United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY, Chief District Judge.
Plaintiff Thomas Boyce commenced this action in June 2013 asserting claims for employment discrimination based on an alleged failure to accommodate and retaliation in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111 et seq., interference in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and for relief pursuant to 42 U.S.C. § 1983 for Defendant's alleged violation of his constitutional rights. Pending before this Court is Defendant's motion to dismiss for failure to state a claim. For the reasons discussed below, this Court finds the matter fully briefed and oral argument unnecessary, and concludes that Defendants' motion should be granted in part and denied in part.
As alleged in the Complaint, Plaintiff is a Deputy Sheriff for Defendant Erie County employed at the Erie County Holding Center. He suffers from post-traumatic stress disorder and high blood pressure and, as a result, presented a doctor's note restricting his working hours to no more than 12 hours per day and 48 hours per week. Plaintiff was informed that he would not be allowed to work any overtime until he was taken off of medical restrictions. Fellow officers subsequently harassed and mocked Plaintiff, and further harassment occurred when he called in sick to use FMLA leave. Defendant began to issue Plaintiff "records of counseling" for not attending training sessions that were not scheduled on his regular shift, and refused to either reschedule the training or permit Plaintiff overtime to attend. Defendant also issued "records of counseling" for training sessions he did attend.
Plaintiff filed a charge of discrimination with the New York Division of Human Rights ("DHR") in June 2012, which was cross-filed with the Equal Employment Opportunity Commission ("EEOC"). The EEOC mailed Plaintiff a Right to Sue' letter following the administrative agency proceedings, and the present action ensued.
In considering a motion to dismiss for failure to state a claim pursuant to Rule 12 (b)(6), a court must accept all factual allegations in the complaint as true and make all reasonable inferences in a plaintiffs' favor. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd. , 493 F.3d 87, 98 (2d Cir. 2007). In order to survive such a motion, a complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); ATSI Commc'ns, Inc. , 493 F.3d at 98. This assumption of truth applies only to factual allegations and is inapplicable to legal conclusions. Iqbal , 556 U.S. at 678. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678.
A. Failure to Accommodate
Defendant correctly concedes that dismissal of the first cause of action on the ground that an eight-hour mandatory shift is an essential function of Plaintiff's position would be premature on a motion to dismiss. (Def's Reply Mem of Law at 2-3); see Colpoys v. County of Erie, No. 12-cv-908S, 2013 WL 5437635, *5-6 (W.D.N.Y. Sept. 27, 2013); see also Lewis v. Livingston County Ctr. for Nursing & Rehabilitation, ___ F.Supp.2d ___, 2014 WL 3400538, *8-10 (W.D.N.Y. 2014).
B. ADA Retaliation
Plaintiff's second cause of action alleges retaliation in violation of the ADA. A valid claim of ADA retaliation requires a showing that: (1) the plaintiff engaged in an activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took adverse employment action against the plaintiff; and (4) a causal connection exists between the alleged adverse action and the protected activity. Treglia v. Town of Manlius , 313 F.3d 713, 719 (2d Cir. 2002). Here, Plaintiff asserts that the retaliatory acts included harassment and mocking by superiors and peers after he informed Defendant of his medical restriction and attempting to use his FMLA leave (Compl ¶¶ 54-55); Defendant issuing "records of counseling" for missing training sessions that were either scheduled off his regular shift or for sessions he did in fact attend (¶¶ 56-60); and Plaintiff's placement on a six-week suspension (¶¶ 61).
Defendant argues that this claim must be dismissed with respect to the alleged harassment and the records of counseling because the DHR already determined that neither of those claims were substantiated. (Def's Mem of Law at 16-19.) This argument is without merit, inasmuch as a federal civil action following consideration by a state or federal agency is to be a trial de novo. Univ. of Tennessee v. Elliott , 478 U.S. 788, 792, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986); Kremer v. Chem. Const. Corp. , 456 U.S. 461, 469, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). In the absence of any further argument regarding the alleged acts of retaliation, this part of Defendant's motion is denied.
With respect to Plaintiff's six-week suspension, Defendant first argues that dismissal is warranted because of the lack of a close temporal relationship between the dismissal of Plaintiff's Department of Human Rights complaint and his 2013 suspension. (Def's Mem of Law at 19-20.) Generally speaking, the permissible inferences that may be drawn from temporal proximity, or the lack thereof, should be considered in the context of the particular case. See generally Espinal v. Goord. , 558 F.3d 119, 129 (2d Cir. 2009); compare Hollander v. American Cyanamid Co. , 895 F.2d 80, 85-86 (2d Cir.1990) (finding a lack of evidence that an adverse action, taken three months after the plaintiff's EEOC complaint, was in response to the plaintiff's protected activity) with Grant v. Bethlehem Steel Corp. , 622 F.2d 43, 45-46 (2d Cir.1980) (evidence of retaliatory animus found where defendant's failure to refer substantial work to plaintiff occurred the first time plaintiff became available for work eight months after EEOC complaint). Here, consideration of Defendant's temporal proximity argument is premature because the allegations in the Complaint regarding the ...