The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.,
On October 25, 2010, Plaintiff Juan Rullan ("Mr. Rullan"), appearing pro se, filed a complaint ("Compl.") in this district against the New York City Department of Sanitation ("DOS") and the New York State Division of Human Rights ("NYSDHR"), alleging discrimination based on his disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq.
On February 8, 2011, Defendant, DOS moved to dismiss the complaint on the grounds that: 1) the complaint is barred by res judicata and collateral estoppel; 2) Plaintiff failed to state a claim under the ADA and Title VII for discrimination or retaliation pursuant to FED. R. CIV. P. 12(b)(6); and 3) Plaintiff failed to exhaust his administrative remedies under Title VII and the ADA. On February 8, 2011, Defendant NYSDHR also moved to dismiss the complaint asserting that: 1) the complaint fails to state a proper claim since NYSDHR was not the plaintiff's employer; and 2) the NYSDHR is immune from suit on ADA claims under the Eleventh Amendment of the U.S. Constitution. Plaintiff submitted his Affirmation in Opposition to the Motion to Dismiss on February 18, 2011. On February 25, 2011, Defendant DOS submitted its reply memorandum. By letter dated February 28, 2011, Defendant NYSDHR stated that it was in receipt of Plaintiff's Affirmation and that it rested on its prior submissions regarding the motion to dismiss.
For the following reasons, Defendants' motion to dismiss is granted.
Mr. Rullan was appointed to the position of sanitation worker by DOS on December 11, 1989. (See Hale Decl., Ex. F at 2.) Prior to his hiring, Mr. Rullan informed the DOS medical clinic that he had previous instances of emotional problems including, psychiatric and mental issues, and that he had been admitted twice to psychiatric care facilities. (See id.) Also, at least twice during his time at DOS, Mr. Rullan "was referred to psychiatric consultations and evaluations." (Id.)
On June 26, 2009, Mr. Rullan filed a verified complaint of discrimination and retaliation with the NYSDHR and the Equal Employment Opportunity Commission ("EEOC"), alleging violations of Article 15 of the Executive Law of the State of New York ("N.Y. Human Rights Law") and discrimination by the DOS based on "mental disability related to his post-traumatic stress, anxiety, depression, asthma and high blood pressure." (See id.) Mr. Rullan also alleged that he was retaliated against in the form of being sent for random drug testing two times within four months. (See id. at 2-3; See Hale Decl., Ex. A at 3.) Mr. Rullan claimed that his employer "[had] been writing [him] up saying [he] threatened and cursed them, which is a lie, [and that they] were trying to mess up [his] record." (See Hale Decl., Ex A at 4.) He also alleged that he was being unfairly targeted for being outspoken and supporting the union and safety. There is no respect for seniority. I would always question things I didn't think were right . . . . Supervisor E. Mack [and] Supervisor P. Irby knowingly gave false testimony. They [are] trying to make a paper trail. Nothing has been proven. It's just allegations. There is a lot of injustice going on in 59th MTS.
(See id. at 6.) Mr. Rullan also wrote that DOS "took [his] night differential" (overtime payment for certain shifts) and made him wait for five weeks to get overtime payment. (See id. at 4.)
In response to the complaint, the DOS Equal Employment Opportunity Division conducted an investigation of Mr. Rullan's allegations. The investigation included interviews of Mr. Rullan's supervisors, reviews of his DOS records, reviews of an investigation of Mr. Rullan's behavior toward his co-workers conducted by the DOS Field Investigation Audit Team, and an inquiry into why he was not paid his night differential. (See Hale Decl., Ex. F at 3.)
On March 4, 2010, after investigation, the NYSDHR issued an opinion determining that there was "no probable cause to believe that the respondent had engaged in or is engaging in the unlawful discriminatory practice complained of" and dismissed Mr. Rullan's complaint. (Hale Decl., Ex. B.) The NYSDHR found that "[t]he record shows that Complainant has not been inordinately scrutinized or disciplined during the course of his 19 years of employment with Respondent. Information adduced during investigation clearly indicated that Complainant has a record of exhibiting inappropriate and threatening behavior in the workplace." (Id.) The NYSDHR further found that their investigation "failed to uncover sufficient evidence to establish a causal nexus between Complainant's treatment by Respondent and his being disabled or in retaliation for having filed prior complaints." (See id.)
Sixty days later, on May 4, 2010, Mr. Rullan sought to reverse the decision of the NYSDHR by commencing a special proceeding in New York State Supreme Court, New York County, pursuant to Article 78 of the CPLR,*fn2 and added the NYSDHR as a respondent. He further alleged in the petition that he "didn't have a disability when [he] came [to] the job," that his brother died on May 15, 1973, and that his father died on January 15, 1980. (See id.; Hale Decl., Ex. C. at 3.) In support of his petition, Mr. Rullan included a memorandum from his DOS medical file labeled "World Trade Center Attack -- Employee Exposure," indicating "that during his employment with [DOS, Mr.] Rullan worked in the areas of the World Trade Center on or after September 11, 2001, and as a result may have been exposed to asbestos." (Hale Decl., Ex. F. at 4.) In addition, Mr. Rullan submitted medical notes from the Bronx Mental Health Services demonstrating that "he met with a mental health professional, complaining of 'depression, decreased sleep, memories of 9/11/01 and the death of a colleague in 3/05.'" (Id. at 4-5.) The notes also indicated that Mr. Rullan was then diagnosed with "post traumatic stress disorder, and 'depressive disorder.'" (Id. at 5.)
On July 13, 2010, the NYSDHR submitted an answer to Mr. Rullan's petition admitting that they issued a no probable cause finding to Mr. Rullan's complaint. (Hale Decl., Ex. D ¶ 1.) The answer also stated that because Mr. Rullan and DOS "are the real parties in interest [NYSDHR] will not actively participate in [the Article 78 petition]." (Id. ¶ 4.) On July 23, 2010, DOS cross moved to dismiss the Article 78 Petition, "arguing that the [NYSDHR's] determination was not arbitrary and capricious, and that the determination [was] supported by facts in the record, and was rationally based on a thorough investigation." (Hale Decl., Exs. E at 1, F at 5.)
On July 29, 2010, the EEOC adopted the NYSDHR's no probable cause finding and issued a right to sue letter. (See Compl. at 5.) On October 25, 2010, Mr. Rullan filed the instant action in federal court naming both DOS and NYSDHR as Defendants. (See id. at 1-4.) Plaintiff alleges he suffers from "post traumatic stress depression, asthma, high blood pressure." (Id.) Plaintiff annexed to his complaint "a right-to-sue letter, a 'Patient Access Request for Medical Information to Self' form, letters regarding the 'World Trade Center Litigation Settlement,' and the [NYSDHR] Answer ...