1515 (2d Cir.
1995). A plaintiff alleging employment discrimination under the
ADA bears the initial burden of establishing a prima facie case.
See Wernick v. Federal Reserve Bank of N.Y., 91 F.3d 379, 383
(2d Cir. 1996). For purposes of this motion, defendants do not
dispute that they are subject to the ADA or that plaintiff was
able to perform the essential functions of his job. See Defts.
Mem. of Law at 18 ("SIF regarded plaintiff as able to perform his
job and simply required that plaintiff attend work or account for
"Disability" is defined under the ADA to include: (a) a
physical or mental impairment that substantially limits one or
more of the major life activities of an individual; (b) a record
of such impairment; or (c) being regarded as having such an
impairment. See 42 U.S.C. § 12102(2); Colwell v. Suffolk
County Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998), cert.
denied, ___ U.S. ___, 119 S.Ct. 1253, 142 L.Ed.2d 350 (1999);
Francis v. City of Meriden, 129 F.3d 281, 283 (2d Cir. 1997).
Both the 1997 DHR Complaint and federal Complaint argue under the
third definition — that defendants regarded plaintiff as a person
living with HIV/AIDS. See Compl. at ¶ 19-20.
To establish a disability under the "regarded as" prong, an
employee must show that he is "regarded as" having an impairment
that substantially limits one or more major life activities.
See 29 C.F.R. § 1630.2(1). In City of Meriden, the Second
Circuit held that whether an individual is "regarded as" having a
disability "turns on the employer's perception of the employee"
and is therefore "a question of intent, not whether the employee
has a disability." 129 F.3d at 284. "It is not enough, however,
that the employer regarded that individual as somehow disabled;
rather, the plaintiff must show that the employer regarded the
individual as disabled within the meaning of the ADA." Colwell,
158 F.3d at 646. As the Second Circuit stated in City of
A plaintiff cannot state a claim under the "regarded
as" prong of the ADA . . . simply by alleging that
the employer believes some physical condition . . .
renders the plaintiff disabled. Rather, the plaintiff
must allege that the employer believed, however
erroneously, that the plaintiff suffered from an
"impairment" that, if it truly existed, would be
covered under the statutes and that the employer
discriminated against the plaintiff on that basis.
129 F.3d at 285 (citing Andrews v. State of Ohio, 104 F.3d 803,
810 (6th Cir. 1997)); see also Daley v. Koch, 892 F.2d 212,
215-16 (noting that the issue is whether defendant knew of
plaintiff's condition, and, if so, whether he believed that it
substantially affected plaintiff's ability in a major life
The regulations elaborate on this definition by way of example:
An individual satisfies the . . . "regarded as"
definition of "disability" if the employer . . .
erroneously believes the individual has a
substantially limiting impairment that the individual
actually does not have. This situation could occur,
for example, if an employer [took adverse employment
action against] an employee in response to a rumor
that the employee is infected with . . . HIV. Even
though the rumor is totally unfounded and the
individual has no impairment at all, the individual
is considered an individual with a disability because
the employer perceived of this individual as being
disabled. Thus, . . . the employer, by [taking
adverse employment action against] this employee, is
discriminating on the basis of disability.
29 C.F.R.App. § 1630.2(1).
Accordingly, an individual who can show that an employer made an
employment decision because of a perception of disability based
on "myth, fear or stereotype," will satisfy the "regarded as"
part of the definition of disability.*fn10 Id. (citing School
Bd. of Nassau County, Florida v. Arline, 480 U.S. 273, 282, 107
S.Ct. 1123, 94 L.Ed.2d 307 (1987) (noting that while a physical
impairment "might not diminish a person's physical or mental
capabilities, [it] could nevertheless substantially limit that
person's ability to work as a result of the negative reactions of
others to the impairment.")).
Plaintiff's allegations are sufficient to establish that
defendants' were aware of plaintiff's HIV/AIDS status based on
the numerous complaints made by plaintiff to SIF and to the DHR
and EEOC. Viewing the Complaint in a light most favorable to
plaintiff and accepting the allegations as true, as the Court
must do in a motion to dismiss pursuant to FED.R.CIV.P. 12(b)(6),
plaintiff's allegations that defendants repeatedly denied him
provisional or permanent promotions in place of less qualified
candidates because of his perceived HIV/AIDS status are
sufficient to satisfy the "regarded as" definition of a
disability and establish a prima facie case of discrimination
under 42 U.S.C. § 12112(a).*fn11
2. "Association Discrimination" Provision Under the ADA
Plaintiff also claims that defendants discriminated against him
because of his association with persons living with HIV/AIDS.
See Compl. at ¶¶ 19-20, 25.
The term "discriminate," as used under the ADA, is defined to
include "associational discrimination," which includes:
excluding or otherwise denying equal jobs or benefits
to a qualified individual because of the known
disability of an individual with whom the qualified
individual is known to have a relationship or
42 U.S.C. § 12112(b)(4) (West 1995).
To establish a prima facie case of "association discrimination"
under the ADA, 42 U.S.C. § 12112(b)(4), a plaintiff must
demonstrate the following: "(1) the plaintiff was `qualified' for
the job at the time of the adverse employment action; (2) the
plaintiff was subjected to adverse employment action; (3) the
plaintiff was known by his employer at the time to have a
relative or associate with a disability; and (4) the adverse
employment action occurred under circumstances raising a
reasonable inference that the disability of the relative or
associate was a determining factor in the employer's
decision."*fn12 Den Hartog v. Wasatch Academy, 129 F.3d 1076,
1085 (10th Cir. 1997); see also Morgenthal v. American Tel. &
Tel. Co., Inc., 1999 WL 187055, at * 2 (S.D.N.Y. Apr.6, 1999)
(noting that the regulations implementing the ADA state that
"`this provision is intended to protect any qualified individual,
whether or not that individual has a disability.'") (quoting
29 C.F.R. § 1630.8); Lester v. Compass Bank, 1997 WL 151782, at *
3 (N.D.Ala. Feb.10, 1997); Saladin v. Turner, 936 F. Supp. 1571,
1580-81 (N.D.Okla. 1996). If the plaintiff in an ADA "association
discrimination" establishes these elements, the burden shifts to
the defendant to articulate a legitimate, nondiscriminatory
reason for the adverse employment action. See Den Hartog, 129
F.3d at 1085 (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)); Saladin, 936
F. Supp. at 1581. Once such a reason is articulated, the burden
shifts back to the plaintiff to prove that the employer's stated
reason is pretextual and that the employer intentionally
discriminated against plaintiff. See Den Hartog, 129 F.3d at
1085 (citing McDonnell Douglas Corp., 411 U.S. at 804, 93 S.Ct.
1817); Saladin, 936 F. Supp. at 1581.
The regulations state that the association provision of the ADA
covers "family, business, social or other relationship or
association" between the qualified individual, here, the
plaintiff, and an individual with a known disability. See
29 C.F.R. § 1630.8. Thus, this provision "is not limited to those
who have a familial relationship with an individual with a
disability." 29 C.F.R.App. § 1630.8. As the Tenth Circuit noted
in Den Hartog, this provision was intended to cover situations
where an qualified individual was discriminated against because
the employer assumes, without foundation, that the employee's
association with a person with a disability, such as HIV/AIDS,
will require the employee to have to miss work or frequently
leave work early or both, in order to care for the disabled
person. See Den Hartog, 129 F.3d at 1082 (citations omitted);
see also Rogers v. International Marine Terminals, Inc.,
87 F.3d 755, 760 (5th Cir. 1996); Tyndall v. National Educ. Ctrs.,
31 F.3d 209, 214 (4th Cir. 1994); Braverman v. Penobscot Shoe
Co., 859 F. Supp. 596, 604 (D.Me. 1994) ("[Section] 12112(b)(4)
was intended to apply, for example, to . . . an employer's
discharge of an employee who volunteered at an AIDS clinic due to
the employer's fear of contracting AIDS."). This provision was
not, however, intended
to cover employees who violate a "neutral employer policy
concerning attendance or tardiness." Id. (noting that the ADA
only requires that "job applicants or employees, but not their
relatives or associates, need be reasonably accommodated")
Plaintiff alleges that he was isolated by his co-workers and
employer and consistently denied promotions in place of less
qualified employees based on his association with a person living
with HIV/AIDS. In response, defendants assert that they regarded
plaintiff as able to perform in his position and "simply required
that plaintiff attend work or account for his absences" and point
to plaintiff's current employment at SIF to rebut plaintiff's
allegations of workplace discrimination. Defts. Mem. of Law at
18. Significantly, defendants do not dispute that they regarded
plaintiff as living with HIV/AIDS or as having an association or
relationship with persons known to have HIV/AIDS. See id.
Reading plaintiff's pro se Complaint in a liberal manner, and
viewing the allegations in the Complaint in a light most
favorable to the plaintiff, as required at this preliminary stage
of the litigation, plaintiff has sufficiently alleged a causal
connection between defendants' awareness of his association with
persons with HIV/AIDS and adverse employment action, which
included denials of both provisional and permanent promotions in
favor of less qualified or similarly situated employees, based on
that association. See Compl. at ¶¶ 16, 20, 38, 42, 52-53.
3. Retaliation Claim
Plaintiff last claims that defendants retaliated against him
for reporting discriminatory acts within SIF and to the DHR and
EEOC by denying him a provisional or permanent promotion. See
Compl. at ¶¶ 16, 20, 52-53.
The retaliation provision under the ADA states:
No person shall discriminate against any individual
because such individual has opposed any act or
practice made unlawful by this chapter or because
such individual made a charge, testified, assisted,
or participated in any manner in an investigation,
proceeding, or hearing under this chapter.
42 U.S.C. § 12203(a) (1994).
To establish a prima facie case of retaliation under the ADA, a
plaintiff must prove that "`(1) he engaged in a protected
activity; (2) his employer took an adverse employment action; and
(3) a causal connection exists between the protected activity and
the adverse action.'" Eckles v. Consolidated Rail Corp.,
890 F. Supp. 1391, 1416 (S.D.Ind. 1995) (quoting Harmer v. Virginia
Elec. and Power Co., 831 F. Supp. 1300, 1308 (E.D.Va. 1993)),
aff'd, 94 F.3d 1041 (7th Cir. 1996), cert. denied,
520 U.S. 1146, 117 S.Ct. 1318, 137 L.Ed.2d 480 (1997); see also Saladin,
936 F. Supp. at 1580. As with other discrimination claims, once
the plaintiff has established a prima facie case of retaliation,
the employer has the burden of articulating a legitimate,
nondiscriminatory reason for its adverse action. See Pomilio v.
Wachtell, Lipton, Rosen & Katz, 1999 WL 9843, at *7 (S.D.N Y
Jan.11, 1999) (noting that "[u]nder some circumstances, such a
pursuit of internal remedies constitutes a protected activity.");
Klem v. Popular Ford Sales, Inc., 975 F. Supp. 196, 203
(E.D.N.Y. 1997). If the employer does so, the plaintiff may then
present evidence that the reason given by the employer is a mere
pretext for the real, discriminatory reason for the adverse
action. See Pomilio, 1999 WL 9843, at *7; Klem, 975 F. Supp.
Plaintiff's internal reporting of defendants' alleged
discrimination and subsequent filing of a complaint with both the
DHR and EEOC clearly fall within the purview of protected
activity. See Talanda v. KFC Nat'l Management Co.,
140 F.3d 1090, 1096 (7th Cir.), cert. denied, ___ U.S. ___, 119 S.Ct.
164, 142 L.Ed.2d 134 (1998); Kotcher v. Rosa and Sullivan Appliance
Ctr., Inc., 957 F.2d 59, 64 (2d Cir. 1992); Pomilio,
1999 WL 9843, at *8; Klem, 975 F. Supp. at 203. Further,
plaintiff's allegations that he was denied provisional or
permanent promotions satisfy the second element of a retaliation
claim — "`that he suffered a materially adverse change in the
terms and conditions of employment.'" Pomilio, 1999 WL 9843, at
*8 (quoting Torres v. Pisano, 116 F.3d 625, 640 (2d Cir.),
cert. denied, ___ U.S. ___, 118 S.Ct. 563, 139 L.Ed.2d 404
(1997)); see also Connell v. Bank of Boston, 924 F.2d 1169,
1179 (1st Cir.) ("Most cases involving a retaliation claim are
based on an employment action which has an adverse impact on the
employee, i.e., discharge, demotion, or failure to promote."),
cert. denied, 501 U.S. 1218, 111 S.Ct. 2828, 115 L.Ed.2d 997
(1991); Simmerman v. Hardee's Food Sys., Inc., 1996 WL 131948,
at * 14 (E.D.Pa. Mar.22, 1996) ("Although there is no exhaustive
list of what constitutes adverse employment action, examples
include demotion, additional responsibilities, termination,
denial of a deserved promotion, pay decrease, or loss of
benefits."), aff'd, 118 F.3d 1578 (1997); Penny v.
Winthrop-Univ. Hosp., 883 F. Supp. 839, 845 (E.D.N.Y. 1995).
Reading plaintiff's pro se Complaint in a liberal manner, and
viewing the allegations in the Complaint in a light most
favorable to the plaintiff, as required at this preliminary stage
of the litigation, plaintiff has sufficiently alleged a causal
connection between plaintiff's reporting defendants' alleged
discriminatory acts to his superiors and the DHR and EEOC and
adverse employment action, which included denials of both
provisional and permanent promotions in favor of less qualified
or similarly situated employees. See Compl. at ¶¶ 16, 20, 38,
For all of the foregoing reasons, then, it is hereby ORDERED,
that Defendants' motion to dismiss the Complaint is granted in
part, and denied in part. Defendants' motion to dismiss
plaintiff's Title VII claims is hereby GRANTED; defendants'
motion to dismiss plaintiff's ADA claims is hereby DENIED.
IT IS SO ORDERED.