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McManamon v. Shinseki

United States District Court, Second Circuit

July 9, 2013

ERIC K. SHINSEKI, Secretary of Veterans Affairs, Defendant.


PAUL A. ENGELMAYER, District Judge.

Plaintiff Thomas McManamon ("McManamon") sues defendant Eric K. Shinseki, Secretary of Veterans Affairs ("defendant"), alleging that the Department of Veterans Affairs unlawfully discriminated against him on the basis of his age and perceived disability in failing to hire him, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq.; the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12112 et seq.; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq.; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290 et seq.; and the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code §§ 8-101 et seq.

Defendant moves to dismiss under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. For the reasons set forth below, the motion is granted.

I. Background

A. Facts[1]

McManamon, age 51, is an honorably-discharged veteran of the United States Air Force. Am. Compl. 6, 8. In December 2002, he voluntarily entered "alcohol detox" for a period of two weeks. Id. at 6-7.

Since then, McManamon has been unsuccessful in obtaining certain jobs at the Department of Veterans Affairs ("VA"), despite his "high level of competency in technology." Id. at 7. In June 2006, McManamon contacted the Brooklyn VA hospital to notify them that he was having difficulty finding employment and to ask for help.[2] Id. at 7. McManamon then accepted a "laborer job" from the VA-"[t]he only thing that was available"-but resigned approximately three months later because that position "clearly wasn't a fit" based on his "background in technology and management." Id. at 7.

McManamon then obtained employment at the U.S. Census Bureau ("Census Bureau"), first as an "Assistant Manager of Technology" and then "I.T. Specialist, " posts he held between November 2008 and November 2010.[3] Id. In September 2010, McManamon sent a letter to Martina Parauda, whom the Amended Complaint describes as the Director for the Manhattan and Brooklyn VA hospitals, in which he stated that he was seeking work in the technology field because his contract with the U.S. Census Bureau was ending, but was being stigmatized for having undergone alcohol treatment in 2002. Id. at 6. According to the Amended Complaint, McManamon's medical records erroneously stated that he had been arrested 57 times, and contained "other erroneous derogatory info"; although "that mistake was corrected, the stigma continued." Id.

In October 2010, McManamon was referred to Deborah Innella, the head of human resources for the VA hospitals. Id. Two months later, McManamon was interviewed by Maria Schay, Chief of Technology at the VA hospitals. Id. But, McManamon alleges, in February and March 2011, he "was not among the most highly qualified candidates to be referred to the hiring agency (The Brooklyn VA hospital) for the job of I.T. Specialist, " although Schay, after the December 2010 interview, had been "ready to hire [him] for the job of I.T. Specialist." Id.

On March 29, 2011, McManamon claims that he filed an "EEOC complaint."[4] Id. On April 4, 2011, he filed a civil action in this Court under 42 U.S.C. § 1983, complaining that his potential employers were not recognizing his federal work and military experience and his volunteer work, and also that he was being stigmatized for having spent time in alcohol treatment. See McManamon v. Dep't of Veterans Affairs, No. 11 Civ. 2492 (LAP), Dkt. 2. That action was transferred to the Eastern District of New York, see Dkt. 4, and dismissed there without prejudice.[5] See McManamon v. Dep't of Veterans Affairs, No. 11-CV-2820 (RRM)(JO), 2011 WL 3423346, at *3 (E.D.N.Y. Aug. 4, 2011).

In June 2011, McManamon alleges, he interviewed for the position of "I.T. Specialist GS-11 for the Manhattan VA hospital." Am. Compl. 6. He was not hired. Id. By that point, McManamon appears to allege, he was "on a certified list" and had been "referred to the agency." Id.

On August 26, 2011, McManamon contacted the VA's Office of Resolution Management and complained that he had not been hired because of his perceived disability, his age, and his prior EEOC complaints. See Moran Decl. ¶ 3; id. Ex. A, at 5-7.[6] On September 23, 2011, McManamon filed a formal Complaint of Employment Discrimination. Moran Decl. Ex. A, at 33-36.

McManamon alleges that the VA "lied to [him] to stall for time" by leading him "to believe they were going to hire [him]." Am. Compl. 8. In fact, he alleges, he had been "blacklisted, " because of his prior alcohol treatment and his age. Id. at 7.

B. Procedural History

On October 21, 2011, McManamon filed the initial Complaint in this action.[7] Dkt. 2. It alleged, in essence, that the VA's failure to hire him was due to his age, his earlier alcohol treatment, and/or his having complained about discriminatory practices at the VA.

On December 8, 2011, this Court dismissed McManamon's ADA, NYSHRL, and NYCHRL claims with prejudice because those statutes do not provide relief for disability or age discrimination in an action brought by a federal employee against a federal agency. See Dkt. 4 ("Order to Amend") (citing Rivera v. Heyman, 157 F.2d 101, 103 (2d Cir. 1988); Garvin v. Potter, 367 F.Supp.2d 548, 560 (S.D.N.Y. 2005); Shaw v. U.S. Postal Serv., No. 09 Civ. 6617 (DAB)(HBP), 2010 WL 3749233, at *12 (S.D.N.Y. Aug. 10, 2010) (Report & Recommendation)). However, in that order, the Court, recognizing McManamon's status as a pro se plaintiff, granted McManamon leave to amend his complaint to include disability discrimination claims under the Rehabilitation Act, [8] Order to Amend 3-4; directed him to amend his complaint to indicate whether he had exhausted his administrative remedies by receiving a decision from the Department of Veterans Affairs before filing the action, id. at 5-6; and dismissed all individual defendants named in the Complaint, granting him leave to name in his Amended Complaint "the only proper defendant" in such a case, the Secretary of Veterans Affairs ( i.e., Shinseki), id. at 4-5.

On January 3, 2012, McManamon filed the Amended Complaint. Dkt. 5. Accordingly, the only extant claims are brought under Title VII, the ADEA, and the Rehabilitation Act.

On January 22, 2013, defendant filed a motion to dismiss the Amended Complaint, Dkt. 14, and a memorandum of law in support of that motion, Dkt. 15 ("Def Br."). On January 30, 2013, McManamon submitted his opposition to the motion. Dkt. 19 ("McManamon Br."). On February 5, 2013, defendant filed a letter-motion replying to McManamon's opposition and requesting, having received agreement from McManamon, that the Court stay discovery pending resolution of the motion to dismiss. Dkt. 21. On May 29, 2013, the case was reassigned to my docket.

II. Discussion

A. Applicable Legal ...

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