Kelly v. Padalino et al

Filing 29

MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Defendant's motion to dismiss the complaint (Dkt. No. 8 ) is GRANTED; and the Court further ORDERS that Plaintiff's motion for leave to amend the complaint (Dkt. No. 20 ) is DENI ED; and the Court further ORDERS that Plaintiff's motions to appoint counsel, motion to strike, and motion for sanctions (Dkt. Nos. 18-19, 24 & 28) are DENIED; and the Court further ORDERS that Defendant's letter motion requesting denial of Plaintiff's motion for sanctions (Dkt. No. 25) is DENIED as moot; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close this case; and the Court furtherORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 3/13/2017. (Copy served via regular and certified mail)(ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JEFFREY A. KELLY,
Plaintiff,
vs.

1:16-CV-00764
(MAD/DJS)

KINGSTON CITY SCHOOL DISTRICT, INC.,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

JEFFREY A. KELLY
164 Colonial Drive
Kingston, New York 12401
Plaintiff pro se
SHAW, PERELSON LAW FIRM
21 Van Wagner Road
Poughkeepsie, New York 12603
Attorneys for Defendants

MARK C. RUSHFIELD, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff pro se commenced this action against the Kingston City School District, Inc. on
June 27, 2016.1 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

1

The original complaint listed Dr. Paul Padalino, Kingston City Schools Superintendent,
Mr. Allen Olsen, Kingston City Schools Deputy Superintendent for HR and Business, and
Kingston City School District, Inc.

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 at 1.
Presently 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 Plaintiff's cross-motion to amend the
complaint.
II. BACKGROUND
Plaintiff 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
Plaintiff's 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 [Plaintiff's] 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.
A.

Plaintiff's Original Complaint
The original complaint named Dr. Paul Padalino, Kingston City School's Superintendent,

Mr. Allen Olsen, Kingston City School's Deputy Superintendent for Human Resources and
2

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.
In the 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.
B.

Defendant's 12(b)(6) Motion to Dismiss
Defendant 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 Plaintiff's 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.
3

C.

Plaintiff's Proposed Amended Complaint
Plaintiff 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. Plaintiff's 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 id.
III. DISCUSSION
A.

Standard of Review
A 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
4

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 ATSI Commc'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)).
To 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[,]'" Bell Atl. Corp. v. Twombly, 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 [Twombly, 550 U.S.] at 557, 127 S. Ct. 1955).
Ultimately, "when the allegations in a complaint, however true, could not raise a claim of
entitlement to relief," Twombly, 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.

5

"The 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 plaintiff's claim
is and the grounds upon which it rests," id. at 512 (quotation marks and citations omitted); see
also Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (applying Swierkiewicz to NYSHRL
discrimination claims).
Despite this recent tightening of the standard for pleading a claim, complaints by pro se
parties continue to be accorded more deference than those filed by attorneys. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). As such, Twombly and Iqbal notwithstanding, this Court must
continue to "construe [a complaint] broadly, and interpret [it] to raise the strongest arguments that
[it] suggests." Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d Cir. 2002).
B.

Plaintiff's Causes of Action
1. ADA Claim
The ADA provides that "no covered entity shall discriminate against a qualified individual

on the basis of disability in regard to job application procedures, the hiring . . . and privileges of
employment." 42 U.S.C. § 12112(a). In order to state a prima facie disability discrimination case
under the ADA, a "plaintiff must demonstrate that: 1) he or she suffers from a disability within
the meaning of the ADA; 2) that he or she was otherwise qualified to perform . . . a job he or she
was applying for; and 3) that he or she was not hired for the job . . . because of a disability."

6

EEOC v. J.B. Hunt Transp. Inc., 128 F. Supp. 2d 117, 124 (N.D.N.Y. 2001) (citing Wernick v.
Federal Reserve Bank of New York, 91 F.3d 379, 383 (2d Cir. 1996)).
The Act defines a disability, with respect to an individual, as "a physical or mental
impairment that substantially limits one or more major life activities of such individual," an
individual with "a record of such an impairment," or an individual "being regarded as having" an
impairment described in the Act. 42 U.S.C. § 12102(1)(A)-(C). An impairment may be
considered a disability if it "substantially limits the ability of an individual to perform a major life
activity as compared to most people in the population." 29 C.F.R. § 1630.2(j)(1)(ii). Such
impairment "need not prevent, or significantly or severely restrict, the individual from performing
a major life activity in order to be considered substantially limiting. Nonetheless, not every
impairment will constitute a disability within the meaning of [the Act.]" Id. Consequently, in
order to state a claim under the ADA, Plaintiff must plausibly allege that his impairment
substantially limits him from performing a major life activity. See id.
Plaintiff alleges that he was discriminated against based on his celiac disease as well as his
perceived mental illness. See Dkt. No. 20-2 at 15. Plaintiff argues that he is protected under the
ADA as a sufferer of celiac disease, other autoimmune diseases (including a life threatening
"autoimmune liver disease"), and because he is "regarded in the [] community" as having a
history of mental illness. See id. at 14. Plaintiff asserts that his celiac disease substantially
"limits the major life activity of eating thus leading to a disparate treatment of him in a hiring
process." Dkt. No. 20-2 at 18. However, in the amended complaint, Plaintiff acknowledged that
his celiac disease is "well managed with a strict diet." Dkt. No. 20-2 at 4. Since the amended
complaint makes clear that his celiac disease is "well managed," Plaintiff has failed to plausibly
allege that his celiac disease "substantially limits" his ability to perform any major life activity.
7

See Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 871 (2d Cir. 1998). As a result, Plaintiff's celiac
disease is not the type of protected impairment contemplated within the meaning of the ADA.
See 29 C.F.R. § 1630.2(j)(1)(ii).
Several cases have considered the extent to which the symptoms or consequences of a
disease or allergy can be easily avoided in determining whether an alleged disability "limits a
major life activity." E.g., Land v. Baptist Medical Center, 164 F.3d 423, 425 (8th Cir. 1999)
(holding that a peanut allergy is not a disability); Slade v. Hershey Co., No. 1:09-cv-541, 2011
WL 3159164, *4-*5 (M.D. Pa. July 26, 2011). In Fraser v. Goodale, 342 F.3d 1032, 1045 (9th
Cir. 2003), the plaintiff was a "brittle" diabetic employee, whose diabetes involved much more
than dietary restrictions, and required her to "monitor carefully her day's diet, activities, and other
similar factors," because, "[i]f she fails, she will find herself in a life-threatening situation." Id. at
1035. The court further noted that:
Though we hold that eating is a major life activity, we do not
thereby invite all those on a diet to bring claims of disability. Not
every impediment to the copious and tasty diets our waistlines and
hearts cannot endure is a substantial limitation of the major life
activity of eating. We must carefully separate those who have
simple dietary restrictions from those who are truly disabled. At the
same time, we must permit those who are disabled because of
severe dietary restrictions to enjoy the protections of the ADA.
Id. at 1041.
The limitations considered in Fraser were far more severe than what Plaintiff has alleged
here. More importantly, Plaintiff does not explain how a major life activity is impacted by his
disease. Plaintiff's pleading that he suffers a digestive problem that impacts the major life activity
of eating is lacking any facts demonstrating that Plaintiff's major life activity of eating is
sufficiently impacted to constitute a disability under the ADA. See Phillips v. P.F. Chang's
China Bistro, Inc., No. 5:15-cv-344, 2015 WL 4694049, *4 (N.D. Cal. Aug. 6, 2015) (holding
8

that the plaintiff failed to allege sufficient facts demonstrating how her celiac disease impacted
the major life activity of eating); Nolan v. Vilsack, No. 14-cv-8113, 2016 WL 3678992, *5 (C.D.
Cal. June 30, 2016) (finding that the plaintiff's ADA claim should be dismissed because the
plaintiff failed to demonstrate that he suffers from a protected disability where he admitted that
"neither his celiac disease nor his dyslexia significantly affects his work as a firefighter or his
day-to-day living").
Plaintiff has not alleged any facts suggesting that he was denied employment based on his
celiac disease. He has not shown that he has suffered discrimination of any sort due to this
disability. Accordingly, Plaintiff has failed to plausibly allege discrimination in violation of the
ADA. The allegations of the complaint and the proposed amended complaint do not "raise a right
of relief above the speculative level," Twombly, 550 U.S. at 557 (quotation omitted), and thus,
amendment of the complaint would be futile.
In the proposed amended complaint, Plaintiff further alleges that Defendant discriminated
against him as a result of being "regarded as" having a mental illness, an impairment that would
otherwise be covered by the ADA.2 See 42 U.S.C. § 12102(1)(C); Dkt. No. 20-2 at 14.
According to the 2008 ADA Amendments Act, in order to state a claim under the ADA as being
"regarded as" having a covered disability, a plaintiff need only show that an action prohibited
under the ADA "'was taken because of an actual or perceived impairment, whether or not that
impairment actually limits or is believed to limit a major life activity.'" Hilton v. Wright, 673
F.3d 120, 129 (2d Cir. 2012) (quoting H.R. REP. No. 110-730, pt. 1, at 14 (2008)) (emphasis
omitted).

2

The Court notes that, in the proposed amended complaint, Plaintiff has not raised a
"regarded as" claim as to his celiac disease. See Dkt. No. 20-2 at 14.
9

In the proposed amended complaint, Plaintiff claims that two former mayors of Kingston
were "well aware of the plaintiff's reputation as being 'mentally ill' . . . and [] were inclined . . . to
reveal such information to others in the community–and of a certainty . . . communicated the fact
of the plaintiff's Celiac disease to top administrators of the defendant employer." Dkt. No. 20-2 at
7-8. Plaintiff later states that "[t]he power players in Kingston prefer to regard" Plaintiff as
having a mental illness. Id. at 15. Although Plaintiff claims that he is regarded as having a
disability within the community, the complaint and proposed amended complaint fail to plausibly
allege that Defendant had any such knowledge or perceived Plaintiff as having a disability.
Moreover, Plaintiff 's conclusion that Defendant discriminated against him is based on a single
statement allegedly made to him during the interview: "We're aware of the difficulties you've had
in your life!!" See Dkt. No. 20-2 at 6. This isolated statement, which does not even mention any
perceived mental illness, fails to plausibly allege that Defendant discriminated against him
because of this perceived impairment.
Additionally, the Court finds that Plaintiff's mental illness discrimination claim was not
presented to the DHR. A plaintiff must exhaust all available administrative remedies before
bringing an action of employment discrimination in federal court. See Hoffman v. Williamsville
School Dist., 443 Fed. Appx. 647, 649 (2d Cir. 2011). "An allegation not set forth in an
administrative charge will be barred as unexhausted unless it is reasonably related to the
allegations in the charge." Id. (citing Williams v. New York City Hous. Auth., 458 F.3d 67, 70 (2d
Cir. 2006)). Newly asserted allegations will only be deemed reasonably related if "if the
administrative charge provided the [administrative agency] with sufficient notice to investigate
the allegation." Id.

10

In his complaint to the DHR, Plaintiff does not allege discrimination from being "regarded
as" having a mental illness. See Dkt. No. 23-1 at 2. Rather, Plaintiff refers to discrimination
based on "my disability" and states that he "ha[s] a condition that is considered a disability." Id.
Plaintiff's DHR complaint also refers to the "celiac" question during the interview as the basis for
his disability discrimination claim. Id. Moreover, in his original complaint, Plaintiff
acknowledges that, during the DHR process, "the parties stipulated to the fact that 'Celiac disease'
was [the] subject matter discussed at the job interview of June 25, 2015 of Plaintiff." Dkt. No. 1
at 3. Plaintiff's complaint to the DHR, therefore, only addressed disability in terms of Plaintiff's
actual celiac disease, and failed to give DHR notice to investigate any discrimination from being
"regarded as" having a mental illness. Consequently, Plaintiff's newly asserted claim is not
reasonably related to the administrative proceedings. See Hoffman, 443 Fed. Appx. at 649. As a
result, Plaintiff has not exhausted administrative remedies and is barred from bringing this claim
in federal court.
Based on the foregoing, the Court finds that Plaintiff's ADA claims in both the original
and proposed amended complaint are subject to dismissal.
2. ADEA
The ADEA was created "to promote employment of older persons based on their ability
rather than age; to prohibit arbitrary age discrimination in employment; to help employers and
workers find ways of meeting problems arising from the impact of age on employment." 29
U.S.C. § 621. The ADEA "makes it unlawful for an employer to take adverse action against an
employee 'because of such individual's age.'" Gross v. FBL Fin. Servs., 557 U.S. 167, 170 (2009)
(quoting 29 U.S.C. § 623(a)).

11

To establish a prima facie case of age discrimination under the ADEA, the plaintiff must
demonstrate that he or she was in the protected age group of forty years or older, was qualified for
the position at issue, suffered an adverse employment action, and that the identified adverse
action occurred under circumstances giving rise to an inference of discrimination. See D'Cunha
v. Genovese/Eckerd Corp., 479 F.3d 193, 194-95 (2d Cir. 2007) (citing Terry v. Ashcroft, 336
F.3d 128, 137-38 (2d Cir. 2003)); see also Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d
Cir. 2000) (citing Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir. 1998) abrogated in part by
Gorzynski, 596 F.3d at 106 (finding that the Supreme Court in Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 180 (2009) changed the last part of the age discrimination analysis)).
In the original complaint, Plaintiff states that it is "reasonable to think that [] Defendant[]
viewed the Plaintiff's age and thus found further reason, upon the relatively benign suggestion
that the employer was concerned with 'gaps in his employment history' as reflective as same, to
think that his age also prevented him from due consideration for [the] job." Dkt. No. 1 at 6.
Aside from this bald speculation, Plaintiff does not set forth any further factual allegations as to
how his age may have been a factor in the hiring process.
In an attempt to meet the pleading requirement, Plaintiff's proposed amended complaint
sets forth two additional assertions regarding his age. See Dkt. No. 20-2 at 18-19. Plaintiff
alleges that "Defendant violated the ADEA in the hiring process by discriminating against him by
conflating the usual sterotype [sic] of the 'sick' person with the 'old' person," thereby
discriminating against Plaintiff on the basis of his sickness as well as his age. Id. Plaintiff states
that the individual hired for the clerk/typist position was forty-four years old and unqualified for
the position. See id. at 19. Plaintiff appears to be asserting that the hired individual was selected
because he was younger than Plaintiff, regardless of credentials. See id. Although Plaintiff
12

regards himself as being the "far and away the most qualified" for the job, the investigation by the
DHR found that Plaintiff "received the lowest marks of all candidates in the interviews, and in
conference the interviewers talked about his lack of desired skills and experience." Dkt. No. 8-3
at 2. The DHR concluded that while the individual hired was younger than Plaintiff, "the
investigation did not reveal that his age was the determining factor why he was not hired." Id.
Rather, Defendant's decision not to hire Plaintiff was based on "legitimate concerns about a
potential hire," and did not demonstrate "any discriminatory intent." Id. at 3.
Plaintiff has failed to include any plausible factual allegations or information as to how
age played a factor in Defendant's decision not to hire him. Both the original complaint and
proposed amended complaint consist only of the conclusory allegation that Defendant conflated
sickness with age, without any facts to support a finding that Defendant took Plaintiff's age into
consideration during the hiring process. This allegation fails to cross the line from conceivable to
plausible to demonstrate that Defendant acted with discriminatory intent in its decision not to hire
Plaintiff. Consequently, amendment of the complaint would be futile, as both the complaint and
proposed amended complaint fail to assert facts suggesting a plausible claim of age
discrimination under the ADEA.
3. Civil Rights Act of 1991
Plaintiff alleges that Defendant violated the Civil Rights Act of 1991 "by discriminating
against him on the basis of religion, based on the religiously disparaging remarks made by then
Mayor Sottile to [Plaintiff] on a blog and the evident influence he had with school district
administrators, which said Mr. Sottile wrote to [P]laintiff during the years 2009-2010." Dkt. No.
20-2 at 19.

13

This claim does not appear in the original complaint, and the proposed amended complaint
does not set forth any facts to support this allegation. The proposed amended complaint states
that "Mr. Sottile made disparaging remarks about the plaintiff's religion" and that he "was []
discriminated against on the basis of his religion, having filed a complaint with the city once with
regard to garbage being found strewn all over the front lawn of his church on one occasion," and
Mr. Sottile subsequently "withdrew garbage pickup for all nonprofit organizations in the city."
Dkt. No. 20-2 at 16; Dkt. No. 8-3 at 2. Plaintiff does not set forth any facts to demonstrate that
Mr. Sottile conveyed this to Defendant. Additionally, Plaintiff's proposed amended complaint is
devoid of any allegations indicating that the blog exchanges had any relation or impact on
Defendant's decision not to hire Plaintiff in 2015. Further, this isolated comment, made by a
person not associated with the school district six years prior to the alleged failure to hire, is
insufficient to plausibly allege a causal link between the two events.
Consequently, the Court finds that Plaintiff's conclusory allegations are insufficient to set
forth a plausible cause of action.
C.

Leave to amend
When a pro se complaint fails to state a cause of action, the court generally "should not

dismiss without granting leave to amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated." Cuoco, 222 F.3d at 112 (internal
quotation and citations omitted). Of course, an opportunity to amend is not required where "[t]he
problem with [the plaintiff's] cause of action is substantive" such that "better pleading will not
cure it." Id. (citation omitted). Furthermore, "[w]here granting leave to amend is unlikely to be
productive . . . it is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer &
Co., 987 F.2d 129, 131 (2d Cir. 1993) (collecting cases).
14

In response to the motion to dismiss, Plaintiff filed a proposed amended complaint, which
provides additional details and allegations, specifically those regarding Plaintiff's status as an
individual "perceived as" having a mental illness. See Dkt. No. 20-2 at 14-18. This attempt,
however, fails to assert anything above conclusory factual allegations. Even taking the notion
that Plaintiff is "regarded as" having a mental illness as true, Plaintiff has not alleged any facts
plausibly suggesting that he was the subject of discrimination because of any actual or perceived
disability. Moreover, Plaintiff has identified only two statements made in the interview process
that could have possibly related to his disability. Dkt. No. 20-2 at 3, 6. These isolated
statements, supported only by vague and conclusory assertions, are insufficient to plausibly allege
disability discrimination. Additionally, Plaintiff did not claim that he was regarded as suffering
from a mental illness in his complaint filed with the DHR. See Dkt. No. 23-1 at 1. Therefore,
amendment of the complaint in respect to this issue would be futile for failure to exhaust
administrative remedies.
With respect to Plaintiff's ADA claim regarding his celiac disease, and the claims brought
pursuant to the ADEA and the Civil Rights Act of 1991, both the original complaint and proposed
amended complaint are completely devoid of any facts in support of these claims. Plaintiff's
allegations fail to "raise a right of relief above the speculative level," and are insufficient to
survive a motion to dismiss. See Twombly, 550 U.S. at 557. Consequently, after carefully
reviewing both the original and proposed amended complaint, the Court finds that Defendant's
motion to dismiss should be granted and that the claims should be dismissed with prejudice
because any amendment would be futile.
As such, Defendants' motion to dismiss is granted, and Plaintiff's claims are dismissed
without leave to amend. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (holding that
15

while pro se litigants are generally given an opportunity to amend their complaints to cure any
deficiencies, where "[t]he problem with [the] causes of action is substantive" such that "better
pleading will not cure it," leave to amend should be denied as futile) (citations omitted).
D.

Plaintiff's state law claims
In his proposed amended complaint, Plaintiff asserts that Defendant violated the NYHRL

"by reason of discrimination against plaintiff on the basis of marital status."
Application of supplemental jurisdiction is discretionary, and "it requires a balancing of
the considerations of comity, fairness to the litigants, judicial economy, and the avoidance of
needless decisions of state law." Federman v. Empire Fire & Marine Ins. Co., 597 F.2d 798, 809
(2d Cir. 1979) (citation omitted). Since the Court has dismissed all of Plaintiff's federal claims, it
declines to exercise supplemental jurisdiction over his state-law claim and dismisses it without
prejudice pursuant to 28 U.S.C. § 1367(c)(3).
E.

Other pending motions
On September 12, 2016 and November 14, 2016, Plaintiff filed letters requesting that the

Court appoint counsel. See Dkt. Nos. 18 & 28. Plaintiff claims that he has sought counsel
through various family members and the Legal Services of the Hudson Valley, but he has not
been able to successfully secure counsel. See Dkt. No. 28. "There is no right to the appointment
of counsel in civil cases." United States v. Sash, 581 F. Supp. 2d 647, 649 (S.D.N.Y. 2008). "A
district court possesses broad discretion when determining whether appointment is appropriate,
'subject to the requirement that it be guided by sound legal principle.'" Harnage v. Gerbing, No.
13-CV-4598, 2013 WL 5775770, *2 (E.D.N.Y. Oct. 25, 2013) (quoting Cooper v. A. Sargenti
Co., Inc., 877 F.2d 170, 171-72 (2d Cir. 1989)) (other quotation omitted). The Second Circuit has
provided that, when determining whether to appoint counsel in a civil case, a district court should
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first consider whether there is substance to the litigant's position. See Cooper, 877 F.2d at 172. If
the litigant's position has substance, courts should then consider a number of factors, including a
plaintiff's ability to obtain representation independently, his ability to manage the case without an
attorney, the complexity of the legal issues, and the need for expertly conducted crossexamination. See id.
Having determined that Plaintiff's federal claims should be dismissed with prejudice, the
Court denies Plaintiff's motions for the appointment of counsel.
Moreover, on September 12, 2016, Plaintiff filed a "motion to strike" portions of
Defendant's motion to dismiss. See Dkt. No. 19. In his motion, Plaintiff repeatedly disagrees
with statements made by Defendant in its motion to dismiss. Plaintiff cites to Rule 12(f) of the
Federal Rules of Civil Procedure in support of his motion. First, Rule 12(f) permits the Court to
strike from "a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter." Since a motion to dismiss is not a "pleading," the Court denies Plaintiff's
motion. Moreover, the Court has reviewed Plaintiff's motion and finds that nothing in
Defendant's submission warrants the relief Plaintiff seeks. Accordingly, Plaintiff's motion is
denied.
Additionally, on September 23, 2016, Plaintiff filed a "premotion letter" in which he
addresses the arguments in Defendant's reply to the motion to dismiss. See Dkt. No. 24 at 1. In
this motion, Plaintiff refers to the Court's Individual Rules of Practice as they pertain to motions
for sanctions. See id. Having reviewing the "premotion letter," the Court finds that Plaintiff has
provided no valid basis to impose "sanctions" on Defendant. Further, to the extent that this
submission could be construed as a sur-reply, the Court finds that the arguments raised have no

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bearing on the disposition of this matter as set forth above. As such, the Court denies Plaintiff's
"premotion letter." Dkt. No. 24.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendant's motion to dismiss the complaint (Dkt. No. 8) is GRANTED;
and the Court further
ORDERS that Plaintiff's motion for leave to amend the complaint (Dkt. No. 20) is
DENIED; and the Court further
ORDERS that Plaintiff's motions to appoint counsel, motion to strike, and motion for
sanctions (Dkt. Nos. 18-19, 24 & 28) are DENIED; and the Court further
ORDERS that Defendant's letter motion requesting denial of Plaintiff's motion for
sanctions (Dkt. No. 25) is DENIED as moot; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 13, 2017
Albany, New York

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