The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
On September 2, 2000, Kenneth W. Keating ("Keating" or the
"plaintiff") initiated this action against Robert J. Gaffney
("Gaffney"), the Suffolk County Executive; Charles J. Bartha
("Bartha"), the Commissioner of the Suffolk County Department of
Public Works; the County of Suffolk; the Suffolk County
Department of Public Works ("DPW"); and Henry Schneck
("Schneck") (collectively, the "defendants") by filing a
complaint alleging a violation of his rights secured by the
Americans With Disabilities Act, 42 U.S.C. § 12101, et seq.
("ADA"), and the New York Human Rights Law, New York State
Executive Law §§ 296, 297 ("NYHRL").
Presently before the Court is the defendants' motion to
dismiss the plaintiff's complaint in its entirety pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure
The following factual allegations are taken from the
plaintiffs complaint and are assumed to be true for the purposes
of deciding defendants' motion. When Keating was approximately
six years old, he began to experience episodic abdominal pain,
vomiting, diarrhea, and headaches which lasted for several days
at a time and which caused dehydration and weight loss. He also
developed a poor tolerance to heat, breaking out in red blotches
when he was exposed to the sun. His body also began sweating
profusely, even when it was not overheated. Keating also
suffered from serious bouts of mumps, pancreatitis, and
encephalitis during his childhood.
Keating, who is now 37, consulted numerous doctors and was
informed that his problems were due to the mumps, pancreatitis,
and encephalitis from which he suffered as a child. Although
doctors could control some of Keating's medical problems with
medication, they were unable to control his intolerance to heat
and his excessive perspiration. As a result, the plaintiff
continues to suffer abnormal reactions when he is exposed to
heat and the sun. Keating becomes dehydrated, hypoglycemic, and
hyponatremic, which causes him to become weak, dizzy, nauseous,
faint, and unable to carry on normal daily functions. He
overheats quickly and sweats profusely, even when he is not
overheated. Keating's doctors have advised him to avoid extended
exposure to the heat and sun.
In 1998, Keating took the Suffolk County Civil Service
Examination for a position as an Engineering Aide. The plaintiff
received a high score, and the Suffolk County DPW asked him to
come in for an interview.
Several officials at the DPW, including George Volkman
("Volkman"), the supervisor in charge of the DPW's Surveying
Division, interviewed Keating in August 1998. During the
interview, Keating told Volkman about his medical condition,
explained that he was intolerant of heat, and said that he had
to avoid extended exposure to the sun. Shortly thereafter,
Volkman asked Keating to come in for a second interview, during
which Volkman asked the plaintiff specific questions about his
medical problems. Keating again explained his intolerance to
heat and his need to avoid extended exposure to the sun. Volkman
said that Keating's medical problems would not interfere with
his ability to perform the duties of an Engineering Aide, but if
necessary, the DPW would accommodate him.
On or about September 22, 1999, Keating was offered a position
as an Engineering Aide with the DPW, which he accepted. He was
assigned to work in Volkman's Surveying Division. As a new civil
service employee, Keating was required to complete a six-month
probationary period before he would be considered a permanent
employee. He completed that probationary period on March 22,
1999, at which point he became a permanent employee.
For the next three months, the plaintiff continued to working
in the Surveying Division, surveying various areas in Suffolk
County. Keating worked outdoors but had access to shelter from
the heat and sun. Keating's supervisors complimented the quality
of his work.
On June 8, 1999, Keating was told that he was being reassigned
from the Surveying Division to the DPW's Highway Construction
Division where he would be acting as the County's representative
at a highway construction site. The new position required the
plaintiff to remain outside in the heat and sun in places where
he did not have access to shelter. The plaintiffs job with the
Highway Construction Division entailed measuring hot asphalt as
it was being poured from a truck to ensure that the correct
amount was being used. To accomplish this task, the plaintiff
rode on the back of a truck and periodically placed a measuring
rod into the hot asphalt as it was being poured. According to
the complaint, hot asphalt generates temperatures in excess of
300 degrees. The defendants assigned the plaintiff to the
highway construction job despite their knowledge of Keating's
heat intolerance, profuse sweating, and need to remain protected
from the sun.
The plaintiff reported to work as instructed. The complaint
alleges that in June 1999, Suffolk County, and much of the New
York Metropolitan area, experienced a heat wave. Keating spent
several hours at work before the sun, the heat of the day, and
the hot asphalt caused him to become violently ill, dizzy,
nauseous, and disoriented. Keating's physical condition caused
him to stumble into the path of oncoming traffic, and he
narrowly missed being hit by a car.
Keating found it impossible to continue working at this job
site. He contacted the DPW and informed them that his medical
condition, combined with the effects of the sun and the heat,
had caused him to become ill. He asked the DPW to send someone
to replace him. Schneck, the supervisor of the Highway
Construction Division, advised Keating that no one would be sent
to replace him, and that if he left the construction site, he
would be fired. Keating felt that given his physical
condition, he had no alternative but to leave the site and seek
The plaintiff reported to work again on June 10, 1999. Keating
informed Schneck that he suffered from heat intolerance and
could not be exposed to heat or sun for extended periods of
time. The plaintiff requested "a reasonable accommodation" based
on his physical condition. Schneck ignored Keating's request and
directed him to return to the construction site. Keating
complied and continued to suffer from the effects of the heat,
sun, and hot asphalt.
Keating met with Schneck over the next several days. During
those meetings, Keating requested "a reasonable accommodation"
based on his physical condition. In particular, Keating asked to
be transferred back to the Surveying Division where he had
worked without becoming ill. Volkman allegedly told Schneck that
he had a vacancy, and that Keating could return to the Surveying
Division. Schneck rejected Volkman's proposal, refused to allow
Keating to be reassigned, and told Keating, "[Y]ou are in my
[expletive deleted] world now." Schneck continued to send
Keating to the construction site.
On June 28, 1999, Keating resigned his position and ceased
working for the defendants. The plaintiff alleges that his
resignation constitutes a constructive discharge by the
The plaintiff claims that he filed a timely complaint of
employment discrimination based upon his disability with the
Equal Employment Opportunity Commission ("EEOC"). Keating
further states that on August 29, 2000, he requested a "right to
sue" letter, which was still being processed at the time he
filed the complaint in this case.
Keating claims that he served a timely notice of claim upon
Suffolk County on or about February 12, 2000. The plaintiff was
examined pursuant to General Municipal Law ("GML") § 50h on May
18, 2000. On September 21, 2000, the plaintiff discontinued his
complaint with the State Division of Human Rights for the
purpose of commencing a judicial proceeding.
Keating's first claim alleges that the defendants violated the
ADA by (a) refusing to grant him a reasonable accommodation
based on his disability as required by law; and (b)
constructively discharging him on the basis of his disability.
Keating argues that he is disabled within the meaning of the ADA
by virtue of his intolerance to heat.
As a second claim, Keating alleges that all of the defendants
violated his rights under the NYHRL by refusing to provide him
with a reasonable accommodation for his disability and
constructively discharging him based on his disability. As a
third claim, the plaintiff alleges that Schneck is personally
liable for the plaintiffs injuries because he aided and abetted
the defendants' unlawful discriminatory practices in violation
of the NYHRL.
Keating's fourth claim alleges that all of the defendants
unlawfully retaliated against him because he requested a
reasonable accommodation for his disability. In particular,
Keating contends that Schneck attempted to fire him, harassed
him, and subjected him to conditions that were harmful to his
health in retaliation for Keating's reasonable accommodation
request. Keating further asserts that Schneck embarked upon this
course of conduct in order to force Keating to resign "since he
was unable to fire him outright for requesting a reasonable
accommodation due to his disability."
For their part, the defendants argue that Keating is not
disabled within the meaning of either the ADA or the NYHRL. The
defendants also contend that Keating failed to serve a timely
notice of claim and failed to allege a prima facie
case of retaliation under the ADA and the NYHRL.
A. Rule 12(b)(6) Standard
On a motion to dismiss for failure to state a claim, the Court
should dismiss the complaint pursuant to Rule 12(b)(6) only if
it appears "beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to
relief." Tarshis v. Riese Organization, 211 F.3d 30, 34 (2d
Cir. 2000) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78
S.Ct. 99, 2 L.Ed.2d 80 (1957)); see Gregory v. Daly,
243 F.3d 687, 690 (2d Cir. 2001). Further, the district court "must
accept as true all of the factual allegations set out in
plaintiffs complaint, draw inferences from those allegations in
the light most favorable to plaintiff, and construe the
complaint liberally." Tarshis, 211 F.3d at 30; see Gregory,
243 F.3d at 691. The Court is mindful that its function is not
to weigh the evidence that might be presented at trial, but
merely to determine whether the complaint is legally sufficient.
See Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985);
Okwedy v. Molinari, 150 F. Supp.2d 508, 512 (E.D.N.Y. 2001).
The Court also acknowledges "the care exercised in this Circuit
to avoid hastily dismissing complaints of civil rights
violations." Gregory, 243 F.3d at 691; see Tarshis, 211 F.3d
at 35 ("This rule barring the granting of a motion to dismiss
has for many years been carefully adhered to in this Circuit,
particularly in civil rights actions."); Gant v. Wallingford
Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995).
When making its determination, a district court must consider
"not only the assertions made within the four corners of the
complaint itself, but also those contained in documents attached
to the pleadings or in documents incorporated by reference."
Gregory, 243 F.3d at 690; see Austin v. Ford Models, Inc.,
149 F.3d 148, 152 (2d Cir. 1998). In addition, the Court may
consider documents that are in the plaintiffs possession or that
the plaintiff knew of and relied on in bringing suit. See Brass
v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.
1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42,
47-48 (2d Cir. 1991); Skeete v. IVF America, Inc., 972 F. Supp. 206,
208 (S.D.N.Y. 1997).
B. The Americans With Disabilities Act
The ADA prohibits an employer from discriminating against an
employee "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 of employment."
42 U.S.C. § 12112(a). A plaintiff alleging employment
discrimination under the ADA bears the initial burden of
establishing a prima facie case. Ryan v. Grae & Rybicki, P.C.,
135 F.3d 867, 869 (2d Cir. 1998) (citing Wernick v. Federal
Reserve Bank of N.Y., 91 F.3d 379, 383 (2d Cir. 1996)). In
order to establish a prima facie case of discriminatory
discharge, a plaintiff must show that: (1) his employer is
subject to the ADA; (2) he suffers from a disability within the
meaning of the ADA; (3) he could perform the essential functions
of his job with or without reasonable accommodation; and (4) he
was discharged because of his disability. See Ryan v. Grae &
Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998).
Under either theory — constructive discharge or failure to
make a reasonable accommodation — the sole dispute before this
Court is whether Keating is disabled within the meaning of the
ADA. The ADA defines a "disability" as either:
(A) a physical or mental impairment that
substantially limits one or more of the major life