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Aquino v. Sag Aftra

United States District Court, E.D. New York

March 7, 2017

SAG AFTRA, the Screen Actors Guild-American Federation of Television and Radio Artist, and all its Affiliates & Associates, ADAM MOORE, SAG AFTRA Diversity in his official capacity, THE SAG AWARDS, JANE DOE AND JOHN DOE, Entertainment Union, Casting Agents, Affiliates and Associates, and JEN COYNE-HOERLE, Awards Coordinator SAG AWARDS in her official capacity, Defendants.

          For Plaintiff: Darren Dione Aquino, pro se

          For Defendants: Peter D. DeChiara, Esq., Kate Montgomery Swearengen, Esq. Cohen, Weiss and Simon



         Plaintiff Darren Dione Aquino (“Plaintiff”) commenced this action asserting claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12111 et. seq. Currently pending before the Court are: (1) defendants SAG-AFTRA (“SAG”), the SAG Awards, Adam Moore (“Moore”), and Jen Coyne-Hoerle's (“Coyne-Hoerle” and, collectively, “Defendants”) motion to dismiss the Amended Complaint, (Docket Entry 17), and (2) Defendants' motion to strike, (Docket Entry 22). For the following reasons, Defendants' motions are GRANTED.


         A. Factual Background [1]

         Plaintiff has been diagnosed with processing dyslexia, and suffers from a severe limp due to poliomyelitis, a deformed right knee, club left foot, scoliosis, asthma, a partially occluded coronary artery, angina, and osteoarthritis. (Am. Compl., Docket Entry 6, at 5.) In 2000, Plaintiff joined SAG, an actors and entertainers union that seeks to “provid[e] competitive wages and safe, excellent working conditions for [its] members.” (Am. Compl. ¶¶ 4, 7.) Plaintiff is currently a SAG member. (Am. Compl. ¶ 8.)

         In 2000, Plaintiff appeared in television programs and films. (Am. Compl. ¶ 9.) Plaintiff's casting agent, Grant Wilfley Casting, Inc. (“Grant Wilfley”), assigned him directly to television and film projects. (Am. Compl. ¶ 10.) Plaintiff alleges that “[s]ome of the [job] sites were [i]naccessible.” (Am. Compl. ¶ 12.) However, Plaintiff obtained “consistent work as a background actor” and worked on the same television show for three seasons. (Am. Compl. ¶ 21.) Plaintiff was the only disabled actor on set and alleges that “SAG does not take any steps to enforce nor include their disabled Actor population when a call or opportunity arises for a background artist ‘non-descript' person.” (Am. Compl. ¶ 17.)

         A lottery is drawn each year to determine which actors will attend the annual SAG AFTRA awards (the “SAG Awards”). (Am. Compl. ¶ 28.) In 2010, Plaintiff won the lottery and attended the SAG Awards. (Am. Compl. ¶ 28.) However, Plaintiff was the only disabled attendee “on the floor” and was seated at the only table with three seats. (Am. Compl. ¶ 28.) Plaintiff avers that the lottery, which is conducted by internet registration, is unfair because it fails to consider potential participants who are blind or have no arms. (Am. Compl. ¶ 29.) Plaintiff asserts that phone lines should be set up for disabled actors and there should be a separate lottery for disabled actors. (Am. Compl. ¶ 29.) Plaintiff sought to discuss his thoughts on this issue with Coyne-Hoerle, the coordinator of the SAG Awards, but “no discussions occurred.” (Am. Compl. ¶ 29.) Subsequently, Plaintiff spoke to Coyne-Hoerle about a separate lottery for disabled actors and she stated that “if she had to accommodate and start a separate lottery for disabled actors that she would cancel the lottery and stop the Awards all together.” (Am. Compl. ¶ 30.)

         Plaintiff also spoke with Nicole Nakagawa, SAG's Executive Counsel, “regarding the unequal treatment of disabled actors during the lottery drawing and the lack of recognition of the population and that strategies and programs must be put in place to accommodate.” (Am. Compl. ¶ 31.) However, Plaintiff's concerns were not resolved. (Am. Compl. ¶ 31.) Plaintiff alleges that as a result of SAG's actions, he will “continue to suffer financial hardship.” (Am. Compl. ¶ 34.) Plaintiff notes that at the SAG Awards, “there is no mention made regarding the recognition for the disabled, but they do for ethnicities, races, [but] none for disabled.” (Am. Compl. ¶ 35.)

         At an unspecified time, Plaintiff assisted disabled actors with casting by “bypassing the casting agent since they weren't sending any casting calls to [his] disabled colleagues[.]” (Am. Compl. ¶ 36.) As a result, Grant Wilfley ceased contacting Plaintiff. (Am. Compl. ¶ 36.) Plaintiff's colleagues at Law and Order, a television program that he had worked on, advised that they were told Plaintiff “was on other jobs.” (Am. Compl. ¶ 36.) Plaintiff alleges that he “has been unable to work for the past 6 years.” (Am. Compl. at 22.)

         On January 8, 2016, Plaintiff spoke with “SAG AFTRA membership” and was advised that they do not possess a list of disabled members. (Am. Compl. ¶ 37.) Plaintiff alleges that SAG cannot “protect and provide equal access” if they do not know the number of their disabled members. (Am. Compl. ¶ 37.)

         B. Procedural History

         On January 8, 2016, Plaintiff commenced this action and filed a motion to proceed in forma pauperis. (See Compl.) On January 13, 2016, Plaintiff filed his Amended Complaint, asserting claims under 42 U.S.C. Section 1983 and ADA “Title II and III, ” and requesting both injunctive relief and monetary damages. (See Am. Compl. at 1, 17-23.) On January 25, 2016, Plaintiff was granted leave ...

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