United States District Court, S.D. New York
July 15, 2004.
AHMED SHEHAB, Plaintiff,
NEW YORK STATE DEPARTMENT OF TRANSPORTATION, Defendant.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Plaintiff, an individual of Egyptian extraction, brought this
action under Title VII of the Civil Rights Act of 1964 and the
Americans With Disabilities Act of 1990 against the New York
State Department of Transportation ("NYSDOT"), claiming that
NYSDOT violated his rights by advising Chas. H. Sells, Inc.
("Sells"), that plaintiff did not qualify as a minority under
federal regulations, following which Sells either terminated
plaintiff's employment or withdrew an employment offer.
In a report and recommendation dated June 16, 2004, Magistrate
Judge Francis recommended that defendant's motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) be granted with
leave to replead the Title VII claim alone. He concluded that the
complaint failed to state a claim upon which relief might be
granted on the Title VII claim because NYSDOT's alleged
involvement in the adverse employment action complained of was
insufficient. He reached a similar conclusion as to the ADA claim
because plaintiff's claimed disability, "economical
disadvantage," is not a physical or mental impairment within the
meaning of the statute. Plaintiff has objected to the report and
The report and recommendation is clearly correct, and
plaintiff's objections are overruled. The motion to dismiss the
complaint is granted, albeit without prejudice to plaintiff
filing, on or before July 27, 2004, an amended complaint
repleading only the Title VII claim. This ruling is intended to
afford plaintiff one more change to allege facts which, if
established, would demonstrate sufficient interference by NYSDOT
in Sells' employment actions to warrant holding NYSDOT
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