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Larry Fogle v. Monroe County

October 7, 2011

LARRY FOGLE, PLAINTIFF,
v.
MONROE COUNTY, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This is an action alleging employment discrimination in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Now before the Court is Defendant's motion for judgment on the pleadings (Docket No. [#15]). For the reasons discussed below, the application is denied, and Plaintiff's request to file an amended pleading is granted in part and denied in part.

BACKGROUND

Unless otherwise noted, the following facts are taken from Plaintiffs' Complaint ("the Complaint") in this action, and are presumed to be true for purposes of this Decision and Order. Plaintiff was previously employed by Defendant as a "per diem child care worker."

Plaintiff worked at that job during the daytime. Plaintiff also had a second job, which involved working at night. In May 2007, Plaintiff injured his back, which prevented him from working for Defendant. Plaintiff subsequently received paid sick leave from Defendant, until August 2007. Plaintiff contends that although he was unable to work at his job with Defendant, he was still able to work his second job, because it did not require any physical exertion. In or about August 2007, Plaintiff returned to work for Defendant, and he maintains that he asked for a light-duty assignment, and was told that none were available. Defendant maintains that Plaintiff never asked about a light-duty assignment. Defendant subsequently terminated Plaintiff's employment, because it determined that he had fraudulently obtained paid sick leave by representing that he was unable to work at all, while still working at his second job.

On March 6, 2008, Plaintiff signed a discrimination complaint addressed to the New York State Division of Human Rights. Plaintiff's signature was notarized by this then-attorney, William E. Burkhart, Jr. The complaint purports to state claims under two federal statutes: The ADA and the Age Discrimination in Employment Act ("ADEA"). The complaint indicates that Plaintiff is alleging discrimination on the basis of "age" and "disability/perceived disability/past disability." The complaint does not allege any other type of discrimination. In the complaint, Plaintiff states that he sprained his back, which left him unable to perform his job for the Defendant, but able to perform a second job. The complaint also states that Defendant terminated his employment because he allegedly falsely stated that he was unable to work. The complaint further states that Defendant did not follow its progressive discipline policy. Finally, the complaint states that a younger employee, who also worked two jobs, took time off from his county job to work at the second job, and was not disciplined. On May 12, 2009, a hearing on Plaintiff's complaint was held at the New York State Division of Human Rights before Administrative Law Judge Michael Groben. The Court has reviewed the 268-page transcript of that hearing, and it contains no reference to racial discrimination. On June 30, 2009, ALJ Groben issue his "Recommended Findings of Fact, Opinion and Decision, and Order," finding that Plaintiff had failed to prove his claims, and recommending that the case be dismissed. ALJ's Groben's Order observed, in pertinent part, that Plaintiff was complaining of age discrimination and disability discrimination. On September 16, 2009, Galen D. Kirkland, Commissioner of the New York State Division of Human Rights, issued a "Notice and Final Order," adopting Groben's recommended disposition. Plaintiff did not seek judicial review of the administrative ruling.

On March 26, 2010, Plaintiff, proceeding pro se, commenced this action. The form complaint that Plaintiff used gave him the option of suing under Title VII, the Age Discrimination in Employment Act, and/or the ADA. In that regard, the form indicated that Title VII pertained to discrimination because of "race, color, gender, religion, national origin." However, Plaintiff chose only to assert a claim under the ADA. The form complaint also asked Plaintiff to indicate whether he was alleging discrimination on the bases of "race" or "color," but Plaintiff did not check either box, and instead, checked only the box for "disability" discrimination. Later in the Complaint, Plaintiff reiterates that he was discriminated against because of a "disability," and that Defendant failed to provide him with a reasonable accommodation for his disability. Consequently, Plaintiff's Complaint [#1] asserts a single claim, which is for discrimination under the ADA.

On January 14, 2011, Defendant filed the subject motion for judgment on the pleadings. Defendant maintains that the Complaint fails to state any claim, since it essentially consists of a single naked assertion, that "County has light duty, but my Director refuse[d] to give me any." Fuller Aff. [#15-1] at ¶ ¶ 6-7. In the alternative, Defendant contends that "[P]laintiff's Complaint has been fully litigated at a Public Hearing, there are no material issues of fact that remain to be resolved, and the [D]efendant is entitled to judgment as a matter of law." Fuller Aff. [#15-1] at ¶ 8. Defendant further indicates that it is entitled to attorney's fees, under 42 U.S.C. § 1988, since the Complaint is frivolous.

On March 18, 2011, Plaintiff, who has now retained counsel, responded to Defendant's motion by requesting leave to amend the complaint. The Proposed Amended Complaint again purports to state a claim under the ADA, and sets forth that claim in much greater detail than in the original Complaint. In addition, it asserts a claim for race discrimination under Title VII, and alleges that white employees received paid sick leave while working at other jobs, but were not disciplined.

On April 7, 2011, Defendant filed a reply brief, in which it contends that the Court lacks subject-matter jurisdiction over both of Plaintiff's proposed claims:

The District Court lacks jurisdiction of plaintiff's racial discrimination claim as plaintiff did not exhaust the administrative remedies concerning that claim. The District Court lacks subject matter jurisdiction of plaintiff's age and disability claims, because they were fully litigated by the New York State Division of Human Rights and were dismissed on the merits.

Fuller Aff. [#22] at ¶ ¶ 3.1-3.2. *fn1

On October 6, 2011, counsel for the parties appeared before the ...


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