Dollinger v. New York State Insurance Fund

Filing 68

MEMORANDUM-DECISION AND ORDER re 44 Motion for Judgment on the Pleadings; 47 Motion for Judgment on the Pleadings; and 63 Motion to Dismiss for Lack of Personal Jurisdiction: The Court hereby ORDERS that Defendants' motions for judgme nt on the pleadings (Dkt. Nos. 44 and 47) are GRANTED; and the Court further ORDERS that Defendant Lefkowitz's motion to dismiss for lack of personal jurisdiction (Dkt. No. 63) is DENIED as moot; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendants' 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 the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 11/18/2016. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ROBERT A. DOLLINGER,
Plaintiff,
vs.

3:14-CV-908
(MAD/DEP)

NEW YORK STATE INSURANCE FUND; NYSIF
BOARD OF COMMISSIONERS; WILLIAM
O'BRIEN; PETER CUSICK; JAMES FEHRER;
CHARLES BROWNING; SCOTT ENGLEHART;
MARK KENYON; HEATHER WOOLFOLK;
JOSEPH MULLEN; ALYCE SIEGEL; SUSAN
LEFKOWITZ; JOHN MASSETTI; JOE NOLTE;
THOMAS RACKO; TINA CHRISTIANO;
ROBERT VERHAYDEN; and MARK GALLO,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

ROBERT A. DOLLINGER
84 State Line Road
Vestal, New York 13850
Plaintiff, pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

JOSHUA L. FARRELL, AAG
ADRIENNE J. KERWIN, AAG

OFFICE OF FRANK W. MILLER
6575 Kirkville Road
East Syracuse, New York 13057
Attorneys for Defendant Browning

CHARLES C. SPAGNOLI, ESQ.
FRANK W. MILLER, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Pro se plaintiff, Robert Dollinger, brought this action against his employer, the New York

State Insurance Fund ("NYSIF"), alleging discrimination, retaliation, and hostile work
environment based on his sexual orientation and disability in violation of Title VII of the Civil
Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act ("ADA"). See Dkt. No.
1. Defendant filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. See Dkt. No. 5-1. Plaintiff responded, filed a cross-motion to amend his complaint,
and submitted a proposed amended complaint in support of his motion. See Dkt. No. 8-1.
On March 30, 2015, the Court issued a Memorandum-Decision and Order granting in part
and denying in part Defendant's motion to dismiss. See Dkt. No. 10 at 21. The Court dismissed
Plaintiff's Title VII discrimination, retaliation, and hostile work environment claims, as well as
Plaintiff's ADA discrimination claims, but denied the motion as to Plaintiff's ADA hostile work
environment and retaliation claims. See Dkt. No. 10 at 22. Moreover, the Court granted
Plaintiff's cross motion to amend the complaint. Thereafter, Defendant filed a motion for
judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure seeking
dismissal of the amended complaint. See Dkt. No. 20-1. Plaintiff opposed the motion and filed a
cross-motion to amend his complaint, but failed to submit a proposed amended complaint. See
Dkt. Nos. 23, 25. On August 26, 2015, Plaintiff filed his proposed amended complaint. See Dkt.
No. 27. Defendant opposed Plaintiff's motion for leave to amend. See Dkt. No. 26.
In a December 10, 2015 Memorandum-Decision and Order, the Court first found that the
amended complaint, as pled, does not entitle Plaintiff to relief because the only Defendant, the
NYSIF, was entitled to sovereign immunity because Title I of the ADA did not override
sovereign immunity. See Dkt. No. 32 at 7. As such, the Court granted Defendant's motion for
judgment on the pleadings. See id. However, in his proposed second amended complaint, the
Court noted that Plaintiff named sixteen individuals in addition to the NYSIF. See id. Further,
the Court found that, because the only relief Plaintiff seeks is prospective injunctive relief, he is
2

able to bring suit against the individual actors in their official capacities under the Ex Parte Young
exception. See id. at 7-8. Moreover, the Court noted that the proposed second amended
complaint alleged violations of his rights under the Rehabilitation Act ("RA"), in addition to the
ADA claims. See id. at 8. Because New York and its agencies have continued to accept federal
funds, the Court found that it has been repeatedly held by courts in the Second Circuit that
sovereign immunity has been waived for claims brought pursuant to Section 504 of the RA. See
id. Having found no prejudice or undue delay, the Court granted Plaintiff's motion to amend. See
id.
Currently before the Court are Defendants' motions for judgment on the pleadings and to
dismiss for lack of personal jurisdiction. See Dkt. Nos. 44, 47 & 63.
II. BACKGROUND
Plaintiff is an employee of the New York State Insurance Fund, located at their office in
Binghamton, New York. According to Plaintiff, Defendant NYSIF has allowed "a discriminatory
hostile atmosphere, which includes discrimination based on disability, sexual harassment, and
retaliation." Dkt. No. 27 at 7. Plaintiff claims that he has been subjected to such treatment
because he is "regarded as belonging to a group associated with high risk for HIV/AIDS;
homosexual men living with HIV/AIDS." Id.
Plaintiff contends that he has "received unwanted emails including unwanted sexual
pictures of men as well as derogatory stereotype character representations of gay men and unsafe
sex. One graphic references "NO AIDS" and portrays a symbolic male figure engaging in unsafe
sex with a line drawn through it." Id. at 8. Further, Plaintiff contends that one email had "an
image titled 'Gay Terrorist' and depict[ed] a man dressed like a woman in high heels." Id.
Plaintiff claims that he has "opposed discrimination and participated in internal NYSIF
discrimination complaints as well as NYS Division of Human Rights investigations." Id. at 9.
3

According to Plaintiff, he has "reported harassing emails and materials placed in [his] work area
to [his] supervisors and the Affirmative Action Office at NYSIF. [His] reporting included NYSIF
interviews regarding discriminatory behavior with respect to disability and sexual harassment and
written responses." Id. at 10. On March 16, 2012, Plaintiff was named as an aider and abettor in
a sex discrimination complaint. See id. In that complaint, it was alleged that Plaintiff "was
photographing females in the women's lavatory to share with the then male Policyholder Services
Manager who is now the Business Manager." Id. Without providing any detail, Plaintiff alleges
that "[o]ther NYSIF interviews involved disability complaints and sexual harassment complaints
levied against NYSIF and the then female Business Manager." Id.
Plaintiff also discusses a number of instances of alleged harassment and discrimination
that do not appear to directly involve him. For example, Plaintiff contends that, "[u]pon
information and belief, security and fire alarms were set off and complaints were levied about the
inability to distinguish the tone of the fire alarm from the security alarm and the 'complete lack of
concern or competence' of the then female Business Manager in this regard. Although the alarms
had been the same in the past, when a prior male attorney was the Business Manager, no
complaints were levied for 'lack of concern or competence' in this regard." Id. at 12.
Plaintiff also alleges that he has been falsely named in workplace violence complaints.
See id. at 13-14. Although Plaintiff does not specify what actions, if any, were taken against him
as a result of the ensuing investigation, he does claim that the NYSIF Executive Deputy Attorney
and NYSIF Personnel Director "have held meetings with the entire Binghamton staff including
the Legal Department and PEF since 2011 regarding this inappropriate activity." Id. at 13-15.
Plaintiff contends that others are also mistreated at his workplace. Specifically, Plaintiff
asserts that "[t]he targeted individuals include the disabled, perceived lesbians and gay men,
women and men who do not conform to traditional female or male gender stereotypes, or anyone
4

who opposes or questions the targeted discriminatory activities. Scare tactics in this regard are
especially heightened in the Binghamton District Office where there are many coworkers who did
not compete in open Civil Service Exams for hiring or promotions, but were instead selected as a
result of political affiliation as well as quid pro quo elements involving former NYSIF Executive
Management." Dkt. No. 27 at 16.
Plaintiff contends that the NYSIF Affirmative Action Intake procedures were revised in
June of 2012 to include a disciplinary warning regarding the filing of false and malicious
complaints. See id. at 17. Despite these changes, however, "NYSIF has not applied this policy
and has allowed this continuous discriminatory activity go on without recourse or justice for the
targeted victims." Id.
In May of 2013, NYSIF posted a vacancy notice (E13-03) seeking candidates for a
Policyholder Service Manager in the Binghamton District Office. See Dkt. No. 27 at 20. Plaintiff
applied for the position. According to Plaintiff, that same month, "a male coworker who was the
subject of discipline for improper computer use, including shared emails containing sexual
content, sexual innuendo, profanity and nudity, who also filed a Workplace Violence Complaint
naming NYSIF, me, and the Affirmative Action Officer as aggressors of violence in the
workplace, then emailed false negative information relating to my personal life to the NYSIF
Executive Director, the NYSIF Director of Administration, and the NYSIF Personnel Director
stating that I had photographed women at work and that I had thrown a hot cup of coffee at my
nephew at home and stated that he is fearful of me and that 'It is evident that Mr. Dollinger's
domestic violence has spill[ed] over into the workplace, compromising the safety of . . .
coworkers and resulting in lost productivity. . . .'" Id. at 20-21. Plaintiff claims that, on
information and belief, this male coworker was the only other candidate being reviewed for the
vacancy. See id. at 21. Despite having worked at the NYSIF for twenty-eight years in various
5

positions, Plaintiff has not been promoted to a management position. See id. at 22-23.
In July of 2013, NYSIF posted a second vacancy notice (E13-04) seeking candidates for
the Policyholder Service Manager position in the Binghamton District Office. See id. at 23.
Plaintiff applied for the position but was not interviewed. See id. In August of 2013, Plaintiff
was advised by a coworker "that she and others observed information about [his] personal life that
was placed in an electronic common retain folder associated with" a fax box, which was used and
accessed by the entire staff through NYSIF's email system. See id. "Upon information and belief
the information was placed in the folder by the male candidate who had interviewed for Vacancy
Notice (E13-03) for PHS Manager." Id. Moreover, on August 14, 2013, coworkers advised
Plaintiff that the same male coworker "was now boasting that he and the Legal Department had
intervened and that [Plaintiff] would no longer be the selected candidate for PHS Manager."
Id. at 25. Plaintiff reported this conduct to the NYSIF Affirmative Action Officer on August 14,
2013 but, after referring the complaint to an outside agency, no action was taken. See id. at 2526.
Plaintiff claims that he is "being subjected to this discrimination and hostility on the basis
of [his] disability, sexual harassment including gender stereotyping, and in retaliation for
opposing discrimination and participating in internal NYSIF discrimination complaints and NYS
Division of Human Rights investigations." Dkt. No. 27 at 26-27. Plaintiff alleges that he filed his
first workplace violence complaint at NYSIF in May of 2014 after being threatened for pursuing
his rights. See id. at 28. "Threats and workplace violence has continued and include letters and
other threatening and derogatory information mailed to my home and left in my work station
including August and December of 2014 as well as negative interactions, including threats of
discipline, in March 2015 and June 2015." Id. at 28-29. Plaintiff also claims that in October of
2014, he "was subjected to interrogation and threatened with discipline for allegedly slamming a
6

door." Id. at 29.
Plaintiff concludes his complaint by alleging that, "[o]n information and belief NYSIF
policymakers including William O'Brien, Peter Cusick, Heather Woolfolk, Alyce Siegel, Isbell
Jeng, Jacqueline Herman, and Joseph Mullen are aiding and abetting and/or inciting unlawful
treatment that includes threats, violence, hostility and retaliation [i]n willful violation of the
Americans With Disabilities Act and the Rehabilitation Act of 1973[.]" Id. at 30.
In the motion for judgment on the pleadings filed by those Defendants represented by the
Attorney General's Office (the "State Defendants"), they argue that the Court should dismiss the
second amended complaint for the following reasons: (1) Plaintiff's second amended complaint
sets forth no viable claim against any of the individually named Defendants in their individual
capacities; (2) the Court's prior decisions limit the causes of action Plaintiff may pursue in his
second amended complaint; (3) Plaintiff's ADA and RA hostile work environment claim is
neither cognizable nor timely; (4) on the pleadings, Plaintiff has no cognizable ADA or RA
retaliation claim; (5) Plaintiff failed to timely serve his complaint on Susan Lefkowitz and the
NYSIF Board of Commissioners, requiring the action be dismissed against both; (6) because
Plaintiff's prayer for relief is defective, dismissal of the complaint is required; (7) Plaintiff's
second amended complaint's claims against the official capacity Defendants must be dismissed as
redundant; and (8) Plaintiff's second amended complaint's claims against those Defendants who
are not mentioned in the complaint must be dismissed. See Dkt. No. 47-1.
Defendant Browning has separately moved to dismiss. See Dkt. No. 44. In his motion,
Defendant Browning raises the following arguments: (1) Plaintiff is not disabled within the
meaning of the ADA or the RA; (2) the complaint fails to state a claim for disability
discrimination as to him; (3) there is no remaining basis to hold Defendant Browning liable in this
action; and (4) the complaint fails to state a claim upon which relief can be granted. See Dkt. No.
7

44-4. Finally, Defendant Lefkowitz moves to dismiss the second amended complaint because she
has not been properly served in this action and, even assuming proper service, it should be
dismissed for failure to state a claim. See Dkt. No. 63-2.
Currently before the Court are Defendants' motions to dismiss the second amended
complaint and Plaintiff's opposition thereto.
III. DISCUSSION
A.

Standard of Review
In deciding a Rule 12(c) motion, the court "'employ[s] the same standard applicable to

dismissals pursuant to Fed. R. Civ. P. 12(b)(6).'" Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.
2010) (quoting Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009)). A motion to dismiss pursuant
to Rule 12(b)(6) tests the legal sufficiency of the party's claim, accepting as true all well-pleaded
facts and drawing all reasonable inferences in favor of the pleader. See Patane v. Clark, 508 F.3d
106, 111-12 (2d Cir. 2007); ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007) (citation omitted). Ultimately, "when the allegations in a complaint, however true, could
not raise a claim of entitlement to relief," the complaint must be dismissed. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007). When the pleader is pro se, the court must hold their
pleadings to a more lenient standard than "formal pleadings drafted by lawyers." Govan v.
Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519,
520 (1972)) (other citations omitted); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) ("A pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers").
On a Rule 12(c) motion, the court may consider the following matters outside the four
corners of the complaint without converting the motion to one for summary judgment: (1)
documents attached as an exhibit to the complaint or answer, (2) documents incorporated by
8

reference in the complaint (and provided by the parties), (3) documents that, although not
incorporated by reference, are "integral" to the complaint, or (4) any matter of which the court can
take judicial notice for the factual background of the case. See L-7 Designs, Inc. v. Old Navy,
LLC, 647 F.3d 419, 421-22 (2d Cir. 2011) (quotation omitted); see also Jenkins v. County of
Washington, 126 F. Supp. 3d 255, 274 (N.D.N.Y. 2015) (citation omitted).
B.

Claims Against the Individual Defendants in Their Individual Capacities
It is well established that individuals may not be sued in their individual or personal

capacity under the ADA or the Rehabilitation Act. See Darcy v. Lippman, 356 Fed. Appx. 434,
437 (2d Cir. 2009); Spiegel v. Schulmann, 604 F.3d 72 (2d Cir. 2010). As such, to the extent that
Plaintiff has named the Defendants in their individual capacities, his ADA or RA causes of action
against them must be dismissed. Moreover, as set forth in this Court's December 10, 2015
Memorandum-Decision and Order, the only relief Plaintiff seeks is prospective injunctive relief,
which is properly brought against the Defendants in their official capacities.
Based on the foregoing, the Court finds that Plaintiff has failed to set forth any claim
against the Defendants in their individual capacities.
C.

ADA and RA Discrimination
The ADA prohibits "discrimination against a qualified individual 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). To establish a prima facie case of discrimination under the ADA or the
RA, a plaintiff must show that: "(1) his employer is subject to the ADA; (2) he 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." Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 169 (2d
9

Cir. 2006) (citing Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001)); Quadir v.
N.Y.S. Dep't of Labor, 39 F. Supp. 3d 528, 537 (S.D.N.Y. 2014) (holding that the RA "imports the
discrimination standards of Title I of the ADA") (citations omitted).
Under the ADA, "disability" is defined as follows: (a) a physical or mental impairment
that substantially limits one or more of the major life activities of an individual; (b) a record of
such impairment; or, (c) being regarded as having such an impairment. See 42. U.S.C. §
12102(1). An individual meets the third, "regarded as," category if "the individual establishes
that he . . . has been subjected to an action prohibited under this chapter because of an actual or
perceived physical or mental impairment whether or not the impairment limits or is perceived to
limit a major life activity." 42 U.S.C. § 12102(3)(A). "A 'regarded as' claim turns on the
employer's perception of the employee and is therefore a question of intent, not whether the
employee has a disability." Capobianco v. City of New York, 422 F.3d 47, 57 (2d Cir. 2005)
(internal citations and quotations omitted). The Second Circuit explained in City of Meriden that
[a] plaintiff cannot state a claim under the "regarded as" prong of
the ADA . . . simply by alleging that the employer believes some
physical condition renders the plaintiff disabled. Rather, the
plaintiff must allege that the employer believed, however
erroneously, that the plaintiff suffered from an "impairment" that, if
it truly existed, would be covered under the statute and that the
employer discriminated against the plaintiff on that basis.
Francis v. City of Meriden, 129 F.3d 281, 285 (2d Cir. 1997).
"An individual who can show that an employer made an employment decision because of
a perception of a disability based on myth, fear, or stereotype, will satisfy the regarded as part of
the definition of disability." Dollinger v. State Ins. Fund, 44 F. Supp. 2d 467, 479 (N.D.N.Y.
1999) (emphasis added) (internal quotations and citation omitted). A "disability" includes HIV
positive status. See Bragdon v. Abbot, 524 U.S. 624 (1998); see also Rivera v. Heyman, 157 F.3d
101, 103 (2d Cir. 1998) (confirming the Second Circuit's conclusion that HIV positive status
10

constitutes a disability).
In the present matter, the Court first finds that, since Plaintiff failed to respond to this
aspect of the State Defendants' motion for judgment on the pleadings, he has abandoned these
causes of action. See Jackson v. Fed. Exp., 766 F.3d 189, 194-95 (2d Cir. 2014). Even assuming
Plaintiff had not abandoned these causes of action, the Court finds that Plaintiff has failed to
plausibly allege facts supporting both the second and fourth elements of a disability
discrimination claim. Previously, the Court held that Plaintiff's original complaint plausibly
alleged that he is "regarded as" being disabled within the meaning of the ADA. In his deposition
testimony, however, Plaintiff has clarified his position.1 As discussed, in his second amended
complaint, Plaintiff repeatedly stated that he is "regarded as belonging to a group associated with
high risk for HIV/AIDS; homosexual men living with HIV/AIDS." Dkt. No. 27 at 7. Liberally
construing this language, the Court believed that Plaintiff was alleging that Defendants regarding
him as having HIV or AIDS. During his deposition, however, Plaintiff makes clear that he is not
claiming that any of the named Defendants believe that he has HIV or AIDS. Rather, they regard
him as belonging to a group (homosexual men) who engage in activities that make it more likely
that he will eventually contract HIV. See Dkt. No. 46-1 at 69-90. Similarly, in his response to
the pending motions, Plaintiff makes clear that he is "regarded as belonging to a group associated
with high risk for HIV/AIDS." Dkt. No. 57 at 2. Since Plaintiff is not alleging that Defendants
perceived him as having HIV or AIDS, or any other impairment that limits a major life activity, it
necessarily follows that he is not "regarded as" having a disability within the meaning of the ADA
or RA.2

1

The State Defendants attached Plaintiff's deposition testimony to their answer.

2

In his deposition, Plaintiff responded to questions regarding his alleged disability as
(continued...)
11

Even if Plaintiff could satisfy the second element, his ADA and RA discrimination claims
fail on the fourth element – i.e., that he suffered an adverse employment action because of his
disability. Aside from entirely conclusory allegations, Plaintiff's second amended complaint fails
to plausibly allege that he suffered an adverse employment action because of any alleged
disability. As discussed above, Plaintiff specifically alleges that he applied for two management
positions in 2013 but was not selected for these openings when another candidate emailed "false
negative information" about Plaintiff to supervisors at the NYSIF. See Dkt. No. 27 at 20-25.
Plaintiff does not allege that this email contained information about his alleged disability; rather,
the email discussed the fact that Plaintiff had been disciplined at work for photographing a
woman and that he had been the subject of a domestic violence complaint. See id. at 21-22.
These allegations do not support the conclusion that Plaintiff was not promoted because any
named Defendant regarded Plaintiff has having a disability.
Based on the foregoing, the Court grants Defendants' motion for judgment on the
pleadings as to Plaintiff's ADA and RA discrimination claims.
D.

ADA and RA Hostile Work Environment
ADA hostile work environment claims are analyzed under the same frame work as Title

2

(...continued)

follows:
Q.

What ADA disability do you suffer from?

A.

I am associated with – I belong to a group associated with high risk
behavior for HIV/AIDS.

Q.

Is that the totality of your disability?

A.

Yes.

Dkt. No. 46-1 at 69-70.
12

VII, except that in order to state a claim for hostile work environment under the ADA, "[a]
plaintiff must also demonstrate that [he] was subjected to the hostility because of [his disability]."
Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir. 1999); see also Hendler v.
Intelecom USA, Inc., 963 F. Supp. 200, 208 (E.D.N.Y. 1997) (holding that an ADA hostile work
environment claim is analyzed under same framework at Title VII).
As the Second Circuit has recognized, in order to prevail under the standard, a plaintiff
must establish two elements. First, for a work environment to be sufficiently hostile so as to be
actionable, the workplace must be "permeated with discriminatory intimidation, ridicule, and
insult that is sufficiently pervasive to alter the conditions of the victim's employment." Kassner v.
2nd Ave. Delicatessen Inc., 496 F.3d 229, 240 (2d Cir. 2007) (citing Brennan v. Metro. Opera
Ass'n, 192 F.3d 310, 318 (2d Cir. 1999)). The determination of hostility "depends on whether a
reasonable person would find the work environment to be hostile and whether plaintiffs
subjectively perceived it to be so." Id. Factors to consider in evaluating a hostile work
environment claim include the following: "the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 23 (1993). "'Generally, isolated incidents of harassment do not give rise to a
hostile work environment claim; instead, the incidents must be sufficiently continuous and
concerted in order to be deemed persuasive.'" Martinsky v. City of Bridgeport, 814 F. Supp. 2d
130, 151 (D. Conn. 2011) (quotations omitted). "'Simple teasing, offhand comments, and isolated
incidents . . . will not amount to discriminatory changes in the terms and conditions of
employment sufficient to meet the threshold of severity or pervasiveness.'" Id. (quotations
omitted).
Second, to successfully raise a hostile work environment claim, a plaintiff must show that
13

"a specific basis exists for imputing the conduct that created the hostile environment to the
employer." Murray v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995) (citing
Karibian v. Columbia Univ., 14 F.3d 773, 779 (2d Cir. 1994)). "[E]mployer liability for a hostile
environment created by coworkers, or by a low-level supervisor who does not rely on his
supervisory authority in carrying out the harassment, attaches only when the employer has 'either
provided no reasonable avenue for complaint or knew of the harassment but did nothing about
it.'" Id. (quoting Kotcher v. Rosa & Sullivan Appliance Ctr. Inc., 957 F.2d 59, 63 (2d Cir. 1992)).
In the present matter, Plaintiff has failed to allege conduct sufficiently severe to plausibly
allege a hostile work environment. In his second amended complaint, Plaintiff repeatedly alleges
that he was subjected to hostile comments and actions by his coworkers. The majority of these
comments, however, are in no way related to any alleged disability. Plaintiff alleges that he has
received unwanted emails "including unwanted sexual pictures of men as well as derogatory
stereotype character representations of gay men and unsafe sex. One graphic references 'NO
AIDS' and portrays a symbolic male figure engaging in unsafe sex with a line drawn through it.
One email has an image titled 'Gay Terrorist' and depicts a man dressed like a woman in high
heels." Dkt. No. 27 at 8. This is the only specific allegation raised in the second amended
complaint in which Plaintiff claims that he was subjected to harassment related to HIV or AIDS.
The remaining allegations generally pertain to comments made by unidentified individuals
regarding Plaintiff's sexuality, which cannot support an ADA or RA hostile work environment
claim. The one identified incident in the second amended complaint is insufficient to meet the
threshold of severity or pervasiveness. See Martinsky, 814 F. Supp. 2d at 151 (quotation
omitted).
Moreover, as discussed above, Plaintiff has failed to plausibly allege that he is regarded as
being disabled within the meaning of the ADA and RA. As such, his hostile work environment
14

claim fails as a matter of law on this alternative ground. See Skinner v. City of Amsterdam, 824 F.
Supp. 2d 317, 331 (N.D.N.Y. 2010) (dismissing the plaintiff's ADA claims were he failed to make
this threshold showing).
Based on the foregoing, the Court grants Defendants' motions for judgment on the
pleadings as to Plaintiff's ADA and RA hostile work environment claims.
E.

ADA and RA Retaliation
The ADA makes it unlawful for an employer to "discriminate against any individual

because such individual has opposed any act or practice made unlawful by this chapter or because
such individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a). A retaliation
case under the ADA requires "a showing that the employee was engaged in an activity protected
by the ADA." Gold v. Carus, 131 Fed. Appx. 748, 750 (2d Cir. 2005) (quotations and citation
omitted). ADA retaliation claims are analyzed under the same framework as Title VII retaliation
claims. See Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999)
("[The Second Circuit] conclude[s] that it is appropriate to apply the framework used in analyzing
retaliation claims under Title VII in analyzing a claim of retaliation under the ADA").
"[The ADA's] anti-retaliation provision must be construed to cover a broad range of
employer conduct." Thompson v. North American Stainless, LP, 562 U.S. 170, 173 (2011)
(citation omitted). Keeping that premise in mind, the Second Circuit has held that "retaliatory coworker harassment, if sufficiently severe, may constitute adverse employment action so as to
satisfy the second element of the retaliation prima facie case." Martin v. New York State Dep't of
Corr. Servs., 224 F. Supp. 2d 434, 448 (N.D.N.Y. 2002) (citing Richardson v. New York State
Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999)). In determining whether the coworker harassment is "sufficiently severe," the court should consider whether the plaintiff has
15

"endure[d] a materially adverse change in the terms and conditions of employment." Martin, 224
F. Supp. 2d at 448 (quoting Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.
2000)) (citation omitted). Further, "material adversity is to be determined objectively, based on
the reactions of the reasonable employee." Rivera v. Rochester Genesse Regional Transp.
Authority, 743 F.3d 11, 25 (2d Cir. 2012).
In the present matter, the Court finds that Plaintiff has failed to plausibly allege that he
engaged in activity protected by the ADA or that he suffered a materially adverse change in the
terms of his employment in retaliation for engaging in such protected activity. As discussed
above, the only alleged "disability" mentioned in the second amended complaint are individuals
who are "regarded as belonging to a group associated with high risk for HIV/AIDS." Since such
individuals are not disabled within the meaning of the ADA or RA, advocating on their behalf
cannot serve as the predicate protected activity. Again, being "associated with high risk
behavior" does not equate to being perceived as having an impairment that substantially limits a
major life activity.
Moreover, Plaintiff has failed to plausibly allege that he suffered a materially adverse
employment action. The isolated "No AIDS" reference which, according to Plaintiff occurred at
some point in 2008 or 2009, is insufficient to dissuade a reasonable worker from making or
supporting a charge of discrimination. See Christiansen v. Omnicom Group, Inc., 167 F. Supp. 3d
598, 617 (S.D.N.Y. 2016) (quotation omitted). Further, although Plaintiff does complain that he
did not receive a promotion in 2013, he fails to plausibly allege that any alleged protected conduct
is the cause for the decision. Rather, as discussed above, Plaintiff contends that he was not
promoted to the management positions because another candidate emailed "false negative
information" about Plaintiff to supervisors at the NYSIF, which was entirely unrelated to any
alleged disability. See Dkt. No. 27 at 20-25.
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Based on the foregoing, the Court grants Defendants' motions for judgment on the
pleadings as to Plaintiff's ADA and RA retaliation claims.
F.

Defendant Browning's Motion for Judgment on the Pleadings
Defendant Browning argues that he is entitled to judgment on the pleadings because

Plaintiff is not disabled with the meaning of the ADA or RA and because the second amended
complaint fails to state a claim for disability discrimination against him. See Dkt. No. 44. For all
of the reasons set forth above, the Court finds that Defendant Browning, who is an employee of
the NYSIF, is entitled to judgment on the pleadings. Moreover, the Court also notes that
Defendant Browning is only listed in the caption of the second amended complaint. There are no
allegations made against him in the body. As such, Defendant Browning's motion is granted on
this alternative basis.
Based on the foregoing, the Court grants Defendant Browning's motion for judgment on
the pleadings.
G.

Defendant Lefkowitz's Motion
In addition to moving with the State Defendants for judgment on the pleadings, Defendant

Lefkowitz also moved to dismiss for, among other reasons, lack of personal jurisdiction. See Dkt.
No. 63. Since the Court has granted the State Defendants' motion for judgment on the pleadings,
Defendant Lefkowitz's motion is denied as moot.
H.

Leave to amend
As a general matter, "'the district court has discretion whether or not to grant leave to

amend, and its decision is not subject to review on appeal except for abuse of discretion.'" Shomo
v. New York, 374 Fed. Appx. 180, 182 (2d Cir. 2010) (quoting Salahuddin v. Cuomo, 861 F.2d 40,
42 (2d Cir. 1988)). An opportunity to amend is not required where "the problem with [plaintiff's]
causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu,
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222 F.3d 99, 112 (2d Cir. 2000) (citation omitted). As the Second Circuit has explained, "[w]here
it appears that 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). However, because "[a] pro se complaint is to be read liberally . . . the court 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 bet stated." Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (citation and internal quotation marks omitted).
In the present matter, Plaintiff has already amended his original complaint on two separate
occasions. As discussed above, Plaintiff has failed to allege that he has a disability within the
meaning of the ADA and RA. Since Plaintiff cannot establish this prerequisite, granting Plaintiff
leave to file a third amended complaint would be futile. Moreover, Plaintiff has been granted
three opportunities to provide the Court with sufficient factual detail to support his claims but
repeatedly failed to do so. As his deposition testimony makes clear, those facts simply do not
exist. Although the Court does not doubt or question the fact that Plaintiff has been subjected to
some offensive conduct in the workplace, the conduct alleged is simply not prohibited by the
ADA and RA.
Based on the foregoing, the Court dismisses Plaintiff's claims against all named
Defendants with prejudice.
IV. CONCLUSION
After carefully reviewing the record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motions for judgment on the pleadings (Dkt. Nos. 44 and 47)
are GRANTED; and the Court further
ORDERS that Defendant Lefkowitz's motion to dismiss for lack of personal jurisdiction
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(Dkt. No. 63) is DENIED as moot; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' 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 the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: November 18, 2016
Albany, New York

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