United States District Court, N.D. New York
JEFFREY A. KELLY, Plaintiff,
KINGSTON CITY SCHOOL DISTRICT, INC., Defendant.
JEFFREY A. KELLY Plaintiff pro se
PERELSON LAW FIRMMARK C. RUSHFIELD, ESQ. Attorneys for
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge
pro se commenced this action against the Kingston
City School District, Inc. on June 27, 2016. Dkt. No. 1 at 1.
In his original complaint, Plaintiff alleges that he was
unlawfully discriminated against during a job interview with
Kingston City School District, which resulted in him not
getting hired for a clerk/typist position in June 2015.
Id. at 1-3. In response to Defendant's motion to
dismiss the complaint, Plaintiff filed a cross-motion to
amend the complaint, where he asserts claims pursuant to the
Americans with Disabilities Act of 1990 ("ADA"), 42
U.S.C. §§ 12101-12102, as amended, the Age
Discrimination in Employment Act of 1967 ("ADEA"),
29 U.S.C. § 621, the Civil Rights Act of 1991 (42 U.S.C.
§ 1981(a)), and New York State Human Rights Law
("NYHRL"). See Dkt. No. 8-4; Dkt. No. 20-2
before this Court is Defendant's motion to dismiss the
complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure and Plaintiffs cross-motion to amend the
interviewed for an account clerk/typist position at the
Kingston City School District ("Defendant") on June
25, 2015. See Dkt. No. 1 at 2. Plaintiff alleges
that one of the interviewers, Dr. Paul Padalino, started the
interview by asking "Celiac?, " and was later told
by the interview committee "we're aware of the
difficulties you've had in your life." Id.
at 2-3. Plaintiff did not receive the job, and subsequently
filed a complaint with the New York State Department of Human
Rights ("DHR") and the U.S. Equal Employment
Opportunity Commission ("EEOC") on August 10, 2015.
See Id. at 3. Following an investigation, the DHR
dismissed Plaintiffs complaint on February 5, 2016, finding
that there was "NO PROBABLE CAUSE to believe that the
[Defendant] ha[s] engaged in or [is] engaging in the unlawful
discriminatory practice complained of." Dkt. No. 8-3 at
1. The DHR stated that the "investigation revealed
insufficient evidence to support [Plaintiffs] allegations of
unlawful discrimination." Id. at 1-2. The EEOC
similarly dismissed the complaint on April 8, 2016.
See Dkt. No. 1 at 3, 10.
Plaintiffs Original Complaint
original complaint named Dr. Paul Padalino, Kingston City
School's Superintendent, Mr. Allen Olsen, Kingston City
School's Deputy Superintendent for Human Resources and
Business, and the Kingston City School District. See
Dkt. No. 1 at 1. Although Plaintiff initially asserts that
the action is brought under the ADA, ADEA, NYHRL, Ulster
County Charter, and City of Kingston Charter, in the body of
the complaint he only addresses the causes of action under
the ADA and ADEA. See Dkt. No. 1 at 1, 7.
original complaint, Plaintiff alleged that Defendant
discriminated against him in violation of the ADA by not
hiring him as a result of his actual or perceived disability.
See Dkt. No. 1 at 7. Plaintiff also alleged that
Defendant violated the ADEA by discriminating against
Plaintiff based on his age. See Id.
Defendant's 12(b)(6) Motion to Dismiss
moved to dismiss the complaint pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure for failure to state a
claim. See Dkt. No. 8-4 at 6. Specifically,
Defendant moves to dismiss on the following grounds: (1)
Plaintiff failed to assert any plausible claim under the ADEA
because he failed to allege any facts to support a claim that
his age was taken into account in Defendant's decision
not to hire him; (2) Plaintiff failed to assert a claim under
ADA because Plaintiff has not alleged that he suffers from an
impairment that substantially limits a life activity; (3)
Plaintiff failed to plead any facts demonstrating that
Defendant perceived him as having an impairment; (4) punitive
damages are not recoverable from Defendant under the ADA or
ADEA; (5) Plaintiff can not assert a claim against the named
individual defendants under the ADA or ADEA; (6) Plaintiff
failed to plead that he received a "right to sue
letter" from the EEOC regarding his ADA claim; (7) the
NYHRL claims were dismissed by New York Division of Human
Rights for lack of probable cause, thus barring Plaintiffs
claims in this Court; and (8) the complaint fails to allege
that Plaintiff filed a notice with Defendant as required for
his NYHRL claims under New York Education Law Section 3813.
See Dkt. No. 8-4 at 9.
Plaintiffs Proposed Amended Complaint
filed a Cross-Motion to Amend the Complaint and Response in
Opposition to the Motion to Dismiss on September 12, 2016.
Dkt. No. 20-2 at 1. Plaintiffs proposed amended complaint
removed the individual defendants that had been named in the
original complaint and listed the employer school district as
the sole defendant. See Dkt. No. 20-2 at 1.
Plaintiff's proposed amended complaint included the ADA,
ADEA, and NYHRL claims of the original complaint, and added a
cause of action under 42 U.S.C. § 1981a. In the proposed
amended complaint, Plaintiff alleges discrimination in
violation of the ADA for "being regarded as having"
both physical and mental illnesses, and that he "has a
disability that limits the major life activity of
eating." Dkt. No. 20-2 at 18. Plaintiff asserts two
causes of action under the ADA: (1) his disability limits a
major life activity resulting in disparate treatment in the
hiring process; and (2) he was unlawfully discriminated
against as being perceived as having a disability which
resulted in a disparate outcome for Plaintiff. Id.
Plaintiff alleges that Defendant violated the ADEA by
"conflating the usual sterotype [sic] of the
'sick' person with the 'old' person, "
thus discriminating against Plaintiff based on his age in the
hiring process. Id. at 18-19. Plaintiff further
alleges that Defendant discriminated against him "on the
basis of religion, " in violation of the Civil Rights
Act of 1991 (42 U.S.C. § 1981a). Id. at 19.
Finally, Plaintiff alleges discrimination "on the basis
of marital status" in violation of NYHRL. See
Standard of Review
motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure tests
the legal sufficiency of the party's claim for relief.
See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir.
2007) (citation omitted). In considering the legal
sufficiency, a court must accept as true all well-pleaded
facts in the pleading and draw all reasonable inferences in
the pleader's favor. See ATSICommc'ns, Inc. v.
Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)
(citation omitted). This presumption of truth, however, does
not extend to legal conclusions. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Although a court's review of a motion to dismiss is
generally limited to the facts presented in the pleading, the
court may consider documents that are "integral" to
that pleading, even if they are neither physically attached
to, nor incorporated by reference into, the pleading. See
Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.
2006) (quoting Chambers v. Time Warner, Inc., 282
F.3d 147, 152-53 (2d Cir. 2002)).
survive a motion to dismiss, a party need only plead "a
short and plain statement of the claim, " see
Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft
to 'sho[w] that the pleader is entitled to relief[,
]"' BellAtl. Corp. v. Twombty, 550 U.S.
544, 557 (2007) (quotation omitted). Under this standard, the
pleading's "[f]actual allegations must be enough to
raise a right of relief above the speculative level, "
see Id. at 555 (citation omitted), and present
claims that are "plausible on [their] face, "
id. at 570. "The plausibility standard is not
akin to a 'probability requirement, ' but it asks for
more than a sheer possibility that a defendant has acted
unlawfully." Iqbal, 556 U.S. at 678 (citation
omitted). "Where a complaint pleads facts that are
'merely consistent with' a defendant's liability,
it 'stops short of the line between possibility and
plausibility of "entitlement to relief......
Id. (quoting [Twombty, 550 U.S.] at 557,
127 S.Ct. 1955).
"when the allegations in a complaint, however true,
could not raise a claim of entitlement to relief, "
Twombty, 550 U.S. at 558, or where a plaintiff has
"not nudged [its] claims across the line from
conceivable to plausible, the[ ] complaint must be
dismissed[, ]" id. at 570.
Iqbal plausibility standard applies in conjunction
with employment discrimination pleading standards."
Gillman v. Inner City Broad. Corp., No. 08 Civ.
8909, 2009 WL 3003244, *3 (S.D.N.Y. Sept. 18, 2009).
Employment discrimination claims need not contain specific
facts establishing a prima facie case of
discrimination, see Swierkiewicz v. Sorema N.A., 534
U.S. 506, 514-15 (2002); rather, an employment discrimination
complaint "must include only a short and plain statement
of the claim . . . [that] give[s] the defendant fair notice
of what the plaintiffs claim is and the grounds upon which it
rests, " id. at 512 ...