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).
In addition, a plaintiff can state a claim for discrimination
based upon his employer's failure to accommodate his disability
by alleging facts showing that (1) his employer is subject to
the ADA; (2) he is an individual with a disability within the
meaning of the ADA; (3) with or without reasonable
accommodation, he could perform the essential functions of the
job; and (4) the employer had notice of the plaintiffs
disability and failed to provide such accommodation. See Lyons
v. Legal Aid Society, 68 F.3d 1512, 1515 (2d Cir. 1995).
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
activities of [an] individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). Keating claims that he is disabled under
all of these alternative theories, and the Court will consider
each of them in turn.
1. Impairments that Substantially Limit Major Life
First, the Court must determine whether the plaintiff has
alleged a physical or mental impairment. See Bragdon v.
Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 2202, 141 L.Ed.2d
540 (1998). The EEOC has issued regulations implementing the ADA
that define an "impairment" to include any "physiological
disorder, or condition" that affects inter alia the
neurological, musculoskeletal, cardiovascular, respiratory,
reproductive, digestive, and endocrine systems or the special
sense organs. 29 C.F.R. § 1630.2(h)(1). Keating's intolerance to
heat causes him to develop a blotchy rash and sweat profusely,
and to become dehydrated, hypoglycemic, hyponatremic, weak,
dizzy, nauseous, and faint. Thus, Keating's condition of heat
intolerance affects his cardiovascular system. As such, Keating
has an "impairment" as that term is defined in the ADA.
(b) Major Life Activities
The second step in the analysis is to identify the life
activities affected by the impairment and to determine whether
they are "major life activities" under the ADA. See Bragdon,
118 S.Ct. at 2202. "The term `[major life activity],' by its
ordinary and natural meaning, directs [the Court] to distinguish
between life activities of greater and lesser significance."
Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144,
151 (2d Cir. 1998). The EEOC has provided that "major life
activities" include "caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning,
and working." 29 C.F.R. § 1630.2(i). This list is illustrative,
not exhaustive. See Bragdon, 118 S.Ct. at 2205. The Second
Circuit has identified other "major life activities," including,
but not limited to "sitting, standing, lifting, or reaching."
Colwell v. Suffolk County Police Dept., 158 F.3d 635, 641 (2d
Cir. 1998) (quoting Ryan, 135 F.3d at 870). Keating claims
that his intolerance to heat substantially limits his ability to
work. As noted, working is a major life activity. See
29 C.F.R. § 1630.2(i); Colwell, 158 F.3d at 642. Therefore,
Keating has satisfied the second element of a "disability."
(c) Substantial Limitation
The third step in the analysis is to determine whether the
plaintiffs impairment "substantially limits" the life activity
that has been deemed major. Bragdon, 118 S.Ct. at 2206. This
inquiry is individualized and fact-specific. Colwell 158 F.3d
at 643; Reeves, 140 F.3d at 152 ("The determination of whether
an individual is disabled under the ADA is made on an
individualized case-by-case basis."); Ryan, 135 F.3d at 872
("[T]he determination whether an impairment `substantially
limits' a major life activity is fact specific."). The EEOC
regulations explain that in evaluating the major life activity
of working, "[t]he term substantially limits means
significantly restricted in the ability to perform either a
class of jobs or a broad range of jobs in various classes."
29 C.F.R. § 1630.2(j)(3)(i). "If the plaintiff establishes only
`the inability to perform a single, particular job,' he has
failed to establish a substantial impairment to his major life
activity of working." Muller v. Costello, 187 F.3d 298, 312
(2d Cir. 1999) (quoting 29 C.F.R. § 1630.2(j)(3)(i)).
In evaluating whether an individual's major life activity of
working is substantially impaired, the Second Circuit has
instructed courts to consider the following factors:
(A) The geographical area to which the individual has
(B) The job from which the individual has been
disqualified because of an impairment, and the number
and types of jobs utilizing similar training,
knowledge, skills or abilities, within that
geographical area, from which the individual is also
disqualified because of the impairment (class of
(C) The job from which the individual has been
disqualified because of an impairment, and the number
and types of other jobs not utilizing similar
training, knowledge, skills or abilities, within that
geographical area, from which the individual is also
disqualified because of the impairment (broad range
of jobs in various classes).
Muller, 187 F.3d at 313 (quoting
29 C.F.R. § 1630.2(j)(3)(ii)).
Thus, the question before this Court is whether the facts
alleged in the complaint support a finding that Keating was
foreclosed from a class of jobs including highway construction.
Notably, however, "[a]n impairment that disqualifies a person
from only a narrow range of jobs is not considered a
substantially limiting one." Heilweil v. Mount Sinai Hospital,
32 F.3d 718, 723 (2d Cir. 1994); see Muller, 187 F.3d at 313;
Wernick v. Federal Reserve Bank, 91 F.3d 379, 383 (2d Cir.
1996). The plaintiff claims that although he was able to work as
an Engineering Aide in the Surveying Division of the DPW, he
could not do so in the Highway Construction Division of the DPW.
Unlike his former job as an in the Surveying Division, Keating's
new job in the Highway Construction Division required that he be
outdoors, in the heat and sun for long periods of time without
shelter and without relief from the hot asphalt. Keating alleges
that it is impossible for him, as a person who is intolerant to
heat, to cope with the working conditions in the Highway
However, this Court finds that the inability to perform this
narrow range of tasks does not "substantially limit" Keating's
ability to perform the major life activity of working. Indeed,
the position of an Engineering Aide in the Highway Construction
Division of the DPW, and particularly, the Aide who measures
asphalt, is a single, particular job, a limitation of which
cannot constitute a substantial limitation of the major life
activity of working. See Muller, 187 F.3d at 313; Wernick,
91 F.3d at 383-84; Heilweil, 32 F.3d at 723. Keating himself
points out that he can perform other outdoor work, in the heat
and under the sun, provided that he is able to take shelter
occasionally and is not working with hot materials such as
asphalt. Indeed, he was a successful Engineering Aide in the
Surveying Division, and that job involved outdoor work.
Nevertheless, Keating also argues that his "physiological
disorders restrict his ability to engage in a broad range of
that are regularly performed year round outdoors or in
unairconditioned areas." However, as noted, Keating performed
six months of outdoor work in the Surveying Division. Thus, it
appears that Keating is qualified to return to that position,
which actually fits into the class of jobs Keating describes as
"regularly performed year round outdoors or in unairconditioned
areas." Furthermore, Keating does not allege that he was
precluded from working on jobs other than those involving
measuring asphalt during highway construction in his geographic
area. Because Keating is still able to perform a broad range of
jobs, even within the DPW, he is not substantially limited in
his ability to work. Thus, this Court finds that Keating is not
disabled under 42 U.S.C. § 12102(2)(A).
2. A Record of Such Impairment
Even if a plaintiff has failed to allege that his impairment
substantially limits a major life activity, he may still qualify
as disabled if he can provide a record of such impairment. See
42 U.S.C. § 12102(2)(B). According to the EEOC:
This part of the definition is satisfied if a record
relied on by an employer indicates that the
individual has or has had a substantially limiting
impairment. The impairment indicated in the record
must be an impairment that would substantially limit
one or more of the individual's major life
29 C.F.R. pt. 1630, App. Records that could potentially contain
this information include education, medical or employment
records. Id. However, "[t]he record must be one that shows an
impairment that satisfies the ADA; a record reflecting a
plaintiffs classification as disabled for other purposes or
under other standards is not enough." Colwell, 158 F.3d at
Keating argues that his "record of impairment" consists of two
job interviews during which he explained to Volkman his medical
history, intolerance to heat, and his need to avoid exposure to
the sun. Keating's two job interviews do not constitute a
"record" as that term is contemplated by the ADA. See
29 C.F.R. pt. 1630 App. (providing that the types of records that
contain the required information include education, medical, and
employment records). Further, even if the job interviews were a
"record," the information he conveyed to Volkman about his
impairment does not involve a greater degree of limitation of
major life activities than the impairment described in the
complaint. Therefore, Keating's claim based on a record of
impairment fails because the "record" does not reflect a
substantial limitation of his ability to work. As such, the
Court finds that Keating is not disabled under
42 U.S.C. § 12102(2)(B). for the same reasons his claim of impairment in the
complaint fails. See Colwell, 158 F.3d at 645.
3. Regarded as Disabled
The third way to establish a "disability" is to show that the
plaintiff is "regarded as" having an impairment that
substantially limits one or more major life activities.
42 U.S.C. § 12102(2)(C). Whether an employee is regarded as having
a disability "turns on the employer's perception of the
employee, a question of intent, not whether the employee has a
disability." Francis v. City of Meriden, 129 F.3d 281, 284 (2d
Cir. 1997). However, the plaintiff must allege that the employer
regarded him as disabled within the meaning of the ADA. See
id. at 285-86. Thus, although the plaintiff is not required to
allege that he actually has an impairment that substantially
limits a major life activity, he must allege that his employer
mistakenly regarded him as having such an impairment. See id.
at 285-85; see also Colwell, 158 F.3d at 646.
Here, Keating alleges that Volkman, the supervisor of the
Surveying Division, assured him that he would not be required to
work in the heat and under the sun for long periods of time.
Keating further alleges that when Volkman heard about the
Keating's problems in the Highway Construction Division, Volkman
told Schneck that he had an opening for Keating. These
allegations are insufficient to meet the burden of alleging that
the DPW "perceived [Keating] to be incapable of working in a
broad range of jobs" suitable for persons of his age,
experience, and training. Ryan, 135 F.3d at 872; see
Colwell, 158 F.3d at 647. Volkman's attempts to keep Keating
out of the heat and sun suggest no more than Volkman was aware
of, and perhaps sympathetic towards, Keating's intolerance to
heat, not that the DPW perceived that condition to be a
disability under the ADA. Accordingly, Keating's claim of
disability based on 42 U.S.C. § 12102(2)(C) fails as well.
In sum, Keating has not alleged (a) a physical impairment that
substantially limits a major life activity; (b) a record of such
impairment; or (c) that his employer regarded him as having such
an impairment. See 42 U.S.C. § 12102(2). As such, he has
alleged insufficient facts showing that he is disabled under the
ADA. See id. Thus, Keating's complaint fails to state a claim
of discriminatory discharge or failure to accommodate under the
ADA. See Ryan, 135 F.3d at 869-70 (holding that to state a
claim for discriminatory discharge under the ADA, the plaintiff
must allege, among other things, that he suffers from a
disability, as that term is defined in the ADA); Lyons, 68
F.3d at 1515 (holding that to state a claim for failure to
accommodate under the ADA, the plaintiff must allege, among
other things, that he suffers from a disability, as that term is
defined in the ADA). Accordingly, the defendants' motion to
dismiss the first claim is granted.
C. The ADA Retaliation Claim
Keating's unlawful retaliation claim does not refer to a
particular statute. Therefore, the Court will assume that it is
brought pursuant to the ADA and the NYHRL. Notably, New York
courts apply the same analysis to retaliation claims as federal
courts. See Hendler v. Intelecom USA, Inc., 963 F. Supp. 200,
212 (E.D.N.Y. 1997).
The ADA prohibits, inter alia, retaliation against any
individual who has asserted rights under the ADA:
No person shall discriminate against any individual
because such individual . . . made a charge,
testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this
42 U.S.C. § 12203(a). The Second Circuit has instructed that
given the similarity between the retaliation provision of the
ADA and the retaliation provision of Title VII of the Civil
Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-3(a), "it is
appropriate to apply the framework used in analyzing retaliation
claims under Title VII in analyzing a claim of retaliation under
the ADA." Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,
183 F.3d 155, 159 (2d Cir. 1999); see Weissman v. Dawn Joy
Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000).
"To establish a prima facie case of retaliation under the ADA,
a plaintiff must establish that (1) the employee was engaged in
an activity protected by the ADA, (2) the employer was aware of
that activity, (3) an employment action adverse to the plaintiff
occurred, and (4) there existed a causal connection between the
protected activity and the adverse employment action." Sarno,
183 F.3d at 159; Francis v. Chemical Banking Corp.,
62 F. Supp.2d 948, 961 (E.D.N.Y. 1999). The plaintiff need not
establish that the conduct he
opposed was actually a violation of the ADA. He need only show
that he possessed a "good faith, reasonable belief that the
underlying challenged actions of the employer violated th[at]
law." Sarno, 183 F.3d at 159 (quoting Quinn v. Green Tree
Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998) (construing
Title VII)); see Muller, 187 F.3d at 311. Thus, although
Keating has not stated a claim for discriminatory discharge or
failure to accommodate under the ADA, he could still state a
claim for unlawful retaliation under the same statute. See
Weissman, 214 F.3d at 233.
The complaint alleges that Keating engaged in a protected
activity when he requested a reasonable accommodation. On or
about June 8 1999, Keating spent several hours working in the
Highway Construction division when the heat from the asphalt and
the sun 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 left work and sought medical attention. On
June 10, 1999, the plaintiff reported to the Highway
Construction Division, and he asked Schneck to accommodate his
physical condition, namely his heat intolerance and inability to
remain exposed to the heat and sun for extended periods of time.
Under the ADA, individuals who suffer from a disability are
entitled to reasonable accommodations, see Lyons v. Legal Aid
Society, 68 F.3d 1512, 1515 (2d Cir. 1995). See Conley v.
United Parcel Service, 88 F. Supp.2d 16, 20 (E.D.N.Y. 2000)
(citing Muller v. Costello, 1996 WL 191977 (N.D.N.Y. 1996)).
Furthermore, as noted, courts generally have recognized that
non-disabled individuals who request reasonable accommodation
are protected against retaliation, provided the request was made
in good faith. See Weissman, 214 F.3d at 233; Sarno, 183
F.3d at 159.
The facts alleged in the complaint show that Keating possessed
a good faith belief that he was entitled to a reasonable
accommodation based on what he thought was a disability. First,
doctors had diagnosed Keating with heat intolerance and had
instructed him to stay out of the sun and heat. Based on this
medical information and advice, it was reasonable for Keating to
believe that he had a medical disability that employers must
accommodate. Moreover, Keating's request that the DPW
accommodate what he believed to be a disability was reasonable.
Keating had already been transferred between divisions of the
DPW. Thus, it was reasonable for him to believe that he could be
transferred into a division that did not involve extended
exposure to the heat and sun. That Keating's request was
reasonable and made in good faith is supported by the fact that
Volkman told Keating that the DPW would not put him in a
position that involved extended exposure to the sun and heat
without the benefit of periodic shelter. Accordingly, Keating's
request to Schneck was a protected activity, because the request
was based on the good faith belief that he was entitled to a
reasonable accommodation under the ADA. See Weissman, 214 F.3d
at 233; Sarno, 183 F.3d at 159; Conley, 88 F. Supp.2d at 20.
Further, the Court notes that Keating's employer was aware of
the protected activity, because Keating's request for a
reasonable accommodation was made to his supervisor.
Accordingly, Keating has sufficiently alleged the first two
elements of the prima facie case for retaliation. See Sarno,
183 F.3d at 159; Francis, 62 F. Supp.2d at 961.
Keating claims that his resignation constitutes a constructive
discharge, which he contends is the adverse employment action
taken in retaliation for his request for reasonable
Constructive discharge of an employee occurs when an employer
"intentionally creates an intolerable work atmosphere that
forces an employee to quit involuntarily." Chertkova v.
Connecticut General Life Ins. Co., 92 F.3d 81, 89 (2d Cir.
1996); see Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d
Cir. 1983). "Working conditions are intolerable if they are so
difficult or unpleasant that a reasonable person in the
employee's shoes would have felt compelled to resign."
Chertkova, 92 F.3d at 89. "[M]erely difficult or unpleasant
working conditions do not rise to the level of constructive
discharge." Viera v. Olsten/Kimberly Quality Care,
63 F. Supp.2d 413, 418 (S.D.N.Y. 1999).
Accepting all of the plaintiffs factual allegations as true,
and drawing all inferences from those allegations in the light
most favorable to him, see Tarshis, 211 F.3d at 30, the Court
finds that the working conditions to which Keating was subjected
were "so difficult [and] unpleasant that a reasonable person in
[Keating's] shoes would have felt compelled to resign."
Chertkova, 92 F.3d at 89. Although Schneck was aware that
Keating became violently ill when exposed to the heat and sun
for extended periods of time, he forced Keating to measure hot
asphalt in the heat and sun without access to shelter. He
deliberately refused to reassign Keating to a job where these
conditions were not present, stating, "[Y]ou are in my . . .
world now." Keating continued to work on the construction site,
where he again became ill from the effects of the heat, sun, and
hot asphalt. Based on the allegations contained in the
complaint, the plaintiff was forced to choose between resigning
his position and subjecting himself to working conditions that
were dangerous to his health. The Court finds that viewing these
allegations in the light most favorable to the plaintiff, see
Tarshis, 211 F.3d at 30, a reasonable person in Keating's shoes
would have felt compelled to resign. See Chertkova, 92 F.3d at
89. Accordingly, Keating has sufficiently alleged a constructive
discharge, see id., and thus, has satisfactorily pleaded the
third element of a retaliation claim. See Sarno, 183 F.3d at
159; Francis, 62 F. Supp.2d at 961.
For the final element of the prima facie case, the plaintiff
must demonstrate a causal connection between the protected
activity and the adverse employment action. See Sarno, 183
F.3d at 159; Francis, 62 F. Supp.2d at 961. One manner of
establishing this connection is by showing that the protected
activity was followed closely by adverse treatment. See
Conley, 88 F. Supp.2d at 21. Keating has sufficiently alleged
this causal connection. He states that he requested the
reasonable accommodation on June 10, 1999. He further alleges
that between that date and June 28, 1999, the date of his
resignation, Schneck repeatedly refused to take any steps to
keep Keating out of the heat and sun for extended periods of
time and, instead, continued to require that Keating measure hot
asphalt while telling Keating that he was in "my world now."
Keating's protected activity, Schneck's conduct, and the adverse
employment action all occurred within an 18-day period. Viewing
the complaint in the light most favorable to the plaintiff, a
fact finder could reasonably conclude that there was a causal
connection between the defendants' actions and the plaintiffs
participation in protected activity. The proximity between the
plaintiffs request for reasonable accommodations and the adverse
actions shows a sufficient nexus to withstand a motion to
As Keating has alleged facts supporting each of the elements
of the prima facie case for retaliation, the Court finds that
he has stated a claim for retaliation under the ADA and the
NYHRL. Accordingly, the
defendant's motion to dismiss the fourth claim in the complaint
C. The State Law Claims
1. Notice of Claim
In his second and third claims, Keating alleges violations of
the NYHRL by all of the defendants including Schneck. The
defendants contend that Keating's claims arising under this
statute must be dismissed on the grounds that Keating failed to
file a timely Notice of Claim as required by General Municipal
Law §§ 50-e and 50-i and County Law § 52(1).
The NYHRL prohibits employment discrimination on the basis of
a disability, see N.Y. Exec. Law § 296, and allows aggrieved
employees to bring suit in any court of appropriate
jurisdiction. See N.Y. Exec. Law § 297(9). State claims
brought under state law in federal court are subject to state
procedural rules. See Felder v. Casey, 487 U.S. 131, 141, 108
S.Ct. 2302, 2313-14, 101 L.Ed.2d 123 (1988). Section 52 of the
County Law also has a Notice of Claim provision provides, in
Any claim or notice of claim against a county for
damage, injury or death, or for invasion of personal
or property rights, of every name and nature . . .
and any other claim for damages arising at law or in
equity, alleged to have been cause or sustained in
whole or in part by or because of any misfeasance,
omission of duty, negligence or wrongful act on the
part of the county, its officers, agents, servants or
employees, must be made and served in accordance with
section fifty-e of the general municipal law.
County Law § 52(1). Section 50-e of the General Municipal Law,
in turn, states that "[i]n any case founded upon tort where a
notice of claim is required by law as a condition precedent to
the commencement of an action . . . the notice of claim shall
. . . be served . . . within ninety days after the claim
In Mills v. County of Monroe, 59 N.Y.2d 307, 464 N.Y.S.2d 709,
451 N.E.2d 456 (1983), the New York State Court of Appeals
reviewed these notice of claim provisions in the context of an
employment discrimination claim. In particular, the Court held
that "[w]hen an employment discrimination action is brought
against a county under the State or Federal civil rights
statutes, the failure to timely file a notice of claim shall be
fatal unless the action has been brought to vindicate a public
interest or leave to serve late notice has been granted by the
court." Id. at 308, 464 N.Y.S.2d at 709-10, 451 N.E.2d 456.
The Court further held that an extension may not exceed the time
limit for commencing the lawsuit. See id. at 31112, 464
N.Y.S.2d at 711, 451 N.E.2d 456. Clearly defendant Suffolk
County is a beneficiary of the notice of claim requirement under
N.Y. County Law § 52(1). Further, defendants Gaffney, Bartha,
the DPW, and Schneck are all County officials, employees, or
entities and, therefore, claims against them are subject to the
notice of claim provision as well. See N.Y. County Law §
52(1); Mills, 59 N.Y.2d at 308, 464 N.Y.S.2d at 709,
451 N.E.2d 456; Freudenthal v. County of Nassau, 283 A.D.2d 6,
726 N.Y.S.2d 116, 117 (2d Dept. 2001); see also, Pustilnik v.
Hynes, 2000 WL 914629 *7 (E.D.N.Y. June 27, 2000) (finding that
county officials are subject to notice of claim requirement in
N.Y. County Law § 52(1) in employment discrimination action).
This finding is to be distinguished from those cases in which
courts have held that employment discrimination claims against
municipal, as opposed to county defendants are exempt from the
notice of claim requirement. See, e.g., Pustilnik, 2000 WL
914629 *7 (describing distinction between claims brought against
municipal defendants and claims against county defendants);
Hamm v. NYC Office of the
Comptroller Alan Hevesi, 1998 WL 92395 (S.D.N.Y. March 4, 1998)
(holding that discrimination claims brought pursuant to
Executive Law § 296 are not tort actions and are thus not
subject to Section 50-e's notice of claim requirement); Dimonda
v. New York City Police Dep't, 1996 WL 194325 *6 (S.D.N.Y.
April 22, 1996) (same); Davis v. New York City Dep't of Mental
Health, 1994 WL 669494 *1 (S.D.N.Y. Nov. 29, 1994) (same).
Those courts have determined that the notice of claim
requirement does not apply to municipal defendants in employment
discrimination actions, because General Municipal Law § 50-e(1)
applies only to torts, and employment discrimination is not a
tort. See Pustilnik, 2000 WL 914629 *7; Hamm, 1998 WL 92395;
Dimonda, 1996 WL 194325 *6; Davis, 1994 WL 669494 *1.
However, this distinction is inapplicable to the present case,
because N.Y. County Law § 52 is a much broader statute than
General Municipal Law § 50-e, see Pustilnik, 2000 WL 914629
*7, and is the statute that applies to the claims brought
against the County. See N.Y. County Law § 52.
Applying section 50-e of the General Municipal Law to the
facts of this case, the Court finds that Keating was required to
serve a notice of claim upon the County of Suffolk within ninety
days of the date his claim arose. See Gen.Mun.L. § 50-e(1)(a).
Keating's claim accrued, at the latest, on June 28, 1999, the
date of his resignation or constructive discharge. However,
Keating did not file his notice of claim until February 12,
2000, well past the 90-day deadline. Keating's claims against
the county, its officials and employees must be dismissed for
failure to file a timely notice of claim, unless his action is
brought to vindicate a public interest or he has been granted
leave to serve a late notice of claim. Mills, 59 N.Y.2d at
308, 464 N.Y.S.2d at 709-10, 451 N.E.2d 456.
It is clear that Keating's action was not brought to vindicate
a public interest. His allegations of discriminatory conduct on
the part of the County refer only to conduct as it relates to
him. See id. at 312, 464 N.Y.S.2d 709, 451 N.E.2d 456,. He
seeks relief on the basis that he alone was discharged on the
basis of his disability. See id. The complaint is limited to
redressing only the plaintiffs injuries. Indeed, the prayer for
relief seeks money damages and reinstatement of the plaintiff to
his prior position. Clearly, Keating's action is brought merely
to enforce a private right and not to vindicate a public
interest. See id.; see also, Turner v. County of Suffolk,
955 F. Supp. 175, 177 (E.D.N.Y. 1997); Finley v. Giacobbe,
827 F. Supp. 215, 219 (S.D.N.Y. 1993). Accordingly, the plaintiff
cannot avail himself of the public interest exception to the
notice of claim requirement.
Keating has not sought leave from any court to file a late
notice of claim. Rather, he argues that the County received
actual notice of his complaints in a timely fashion. Keating
asserts that the Employee Injury and Illness Report he filed
with Risk Management on June 8, 1999 and notes from his exit
interview conducted on August 3, 1999 constitute timely and
sufficient substitute notice, because the information provided
in those documents is the same as the information required by §
50-e(2). Keating has attached a copy of each of these documents
to his affirmation in opposition to the defendants' motion to
At the top of Keating's Exit Interview Questionnaire (the
"Questionnaire") there is a statement that reads:
COMPLETION OF THIS FORM IS COMPLETELY VOLUNTARY AND
ALL INFORMATION SUPPLIED WILL BE HELD IN CONFIDENCE
BY THE DEPARTMENT OF CIVIL SERVICE.
Underneath that statement, the Questionnaire states Keating's
name, that he worked as an engineering aide in the DPW from
September 21, 1998 through June 28, 1999, and that his
supervisor was Schneck. The Questionnaire indicates that Keating
resigned due to health reasons and states that Schneck displayed
"unfair practices," was unwilling to make a reasonable
accommodation, and was verbally abusive and physically
threatening. Keating indicated that prior to working with the
paving materials in the Highway Construction Division, his
working conditions were "fine." Keating also stated that the
portion of his job that was "most unsatisfactory" was "[n]ot
being allowed the smallest accommodation for health reasons." In
response to the question, "If you had the chance to start over,
knowing what you know today, would you have become a County
employee," Keating stated, "Yes but questionable in that
Three pages of additional comments, akin to a narrative, are
attached to the Questionnaire. In this narrative, Keating stated
that he had informed the DPW that he had a history of health
problems, and the DPW hired him with this knowledge. Keating
said that at the time he was hired, he believed he could perform
the work required of him provided that accommodations could be
made in extreme heat situations.
Keating also explained that "Volkman" loaned him to
"construction" for two days. On June 8, 1999 he measured asphalt
as it was being poured to ensure that the pavement was the
correct thickness. Keating states that the machine was emitting
300-degree heat. There also was record-breaking heat that day.
Due to these extreme heat conditions, Keating passed out and
vomited. Schneck told Keating that if he refused to remain on
the job, he would be fired. Keating left the construction site.
In his narrative, Keating described the paving job as
Keating stated that the following day, he met with Schneck.
Schneck wanted to "forget" the incident but stressed that paving
was a job requirement. According to Keating, Schneck told him,
"Fuck you. You're in my department, and you do things my way or
you re-evaluate your career here."
The Employee Injury and Illness Report (the "Report"), dated
June 10, 1999, contains an employee statement, which reads:
"My supervisor (George Volkman) knew of my health
status and heat sensitivity before I was hired. On
Tues. 6-8-99 I was on temporary loan to construction.
The hottest day of the year so far (record-breaking).
ON this day, I suffered heat exhaustion, and was told
I was fired."
The Report indicates that the injury was to Keating's "whole
body" and occurred on the "Sag Tpke" in Sag Harbor. At the
bottom of the form the following instruction appears: "Please
submit completed form to your department payroll rep."