The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Joseph Verdi ("Plaintiff" or "Verdi") brought the present suitagainst his employer, defendant John E. Potter, Postmaster General ("Defendant") alleging employment discrimination on the basis of Plaintiff's disability in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (the "Rehabilitation Act"), the Americans with Disabilities Act, 42 U.S.C. § 12117 et seq. (the "ADA"), and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5 et seq. ("Title VII") and retaliation for filing a compensation claim in violation of the Federal Employees Compensation Act, 5 U.S.C. § 8101 et seq. ("FECA") and the Rehabilitation Act. Presently before the Court is Defendant's motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) for failure to timely exhaust administrative remedies*fn1 and pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim.
For the reasons that follow, Defendant's motion to dismiss is granted pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim.
The following facts are taken from the Complaint and are presumed true for purposes of this motion.
Plaintiff, a mail processing clerk for the United States Postal Service ("Postal Service"), was injured*fn2 at work at the Postal Service Office in Jericho, New York on December 12, 2005. (Compl. ¶¶ 8, 36; Ex. 1.) His duties as a clerk required him to stand, sit, lift heavy packages, and perform certain manual tasks. (Id. ¶ 36.) Following Plaintiff's injury, he was unable to perform any of these duties. (Id.) Plaintiff's personal physician, Dr. John J. Mark, examined him and found that based upon his injuries he was unfit to perform any work. (Id. ¶12.) Plaintiff submitted a compensation claim for his injuries to the Office of Workers Compensation Programs. (Id. ¶ 13.) According to Plaintiff, his supervisor, Postmaster Tina Laudiero, delayed the processing of his claim for worker's compensation benefits. (Id. ¶¶ 9-11.)
During his recuperation period, the Postal Inspection Service conducted a video surveillance of Plaintiff. (Id. at ¶ 16.) Plaintiff was videotaped at his home, at his doctor's office and at other locations. (Id.) On February 15, 2006, the Postal Inspection Service interviewed Plaintiff's treating physician and showed him the video surveillance of Plaintiff performing physical activities during his recuperation period that were inconsistent with the medical restrictions that Dr. Mark had reported to the Postal Service. (Id. ¶¶ 16-17.) Although Dr. Mark immediately authorized Plaintiff to return to work, Plaintiff's supervisor refused to permit him to return to the Jericho Postal Service Office. (Id. ¶ 17.)
By letter dated February 17, 2006, Postmaster Laudiero notified Plaintiff that he was being placed in an off duty status, without pay, due to "an ongoing investigation by the Postal Inspection Service." (Id. ¶ 19; Ex. 8.) Postmaster Laudiero outlined the investigation in a Memorandum dated February 27, 2006 and stated that it had been initiated "[a]s part of a review of injury compensation cases by the United States Postal Inspection Service." (Id. ¶ 20, Ex. 9.) Inspector Deborah Aronovici and another postal inspector went to Plaintiff's residence to ask him questions on March 7, 2006, but Plaintiff declined to be interviewed by them without a union representative present. (Id. ¶ 21.)
On March 13, 2006, the Office of Workers Compensation Programs accepted Plaintiff's compensation claim for "closed fracture of acetabulum." (Id. ¶ 13, Ex. 4.)
On March 24, 2006, Plaintiff was issued a notice of removal from the Postal Service, effective May 5, 2006, for "Misrepresentation of Your Physical Limitations/ Restrictions." (Id. ¶ 22, Ex. 10.) Plaintiff contacted the United Postal Workers Union, AFLCIO (the "Union") and filed a grievance under the terms of the Collective Bargaining Agreement between the Union and the Postal Service contesting his notice of removal. (Id. ¶ 29, Ex. 14.) By letter dated May 9, 2006, the Postal Service's Labor Relations Specialist informed the Union that Plaintiff's grievance had been denied. (Id.)
On June 2, 2006, Plaintiff filed a formal EEO complaint of age discrimination, and thereafter amended his administrative complaint to include a claim of discrimination based on disability. (Id. ¶ 30.) After an investigation by the EEO, a final agency decision was issued on April 1, 2008 which closed the case with a finding of no discrimination. (Id. ¶ 31, Ex. 1.) Plaintiff received the final agency decision and right to sue letter from the EEO on April 4, 2008. (Id.)
Plaintiff timely commenced the instant action on July 3, 2008. The Complaint asserts three causes of action: (1) retaliation for filing a compensation claim in violation of the FECA; (2) retaliation for the filing of a compensation claim in violation of the Rehabilitation Act; and (3) unlawful employment discrimination on the basis of a disability in violation of the ADA and the Rehabilitation Act. (Compl. ¶¶ 33-45.) In addition, the Complaint asserts that jurisdiction with this Court is pursuant to Title VII. (Id. ¶ 3.)
Plaintiff withdraws all claims arising under the FECA, ADA, Title VII and all claims of retaliation. (Pl.'s Mem. of Law in Opp. at 2.) Accordingly, these claims are hereby dismissed.
Plaintiff's remaining cause of action, employment discrimination on the basis of a disability in violation of the Rehabilitation Act, alleges principally that (i) because he was unable to perform his duties from December 12, 2005 until February 19, 2006, he qualified as a disabled person entitled to protection under the Rehabilitation Act; (ii) he was subjected to disability discrimination when Defendant delayed the processing of his claim for worker's compensation benefits and when Defendant conducted a video surveillance in response to Plaintiff's filing a compensation claim; and (iii) Defendant failed to provide a reasonable accommodation for his disability. (Id. at 3-5.)
Defendant now moves by the instant motion to dismiss the Complaint pursuant to Rule 12(b)(6) for failure to state a ...