United States District Court, W.D. New York
[Copyrighted Material Omitted]
Dennis Kuder, Plaintiff, Pro se, Castile, NY.
For Dennis Kuder, Plaintiff: Ryan Charles Woodworth, WNY Civil Rights, PLLC, Brighton, NY.
For City of Rochester, Supervisor Charles Lundy, Commissioner Paul Holohan, Both Individually, Defendants: Adam M. Clark, LEAD ATTORNEY, City of Rochester, Law Department, Rochester, NY.
DECISION AND ORDER
DAVID G. LARIMER, United States District Judge.
Plaintiff Dennis Kuder (" Kuder" ), an employee of the City of Rochester's (the " City" ) Department of Environmental Services (" DES" ), commenced the instant action against the City, Supervisor Charles Lundy (" Lundy" ), and DES Commissioner Paul Holohan (" Holohan" ) pursuant to 42 U.S.C. § 1983. Kuder, who was employed by the DES in an unspecified capacity, alleges that the defendants violated his rights under the Fourteenth Amendment by subjecting him to unlawful discrimination on the basis of age and disability, retaliated against him on the basis of his engagement in constitutionally-protected speech in violation the First Amendment, and maintained a pattern or practice whereby his constitutional rights were violated.
Defendants now move to dismiss the complaint for failure to state a claim pursuant to Fed. R. Civ. Proc. 8 and 12(b)(6). (Dkt. #5). For the following reasons, defendants' motion is granted.
Plaintiff was initially hired by the DES in 1988. Plaintiff alleges that in 2007, when he was approximately 41 years old, he suffered work-related knee and rotator cuff injuries which impaired his ability to perform major life activities, including working, and that the defendants thereafter regarded him as disabled.
In September 2008, plaintiff complained to his supervisor, Lundy, that he believed he was being subjected to disparate treatment because of his age and disability. Specifically, plaintiff complained that dispatchers were ignoring his dispatches, and that plaintiff's coworkers were permitted to use profanity over the dispatch system and in conversations with one another with impunity, while plaintiff was reprimanded for using far less objectionable language, such as the word " idiot."
Plaintiff alleges that after he complained to Lundy about disparate treatment, he was harassed by a coworker, who on one occasion yelled " suck my dick" at plaintiff, over and over, in the presence of coworkers. Plaintiff complained about this conduct to Lundy, but alleges that no investigation of the incident was made and no disciplinary action was taken. Plaintiff contends that during and after this time, the dispatchers continued to disregard his dispatches, and that he was held to a higher standard of conduct than younger, non-disabled employees. Specifically, plaintiff describes favorable treatment given to Kevin Walker, a younger, non-disabled employee and the object of plaintiff's harassment complaint, who was permitted to leave trash in his truck without being disciplined, and to go home early after a " truck failure," while plaintiff was required
to follow DES policy in such circumstances, which mandated cleaning out trucks at the end of the day, following reporting procedures and returning to duty in the event of an equipment failure. Plaintiff also claims that another supervisor, Bill Cole, ordered him to illegally dispose of garbage and that when plaintiff refused, he was required to submit to a random drug test in retaliation, and was thereafter terminated.
In November 2010, plaintiff's employment with DES was terminated. Plaintiff alleges that his termination occurred just two months before his twenty-year anniversary with DES, at which time his pension ...