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September 12, 2001


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


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 ("Fed.R.Civ.P.").


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 medical attention.

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 defendants.

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 ...

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