The opinion of the court was delivered by: Glasser, United States District Judge:
Plaintiff Michael O'Dette ("plaintiff" or "O'Dette") brings this action against New York State Unified Court System ("defendant" or "USC"), alleging violations of Titles I and II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111, et seq. and §§ 12131, et seq. Before the Court is defendant's motion to dismiss plaintiff's claims for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). For the following reasons, defendant's motion is granted, but plaintiff may file an amended complaint asserting a Title I claim against an individual defendant in his official capacity.
The following facts are taken from plaintiff's Complaint, which is presumed true for purposes of the pending motion, as well as from documents that are incorporated by reference in the Complaint and documents of which the Court may take judicial notice.
Plaintiff is a fifty-four-year-old man who suffers from Tourette's syndrome and obsessive compulsive disorder. Complaint dated May 29, 2012 ("Compl.") ¶¶ 12, 21 (Dkt. No. 1). Tourette's syndrome requires plaintiff to relieve himself of motor and vocal tics once or twice a day by making loud and embarrassing noises and by using profanity. Id. ¶ 18. Plaintiff needs a private place at work where he can release these tics which are exacerbated by stress. Id. ¶¶ 16, 18. Obsessive compulsive disorder causes plaintiff to feel that "things must be done in a certain manner over and over again"; variations cause plaintiff distress and anger. Id. ¶ 19. A psychiatrist diagnosed plaintiff with these disorders in 2006 although plaintiff believes he has suffered from Tourette's syndrome since the age of seven. Id. ¶ 20.
After twenty years of employment in several jobs, in 2000, plaintiff trained as a New York State court officer and subsequently worked for defendant at the Family Court. Id. ¶¶ 22--24, 26. From 2001 until 2009, plaintiff worked for defendant as a senior court officer. Id. ¶¶ 27--28. Except for several temporary assignments, plaintiff was assigned primarily to the courthouse located at 60 Centre Street, which has private areas for him to release his tics when necessary. Id. ¶¶ 28, 67. Until 2009, plaintiff was never subjected to disciplinary charges and received only favorable evaluation reports. Id. ¶ 31. Beginning in 2009, there were several incidents that eventually resulted in his termination.
On April 2, 2009, when Major Gerard Fennell told plaintiff that he was being transferred to the courthouse located at 71 Thomas Street, plaintiff refused to accept the assignment. Id. ¶ 35. The next day, plaintiff told Chief Clerk John Werner and Captain Michael Castellano that he has Tourette's syndrome and that the 71 Thomas Street courthouse, which is much smaller than the 60 Centre Street courthouse, did not have a private space for him to release his tics. Fennell later told plaintiff that he could remain at the 60 Centre Street courthouse. Id. ¶¶ 36, 68.
On July 8, 2009, plaintiff was working at one of the magnetometers or x-ray machines at the entrance of the 60 Centre Street courthouse with two other court officers to screen visitors for contraband. Id. ¶ 37. Plaintiff finds this assignment the most difficult of a senior court officer's duties. Id. ¶ 59. When it was time for the three officers to rotate their positions at the magnetometer, one officer refused. Plaintiff insisted that they switch and the officer called him a "retard." Plaintiff became stressed and had an "episode," which caused him to yell and curse at the officer. Id. ¶ 38. Subsequently, in September 2009, plaintiff submitted a letter from his psychiatrist to defendant which stated that plaintiff suffers from Tourette's syndrome, explained the disorder, and asked defendant to assign plaintiff to "low stress areas at work." Id. ¶ 62.
On November 5, 2009, plaintiff returned early from his lunch break to the magnetometer at the 60 Centre Street courthouse. One of the on-duty officers, who was positioned as a "pusher" at the magnetometer,*fn1 demanded that plaintiff replace her so that she could leave for lunch. Because his lunch break was not yet over and because he finds the pusher to be the most stressful of the magnetometer positions, plaintiff refused to replace the officer and chose to wait until an officer needed to be relieved at a different position. Id. ¶¶ 39, 59. When Lieutenant Gerard Schustal phoned the post for unrelated reasons, the officer positioned as pusher complained about plaintiff's conduct. Schustal requested to speak with plaintiff but would not listen when plaintiff tried to explain his conduct. Frustrated and fearing an episode, plaintiff hung up the phone.
When Schustal called back, plaintiff became stressed and had an "episode," which caused him to yell and curse at Schustal. Id. ¶ 40.
Plaintiff was subsequently suspended with pay from November 5, 2009 until December 2, 2009. Id. ¶ 41. When plaintiff returned to work on December 2, Fennell told him to report to the 71 Thomas Street courthouse. Id. ¶ 43. Plaintiff requested that a private room be made available to him at that courthouse and was told that he needed to make that request when he arrived there. When plaintiff refused to report there, Captain Castellano demanded his shield and ID card and told him to go home. Id. ¶¶ 44--45.
On December 10, 2009, plaintiff submitted another letter from his psychiatrist to defendant, which again asked defendant to assign plaintiff to low stress work and added that plaintiff requires a private room to release his tics. Id. ¶ 63. On December 14, 2009, plaintiff submitted forms that his psychiatrist had completed at defendant's request. Id. ¶¶ 48--50. That same day, Fennell notified plaintiff in writing that he could not return to work. Id. ¶ 46.
On September 14, 2010, defendant filed disciplinary charges against plaintiff based on the incidents of July 8, 2009; November 5, 2009; and December 2, 2009. Id. ¶ 56. After a disciplinary hearing on March 6, 2012, the Deputy Chief Administrative Judge terminated plaintiff's employment, finding that he yelled and cursed at a co-worker, yelled and cursed at a superior, and refused a superior's order. Id. ¶ 57; Declaration of Shawn Kerby ("Kerby Decl."), Ex. A (Dkt. No. 7).
Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on February 1, 2010, and was issued a right to sue letter on February 29, 2012. Compl. ¶¶ 7--8. Plaintiff filed this action on May 29, 2012, alleging violations of Titles I and II of the ADA in that defendant (1) refused to accommodate him by permitting him to remain at the 60 Centre Street courthouse; (2) refused to accommodate him by giving him assignments that were less stressful than working at the magnetometer "[a]t least once or twice a week"; (3) brought him up on "petty infractions" because of his disabilities; and (4) terminated him because of his disabilities. Id. ...