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October 22, 1999


The opinion of the court was delivered by: Munson, District Judge.



In 1990, Plaintiff was employed as a Sergeant for the Village of Chittenango Police Department. In December of that year, plaintiff applied for and obtained a position as a road patrol officer with the Town of Manlius Police Department. On April 12, 1996, plaintiff had a new onset seizure disorder or epileptic seizure. His wife telephoned 999 for an ambulance, but before it came, two town of Manlius police officers arrived to assist the couple. En route to the hospital, plaintiff suffered a second seizure. He has not been subject to any further seizures since that time.

On April 16, 1996, plaintiff returned to work with his physician's note directed to the Manlius Police Department stating that he could return to light duty, but could not drive or operate heavy equipment without further medical clearance.

Plaintiff asserts in his complaint that he received different treatment when he came back to work. Among other things, he was not permitted to take part in training classes until medical approval was received from his doctor, was assigned more administrative and less investigatory work, and received fewer occasions to work overtime. In the past, when he undertook an investigation and interview, he acted alone. If he was assigned this task now, he would be accompanied by a fellow officer. He further alleges that shortly after he returned to work, the Chief of Police ordered him to return home., and even though he provided the Manlius Police Department with ample medical documentation establishing that he was fit to return to unrestricted work, upon his eventual return, he was still treated differently.

In the spring of 1997, two other Manlius police officers were promoted to sergeant even though plaintiff had a higher score on the Civil Service examination for that position. Plaintiff claims that the Chief of Police then advised him that he would not be promoted to the rank of sergeant and suggested that he should retire from police work and enter another occupation. Plaintiff declined retirement, and a short time later he was assigned to the non-enforcement post of information systems officer.

Plaintiff felt the conduct he was receiving was discriminatory and brought it to the attention of the Police Benevolent Association. He also filed discrimination complaints with the Equal Employment Opportunity Commission ("EEOC") and the New York State Division of Human Rights ("DHR") on April 14, 1997. Shortly after the filing, plaintiff was given an unsatisfactory performance evaluation. This evaluation was inconsistent with his 1995 and 1996 evaluations. In March, 1998, he was required to on work three different shifts when no other officer was required to do so. He was no longer used as a hostage negotiator, permanently assigned to office duties in 1998, and was passed over for promotion to sergeant in March, 1999.

Plaintiff was transferred to road patrol in October 1998, but in January 1999, he was assigned to the night shift. Plaintiff provided the Police Department with a note from his doctor recommending that he only work days. Plaintiff states that the Department balked at this recommendation, and plaintiff was compelled to go on disability. Plaintiff then filed second complaints with the EEOC and the DHR alleging that he had be discriminated and retaliated against by the defendant for filing the complaints of April 14, 1997. After six weeks on disability, plaintiff was returned to the day shift road patrol.

During March, 1999, plaintiff requested dismissal of his two complaints filed with the EEOC and the DHR in order to seek relief in federal court. The EEOC issued right to sue letters on March 23, 1999 and June 10, 1999. The complaint in this action was filed on June 18, 1999, within the 90 day limit for commencing an action under the terms of the respective right to sue letters.

This action is for employment discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.; violation of the Rehabilitation Act of 1973, § 504; violation the Human Rights Law of the State of New York, ("HRL"), New York Executive Law § 296, et seq.(McKinney 1998); and for intentional infliction of emotional distress.

The relief sought by plaintiff includes, declaratory, injunctive and equitable relief; compensatory and general damages, attorney's fees, and the costs and disbursements incurred by plaintiff in bringing this lawsuit.

Currently before the court is defendant's motion for dismissal of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff has enter opposition to this motion.


A dismissal under 12(b)(6) is a dismissal on the merits of the action, a determination that the facts alleged in the complaint fail to state a claim upon which relief may be granted. Teltronics Services, Inc. v. L M Ericsson Telecommunications, Inc., 642 F.2d 31, 34 (2d Cir.) cert. denied, 452 U.S. 960, 101 S.Ct. 3108, 69 L.Ed.2d 971 (1981). In deciding a 12(b)(6) motion, the court must "accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in a light most favorable to the nonmoving party." Rocks v. Philadelphia, 868 F.2d 644, 645 (3rd Cir. 1989). Dismissal of a claim is not proper unless it is obvious that the plaintiff is unable to prove no set of facts supporting his claim which would enable him to prevail. Robb v. Philadelphia, 733 F.2d 286, 290 (3rd Cir. 1984). A complaint may be dismissed, however, when the facts pled and the reasonable inferences therefrom are legally insufficient to support the relief sought. Pennsylvania ex. rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 179 (3rd Cir. 1988). "The function of a motion to dismiss is merely to assess ...

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