United States District Court, S.D. New York
OPINION AND ORDER
PAUL OETKEN, UNITED STATES DISTRICT JUDGE
April 29, 2015, Plaintiff Marshall Ross filed this pro
se action against eleven Defendants, alleging that they
discriminated and retaliated against him in violation of
state and federal law. (Dkt. No. 1 (“Compl.”).)
By Opinions and Orders dated February 16, 2016 (Dkt. No. 38),
and April 6, 2016 (Dkt. No. 43), the Court dismissed all of
Plaintiff's claims except for his claim against
Defendants Ricardo Fernández, Dene Hurley, and Stefan
Becker, in their official capacities, under Title I of the
Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq., alleging that
Fernández, Hurley, and Becker failed to accommodate
Hurley, Becker, and José L. Cruz,  in their official
capacities, move for judgment on the pleadings on this
remaining claim under Rule 12(c) of the Federal Rules of
Civil Procedure. For the reasons that follow, the motion is
with the facts of this case is presumed. See Ross v. New
York, No. 15 Civ. 3286, 2016 WL 626561 (S.D.N.Y. Feb.
16, 2016) (“Ross I”).
argue that judgment on the pleadings should be granted
because Plaintiff's ADA failure-to-accommodate claim is
time barred due to his failure to initiate Equal Employment
Opportunity Commission (“EEOC”) proceedings
within 300 days of his employer's rejection of his
is entitled to judgment on the pleadings under Rule 12(c) if
it has established that it is entitled to judgment as a
matter of law and that no material issue of fact remains
unresolved. See Juster Assocs. v. City of Rutland,
901 F.2d 266, 269 (2d Cir. 1990). “‘The standard
for granting a Rule 12(c) motion for judgment on the
pleadings is identical to that of a Rule 12(b)(6) motion for
failure to state a claim, ' and, as in a 12(b)(6) motion,
the Court takes the facts alleged in the complaint as
true.” Zurich Ins. Co. v. Crowley Latin Am. Servs.,
LLC, No. 16 Civ. 1861, 2016 WL 7377047, at *2 (S.D.N.Y.
Dec. 20, 2016) (quoting Patel v. Contemporary Classics of
Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001)). A
complaint “filed pro se is ‘to be
liberally construed, ' and ‘a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)).
ADA claimant may bring suit in federal court only if he has
first filed a timely complaint with the [EEOC] and obtained a
right to sue letter.” Jacobsen v. N.Y. City Health
& Hosps. Corp., No. 12 Civ. 7460, 2013 WL 4565037,
at *4 (S.D.N.Y. Aug. 28, 2013) (citing Legnani v.
Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686
(2d Cir. 2001)). To be considered timely, a plaintiff
bringing an ADA claim who also files a charge with the
appropriate state agency must file a charge with the EEOC
“within three hundred days after the alleged unlawful
employment practice occurred, or within thirty days after
receiving notice that the State or local agency has
terminated the proceedings under the State or local law,
whichever is earlier.” 42 U.S.C. § 2000e-5(e)(1)
(describing the Title VII standard, which is incorporated
into the ADA by 42 U.S.C. § 12117(a)); see McGullam
v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir. 2010).
claim for failure to accommodate, as described in the
Court's previous opinion, arises from allegations that
his employer knew that he was prohibited from doing work
other than in-class teaching due to his diabetes, but
nonetheless denied his request to stay in the classroom.
Ross I, 2016 WL 626561, at *7. Plaintiff's
request was denied on May 3, 2013; Defendants assigned
Plaintiff office work, which Plaintiff refused. (Compl.
¶ 27.) Plaintiff did not initiate proceedings with the
EEOC until May 28, 2014, which is more than 300 days from the
denial of plaintiff's requested accommodation. (Compl. at
the request was renewed and again rejected in late January of
2014 (Compl. ¶¶ 35-37), the statute of limitations
runs from the initial request, as repeated requests for the
same accommodation or requests for reconsideration of a
denial of an accommodation do not restart the clock under the
ADA. See Elmenayer v. ABF Freight Sys., Inc., 318
F.3d 130, 134-35 (2d Cir. 2003). Nor has Plaintiff described
the sort of “extraordinary” circumstances
justifying equitable tolling. Zerilli-Edelglass v. N.Y.C.
Transit Auth., 333 F.3d 74, 80-81 (2d Cir. 2003).
only defense regarding Defendants' statute-of-limitations
argument is that the “wrongdoings committed against
[him] . . . continue up to this day.” (Dkt. No. 61 at
1.) However, because the only claim allowed to proceed by the
Court's prior opinion was the failure to accommodate
claim relating to the denial of Plaintiff's request to
stay in the classroom, this denial does not amount to a
continuing violation of the sort Plaintiff describes. See
Valtchev v. City of New York, 400 F.App'x 586, 588
(2d Cir. 2010) (finding claims time barred where they are
based on “‘discrete acts' which are
‘easy to identify'” (quoting Nat 'l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114
(2002))); Elmenayer, 318 F.3d at 135 (“The
rejection of a proposed accommodation is a single completed
action when taken . . . .”); Dodson v. NY. Times
Co., No. 97 Civ. 3838, 1998 WL 702277, at *2 (S.D.N.Y.
Oct. 7, 1998) (“The mere fact that past discriminatory
acts have a present effect on a plaintiff does not mean that
plaintiff has demonstrated a continuing violation.”).
foregoing reasons, the remaining Defendants' motion for