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SMITH v. STATE UNIVERSITY OF NEW YORK

United States District Court, Northern District of New York


April 23, 2003

DAVID E. SMITH, JR., PLAINTIFF,
v.
STATE UNIVERSITY OF NEW YORK, BY ITS CHANCELLOR ROBERT L. KING AND CHAIRMAN OF ITS BOARD OF TRUSTEES THOMAS F. EGAN; STATE UNIVERSITY OF NEW YORK COLLEGE AT NEW PALTZ, BY ITS PRESIDENT ROGER BOWEN; STATE OF NEW YORK, BY ITS GOVERNOR GEORGE E. PATAKI; CRAIG HAIGHT AND RICHARD BARNHART, INDIVIDUALLY AND AS AIDERS AND ABETTORS, DEFENDANTS.

The opinion of the court was delivered by: Frederick J. Scullin, Jr., Chief United States District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff commenced this action against Defendants on September 26, 2000. His complaint asserts six causes of action, alleging that Defendants terminated his employment and retaliated against him in violation of Title I and Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and New York Human Rights Law, New York Executive Law § 296. Plaintiff seeks various relief, including back pay, reinstatement or front pay, compensatory damages, punitive damages, and attorneys' fees.

II. BACKGROUND

Plaintiff was appointed to the position of Campus Public Safety Officer for the State University of New York at New Paltz ("SUNY-NP" or "College"), effective June 7, 1999. His appointment was subject to a fifty-two week probationary period. Under New York Civil Service Law, if a probationary employee's performance is not satisfactory, his employment may be terminated at any time after eight weeks and before completion of the maximum period of probation.

When Plaintiff was hired, he did not disclose the fact that he was dyslexic. In fact, when he filled out an information form for the College's Human Resources Department on his first day of work, he checked "Not Disabled" under "Disability Status."

During Plaintiff's first eight weeks on the job, June 7, 1999 to August 6, 1999, the College was on summer break and, therefore, the College's Public Safety Department ("Department") was less busy than normal. Plaintiff's first probationary report, which covered the initial eight-week period, included the following ratings:

"Quantity of Work" — "Good. Officer Smith is [sic] the learning process"
"Quality of Work" — "Good"

"Ability to Work with Others" — "Excellent"

"Work Habits (attendance, neatness, telephone techniques, etc.)" — "Officer Smith has exhibited good attendance, neatness and has demonstrated professionalism on the phone"
"Suggestions for Improvement" — "Maintain a willingness to learn from other Officers, FTOs and Supervisors"
"The following areas must be improved or termination will be recommended" — [Nothing listed]
See Complaint at Exhibit "B."

Plaintiff's second probationary report, which covered the period from August 7, 1999 to October 6, 1999, included the following ratings:

"Quantity of Work" — "Satisfactory"

"Quality of Work" — "Unsatisfactory At This Time: Log entries and written reports need much improvement. Problem exists with numbers such as log numbers and parking tickets"
"Ability to Work with Others" — "Satisfactory"

"Work Habits (attendance, neatness, telephone techniques, etc.)" — "Satisfactory: Numbers, notes and written material must be more accurate"
"Suggestions for Improvement" — "Needs to work more closely with an FTO to improve performance such as report writing, documentation and log entries. Improve performance relevant to desk duties"
"The following areas must be improved or termination will be recommended" — "Writing skills and numerical comprehension are critical to the job and must show improvement"
See Complaint at Exhibit "C."

In addition, according to Defendants, during Plaintiff's second probationary period, Defendant Chief Barnhart witnessed various problems with Plaintiff's job performance, including his "demeanor and his performance" which gave him the impression that "it did not seem like plaintiff was serious about the job, that he got the gist of what the position entailed, what he was supposed to be doing." In addition, Chief Barnhart noticed problems with Plaintiff's log book entries: "there were procedural errors, there were dates missing, there were incomplete names, names that were not indexed," and the entries were "sloppy" and contained spelling errors.

When Plaintiff arrived at work on October 4, 1999, there was a memo in his mail box from Investigator Boden, which asked him to meet with her to discuss problems with his log entries. At the time that Investigator Boden wrote her memo, Plaintiff had told no one about his dyslexia.

Plaintiff met with Investigator Boden and Robert Maines on October 4, 1999. Investigator Boden told Plaintiff that his log entries were not acceptable because names were not indexed, numbers were not correct, people were not identified, and there were procedural errors as well as other errors and illegibility. In response to these concerns, Plaintiff told Investigator Boden and Mr. Maines that he was dyslexic. Plaintiff alleges that Investigator Boden then made a number of disparaging comments about Plaintiff and suggested that he "rethink his career."*fn1 Plaintiff's third probationary report for the eight week period from October 7, 1999 to December 6, 1999, included the following ratings:

"Quantity of Work" — "Average"

"Quality of Work" — "Slight improvement in quality of written work, but problems exist in other areas (see work habits below)"
"Ability to Work with Others" — "Poor ability to follow supervisory direction and take appropriate corrective action in a timely manner (see work habits below). Fails to assume responsibility for his actions or inactions"
"Work Habits (attendance, neatness, telephone techniques, etc.)" — "Attendance: satisfactory; neatness: satisfactory; telephone techniques, need improvement.
Officer Smith does not exhibit the appropriate attitude and aptitude for a University Police Officer position. While the quality of his written work has shown slight improvement since his last evaluation, after much prompting and remedial action, there continues to be ongoing problems in other work related areas.

Officer Smith has had to be repeatedly advised to rectify a problem with his and a friend's campus parking decal. He placed his faculty/staff parking decal, purchased on 09/23/99, on a friend's vehicle who happens to be a resident student. As a result, this student avoided having to pay the $60.00 student parking fee. This was not corrected until 11/22/99.

Furthermore, the Officer voided a campus parking ticket for the aforementioned individual on 9/16/99, without authorization, under the pretense that the friend possessed a valid parking decal; when, in fact, she did not. The Officer also requested on 9/27/99, that a parking ticket he received for not having a valid decal be voided. Officer Smith has also failed, to date, to pay an outstanding parking ticket issued on 11/18/99 for not have [sic] a current decal on his vehicle.

Not only do the above stated problems exhibit a severe lack of good judgment and ethics (both qualities necessary for a police officer), they are violations of campus policies and New York State Law.

"Suggestions for Improvement" — "The overall consensus is that further time and effort would not effectively improve Officer Smith's job performance"
"The following areas must be improved or termination will be recommended" — "Termination is recommended at this time"
See Complaint at Exhibit "D."

Plaintiff disputes the accuracy of the third probationary report and the motivation behind its completion. First, Plaintiff claims that he did not ask Officer Bramley for permission to void his friend's ticket. Rather, Officer Bramley ran into Plaintiff's friend prior to her entry into the College's Police Station and inquired what she was doing there. After she explained that she was there to pay a parking ticket, Officer Bramley took the ticket from her, told her she did not have to pay it, and directed her to have Plaintiff void the ticket. Plaintiff then asked Officer Bramley to confirm that he wanted Plaintiff to void the ticket and asked how to do so. Officer Bramley explained the process, directed Plaintiff to void the ticket, and directed him to indicate "valid permit" on the form.

Plaintiff also states that he never indicated that his friend had a valid parking permit. To the contrary, he indicated that she did not have a valid parking permit and that she could pay the ticket. Nonetheless, Officer Bramley directed Plaintiff to void the ticket and indicated that Plaintiff's friend should acquire a valid parking permit, which she did on or about November 22, 1999.

Plaintiff admits that his vehicle was ticketed for parking on November 18, 1999, and December 2, 1999. Plaintiff states, however, that he paid both tickets in a timely manner. With regard to the 1998 ticket, during his interview with Investigator Boden prior to his employment, she brought it to his attention and directed him to pay it, which Plaintiff did prior to commencing his employment.

On December 2, 1999, Chief Barnhart met with Plaintiff to give him the third probationary report. The next day, Chief Barnhart submitted the recommendation to the College's Department of Human Resources. On that same day, Plaintiff provided a letter identifying himself as an individual with a disability and requesting reasonable accommodations to Chief Barnhart's secretary and requested that she pass the letter to Chief Barnhart.

On January 12, 2000, a meeting was held to review Plaintiff's termination. Present at the meeting were Craig Haight, the Director of Human Resources, Chief Barnhart, Helen Roberts, a Department of Human Resources employee, Plaintiff and his attorney. Plaintiff was provided with an opportunity to respond to the allegations made against him but was not allowed to discuss the issue of his dyslexia. The decision to terminate Plaintiff was upheld. Presently before the Court is Defendants' motion for summary judgment.*fn2 The Court heard oral argument in support of, and in opposition to, this motion on January 24, 2002, and reserved decision at that time. The following constitutes the Court's written determination of the pending motion.

III. DISCUSSION

A. Standard of review

A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The ultimate inquiry is whether a reasonable jury could find for the non-moving party based on the evidence presented, the legitimate inferences drawn from that evidence in favor of the non-moving party, and the applicable burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

B. Eleventh Amendment immunity*fn3

As a preliminary matter, Defendants assert that the Eleventh Amendment bars all of Plaintiffs' claims. Since each of the statutes under which Plaintiff asserts his claims raises different Eleventh Amendment issues, the Court will address each statute in turn. There are only three exceptions to the general rule that a State and its officers acting on its behalf are immune from suit in federal court. See Winokur v. Office of Court Admin., 190 F. Supp.2d 444, 448 (E.D.N.Y. 2002) (citations omitted). These exceptions are that (1) "a State may waive its Eleventh Amendment defense," (2) "Congress may abrogate the sovereign immunity of the States by acting pursuant to a grant of constitutional authority" and (3) "under the Ex parte Young doctrine, the Eleventh Amendment does not bar a `suit against a state official when that suit seeks . . . prospective injunctive relief.'" Id. (citations omitted).

1. ADA Title I*fn4

In Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001), the Supreme Court held that "Congress did not validly abrogate the States' sovereign immunity from suit by private individuals for money damages under Title I" of the ADA. Id. at 374 n. 9. Plaintiff concedes that Defendants are entitled to Eleventh Amendment immunity with respect to his claims for money damages under Title I of the ADA. See Plaintiff's Memorandum of Law at 3. To the extent that he seeks equitable relief, in the form of reinstatement, however, Plaintiff's argues that the Eleventh Amendment does not bar his Title I claims. See id. at 4-5.

Defendants' only response to Plaintiff's assertion is that Plaintiff has only sought monetary relief. A review of Plaintiff's complaint, however, reveals that, although Plaintiff primarily seeks monetary relief, he also requests reinstatement, which is a form of prospective injunctive relief. See Complaint at ¶¶ 62, 66. Therefore, the Court concludes that the Eleventh Amendment does not bar Plaintiff's Title I claims to the extent that they seek reinstatement.*fn5

Accordingly, the Court denies Defendants' motion for summary judgment with respect to Plaintiff's Title I claims, to the extent that those claims seek reinstatement against the individual Defendants in their official capacities under the doctrine of Ex parte Young, and grants the motion with respect to Plaintiff's Title I claims in all other respects.

2. ADA Title II*fn6

Although Garrett held that claims for monetary damages under Title I are barred by the Eleventh Amendment, it left open the question of whether claims for monetary damages are available under Title II. In Garcia, decided after Garrett, the Second Circuit held that "a private suit for money damages under Title II of the ADA may only be maintained against a state if the plaintiff can establish that the Title II violation was motivated by either discriminatory animus or ill will due to disability. . . ." Garcia, 280 F.3d at 112. "To establish discriminatory animus, . . ., a plaintiff may rely on a burden-shifting technique similar to that adopted in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), or a motivating-factor analysis similar to that set out in Price Waterhouse v. Hopkins, 490 U.S. 228, 252-258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)." Id.

Plaintiff contends that "Defendant's [sic] actions were motivated by irrational discriminatory animus and ill will based on his disability." See Plaintiff's Memorandum of Law at 8 (citing Complaint at ¶¶ 56-59, 61-62, 66, 70, 75, 78, 80 & 82). In support of this claim, Plaintiff alleges that Defendants intentionally denied him reasonable accommodation, an opportunity to attend the police academy, fabricated and exaggerated his evaluations in an effort to create grounds for his termination, and continue to take adverse action against him by providing false and misleading reports regarding his performance and conduct to prospective employers. See Complaint at ¶¶ 56, 59.

Defendants, on the other hand, argue that "the[ir] decision to terminate plaintiff was based upon [his] poor judgment in connection with misconduct involving parking incidents, and was not in any way based on problems which may have resulted from his alleged dyslexia." See Defendants' Reply Memorandum of Law at 9-10 (citing Barnhart Aff., ¶ 47; Haight Trn., pp. 13, 31, 42). To support this argument, Defendants point to the fact that

[a]s plaintiff acknowledged in his deposition, after he disclosed his dyslexia to Investigator Boden, his job duties as a University Police Officer ("UPO") remained the same. He was sent back to his job, where he was still expected to fulfill all of the obligations of a UPO, including writing in the log book and issuing tickets. (Smith Trn., pp. 48-55). In fact, after his meeting with Chief Barnhart in October of 1999, plaintiff explained that he actually received additional training and responsibilities with the NYSPIN computer system. (Smith Trn., pp. 50-51).
See id. at 10.

Although Defendants have denied any wrongdoing, based upon Plaintiff's allegations, and drawing all reasonable inferences therefrom, the Court concludes that Plaintiff has created an issue of fact as to whether Defendants' actions were motivated by either discriminatory animus or ill will based upon Plaintiff's disability. Accordingly, the Court finds that, at least at this stage of the litigation, Plaintiff has come forward with sufficient evidence to avoid the Eleventh Amendment's bar to his Title II claims.

3. Rehabilitation Act

Section 504 of the Rehabilitation Act, unlike Title II of the ADA, was enacted pursuant to Congress' authority under the Spending Clause of Article I. As the Second Circuit noted in Garcia, "[w]hen providing funds from the federal purse, Congress may require as a condition of accepting those funds that a state agree to waive its sovereign immunity from suit in federal court." Garcia, 280 F.3d at 113 (citations omitted). In Garcia, the plaintiff argued that § 2000d-7 of Title 42 operates as such a condition. That section provides, in pertinent part, that "[a] State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal Court for a violation of Section 504 of the Rehabilitation Act of 1973." 42 U.S.C. § 2000d-7.

The Second Circuit agreed that § 2000d-7 "constitute[d] a clear expression of Congress's intent to condition acceptance of federal funds on a state's waiver of its Eleventh Amendment immunity. . . ." Garcia, 280 F.3d at 113. However, the court held that "that conclusion alone is not sufficient for us to find that New York actually waived its sovereign immunity in accepting federal funds for SUNY." Id. at 113-14 (citation omitted). The court explained that it was unable to conclude that New York had waived its immunity against suit under § 504 when it accepted funds for SUNY because at the time it had accepted those funds,

Title II of the ADA was reasonably understood to abrogate New York's sovereign immunity under Congress's Commerce Clause authority. Indeed, the ADA expressly provided that "[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation. . . ." 42 U.S.C. § 12202. Since, as we have noted, the proscriptions of Title II and § 504 are virtually identical, a state accepting conditional federal funds could not have understood that in doing so it was actually abandoning its sovereign immunity from private damages suits, . . ., since by all reasonable appearances state sovereign immunity had already been lost. . . .
Id. at 114 (internal citation, other citation, and footnote omitted).

Plaintiff asserts that this case is distinguishable from Garcia because, at the time that the actions underlying this suit occurred, May 1999 through January 2000, Defendants were, or should have been, aware that, by accepting federal funds, the State expressly waived its sovereign immunity to claims under the Rehabilitation Act. To support this argument, Plaintiff relies upon the Supreme Court's decision in Seminole Tribe of Fla. v. Fla., 517 U.S. 44 (1996), which, according to Plaintiff, established this principle.

To the contrary, Defendants argue that "it was not until 2001[,] when the Supreme Court, in Bd. of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), ruled that despite the express abrogation of Eleventh Amendment immunity under the ADA, states were immune from suit under the Eleventh Amendment because abrogation was not a valid exercise of Congress's power under section 5 of the Fourteenth Amendment[,] that there was a `known right or privilege' that could be waived." See Defendants' Reply Memorandum of Law at 3.

Very recently, Judge Kahn reached the same conclusion as Defendants in Kilcullen v. N.Y. State Dep't of Labor, No. 97-CV-484, 2003 WL 1220875, *3 (N.D.N.Y. Mar. 13, 2003). In that case, Judge Kahn held that New York was immune from suit for alleged discriminatory acts that occurred from March 1995 to April 1997 because "New York could not have been on notice that the Rehabilitation Act exceeded Congress's authority under § 5 of the Fourteenth Amendment until the Supreme Court announced its decision in Garrett." (footnote omitted)). This Court agrees and, therefore, concludes that Defendants are immune from Plaintiff's claims for monetary damages under the Rehabilitation Act because, during the period May 1999 through January 2000, Defendants could not have knowingly waived New York's sovereign immunity from suit for claims under the Rehabilitation Act. Accordingly, the Court denies Defendants' motion for summary judgment with respect to Plaintiff's Rehabilitation Act claims, to the extent that those claims seek reinstatement against the individual Defendants in their official capacities under the doctrine of Ex parte Young, and grants the motion with respect to Plaintiff's Rehabilitation Act claims in all other respects.

4. New York Human Rights Law

It is well-established that "`the Eleventh Amendment bars the adjudication of pendent state law claims against nonconsenting state defendants in federal court.'" Winokur, 190 F. Supp.2d at 450 (quoting Raygor v. Regents of the Univ. of Minn., ___ U.S. ___, 122 S.Ct. 999, 1004, ___ L.Ed.2d ___, (2002) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 120, 104 S.Ct. 900, 918, 79 L.Ed.2d 67 (1984))). Thus, in order for this Court to assert jurisdiction over Plaintiff's New York Human Rights Law against Defendants, "either an express waiver by the State or a congressional abrogation of the Eleventh Amendment must exist." Winokur, 190 F. Supp.2d at 451 (citation omitted). "Supplemental jurisdiction under 28 U.S.C. § 1367(a) does not constitute a congressional abrogation of the Eleventh Amendment granting district courts the power to adjudicate pendent state law claims." Id. (citing Raygor, 122 S.Ct. at 1004-05 (holding that Section 1367(a) does not contain a clear statement of a congressional intent to abrogate state sovereign immunity)). Moreover, the district courts in this Circuit have repeatedly held that the New York Human Rights Law "does not include a waiver of the State's sovereign immunity to suit in federal court." Id. (citations omitted). Therefore, the Court concludes that the Eleventh Amendment bars this Court from adjudicating Plaintiff's New York Human Rights Law claim against all Defendants, including the individual Defendants in their official capacities.*fn7

However, the Eleventh Amendment does not bar Plaintiff's New York Human Rights Law claims against Defendant Barnhart in his individual capacity. Accordingly, the Court grants Defendants' motion for summary judgment with respect to Plaintiffs' New York Human Rights Law claims, except to the extent that Plaintiff asserts these claims against Defendant Barnhart in his individual capacity.*fn8

C. Merits of discrimination claims under the ADA and the Rehabilitation Act*fn9
1. Whether Title II of the ADA encompasses claims of employment discrimination
As a preliminary matter, there is a question as to whether Title II of the ADA applies to employment discrimination claims. The Second Circuit has not yet addressed this issue.

However, the Supreme Court in Garrett, although not deciding this issue, certainly hinted that it was skeptical that Title II would cover such claims. The Court noted that, although the complaints in Garrett alleged violations of both Title I and Title II of the ADA,

no party had briefed the question whether Title II of the ADA, dealing with the "services, programs, or activities of a public entity," 42 U.S.C. § 12132, is available for claims of employment discrimination when Title I of the ADA expressly deals with that subject. See, e.g., Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" (internal quotation marks omitted)). The Courts of Appeals are divided on this issue, . . . We are not disposed to decide the constitutional issue whether Title II, which has somewhat different remedial provisions from Title I, is appropriate legislation under § 5 of the Fourteenth Amendment when the parties have not favored us with briefing on the statutory question.
Garrett, 531 U.S. at 360 n. 1 (internal citations omitted).

Despite this language, several district courts in this Circuit, which have addressed the issue of whether Title II of the ADA is applicable to employment discrimination claims, have answered this inquiry in the affirmative. See Winokur, 190 F. Supp.2d at 449 (citing cases). As the court in Winokur also noted, "other circuits have concluded that Title II permits an employment discrimination claim against a public entity." Id. (citations omitted). The court in Winokur also found that "Second Circuit precedent suggests that it would support the interpretation that an employee of a public entity may bring an employment discrimination claim under Title II . . . [and that] the legislative history of the ADA also reveals that Congress intended Title II to apply to employment discrimination by States and local agencies." Id. (internal citation and other citation omitted). Finally, the court in Winokur concluded that the Department of Justice's regulations also "suggest that a plaintiff may bring an employment discrimination suit against a state agency under Title II." Id. (citing 28 C.F.R. § 35.140(b)(1)). For all these reasons, the Winokur court held that Title II encompasses claims of employment discrimination.

This Court finds the reasoning of the Winokur court persuasive and adopts its conclusions. Accordingly, the Court holds that Plaintiff may assert claims of employment discrimination under Title II of the ADA.

2. Prima facie case of discrimination under the ADA and the Rehabilitation Act
"A plaintiff alleging employment discrimination under the ADA or [the Rehabilitation Act] bears the initial burden of establishing a prima facie case." Simms v. City of N.Y., 160 F. Supp.2d 398, 402 (E.D.N.Y. 2001) (footnote and citation omitted). Specifically, the plaintiff must establish that "(1) he is a disabled person under the ADA; (2) he is otherwise qualified to perform his job; and (3) he suffered adverse employment action because of his disability." Id. (citation omitted). Defendants argue that Plaintiff cannot establish a prima facie case of discrimination under the ADA or the Rehabilitation Act because he cannot demonstrate that he was disabled within the meaning of those statutes.

To meet the first prong of his prima facie case, the plaintiff must demonstrate either "(A) that he has a physical impairment . . . and that such impairment substantially limits . . . one or more of his major life activities; (B) that there is a record of such an impairment; or (C) that he is being regarded as having such an impairment." Id. at 403 (citing 42 U.S.C.A. § 12102(2) (emphasis added)) (internal footnotes omitted).

In the present case, Plaintiff asserts that Defendants regard him as disabled; i.e, that they regard him as being substantially limited in his ability to work. An individual may be considered disabled under the "regarded as having an impairment" definition if he

(A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by a recipient as constituting such a limitation; (B) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (C) has none of the impairments defined in paragraph (j)(2)(i) of this section but is treated by a recipient as having such an impairment.
Adams v. N.Y. State Thruway Auth., No. 97-CV-1909, 2001 WL 874785, *11 (N.D.N.Y. Mar. 22, 2001) (quoting 45 C.F.R. § 84.3(j)(2)(iv)) (other citation omitted).

However, "[m]ere knowledge by an employer of an employee's impairment, . . ., is not enough to prove the employer regarded the employee as disabled." Id. (citation omitted). "An employee must also show that the employer perceived such an impairment as substantially limiting the major life activity of working." Id. (citation omitted). "`When the major life activity under consideration is that of working, the statutory phrase "substantially limits" requires at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.'" Id. at *10 (quoting Sutton v. United Airlines, Inc., 527 U.S. 471, 491 (1999)). Moreover, "the Second Circuit has held that `a person found unsuitable for a particular position has not thereby demonstrated an impairment substantially limiting such person's major life activity of working.'" Id. (quoting Heilweil, 32 F.3d at 723 (citing Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989))) (other citations and footnote omitted).

Plaintiff claims that he has established that Defendants regarded him as disabled. To support this contention, he asserts that, after he identified himself as dyslexic and indicated that he had a learning disability to his supervisors, they expressed concerns over his ability to perform his duties because of his disability and whether he would be able to complete a police academy training program and suggested that he rethink his career choice and indicated that his condition might not be conducive to police work.

On the other hand, Defendants contend that they did not regard Plaintiff as being disabled. To support their position, they point to Plaintiff's own deposition testimony in which he stated that, after Defendants learned of his dyslexia, the only way that his job duties changed was that he had increased responsibilities. He also acknowledged that he was trained to use the New York State Police Information Network ("NYSPIN") and that Defendants sent him to a three-day training class to learn to use this computer system. See Defendants' Reply Memorandum of Law at 15 (citing Smith Trn. at 50-51) & n. 5.

Plaintiff's own deposition testimony, in which he acknowledges that Defendants provided him with training opportunities and gave him more responsibilities, even after they learned that he had dyslexia, belies Plaintiff's claim that Defendants regarded him as disabled. Moreover, even if Plaintiff were able to show that Defendants regarded him as unable to perform his job as a Campus Police Officer because of his disability, he has presented no evidence that Defendants regarded him as unable to work in a wide-range of jobs. Therefore, the Court concludes that Plaintiff has failed to establish the first element of his prima facie case, i.e., that he is disabled within the meaning of either the ADA or the Rehabilitation Act.*fn10 Accordingly, the Court grants Defendants' motion for summary judgment with respect to Plaintiff's ADA and Rehabilitation Act claims of discrimination.

D. Merits of retaliation claims under the ADA and the Rehabilitation Act
To state a prima facie case of retaliation under either the ADA or the Rehabilitation Act, a plaintiff must demonstrate that "(1) he engaged in an activity protected by the [Act]; (2) the employer was aware of this activity; (3) the employer took adverse employment action against him; and (4) a causal connection exists between the alleged adverse action and the protected activity." Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted).

In response to Defendants' motion for summary judgment, Plaintiff has come forward with no affirmative evidence to support his retaliation claims. In fact, Plaintiff does not respond to that part of Defendants' motion which seeks dismissal of his retaliation claims. The only mention of retaliation appears in the last sentence of the next to the last paragraph of Plaintiff's Memorandum of Law in which he states that "[i]t could all be inferred that such conduct [i.e., the conduct that underlies his claim of discrimination] was in retaliation for Plaintiff's claim that he suffered from a disability and his representatives' claims, on his behalf, that he was being discriminated against." See Plaintiff's Memorandum of Law at 19. Such a bald assertion, without any supporting evidence, is insufficient to withstand a motion for summary judgment.*fn11

Accordingly, the Court grants Defendants' motion for summary judgment with respect to Plaintiff's retaliation claims under the ADA and the Rehabilitation Act.

E. New York Human Rights Law claims against Defendant Barnhart in his individual capacity
The only claims that remain are Plaintiff's state law claims under the New York Human Rights Law against Defendant Barnhart in his individual capacity. Since the Court has dismissed all of Plaintiff's federal claims, it declines to exercise supplemental jurisdiction over these remaining claims. Accordingly, the Court dismisses Plaintiff's New York Human Rights Law claims against Defendant Barnhart in his individual capacity without prejudice pursuant to 28 U.S.C. § 1367.

IV. CONCLUSION

After carefully considering the file in this matter, the parties' submissions and oral arguments, and the applicable law, and for the reasons stated herein, the Court hereby

ORDERS that Defendants' motion for summary judgment is GRANTED with respect to Plaintiff's claims under the Americans with Disabilities Act and the Rehabilitation Act; and the Court further

ORDERS that Defendant's motion for summary judgment is GRANTED with respect to Plaintiff's claims under the New York Human Rights Law against all Defendants, except for Defendant Barnhart in his individual capacity, on the ground that the Eleventh Amendment bars such claims; and the Court further

ORDERS that Plaintiff's claims under the New York Human Rights Law against Defendant Barnhart in his individual capacity are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367; and the Court further

ORDERS that the Clerk of the Court is to enter judgment in Defendants' favor and to close this case.

IT IS SO ORDERED.


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