O'Dette v. New York State Unified Court System

Filing 12

ORDER granting 6 Motion to Dismiss for Failure to State a Claim; granting 6 Motion to Dismiss for Lack of Jurisdiction; but permitting plaintiff to file an amended complaint. Ordered by Judge I. Leo Glasser on 4/15/2013. (Levin, Ilana)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------x
MICHAEL O’DETTE,
Plaintiff,

Memorandum and Order
12 Civ. 2680 (ILG) (SMG)

- against NEW YORK STATE UNIFIED
COURT SYSTEM,
Defendant.
------------------------------------------------------x
GLASSER, United States District Judge:
Plaintiff Michael O’Dette (“plaintiff” or “O’Dette”) brings this action against New
York State Unified Court System (“defendant” or “USC”), alleging violations of Titles I
and II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12111, et seq. and
§§ 12131, et seq. Before the Court is defendant’s motion to dismiss plaintiff’s claims for
lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1)
and for failure to state a claim upon which relief can be granted pursuant to Rule
12(b)(6). For the following reasons, defendant’s motion is granted, but plaintiff may file
an amended complaint asserting a Title I claim against an individual defendant in his
official capacity.
BACKGROUND
The following facts are taken from plaintiff’s Complaint, which is presumed true
for purposes of the pending motion, as well as from documents that are incorporated by
reference in the Complaint and documents of which the Court may take judicial notice.
1

Plaintiff is a fifty-four-year-old man who suffers from Tourette’s syndrome and
obsessive compulsive disorder. Complaint dated May 29, 2012 (“Compl.”) ¶¶ 12, 21
(Dkt. No. 1). Tourette’s syndrome requires plaintiff to relieve himself of motor and vocal
tics once or twice a day by making loud and embarrassing noises and by using profanity.
Id. ¶ 18. Plaintiff needs a private place at work where he can release these tics which are
exacerbated by stress. Id. ¶¶ 16, 18. Obsessive compulsive disorder causes plaintiff to
feel that “things must be done in a certain manner over and over again”; variations
cause plaintiff distress and anger. Id. ¶ 19. A psychiatrist diagnosed plaintiff with these
disorders in 2006 although plaintiff believes he has suffered from Tourette’s syndrome
since the age of seven. Id. ¶ 20.
After twenty years of employment in several jobs, in 2000, plaintiff trained as a
New York State court officer and subsequently worked for defendant at the Family
Court. Id. ¶¶ 22–24, 26. From 2001 until 2009, plaintiff worked for defendant as a
senior court officer. Id. ¶¶ 27–28. Except for several temporary assignments, plaintiff
was assigned primarily to the courthouse located at 60 Centre Street, which has private
areas for him to release his tics when necessary. Id. ¶¶ 28, 67. Until 2009, plaintiff was
never subjected to disciplinary charges and received only favorable evaluation reports.
Id. ¶ 31. Beginning in 2009, there were several incidents that eventually resulted in his
termination.
On April 2, 2009, when Major Gerard Fennell told plaintiff that he was being
transferred to the courthouse located at 71 Thomas Street, plaintiff refused to accept the
assignment. Id. ¶ 35. The next day, plaintiff told Chief Clerk John Werner and Captain
Michael Castellano that he has Tourette’s syndrome and that the 71 Thomas Street
courthouse, which is much smaller than the 60 Centre Street courthouse, did not have a
2

private space for him to release his tics. Fennell later told plaintiff that he could remain
at the 60 Centre Street courthouse. Id. ¶¶ 36, 68.
On July 8, 2009, plaintiff was working at one of the magnetometers or x-ray
machines at the entrance of the 60 Centre Street courthouse with two other court
officers to screen visitors for contraband. Id. ¶ 37. Plaintiff finds this assignment the
most difficult of a senior court officer’s duties. Id. ¶ 59. When it was time for the three
officers to rotate their positions at the magnetometer, one officer refused. Plaintiff
insisted that they switch and the officer called him a “retard.” Plaintiff became stressed
and had an “episode,” which caused him to yell and curse at the officer. Id. ¶ 38.
Subsequently, in September 2009, plaintiff submitted a letter from his psychiatrist to
defendant which stated that plaintiff suffers from Tourette’s syndrome, explained the
disorder, and asked defendant to assign plaintiff to “low stress areas at work.” Id. ¶ 62.
On November 5, 2009, plaintiff returned early from his lunch break to the
magnetometer at the 60 Centre Street courthouse. One of the on-duty officers, who was
positioned as a “pusher” at the magnetometer,1 demanded that plaintiff replace her so
that she could leave for lunch. Because his lunch break was not yet over and because he
finds the pusher to be the most stressful of the magnetometer positions, plaintiff refused
to replace the officer and chose to wait until an officer needed to be relieved at a
different position. Id. ¶¶ 39, 59. When Lieutenant Gerard Schustal phoned the post for
unrelated reasons, the officer positioned as pusher complained about plaintiff’s conduct.
Schustal requested to speak with plaintiff but would not listen when plaintiff tried to
explain his conduct. Frustrated and fearing an episode, plaintiff hung up the phone.

1

The Complaint does not define this position.

3

When Schustal called back, plaintiff became stressed and had an “episode,” which
caused him to yell and curse at Schustal. Id. ¶ 40.
Plaintiff was subsequently suspended with pay from November 5, 2009 until
December 2, 2009. Id. ¶ 41. When plaintiff returned to work on December 2, Fennell
told him to report to the 71 Thomas Street courthouse. Id. ¶ 43. Plaintiff requested that
a private room be made available to him at that courthouse and was told that he needed
to make that request when he arrived there. When plaintiff refused to report there,
Captain Castellano demanded his shield and ID card and told him to go home. Id.
¶¶ 44–45.
On December 10, 2009, plaintiff submitted another letter from his psychiatrist to
defendant, which again asked defendant to assign plaintiff to low stress work and added
that plaintiff requires a private room to release his tics. Id. ¶ 63. On December 14,
2009, plaintiff submitted forms that his psychiatrist had completed at defendant’s
request. Id. ¶¶ 48–50. That same day, Fennell notified plaintiff in writing that he could
not return to work. Id. ¶ 46.
On September 14, 2010, defendant filed disciplinary charges against plaintiff
based on the incidents of July 8, 2009; November 5, 2009; and December 2, 2009. Id.
¶ 56. After a disciplinary hearing on March 6, 2012, the Deputy Chief Administrative
Judge terminated plaintiff’s employment, finding that he yelled and cursed at a coworker, yelled and cursed at a superior, and refused a superior’s order. Id. ¶ 57;
Declaration of Shawn Kerby (“Kerby Decl.”), Ex. A (Dkt. No. 7).
Plaintiff filed a complaint with the Equal Employment Opportunity Commission
(“EEOC”) on February 1, 2010, and was issued a right to sue letter on February 29, 2012.
Compl. ¶¶ 7–8. Plaintiff filed this action on May 29, 2012, alleging violations of Titles I
4

and II of the ADA in that defendant (1) refused to accommodate him by permitting him
to remain at the 60 Centre Street courthouse; (2) refused to accommodate him by giving
him assignments that were less stressful than working at the magnetometer “[a]t least
once or twice a week”; (3) brought him up on “petty infractions” because of his
disabilities; and (4) terminated him because of his disabilities. Id. ¶¶ 71–72, 76, 81.
Plaintiff seeks monetary damages, a declaratory judgment, and an injunctive order
requiring defendant to reinstate him as a senior court officer. Id. at 11.
One month later, on June 29, 2012, plaintiff filed a petition pursuant to Article 78
of New York Civil Practice Law and Rules (“CPLR”) in the Supreme Court of New York
County against the same defendant as in this action. Kerby Decl., Ex. B. By stipulation
of the parties, on July 9, 2012, the petition was transferred to the Appellate Division,
First Department. Kerby Decl., Ex. C.
Defendant moved to dismiss the Complaint on July 17, 2012, accompanied by a
Memorandum of Law in Support of Motion to Dismiss (“Def.’s Mem.”). Dkt. Nos. 6–8.
Plaintiff filed a Memorandum of Law in Opposition (“Pl.’s Opp’n”) on August 27, 2012.
Dkt. No. 9. On September 10, 2012, defendant filed its reply (“Def.’s Reply”). Dkt. No.
11.
LEGAL STANDARDS FOR MOTIONS TO DISMISS
To defeat a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1), the plaintiff “bears the burden of proving subject matter jurisdiction by a
preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d
635, 638 (2d Cir. 2005). In deciding such a motion, the court “may refer to evidence
outside the pleadings.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

5

On a motion to dismiss pursuant to Rule 12(b)(6), “although ‘a court must accept
as true all of the allegations contained in a complaint,’ that ‘tenet’ is inapplicable to legal
conclusions and ‘[t]hreadbare recitals of the elements of a cause of action, unsupported
by mere conclusory statements, do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “‘[O]nly a complaint that
states a plausible claim for relief survives a motion to dismiss,’ and ‘[d]etermining
whether a complaint states a plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.’”
Id. (quoting Iqbal, 556 U.S. at 679). To be sufficient, a complaint not only must include
a short, plain statement of the claim showing the pleader is entitled to relief, Fed. R. Civ.
P. 8(a), but also “requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do. Factual allegations must be enough to
raise a right to relief above the speculative level. . . .” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (internal citations omitted). The court may look outside the
complaint to consider documents that are incorporated in the complaint by reference
and matters of which judicial notice may be taken. Chambers v. Time Warner, Inc., 282
F.3d 147, 153 (2d Cir. 2002).
DISCUSSION
I. Title I Claim
The Eleventh Amendment bars suits against a state in federal court unless the
state has consented to be sued or Congress has abrogated the state’s immunity.
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99–100 (1984). An “arm of
the State,” such as the New York State Unified Court System, is immune as well.
Gollomp v. Spitzer, 568 F.3d 355, 366–68 (2d Cir. 2009). However, under the
6

exception of Ex parte Young, 209 U.S. 123 (1908), a plaintiff may avoid Eleventh
Amendment immunity by suing a state official in his official capacity for prospective
injunctive relief to prevent a continuing violation of federal law. Such a suit is not one
against the state, because the official’s violation of federal law strips him of his official
authority. Pennhurst, 465 U.S. at 102. Although Congress did not abrogate the states’
sovereign immunity from suits brought pursuant to Title I of the ADA for monetary
damages, the Ex parte Young exception permits Title I suits against state officials for
prospective injunctive relief. Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 360, 374
n.9 (2001); Henrietta D. v. Bloomberg, 331 F.3d 261, 287–88 (2d Cir. 2003).
Defendant moves to dismiss plaintiff’s Title I claim, arguing that the Eleventh
Amendment bars subject matter jurisdiction. Def.’s Mem. at 9–11. Plaintiff concedes
that his claim against defendant is barred, but requests leave to amend his Complaint to
name the Deputy Chief Administrative Judge of New York City Courts (“DCAJ”) as a
defendant so that he may pursue his claim for injunctive relief of reinstatement under
Ex parte Young. Pl.’s Opp’n at 9–12.
Under Federal Rule of Civil Procedure 15(a), the court should “freely” give leave
to amend “when justice so requires.” “In making its determination, the court considers
factors such as undue delay, prejudice to the defendants, and futility of the proposed
amendments.” Hughes v. Anderson, No. CV09-4042 (ADS)(WDW), 2012 WL 3062155,
at *3 (E.D.N.Y. May 31, 2012) (citations omitted). “An amendment is futile if the claim
would be unable to withstand a Rule 12(b)(6) motion to dismiss.” Id. (citation omitted).
At this early stage of the litigation, plaintiff has not unduly delayed in requesting
leave to amend and defendant will not be prejudiced by the amendment. However,
defendant objects to plaintiff’s request as futile for three reasons: (1) plaintiff fails to
7

plead “an ongoing violation of federal law attributable to the DCAJ”; (2) the claim
should be dismissed pursuant to the abstention doctrine of Younger v. Harris, 401 U.S.
37 (1971), because plaintiff has commenced a state court proceeding; and (3) plaintiff
fails to state a plausible claim for relief. Def.’s Reply at 3–7. Defendant’s arguments are
unpersuasive.
First, by requesting reinstatement to previous employment, plaintiff implicitly
pleads an ongoing violation of federal law as required by Ex parte Young. State Emps.
Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 96 (2d Cir. 2007). While the
Complaint does not allege that this violation is “attributable” to the DCAJ, plaintiff
would resolve this in his amended complaint by naming the DCAJ as a defendant and
specifically alleging that the DCAJ has authority to reinstate plaintiff. See Shipman v.
N.Y. State Office of Persons with Dev’l Disabilities, No. 11 Civ. 2780 (GBD)(FM), 2012
WL 1034903, at *3 & n.1 (S.D.N.Y. Mar. 26, 2012). Therefore, plaintiff’s requested
amendment would not be futile.
Second, Younger abstention, which concerns whether a federal court may
interfere with a state court proceeding by enjoining it, is inapposite to this case. Nosik v.
Singe, 40 F.3d 592, 595 (2d Cir. 1994). Here, plaintiff has not asked this Court to enjoin
a state court proceeding; he has merely filed concurrent actions in state and federal
courts. Defendant, in turn, does not move this Court to abstain from enjoining the state
court proceeding; it seeks dismissal of the federal action because there is an ongoing
state proceeding. See Def.’s Mem. at 14, 18. Therefore, the doctrine of Younger
abstention does not render plaintiff’s requested amendment futile.
The abstention doctrine articulated in Colorado River Water Conservation Dist. v.
United States, which concerns whether a federal court should abstain from deciding a
8

case “due to the presence of a concurrent state proceeding for reasons of wise judicial
administration,” is more appropriately invoked in this case. 424 U.S. 800, 818 (1976).
A federal court may abstain on this basis only in “exceptional” circumstances, id., and
must first consider the following factors to determine whether abstention is appropriate:
(1) whether the controversy involves a res over which one of
the courts has assumed jurisdiction; (2) whether the federal
forum is less inconvenient than the other for the parties; (3)
whether staying or dismissing the federal action will avoid
piecemeal litigation; (4) the order in which the actions were
filed; (5) whether federal law provides the rule of decision;
and (6) whether the state procedures are adequate to protect
the plaintiff’s federal rights.
Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d
84, 100–01 (2d Cir. 2012) (qu0tation omitted). “Where a Colorado River factor is
facially neutral, that is a basis for retaining jurisdiction, not for yielding it.” Id. at 101
(internal quotation omitted).
Although neither party has briefed the Court on the multi-factored Colorado
River test, it is evident that there are no “exceptional circumstances” or “clearest of
justifications” permitting this Court to abstain in this case. Id. (quoting Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 (1983)). First, there is no property
or res at issue in this litigation, which weighs against abstention. Id. Second, the
federal and state forums appear to be equally convenient because they are
geographically proximate, which weighs against abstention. Id. Third, there is no risk
of piecemeal litigation in this case because the parties are the same in both the state and
federal actions, so “resolution in one forum would resolve the claims for all parties.”
Dalzell Mgmt. Co., Inc. v. Bardonia Plaza, LLC, --- F. Supp. 2d ----, 2013 WL 592672, at
*7 (S.D.N.Y. Feb. 15, 2013) (citation omitted). Fourth, plaintiff filed the federal action
9

first and the state action does not appear to have progressed any further than this
action. Sun Life Assurance Co. of Canada (U.S.) v. Gruber, No. 05 Civ. 10194 (NRB),
2006 WL 1520524, at *4 (S.D.N.Y. Jun. 1, 2006). Fifth, federal law governs plaintiff’s
ADA claim, which weighs against abstention. See Woodford Cmty. Action Agency of
Greene Cnty., Inc., 239 F.3d 517, 523 (2d Cir. 2001). The final factor is the only one to
weigh in favor of abstention: The Court has no reason to believe that the state court will
not adequately protect plaintiff’s federal rights; indeed, plaintiff’s concurrent filing in
the state court is evidence of his own confidence in that court. See First Keystone
Consultants, Inc. v. Schlesinger Elec. Contractors, Inc., 862 F. Supp. 2d 170, 194
(E.D.N.Y. 2012). However, because five of the six factors weigh against Colorado River
abstention, the Court will not dismiss this action. See Niagara, 673 F.3d at 104.
As for defendant’s third objection to plaintiff’s requested amendment, plaintiff
states a plausible claim for relief at this stage of the proceedings. Title I of the ADA
prohibits an employer from discriminating against an employee “on the basis of
disability in regard to job application procedures, the hiring, advancement, or discharge
of employees, employee compensation, job training, and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a). Discrimination also includes “not
making reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an applicant or employee,” unless
the employer can “demonstrate that the accommodation would impose an undue
hardship on the operation of the business.” Id. § 12112(b)(5)(A).
Plaintiff alleges both discriminatory discharge and failure to accommodate.
Compl. ¶¶ 71–72, 76, 81. The elements of a prima facie discrimination claim under the

10

ADA are:2 “(1) [the plaintiff’s] employer is subject to the ADA; (2) [the plaintiff] was
disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the
essential functions of his job, with or without reasonable accommodation; and (4) he
suffered adverse employment action because of his disability.” Giordano v. City of New
York, 274 F.3d 740, 747 (2d Cir. 2001). The elements of a prima facie failure to
accommodate claim are: “(1) [the plaintiff] is disabled within the meaning of the ADA;
(2) his employer had notice of his disability; (3) he could perform the essential functions
of his job with reasonable accommodation; and (4) his employer refused to make such
accommodations.” Price v. City of New York, 797 F. Supp. 2d 219, 229 (E.D.N.Y. 2011)
(citing Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006)).
Defendant argues that plaintiff’s requested accommodations would eliminate the
essential functions of his job and, therefore, are not reasonable. Def.’s Reply at 7.
Although “[a] reasonable accommodation can never involve the elimination of an
essential function of a job,” Shannon v. New York City Transit Auth., 332 F.3d 95, 100
(2d Cir. 2003) (citation omitted), “the determination of whether a particular
modification is ‘reasonable’ involves a fact-specific, case-by-case inquiry.” Staron v.
McDonald’s Corp., 51 F.3d 353, 356 (2d Cir. 1995). Similarly, determining the essential
functions of a job requires “a fact-specific inquiry into both the employer’s description of
a job and how the job is actually performed in practice.” McMillan v. City of New York, --- F.3d ----, 2013 WL 779742, at *4 (2d Cir. Mar. 4, 2013) (quoting Borkowski v. Valley
At the motion to dismiss stage, a plaintiff’s ADA discrimination claim must be “facially
plausible and must give fair notice to the defendants of the basis for the claim,” but the plaintiff
“need not establish a prima facie case.” Mohamed v. New York, No. 11-cv-6734 (BSJ), 2012 WL
3104921, at *1 (S.D.N.Y. Jul. 31, 2012) (quotation omitted). However, the elements of a prima
facie case “provide an outline of what is necessary to render [the claim] plausible,” so courts
“consider these elements” to determine whether the complaint survives a motion to dismiss.
Pahuja v. Am. Univ. of Antigua, No. 11 Civ. 4607 (PAE), 2012 WL 6592116, at *9 (S.D.N.Y. Dec.
18, 2012) (quotations omitted).
2

11

Cent. Sch. Dist., 63 F.3d 131, 140 (2d Cir. 1995)). “All that plaintiffs must do at the
motion to dismiss stage is plead the existence of a plausible accommodation, the costs of
which, facially, do not clearly exceed its benefits.” Shaywitz v. Am. Bd. of Psychiatry &
Neurology, 675 F. Supp. 2d 376, 390 (S.D.N.Y. 2009) (quotation omitted).
At this stage, the Court cannot identify the essential functions of plaintiff’s job or
determine whether plaintiff’s requested accommodations are unreasonable. It is
possible that permitting plaintiff to remain at the 60 Centre Street courthouse or
transferring him to the 71 Thomas Street courthouse with a designated private area is a
reasonable accommodation. It is also possible that occasionally assigning plaintiff to
posts other than the magnetometer is a reasonable accommodation. Plaintiff’s claim for
relief is facially plausible; therefore, amending the Complaint would not be futile.
Accordingly, plaintiff may amend his Complaint by naming a state official as a
defendant in this action, but he must specifically allege that this defendant has authority
to provide the relief of reinstatement.
II. Title II Claim
Title II of the ADA provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.” 42 U.S.C. § 12132. Plaintiff brings his Title II claim for the same
underlying conduct of employment discrimination as his Title I claim. Defendant seeks
to dismiss the Title II claim because only Title I prohibits discrimination by an
employer, whereas Title II prohibits discrimination by a public entity. Def.’s Mem. at
11–14. In response, plaintiff urges the Court to “adopt the view” that Title II

12

encompasses employment discrimination claims and, therefore, plaintiff’s claim in this
case. Pl.’s Opp’n at 12–17.
While the parties cite conflicting precedents to support their respective positions,
since they have briefed the pending motion, the Second Circuit squarely addressed this
issue in Mary Jo C. v. New York State and Local Ret. Sys., 707 F.3d 144 (2d Cir. 2013).
Based on the ADA’s structure and statutory language, the court concluded that an
employment discrimination claim is not cognizable under Title II where the defendant
employs fifteen or more employees. Id. at 168–72. Because defendant in this case
employs more than fifteen employees, Compl. ¶ 10, Mary Jo C. compels dismissal of
plaintiff’s Title II claim.
CONCLUSION
For the foregoing reasons, the Court grants defendant’s motion to dismiss the
Complaint, but plaintiff may file an amended complaint asserting a Title I claim against
an individual defendant with authority to reinstate plaintiff.
SO ORDERED.
Dated:

Brooklyn, New York
April 15, 2013
______/s/_________________
I. Leo Glasser
United States District Judge

13