The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Larry D. Cusack ("Cusack"), proceeding pro se, brings this action alleging that defendants Delphi Corporation ("Delphi") and its Personnel Director, Edward R. Peet ("Peet"), discriminated against him with respect to his employment in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12101 et seq.
On or about April 25, 2008, Cusack filed a discrimination complaint against defendants with the New York State Division of Human Rights ("NYSDHR") alleging that Delphi had placed him on sick leave and refused to permit him to return do work, due to his disability of "stress, depression." (Dkt. #6-3).
After investigating Cusack's claims, on October 22, 2008, the NYSDHR issued a "no cause" finding and dismissed Cusack's complaint, determining that Delphi had not discriminated against Cusack. An independent medical examiner ("IME") had recommended to Delphi that Cusack be permitted to return to work only after he provided proof that he was being treated by a therapist with full access to his psychiatric history. Id. The NYSDHR concluded that Delphi's adoption of the IME's recommendation was reasonable, and not the result of unlawful discrimination. Id. The NYSDHR's findings were adopted by the Equal Employment Opportunity Commission, and Cusack was issued a "Right to Sue" letter, on January 30, 2009. Cusack appealed the NYSDHR's findings to the State of New York Supreme Court, County of Monroe, which denied and dismissed his petition by Order dated April 17, 2009. (Dkt. #6-5).
On March 20, 2009, Cusack initiated the instant action, purporting to assert claims under the ADA against Delphi and Peet, in his individual capacity.
Defendants now move to dismiss the Complaint pursuant to Fed. R. Civ. Proc. 8(a) and 12(b)(6), on the grounds that Cusack's complaint fails to state a cause of action, includes claims outside the scope of Cusack's underlying administrative charge, and/or asserts claims that are untimely. (Dkt. #6). For the reasons set forth below, defendants' motion to dismiss is granted, and the complaint is dismissed.
In deciding a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6), the court's review is limited to the Complaint, and those documents attached to the Complaint or incorporated therein by reference. See Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996). The Court must "accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994), citing Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987). Nonetheless, "a plaintiff's obligation . . . requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, "bald assertions and conclusions of law will not suffice," Reddington v. Staten Island Univ. Hosp., 511 F.3d 126, 126 (2d Cir. 2007), and where a plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Twombly, 550 U.S. 544 at 570.
I. Cusack's Claims Against Peet in his Individual Capacity
It is well settled that individuals are not "employers" for purposes of the ADA, and thus are not subject to liability in their personal capacities under the ADA. See Corr v. MTA Long Island Bus, 1999 U.S. App. LEXIS 25058 at *4 (2d Cir. 1999), citing Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995). Cusack's claims against Peet in his individual capacity are therefore dismissed.
Title I of the ADA prohibits employers from discriminating again any "qualified individual with a disability because of the disability of such individual in regard to" any aspect of employment. 42 U.S.C. §12112(a). A plaintiff asserting a violation of the ADA must show that:
(1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability. See Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001). For purposes of the ADA, a disabled individual is one who: "(I) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 42 U.S.C. §12102(2). An impairment cannot be demonstrated merely through evidence of a medical diagnoses; rather, the ADA "requires those claiming the Act's protection . . . to prove a disability by ...