Gonzales v. Legend Hospitality

Filing 29

ORDER granting 17 Motion to Dismiss for Failure to State a Claim -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, Defendant's motion to dismiss the complaint is granted. Accordingly, this case is dismissed. Plaintif f is denied a certificate of appealability as he fails to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see FED. R. APP. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith. Therefore, in forma pauperis status is denied fo r the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to close this case and to mail a copy of this Electronic Order and the Attached Written Memorandum and Order to pro sePlaintiff. SO ORDERED by Chief Judge Dora Lizette Irizarry on 3/27/2017. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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AMABLE GONZALEZ, pro se,
:
:
Plaintiff,
:
:
MEMORANDUM & ORDER
-against:
:
14-CV-6478 (DLI)(RER)
:
LEGENDS HOSPITALITY,
:
:
Defendant.
:
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DORA L. IRIZARRY, Chief United States District Judge:
Amable Gonzalez (“Plaintiff”), proceeding pro se, 1 commenced this action against
Legends Hospitality (“Defendant”) alleging violations of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e-2000e-17, the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621-634, and the Americans with Disabilities Act, 42 U.S.C. § 12101 et
seq. (“ADA”). (See Amended Complaint (“Am. Compl.”), Dkt. Entry No. 5, at 1.) Defendant
filed the instant motion to dismiss the Amended Complaint in its entirety under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. (See Def. Mem. in Supp. of Mot. to Dismiss (“Def.’s
Mem.”), Dkt. Entry No. 19.) Plaintiff opposed the motion seeking equitable tolling for his
untimely filing. (See Pl.’s Aff. in Opp’n to Mot. to Dismiss (“Pl.’s Opp’n”), Dkt. Entry No. 24.)
For the reasons set forth below, the motion to dismiss is granted and the Amended
Complaint is dismissed in its entirety. Plaintiff’s Title VII, ADEA, and ADA claims are all
dismissed as untimely because equitable tolling is unwarranted. Furthermore, even if the action

1
In reviewing the instant motion, the Court is mindful that, “[a] document 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). Accordingly, the Court interprets the
Amended Complaint “to raise the strongest arguments that [it] suggest[s].” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006).

had been filed timely, the Amended Complaint still would fail to state a claim for which relief
could be granted.
BACKGROUND
Plaintiff is a Hispanic man, born in the Dominican Republic in 1955. 2 (Am. Compl. at 3,
¶ 7.) 3 From 2009 to 2012, Plaintiff was employed as a utility prep pastry cook for Defendant.
(Pl.’s Opp’n at ¶ 12.) Throughout this entire period, Plaintiff allegedly suffered from a torn
ligament in in his knee as well as misaligned vertebrae. (Id. at ¶ 17.) Sometime in 2012, Plaintiff
was terminated. (Id. at ¶ 32.)
Plaintiff commenced this action by filing a complaint with the Equal Employment
Opportunity Commission (“EEOC”) in June 2012. 4 (Am. Compl. at 6 ¶ 10.) On January 15, 2014,
the EEOC mailed Plaintiff his Dismissal and Notice of Rights Letter (“right-to-sue letter”) stating
that the their investigation did not lead to a conclusion that Title VII, the ADEA, or the ADA were
violated. (See Complaint (“Compl.”), Dkt. Entry No. 1, at 4.) Over nine months after the EEOC’s
decision, on October 29, 2014, Plaintiff filed the present suit claiming employment discrimination
related to his “age, race, [and] physical health issues.” (Compl. at 1, 2 ¶ 8.) Although the
Complaint was deemed untimely and insufficient, in light of his pro se status, Plaintiff was granted
leave to amend on November 5, 2014. (Nov. 5, 2014 Decision, (“Nov. 2014 Order”), Dkt. Entry
No 4, at 3, 5.)

2

While Plaintiff’s exact age is unknown, when he filed the complaint with the EEOC, he was over the age
of 40, which satisfies the ADEA requirements. See 29 U.S.C. § 631.
3

To avoid confusion due to repeat pagination in the Complaint and Amended Complaint, when necessary,
the Court will cite the two complaints using both the ECF pagination and the paragraph numbers that correspond to
the respective pages.
4

Plaintiff proffers two dates of filing with the EEOC in his Amended Complaint. However, the second date,
December 5, 2014, actually is the date he filed the Amended Complaint. (Am. Compl. at 7 ¶ 10.) As such, the Court
assumes this second date to be erroneous.

2

On December 5, 2014, Plaintiff filed his Amended Complaint. It alleges three causes of
action: (1) discrimination based on his race and national origin in violation of Title VII; (2)
discrimination based on his age in violation of the ADEA; and (3) discrimination based on his
health issues in violation of the ADA. (See Am. Compl. at 1, 4, 6 ¶ 8, 7 ¶ 8.) In support of the
claims, Plaintiff alleges that his “supervisor made repeated comments to [him] related to [his] age,
race, [and] physical health issues [he] was experiencing.” (Id. at 6 ¶ 8.) Plaintiff offers examples
of this commentary. Insofar as race and national origin, Plaintiff alleges that his supervisor asked
him why “Spanish people don’t appreciate [their] job[s],” and why “Dominican people” act a
certain way. (Id. at 4, 6 ¶ 8.) Similarly, Plaintiff claims that the commentary about his age included
questions about his stamina, and more pointedly, if he was “too old” to do his job. (Id. at 4.)
As for timeliness, Plaintiff argues that he could not initiate litigation in a timely fashion
because of an illness that began on November 14, 2014. 5 (Id. at 4.) In support of this position,
Plaintiff attached a medical report showing that he had received an influenza vaccine on December
2, 2014. (See Id. at 11.)
On May 15, 2015, Defendant filed the instant motion to dismiss the action for untimeliness
and failure to state a claim for which relief can be granted. (See Def.’s Mem.)
On March 8, 2016, Plaintiff filed his opposition papers, in which, he made additional
factual assertions related to his Amended Complaint. 6 (See Pl.’s Opp’n.) Regarding timeliness,
Plaintiff claims that he never actually received the EEOC’s right-to-sue letter. (Id. at ¶ 4.) He
states that he did not receive the letter because he moved to a different residence prior to January

5
Plaintiff does not state the year in which he attempted to file his Complaint, but in accordance with the
other pertinent dates stated in the filed documents, the Court will assume it is the year 2014.
6

Plaintiff filed his opposition papers one day after this Court’s deadline. (See Feb. 10, 2016 Minute Entry.)
However, this Court has the discretion to extend time “for good cause,” and, as Plaintiff is a pro se litigant and only
filed one day after the Court’s deadline, the Court will consider the submission. See FED. R. CIV. P. 6(b).

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15, 2014. (Id. at ¶ 4-6.) Later that year, Plaintiff inquired as to the status of his EEOC claim, and
the EEOC informed him that it had already sent him its decision. Following this contact, the EEOC
re-sent the letter to his new address. (Id. at ¶ 6.) Plaintiff insists that, as soon as he received the
right-to-sue letter, he went to this courthouse and filed this action. (Id. at ¶ 7.) Accordingly,
Plaintiff urges the Court to toll his filing deadline because he “should not be prevented from going
forward with [his] case because of a deadline [he] did not even have notice of.” (Id. at ¶¶ 8-9.)
As to the claims, Plaintiff reiterated in his opposition that he was “being harassed and
discriminated against because [he] [is] Dominican, because [he] [is] an older worker, and because
of [his] medical condition.” (Id. at ¶ 14.) To support the Title VII claim, Plaintiff asserted that his
supervisor: treated other Hispanics discriminatorily; fired other Dominicans; and asked him about
“Spanish people.” (Id. at ¶¶ 23, 27-29.) To substantiate the ADEA claim, Plaintiff insisted that
his supervisor would ask him why he completed tasks slowly and why he lacked energy. (Id. at
¶¶ 22, 26.) Finally, to supplement the ADA claim, Plaintiff declared that, in addition to the
comments concerning energy, his supervisor also stated the claimed medical reasons for his
lackluster performance were “no excuse,” and Plaintiff “shouldn’t work [there].” (Id.)
Ultimately, in addition to these specific factual allegations concerning the three claims,
Plaintiff generally stated that “management fired [him] because [his supervisor] thought [he] was
[a] threat to him.” (Id. at ¶ 32.)
On March 21, 2016, Defendant responded to Plaintiff’s filing and argued that: (1) a change
of address does not justify equitable tolling; (2) the additional factual allegations contained in the
opposition papers should be disregarded; and (3) the Amended Complaint should be dismissed as
untimely and/or for failing to state a claim for which relief can be granted. (Reply Mem. of Law
in Further Supp. of Def.’s Mot. to Dismiss Pl.’s Am. Compl. (“Reply Mem.”), Dkt. Entry No. 25.)

4

STANDARD OF REVIEW
Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” Pleadings are to give
the defendant “fair notice of what the claim is and the grounds upon which it rests.” Dura Pharms.,
Inc. v. Broudo, 544 U.S. 336, 346 (2005) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)),
overruled in part on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). “[T]he
pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id.
(quoting Twombly, 550 U.S. at 555). In general, pro se complaints are held to less stringent
standards than pleadings drafted by attorneys, and the Court is required to read a pro se complaint
liberally and interpret it raising the strongest arguments it suggests. See Erickson, 551 U.S. at 89;
Huges v. Rowe, 449 U.S. 5, 9 (1980); Sealed Petitioner v. Sealed Defendant #1, 537 F.3d 185, 19193 (2d Cir. 2008).
Under Rule 12(b)(6), a defendant may move, in lieu of an answer, for dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” To resolve such a motion,
courts “must accept as true all [factual] allegations contained in a complaint,” but need not accept
“legal conclusions.” Iqbal, 556 U.S. at 678. For this reason, “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice” to insulate a claim
against dismissal. Id. “[A] complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570).

5

DISCUSSION
I. The Court May Consider the Additional Facts Raised in Plaintiff’s Opposition Papers
Plaintiff raised new factual allegations in his opposition to the motion to dismiss.
Generally, courts may only consider the complaint itself, documents that are attached to or
referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are
either in the plaintiff’s possession or that the plaintiff knew of when bringing suit, and matters of
which judicial notice may be taken. See Roth v. Jennings, 489 F. 3d 499, 509 (2d Cir. 2007). New
facts alleged for the first time to oppose a motion to dismiss are not generally considered when
evaluating a complaint’s sufficiency. See generally Volunteer Fire Ass’n of Tappan, Inc. v. Cnty.
of Rockland, No. 09-CV-4622, 2010 WL 4968247, at *5 (S.D.N.Y. Nov. 24, 2010). However, as
Plaintiff is a pro se litigant, the Court, in “deciding a motion to dismiss[,] may consider factual
allegations made by a pro se party in his papers opposing the motion.” Walker v. Schult, 717 F.3d
119, 122 n.1 (2d Cir. 2013); see also Nielsen v. Rabin, 746 F.3d 58, 62-64 (2d Cir. 2014) (reading
complaint and opposition papers together liberally would allow the pro se litigant to create a
cognizable claim); Palmer v. Schegol, No. 14-CV-4406, 2016 WL 5678544, at *1 n. 1 (E.D.N.Y.
Sept. 30, 2016) (considering amended complaint and opposition papers in deciding a motion to
dismiss for failure to state a claim). Accordingly, because Plaintiff is a pro se litigant, the Court
will consider the additional facts Plaintiff alleged to challenge Defendant’s motion to dismiss.
II. Timeliness of Plaintiff’s Title VII, ADEA, and ADA Claims
A. Legal Standard
To pursue a cause of action under Title VII, the ADEA, or the ADA, a plaintiff must file a
complaint within ninety days of receiving the right-to-sue letter from the EEOC. See 42 U.S.C. §
2000e-5(f)(1); 29 U.S.C. § 626(e); 42 U.S.C. § 12117(a). In this Circuit, there is a rebuttable

6

presumption that, “[a]bsent sufficient evidence to the contrary, it is presumed that a plaintiff
received his or her right to sue letter three days after its mailing.” Johnson v. St. Barnabas Nursing
Home, 368 F. App’x 246, 248 (2d Cir. 2010) (Summary Order); see also Sherlock v. Montefiore
Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996). Where the EEOC provides notice, it is assumed that
the agency mailed the notice on the date shown on the document. See Sherlock, 84 F.3d at 526.
In this case, the EEOC mailed Plaintiff his right-to-sue letter on January 15, 2014, and it is
presumed that he received it on January 18, 2014. (See Compl. at 4.) Accordingly, Plaintiff was
required to commence this suit by April 18, 2014. However, Plaintiff filed the Complaint on
October 29, 2014, almost three hundred days after receipt of the right-to-sue letter. Therefore,
Plaintiff did not file his Title VII, ADEA, or ADA claims in a timely fashion.
Nevertheless, even if a complaint is untimely, the claims therein are not automatically
precluded, as “compliance with the filing period . . . [is] not a jurisdictional perquisite to filing a
[discriminatory suit], but a requirement subject to waiver as well as tolling when equity so
requires.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982). To determine “whether
equitable tolling is applicable, a district court must consider whether the person seeking application
of the equitable tolling doctrine (1) has ‘acted with reasonable diligence during the time period
[he] seeks to have tolled,’ and (2) has proved that the circumstances are so extraordinary that the
doctrine should apply.” Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80-81 (2d Cir.
2003) (quoting Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 512 (2d
Cir. 2002)).
B. A Change of Address Does Not Entitle Plaintiff to Equitable Tolling
The Court finds that, under the facts and circumstances of this case, Plaintiff is not entitled
to equitable tolling. Any person who files a claim with the EEOC bears the burden of ensuring

7

that

the

agency

possesses

their

current

address.

See

29

C.F.R.

§

1601.7(b)

(“The person claiming to be aggrieved has the responsibility to provide the Commission with
notice of any change in address and with notice of any prolonged absence from that current address
so that he or she can be located when necessary during the Commission's consideration of the
charge.”) This responsibility is minimal and “[i]t is unreasonable to expect the EEOC to pore over
its files, and those of state administrative agencies, in an effort to ascertain which of the addresses
contained therein is correct.” Williams v. Chertoff, No. 06-CV-3847, 2008 WL 2001897, at *6
(E.D.N.Y. May 8, 2008) (quoting St. Louis v. Alverno Coll., 744 F.2d 1314, 1316-17 (7th Cir.
1984)). Thus, while Plaintiff may be entitled to receive equitable tolling for circumstances beyond
his control, “it is well established that non-receipt of a right-to-sue letter because of a change of
address about which the EEOC was not informed is not an event beyond plaintiff’s control.”
Felton v. N.Y. Post, No. 90-CV-2254, 1990 WL 113176, at *2 (S.D.N.Y. Aug. 2, 1990) (denying
equitable tolling due to plaintiff’s failure to notify the EEOC of address change during prolonged
absence), aff’d, 930 F.2d 908 (2d Cir. 1991); see also Abraham v. Woods Hole Oceanographic
Inst., 553 F.3d 114, 120 (1st Cir. 2009) (“[Plaintiff’s] lack of diligence in filing a change of address
with the EEOC as required by 29 C.F.R. § 1601.7(b) is sufficient to reject his equitable tolling
claim.”); Williams, 2008 WL 2001897, at *6 (“If a plaintiff does not receive a right-to-sue letter
due to his or her failure to inform the EEOC of a change in address and thereafter files an untimely
civil complaint, the complaint must be dismissed.”)
Here, the letter was sent to the address that the EEOC had on file for Plaintiff. (See Compl.
at 4.) Plaintiff alleges that he did not receive the letter, as he “recently moved from [his] apartment
on Liberty Street, where the letter was addressed, to” another address in Brooklyn. (Pl.’s Opp’n
at ¶¶ 4, 5.) Noticeably, Plaintiff does not allege in any submission that he attempted to inform the

8

EEOC of his new address. Consequently, as Plaintiff allegedly did not receive the right-to-sue
letter because of his own failure to update the EEOC, equitable tolling is not warranted here.
C. Plaintiff Has Not Sufficiently Alleged an Illness to Warrant Equitable Tolling
Plaintiff also claims he is entitled to equitable tolling based on his inability to file the
Complaint due to illness. A lack of diligence on the part of a complainant will not suffice to invoke
equitable tolling, but “equitable tolling may be appropriate where the plaintiff's failure to comply
with the statute of limitations is attributable to the plaintiff's medical condition.” Brown v.
Parkchester S. Condominiums, 287 F.3d 58, 60 (2d Cir. 2002). To succeed on such a claim, the
litigant must provide “a particularized description of how [his] condition adversely affected [his]
capacity to function generally or in relationship to the pursuit of [his] rights,” and without such
precision, the claim is “manifestly insufficient to justify any further inquiry into tolling.” Boos v.
Runyon, 201 F.3d 178, 185 (2d Cir. 2000).
Plaintiff has not provided a valid justification for how his illnesses, a stomach virus and
the flu, supposedly affected his ability to file during the required ninety-day period. (See Am.
Compl. at 4-5.) The only facts alleged concerning sickness discuss an apparent attempt to file the
Amended Complaint on November 14, 2014. (See Id.) On that date, Plaintiff had an appointment
to file his Amended Complaint, but did not do so at the behest of a court employee who suggested
that Plaintiff come back when he was feeling better. (See Id.) This situation, which occurred
approximately seven months after Plaintiff’s filing deadline, has absolutely no bearing on an
illness that would have prevented him from timely filing his original Complaint by April 18, 2014.
Accordingly, Plaintiff’s request for equitable tolling also is denied for this reason.

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III. The Pleadings Do Not State an Actionable Claim
Even assuming this action was commenced timely, Plaintiff’s Amended Complaint and
opposition papers do not contain sufficient facts to support a claim for which relief can be granted
under Title VII, the ADEA, or the ADA. As his Amended Complaint suffers from similar
substantive flaws that this Court deemed inadequate in his Complaint, the motion to dismiss must
be granted, with prejudice. See Nov. 2014 Order, at 3-5.
A. Title VII Claim
It is unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). Plaintiff has the initial burden of establishing a prima facie
case of discrimination under Title VII by showing: “(1) [he] is a member of a protected class; (2)
[he] is qualified for [his] position; (3) [he] suffered an adverse employment action; and (4) the
circumstances give rise to an inference of discrimination.” Weinstock v. Columbia Univ., 224 F.3d
33, 42 (2d Cir. 2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
At the pleading stage of a Title VII claim, while establishing a prima facie case is
beneficial, Plaintiff is “not required to plead a prima facie case of discrimination as contemplated
by the McDonnell Douglas framework.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,
84 (2d Cir. 2015). Instead, in order
to defeat a motion to dismiss or a motion for judgment on the pleadings in a Title
VII discrimination case, a plaintiff must plausibly allege that (1) the employer took
adverse action against him, and (2) his race, color, religion, sex, or national origin
was a motivating factor in the employment decision.
Id. at 87.

10

Here, Plaintiff asserts that he is of a certain race and national origin, and that his employer
made negative comments related to those characteristics. (See Am. Compl. at 3 ¶ 7, 4; Pl.’s Opp’n
at ¶¶ 14, 23, 27-29.) However, while Plaintiff alleges an adverse employment action (i.e.,
termination), he does not claim that his employment was terminated due to his race or national
origin. Instead, he pleads that he has he was fired because his manager felt he was a threat. (Pl.’s
Opp’n at ¶¶ 12-13, 32.) Consequently, Plaintiff fails to state a claim under Title VII.
B. ADEA Claim
It is unlawful “to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). Plaintiff, in
order to establish a prime facie case of age discrimination in violation of ADEA, must show: “(1)
that [he] was within the protected age group; (2) that [he] was qualified for the position; (3) that
[he] experienced [an] adverse employment action; and (4) that such action occurred under
circumstances giving rise to an inference of discrimination.” Gorzynski v. Jet Blue Airways, 596
F.3d 93, 107 (2d Cir. 2010) (citing Carlton v. Mystic Transp. Inc., 202 F.3d 129, 134 (2d Cir.
2000)).
For an ADEA pleading, a plaintiff is not required to make out a prima facie case to survive
a motion to dismiss, but rather, “must plausibly allege that adverse action was taken against [him]
by [his] employer, and that [his] age was the ‘but-for’ cause of the adverse action.” Marcus v.
Leviton Mfr. Co., —F. App’x—, 2016 WL 4598580, at *2 (2d Cir. Sept. 2, 2016) (citing
Hempstead Union, 801 F.3d at 87) (Summary Order).
Plaintiff belongs to the protected class because he was over 40 years old at the time of the
adverse action. See 29 U.S.C. § 631(a). (Am. Compl. at 3 ¶ 7.) However, he blames his

11

termination on the fact that his manager felt threatened by him, not his age. (Pl.’s Opp’n at ¶ 32.)
Besides attenuated comments related to his energy and work speed, Plaintiff fails to show that his
age was the “but-for” cause of his termination. (Id. at ¶¶ 22, 26.) Thus, Plaintiff’s ADEA cause
of action is dismissed for failure to state a claim.
C. ADA Claim
In general, “[n]o covered entity shall discriminate against a qualified individual on the basis
of disability in regard to . . . discharge of employees.” 42 U.S.C. § 12112(a). In order to state a
claim under the ADA, a plaintiff must show that: “(1) the employer is subject to the ADA; (2) the
plaintiff is disabled within the meaning of the ADA or perceived to be so by [his] employer; (3)
[he] was otherwise qualified to perform the essential functions of the job with or without
reasonable accommodation; (4) [he] suffered an adverse employment action; and (5) the adverse
action was imposed because of [his] disability.” Davis v. N.Y.C. Dep’t of Educ., 804 F.3d 231,
235 (2d Cir. 2015).
While a plaintiff is not required to make out a prima facie claim in order to survive a motion
to dismiss, its composite elements are instructive in analyzing whether a plaintiff has alleged facts
sufficient to give rise to a claim. See Bernadotte v. N.Y. Hosp. Med. Ctr. of Queens, No. 13-CV965, 2014 WL 808013, at *7 (E.D.N.Y. Feb. 28, 2014). Thus, to succeed at the pleading stage in
an ADA claim, “a plaintiff must plausibly allege that (1) [his] employer took an adverse action
against [him], and (2) the disability or perceived disability was a ‘motivating factor’ in the
decision.” Miller v. N.Y.C. Dep’t of Educ., No. 16-CV-5306, 2016 WL 5947272, at *1-3
(E.D.N.Y. October 12, 2016) (citing Hempstead Union, 801 F.3d 72, 87) (dismissing claim for
failure to provide facts that connected potential discrimination to Plaintiff’s torn ligament and
spinal damage).

12

Here, Plaintiff fails to state a cognizable claim under the ADA. Plaintiff alleges that he tore
a ligament in his left knee and that he had five misaligned vertebrae during his period of
employment. (See Pl.’s Opp’n at ¶ 17.) However, in this case, like in Miller, Plaintiff fails to
connect his injury to his termination. Compare 2016 WL 5927272, at *1-2, with Pl.’s Opp’n at ¶¶
17, 32. In fact, while he alleges that the comments made by his supervisor concerning his energy
and work speed were based on his disability, the only reasoning Plaintiff offers for his termination
is that his supervisor felt threatened by him. (Pl.’s Opp’n at ¶¶ 22, 26, 32.) As a result, Plaintiff
fails to state a claim under the ADA.
CONCLUSION
For the reasons set forth above, Defendant’s motion to dismiss the Title VII, the ADEA,
and the ADA claims is granted. Plaintiff is denied a certificate of appealability as he fails to make
a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see FED. R.
APP. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Lucidore v. New York State Div. of
Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal would not be taken in good faith. Therefore, in forma pauperis status is denied for
the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.
Dated: Brooklyn, New York
March 27, 2017
/s/
DORA L. IRIZARRY
Chief Judge

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