Hensel v. City of Utica

Filing 19

MEMORANDUM-DECISION and ORDERED, that Defendants Motion (Dkt No. 9) to dismiss is GRANTED; and it is further ORDERED, that the Complaint (Dkt. No. 1) is DISMISSED in its entirety without prejudice; and it is further ORDERED, that Plaintiff is afforde d the opportunity to submit an amended complaint within thirty (30) days of the filing date of this Memorandum-Decision and Order, and it is further ORDERED, that if Plaintiff fails to submit an amended complaint within thirty (30) days, the Court, in its discretion, may dismiss the action. Signed by Senior Judge Lawrence E. Kahn on March 16, 2016. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ANTHONY HENSEL,
Plaintiff,
-against-

6:15-cv-0374 (LEK/TWD)

CITY OF UTICA,
Defendant.

MEMORANDUM-DECISION and ORDER
I.

INTRODUCTION
Plaintiff Anthony Hensel (“Plaintiff”) commenced this action against his employer, the City

of Utica (“Defendant”), alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 1210
et seq. (“ADA”), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”), stemming from the denial of his disability benefits and subsequent termination of his
employment as a police officer for the City of Utica. Dkt. No. 1 (“Complaint”). Presently before
the Court is Defendant’s Motion to dismiss the Complaint for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). Dkt. Nos. 9 (“Motion”); 9-10 (“Memorandum”).
Plaintiff filed a Response and Defendant filed a Reply. Dkt. Nos. 17 (“Response”); 18 (“Reply”).
For the following reasons, the Motion is granted and the case is dismissed.

II.

BACKGROUND1
Plaintiff was employed as a police officer for the City of Utica Police Department from

August 8, 2003 until May 1, 2014. Compl. ¶¶ 6, 11. On March 9, 2008, Plaintiff was involved in a
work-related accident, which resulted in his placement on paid leave pursuant to New York General
Municipal Law (“GML”) § 207-c for several years thereafter.2 Id. ¶ 13. In addition, Plaintiff was
diagnosed with diabetes in 2009, after he had fallen ill while on duty, requiring hospitalization in
December 2009. Id. ¶ 19. He returned to “full duty” in July 2010. Id. ¶ 20.
On March 24, 2011, Plaintiff was involved in a car accident while on duty, which
exacerbated his previous injuries from the 2008 accident. Id. ¶ 22. Plaintiff was placed on paid
leave and/or light duty pursuant to GML § 207-c. Id. ¶¶ 22-23. As a result of these two incidents,
Plaintiff suffered from herniated discs in his cervical and thoracic spine, post-concussion syndrome,
and persistent pain which prevented him from accomplishing certain job duties, lifting heavy
objects, exercising, and making certain body movements. Id. ¶ 14.
Plaintiff provided Defendant with medical documentation from Dr. Michelle Johnston (“Dr.
Johnston”), which indicated that Plaintiff was significantly disabled. Id. ¶ 16. Defendant ordered
Plaintiff to undergo an Independent Medical Examination (“IME”), which was conducted on April

1

Because this matter is before the Court on a motion to dismiss, the allegations of the
Complaint are accepted as true and form the basis of this section. See Boyd v. Nationwide Mut. Ins.
Co., 208 F.3d 406, 408 (2d Cir. 2000); see also Matson v. Bd. of Educ., 631 F.3d 57, 72 (2d Cir.
2011) (noting that, in addressing a motion to dismiss, a court must view a plaintiff’s factual
allegations “in a light most favorable to the plaintiff and draw[] all reasonable inferences in her
favor”).
2

New York General Municipal Law § 207-c provides that a municipality must pay for
necessary medical treatment by reason of a municipal police officer’s work-related injury. N.Y.
GEN. MUN. LAW § 207-c.
2

2, 2012 by Dr. Daniel L. Carr (“Dr. Carr”). Id. ¶¶ 15, 23; Dkt. No. 9-3 (“IME”).3 The IME
revealed that Plaintiff had a normal range of motion in his cervical spine, there was no spasm, and
no tenderness. IME at 2.4 The IME revealed normal reflexes and no motor deficits. Id. Overall,
Dr. Carr found Plaintiff’s physical exam to be “benign.” Id. at 5. Dr. Carr noted that an MRI
showed some disc disease at the C5-6 and C6-7 levels, but no definitive neural impingement. Id.
Dr. Carr opined that there is “no way to tell for sure whether the disc disease is related to the injury
in 2008 as there were degenerative changes noted on the CT scan even at the emergency room visit
with mild loss of disc height noted.” Id. Dr. Carr concluded “I would not find that he has a
disability from working as a police officer. Certainly, he has pain and certainly he has some
degenerative discs but there is no medical contraindication for him working full duty without
restrictions as a police officer.” Id. Dr. Carr found that Plaintiff had “likely achieved his point of
maximum medical improvement” and recommended that Plaintiff resume normal activities. Id. at
6.
Sometime in April, Defendant cut off Plaintiff’s GML § 207-c benefits, which Plaintiff
believes was prompted by the IME results, and ordered Plaintiff to return to work. Compl. ¶ 15. He
3

Defendant has attached the results of the IME performed by Dr. Carr as an Exhibit to its
Motion. Dkt. No. 9-3. When reviewing a motion to dismiss, a court is permitted to consider the
“complaint, as well as any written instrument attached to it as an exhibit or any statements or
documents incorporated by reference.” Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62
F.3d 69, 72 (2d Cir. 1995) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d
Cir. 1991). Even where a document is not incorporated by reference, the court may nevertheless
consider it where the complaint “relies heavily upon its terms and effect,” which renders the
document “integral” to the complaint. Id. The Court finds that the content of Plaintiff’s IME is
integral to the allegations included in the Complaint regarding Plaintiff’s disability and the
subsequent denial of his GML § 207-c benefits. Accordingly, the Court will consider the content of
the IME when evaluating Defendant’s Motion.
4

The pagination corresponds to the page numbers assigned by the Court’s Electronic Filing

System.
3

was instructed to return on April 16, 2012 to “full duty and without restrictions as a police officer.”
Id. ¶¶ 17, 23. Plaintiff alleges that at that time, he was experiencing a great deal of pain in his head
and neck and back and was unable to return to work on April 16. Id.
Plaintiff believes that his disabilities had an “adverse and stigmatic effect” on Defendant’s
perception of Plaintiff and ultimately prompted Defendant to terminate Plaintiff’s employment. Id.
¶¶ 21, 25. Plaintiff petitioned Defendant for a hearing as to his entitlement to benefits under GML
§ 207-c. Id. ¶¶ 18, 24; Dkt. No. 9-6 (“Report”).5 Commissioner of Public Safety for the City of
Utica, Robert Palmieri, appointed Andrew Lalonde as Hearing Officer. Report at 3. Hearings were
held on August 27, 2012 and October 2, 2012. Id. In addition to reviewing the IME, the Hearing
Officer considered all of Plaintiff’s medical records and the testimony of Plaintiff and his wife, Gina
Anelli Hensel. See generally id. The Hearing Officer found that Plaintiff’s medical records showed
inconsistencies in Plaintiff’s recollection of his original injury, ongoing inconsistencies in the degree
of pain complained of by Plaintiff, and a pattern of Plaintiff making different presentations to
different doctors, with an “ultimate outcome of differing diagnoses, treatment, and job limitations.”
Id. at 17. The Hearing Officer concluded that Plaintiff was “not totally disabled, and can perform
police officer related duties.” Id. at 19. He stated that he based this assessment on the IME, the
testimony of Plaintiff’s physician, Dr. Buckley, as well as his own observations of Plaintiff at the
two hearings. Id. at 19-20.

5

Similarly, Defendant has attached as an Exhibit the Fact-Finding Report issued following a
hearing that was held pursuant to Plaintiff’s collective bargaining agreement, GML § 207-c and
Utica City Code 2-19-96 and 2-19-98. Dkt. No. 9-6 (“Report”). Because the results of the hearing
are integral to Plaintiff’s Complaint, the Court will consider the content of the Report when
evaluating Defendant’s Motion. Moreover, the Report is a public document and is thus a proper
document for the Court to review in analyzing Defendant’s challenge to the Court’s subject matter
jurisdiction. See Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986).
4

Plaintiff then filed a Petition pursuant to Article 78 of the New York Civil Rules and
Practice with the New York Supreme Court, Oneida County. Compl. ¶ 24; Dkt. No. 9-7 (“Article
78 Proceeding”). The Supreme Court transferred the proceeding to the Appellate Division, Fourth
Department on a substantive evidence question. Art. 78 Proceeding. On March 21, 2014, the
Fourth Department affirmed the Hearing Officer’s determination and dismissed the Article 78
Petition on the basis that the Hearing Officer’s decision was supported by substantial evidence. Id.
Plaintiff contends that in retaliation for his allegation in the Article 78 proceeding that
Defendant discriminated against him because of his disabilities, Defendant sent Plaintiff a letter
dated April 7, 2014, notifying Plaintiff that his employment would be terminated. Compl. ¶ 25. In
the letter, Defendant characterized Plaintiff’s disability as “non work-related.” Id. ¶ 26. On May 1,
2014, Plaintiff was fired. Id. ¶ 29. Plaintiff alleges that but for his disability, Defendant would not
have terminated him on May 1, 2014. Id. ¶ 12. Plaintiff then commenced this action. Compl.
In his Complaint, Plaintiff asserts the following claims: (1) unlawful discrimination,
retaliation, and failure to accommodate Plaintiff’s disability in violation of the ADA; (3) unlawful
discrimination and retaliation in violation of Title VII.6 See id.

6

The Complaint does not specifically articulate which causes of action Plaintiff intends to
assert under the ADA and Title VII. While Plaintiff generally asserts that he intends to assert claims
under the ADA and Title VII and that Plaintiff was retaliated and discriminated against, Plaintiff
does not specifically articulate his causes of actions. While the Court will accept the allegations in
the Complaint as true and draw all inferences in Plaintiff’s favor, Plaintiff is represented by counsel
and is not entitled to the same liberality afforded to pro se litigants. The sufficiency of Plaintiff’s
allegations is discussed further when evaluating Defendant’s Motion to dismiss for failure to state a
claim.
5

III.

SUBJECT MATTER JURISDICTION
A. Legal Standard
When a defendant “moves for dismissal under Rule 12(b)(1), as well as on other grounds,

‘the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for
lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do
not need to be determined.’” United States ex rel. Kreindler & Kreindler v. United Tech. Corp., 985
F.2d 1148, 1155-56 (2d Cir. 1993) (citation omitted). “A claim is properly dismissed for lack of
subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or
constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d
Cir. 2008); see also FED. R. CIV. P. 12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”). In considering a motion to dismiss
under Rule 12(b)(1), a court must accept as true all material factual allegations in the complaint and
draw all reasonable inferences in favor of the plaintiff. Buday v. N.Y. Yankees P’ship, 486 F.
App’x 894, 895 (2d Cir. 2012). The plaintiff bears the burden of establishing that a court has
subject matter jurisdiction by a preponderance of the evidence. Garanti Finansal Kiralama A.S. v.
Aqua Marine & Trading, Inc., 697 F.3d 59, 65 (2d Cir. 2012).
B. Rooker-Feldman
The Rooker-Feldman doctrine establishes “the clear principle that federal district courts lack
jurisdiction over suits that are, in substance, appeals from state-court judgments.” Hoblock v.
Albany Cty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005). “Rooker-Feldman bars a losing party
in state court from seeking what in substance would be appellate review of the state judgment in a
Unites States district court, based on the losing party’s claim that the state judgment itself violates

6

the loser’s federal rights.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 287
(2005); see also Bridgewater Operating Corp. v. Feldstein, 346 F.3d 27, 29 (2d Cir. 2003)
(“[F]ederal district courts do not have jurisdiction over claims that have already been decided . . . by
a state court.”); Green v. Mattingly, 585 F.3d 97, 101 (2d Cir. 2009) (“The Supreme Court in Exxon
Mobil held that the [Rooker-Feldman] doctrine ‘is confined to cases of the kind from which the
doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by
state-court judgments rendered before the district court proceedings commenced and inviting district
court review and rejection of those judgments’” (citing Exxon Mobil, 544 U.S. at 284)).
The Second Circuit has outlined four requirements that must be met for Rooker-Feldman to
apply. Hoblock, 422 F.3d at 85. First, the federal plaintiff must have lost in state court. Id.
Second, the plaintiff must complain about injuries that were caused by the state-court judgment
itself. Id. Third, the plaintiff must invite the federal court to review and reject the state-court
judgment. Id. Finally, the state-court judgment must have been rendered before the federal case
commenced. Id. In the present case, the first and fourth prongs of Rooker-Feldman are satisfied, as
Plaintiff lost in state court and the state-court judgment was rendered before the federal case
commenced. Accordingly, the only issue before the Court is whether the second and third prongs of
Rooker-Feldman are satisfied.
Plaintiff contends that the present action is not barred by Rooker-Feldman because the
essence of Plaintiff’s federal claims is that he was retaliated against because he filed an Article 78
proceeding and that the injuries complained of in the federal action are separate and distinct from
those litigated in state court. Resp. at 3-4. Therefore, the injury he complains of was not caused by
the state-court judgment. Id. Plaintiff argues that because he was not terminated until after the state

7

court issued its decision, Rooker-Feldman does not apply to bar the present action. Id.
Therefore, for the purposes of Rooker-Feldman, the Court must determine whether the
injuries Plaintiff complains of in the present action were caused by the state-court judgment itself.
“Just presenting in federal court a legal theory not raised in state court, however, cannot insulate a
federal plaintiff’s suit from Rooker-Feldman if the federal suit nonetheless complains of injury from
a state-court judgment and seeks to have that state-court judgment reversed. Hoblock, 422 F.3d at
86. “Rooker-Feldman bars a federal claim, whether or not raised in state court, that asserts injury
based on a state judgment and seeks review and reversal of that judgment; such a claim is
“inextricably intertwined” with the state judgment.” Id. at 86-87.
1. ADA Claims
Defendant contends that because the state court concluded that Plaintiff was not disabled for
the purposes of his eligibility for benefits under GML § 207-c, the Court lacks jurisdiction over
Plaintiff’s ADA claims. Mem. at 9-10. Specifically, Defendant argues that if the federal court
reexamines the issue of whether Plaintiff was able to perform his duties as patrolman, the federal
court would be reviewing and rejecting the state court’s determination. Id. at 12. Plaintiff counters
that the Article 78 proceeding dealt only with Plaintiff’s eligibility for benefits under GML § 207-c;
the issue of whether he was discriminated against under the ADA was not before the state court.
Resp. at 3-4.
To state a prima facie case under the ADA, a plaintiff must show that: (1) his employer is
subject to the ADA; (2) he is a “qualified individual” with a disability 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) suffered adverse employment action because of his disability.

8

Heyman v. Queens Vill. Comm. for Mental Health, 198 F.3d 68, 72 (2d Cir. 1999). The ADA
defines the term “disability” as “(A) a physical or mental impairment that substantially limits one or
more major life activities of such individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment.” 42 U.S.C. § 12102.
The Court finds that the issue of whether or not Plaintiff is a qualified individual with a
disability within the meaning of the ADA does not require relitigating the state court’s
determination that Plaintiff was not entitled to disability benefits under GML § 207-c, nor does it
require the federal court to call into question the state court’s reasoning. The essential issue before
the state court was whether Plaintiff was eligible to continue receiving disability benefits under
GML § 207-c, or stated a different way, whether Plaintiff was physically capable of resuming his
duties as a patrolman. See Report at 14 (“The issue in this proceeding is whether or not the
claimant, Officer Anthony Hensel, is presently disabled from performing the regular duties of a
police officer for the City of Utica as a result of an accident that occurred on March 9, 2008”). For
the purposes of stating an ADA claim, however, the inquiry of whether Plaintiff is a qualified
individual with a disability is different than under GML § 207-c. See 42 U.S.C. § 12102 (stating
that a plaintiff can satisfy the second element of an ADA claim in three ways, by showing “(A) a
physical or mental impairment that substantially limits one or more major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having such an
impairment.”). Therefore, the state court’s determination that Plaintiff was able to perform his
duties as patrolman is not determinative of whether Plaintiff has stated a disability under the ADA.
Moreover, Plaintiff’s claim for retaliation under the ADA falls outside the scope of RookerFeldman entirely, as Plaintiff’s employment was not terminated until after the state-court

9

proceedings were complete. Because Plaintiff was terminated after the Article 78 proceeding was
final, Plaintiff’s retaliation claim is separate and independent from the results of the Article 78
proceeding and thus falls outside of the scope of Rooker-Feldman. Accordingly, Plaintiff’s ADA
claims are not barred under Rooker-Feldman.
Defendant argues that the Second Circuit’s decision in DiLauria v. Town of Harrison is
dispositive of whether Plaintiff’s claims are barred under Rooker-Feldman. 64 F. App’x 267 (2d
Cir. 2003). In DiLauria, the plaintiff was terminated from his position as a police officer following
a hearing at which the Police Commission determined that the plaintiff failed to obey an order to
report for duty at a specific time and attend a fit-for-duty examination. Id. at 269. The plaintiff filed
an Article 78 proceeding challenging the validity of the Police Commission’s determination. Id.
Although the plaintiff did not specifically raise his discrimination claims under the ADA or New
York Human Rights Law (“NYSHRL”) in his Article 78 proceeding, the Article 78 petition
contained factual assertions that the defendants violated the plaintiff’s rights under the ADA. Id.
Following an unfavorable decision in state court, the plaintiff commenced suit in federal district
court, alleging that the defendants had discriminated against him in violation of the ADA and
NYSHRL. Id. The Second Circuit found that the plaintiff’s ADA claims were barred under
Rooker-Feldman after noting that Rooker-Feldman “is at the very least coextensive with the
doctrine of collateral estoppel.” Id. at 270. The Second Circuit did not conduct an independent
Rooker-Feldman analysis, and instead determined that since the ADA claim was precluded on
collateral estoppel grounds, it was necessarily precluded under Rooker-Feldman. Id. Although the
facts in DiLauria are analogous to the present case, the approach to Rooker-Feldman employed by
the Second Circuit in DiLauria has been expressly rejected by the United States Supreme Court.

10

See Exxon Mobil, 125 S. Ct. at 1521 (stating that some courts had wrongly construed the RookerFeldman doctrine “to extend far beyond the contours of the Rooker and Feldman cases”); Hoblock,
422 F.3d at 85 (articulating the four-factor analysis based on the Supreme Court’s rejection of
previous expansive interpretations of Rooker-Feldman). While the Court recognizes factual
similarities between DiLauria and the present case, the Court is unpersuaded by DiLauria’s flawed
Rooker-Feldman analysis, which is no longer the approach used in the Second Circuit.
2. Title VII Claims
Similarly, the Court finds that Plaintiff’s claim for discrimination and retaliation under Title
VII are not barred under Rooker-Feldman because these issues were not litigated in the Article 78
proceeding and are not “inextricably intertwined” with the state court judgment. Although Plaintiff
asserts in the Complaint that he “retained an attorney to fight that denial of 201-c benefits in a series
of legal appeals, including an Article 78 appeal, much of which contained Plaintiff’s complaints of,
among other things, de facto disability discrimination,” Compl. ¶ 24, the records from the state court
proceedings show that the issue of whether Plaintiff was retaliated or discriminated against was not
actually raised or addressed in the state-court proceedings. See Report; Art. 78 Proceeding.
Therefore, Plaintiff’s Title VII claims are not barred under Rooker-Feldman.
C. Collateral Estoppel
Defendant argues that Plaintiff’s claims are barred under the doctrine of collateral estoppel.
28 U.S.C. § 1738 requires federal courts to “afford the same full faith and credit to state court
judgments that would apply in the State’s own courts.” Kremer v. Chem. Constr. Corp., 456 U.S.
461, 463 (1982). Accordingly, unless the statute that provides the basis for the federal action
contains an express or implied repeal of § 1738, the federal court must apply the collateral estoppel

11

principles of the rendering state. See id. at 468 (finding that collateral estoppel principles applied
where Title VII did not expressly or impliedly repeal § 1738); see also Givens v. City of New York,
No. 11 Civ. 2568, 2012 WL 75027, at *5 (S.D.N.Y. Jan. 10, 2012) (“Since the Court is pointed to
no statute that repeals section 1738 as to ADA claims, the preclusion law of New York State
applies.”).
Collateral estoppel bars litigants from relitigating any fact or issue that has already been fully
and fairly litigated in a prior proceeding that produced a final judgment on the merits. Bank of N.Y.
v. First Millenium, Inc., 607 F.3d 905, 918 (2d Cir. 2010). Under New York law, collateral estoppel
“will apply only if (1) the issue in question was actually and necessarily decided in a prior
proceeding, and (2) the party against whom [collateral estoppel] is asserted had a full and fair
opportunity to litigate the issue in the first proceeding.” Hoblock, 422 F.3d at 94. The party seeking
to invoke collateral estoppel “bears the burden of proving the identity of the issues, while the party
challenging its application bears the burden of showing that he or she did not have a full and fair
opportunity to adjudicate the claims involving those issues.” Khandhar v. Elfenbein, 943 F.2d 244,
247 (2d Cir. 1991).
The Court finds that neither of the two requirements for invoking collateral estoppel are
satisfied in the present case. As previously discussed, the sole issue addressed in the state-court
proceedings was whether Plaintiff was eligible to continue receiving benefits under GML § 207-c.
Report at 14. The issues of whether Plaintiff was discriminated or retaliated against, or whether
Defendant failed to make reasonable accommodations in light of Plaintiff’s disability were not
decided in the prior proceeding. Defendant argues that since Plaintiff was represented by counsel,
was able to call witnesses, and was able to testify, he had a “full and fair” opportunity to litigate the

12

issue of whether he was disabled. Mem. at 15. However, as previously discussed, whether Plaintiff
was “disabled” within the meaning of the ADA involves a different inquiry than whether Plaintiff is
disabled for the purposes of GML § 207-c. Accordingly, Plaintiff did not have the opportunity to
litigate his discrimination, retaliation, and failure to accommodate claims in the state proceeding.
Therefore, Plaintiff’s claims are not barred under the doctrine of collateral estoppel.
IV.

MOTION TO DISMISS
A. Legal Standard
To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also FED. R. CIV. P. 12(b)(6). A court must
accept as true the factual allegations contained in a complaint and draw all inferences in favor of a
plaintiff. See Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). A complaint may be
dismissed pursuant to Rule 12(b)(6) only where it appears that there are not “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Plausibility requires
“enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged
misconduct].” Id. at 556. The plausibility standard “asks for more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[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.” Id. (citing Twombly,
550 U.S. at 555). Where a court is unable to infer more than the mere possibility of the alleged
misconduct based on the pleaded facts, the pleader has not demonstrated that she is entitled to relief

13

and the action is subject to dismissal. See id. at 678-79.
B. Discussion
1. ADA Claims
Defendant argues that Plaintiff’s ADA claims are subject to dismissal because Plaintiff has
failed to state a claim under the ADA. Mem. at 15-19. The ADA prohibits employers from
discriminating against workers with disabilities. Specifically, the ADA provides:
No covered entity shall discriminate 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.A. § 12112 (2009). ADA claims are analyzed under the familiar burden-shifting analysis
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Reg’l Econ. Comm.
Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48 (2d Cir. 2002) (analyzing ADA claim
under McDonnell Douglas burden-shifting framework). Under this framework, a plaintiff alleging
disability discrimination carries the initial burden of establishing a prima facie case. Ryan v. Grae
& Rybicki, P.C., 135 F.3d 867, 869 (2d Cir. 1998). If a plaintiff asserts a prima facie case, the
burden then shifts to the employer to provide a legitimate, nondiscriminatory reason for its decision.
Reg’l Econ. Comm. Action Program, 294 F.3d at 49. If the employer meets that burden, the
plaintiff must then prove that the employer’s proffered reason was false and a pretext for
discrimination. Id.
As previously discussed, to state a prima facie case under the ADA, a plaintiff must show
that: (1) his employer is subject to the ADA; (2) he is a “qualified individual” with a disability
within the meaning of the ADA; (3) he could perform the essential functions of his job, with or
without reasonable accommodation; and (4) he suffered adverse employment action because of his
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disability. Heyman, 198 F.3d at 72.
Plaintiff indisputably satisfies the first and fourth elements. The City of Utica, which
encompasses the Utica Police Department, is a qualified “employer” because it is “engaged in an
industry affecting commerce” and employs “15 or more employees for each working day in each of
20 or more calendar weeks in the current or preceding calendar year.” 42 U.S.C. § 12111(5)(A); see
also Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001) (finding that New York City
Policy Department was a qualified employer under the ADA). As to the fourth element, Plaintiff’s
termination from the Utica Police Department constitutes an “adverse employment action.” 42
U.S.C. § 12112(a) (prohibiting discrimination with regard to “discharge of employees”).
Defendants argue that Plaintiff cannot satisfy the second element of the prima facie case,
that he was actually disabled under the ADA. Mem. at 15-19. The ADA defines the term
“disability” as “(A) a physical or mental impairment that substantially limits one or more major life
activities of such individual; (B) a record of such an impairment; or (C) being regarded as having
such an impairment.” 42 U.S.C. § 12102. The Equal Employment Opportunity Commission
(“EEOC”) is the agency responsible for implementing the ADA; consequently, courts defer to
EEOC regulations construing the ADA’s terms. Giordano, 274 F.3d at 747.
a. Physical or Mental Impairment that Substantially Limits a Major Life
Activity
The EEOC defines a “physical or mental impairment” as a “physiological disorder or
condition” that affects one or more body systems, including the musculoskeletal and endocrine
systems. 29 C.F.R. § 1630.2(h)(1). To qualify as a disability under the ADA, the relevant
impairment must “substantially limit[] one or more of the major life activities.” 42 U.S.C.
§ 12102(2)(A). The term “major life activity” encompasses, inter alia, the ability to perform
15

manual tasks, sitting, reaching, lifting, bending, and working. 29 C.F.R. § 1630.2 (i). The
operation of a major bodily function, such as the endocrine and musculoskeletal systems, also
qualify as major life activities. Id. § 1630.2(ii).
The term “substantially limits” shall be “construed broadly in favor of expansive coverage,
to the maximum extent permitted by the terms of the ADA.” Id. § 1630.2(j)(i). “An impairment
need not prevent, or significantly or severely restrict, the individual from performing a major life
activity in order to be considered substantially limiting.” Id. § 1630.2(j)(ii). The EEOC has
cautioned that “[t]he primary object of attention in cases brought under the ADA should be whether
covered entities have complied with their obligations and whether discrimination has occurred, not
whether an individual’s impairment substantially limits a major life activity.” Id. § 1630.2(j)(iii).
Therefore, determining whether an impairment substantially limits a major life activity “should not
demand extensive analysis.” Id.
Whether a person is disabled under the ADA “requires an ‘individualized and fact-specific’
examination.” Krikelis v. Vassar Coll., 581 F. Supp. 2d 476, 485 (S.D.N.Y. 2008) (quoting Colwell
v. Suffolk Cty. Police Dep’t, 158 F.3d 635, 643 (2d Cir. 1998)). A court should consider the
following factors in determining whether a plaintiff is substantially limited in a major life activity:
(i) the nature and severity of the impairment; (ii) the duration or expected duration of the
impairment; and (iii) the long-term impact, or expected long-term impact of or resulting from the
impairment. 29 C.F.R. § 1630.2(j)(2).
Plaintiff contends that he has adequately pleaded that he is disabled within the meaning of
the ADA. Resp. at 11. Plaintiff asserts that “herniated discs in his cervical and thoracic spine, postconcussion syndrome, and pain . . . substantially interfered with major life activities insofar as he

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was prevented from accomplishing certain job duties, lifting heavy objects, exercising, and even
making certain movements with his body that would be routine or a “typical” body-movement for a
non-disabled individual.” Compl. ¶ 14. Plaintiff’s initial injuries occurred on March 9, 2008, after
which he was placed on medical leave until July 2010, when he returned to work without
restriction.7 Id. ¶¶ 13, 20. Plaintiff was also diagnosed with diabetes in 2009, however the
Complaint does not include any allegations as to how this diagnosis impacted Plaintiff’s ability to
work. Id. ¶ 19. Plaintiff alleges that his initial injuries were exacerbated by a car accident on March
14, 2011, which again required him to be placed on medical leave. Id. ¶¶ 22-23. Plaintiff asserts
that he was in a great deal of pain in his head, neck, and back at the time Defendant ordered him to
return to work on April 16, 2012. Id. ¶ 17.
Even after accepting all of Plaintiff’s allegations as true, and drawing all inferences in his
favor, the Court finds that Plaintiff has not put forward sufficient information for the Court to find
that Plaintiff was disabled within the meaning of the ADA. Although Plaintiff describes the nature
of his impairments, the Complaint is inadequate as to their severity, duration, or impact. Compare
Delgado v. Triborough Bridge and Tunnel Auth., 485 F. Supp. 2d 453 (S.D.N.Y. 2007) (dismissing
plaintiff’s ADA claim where plaintiff described the nature of her impairments, but did not explain
their severity, duration, or impact) with Capobianco v. City of New York, 422 F.3d 47, 59 (2d Cir.
2005) (finding that a jury could have found a substantial impairment where the plaintiff pleaded the
severity of his injury, that the injury could not be corrected, and that the impact is permanent)).
Similar to Delgado, Plaintiff alleges that his back pain was severe and limited his ability to perform

7

It is not entirely clear from the Complaint whether Plaintiff returned to work after the
March 2008 accident and before returning to duty in July 2010 “after getting his diabetes diagnosis
under control.” See Compl. ¶¶ 13-20.
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certain aspects of his job at the time he was told to go back to work in April 2012, but the
Complaint is devoid of any references as to the duration or expected duration of the impairment or
whether the impairment is expected to impact Plaintiff’s ability to do his job or other major life
activities in the long-term. To the contrary, Plaintiff’s IME reveals that at the time Dr. Carr
determined that Plaintiff was able to return to work, his impairments did not impose a limitation on
his ability to work. See IME.
With respect to Plaintiff’s diabetes, Plaintiff merely mentions that he was diagnosed with
diabetes in 2009, but does not include any factual allegations alleging how his diabetes interfered
with his ability to do his job or otherwise impacted a major life activity. See Krikelis, 581 F. Supp.
2d at 485-86 (collecting cases where diabetes is often held not to constitute a disability, particularly
if symptoms are sporadic or can be controlled by minor changes in lifestyle.) While diabetes is
listed as an impairment that substantially limits endocrine function, see 29 C.F.R.
§ 1630.2(j)(3)(iii), without any allegations suggesting that Plaintiff’s diabetes impacted his ability to
work or otherwise impacted a major life activity, the Court finds Plaintiff’s diabetes diagnosis
insufficient to sustain his ADA claim. Plaintiff’s claims regarding his alleged disabilities are best
characterized as conclusory, as they merely restate the requirements listed in 42 U.S.C. § 12102. As
a result, the Court finds that Plaintiff has failed to state a disability for the purposes of the ADA
under this approach.
b. Record of Having an Impairment that Substantially Limits a Major Life
Activity
A plaintiff can show a disability for the purposes of the ADA by providing a “record of an
impairment that substantially limits one or more major life activities.” Skinner v. City of
Amsterdam, 824 F. Supp. 2d 317, 327 (N.D.N.Y. 2010). “Records that could potentially contain
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this information include education, medical or employment records.” Covello v. Depository Trust
Co., 212 F. Supp. 2d 109, 121 (E.D.N.Y. 2002). “The record must be one that shows an impairment
that satisfies the ADA; a record reflecting a plantiff’s classification as disabled for other purposes or
under other standards is not enough.” Colwell, 158 F.3d at 645. Even though Plaintiff does not
specifically argue that he can satisfy this theory of stating a claim under the ADA, the Court finds
that Plaintiff’s reference of Dr. Michelle Johnston’s opinion that Plaintiff is disabled is insufficient
to establish that Plaintiff is disabled under the ADA. See Compl. ¶ 16 (“Plaintiff provided
Defendant with medical documentation from Dr. Michelle Johnston, which indicated that Plaintiff
was significantly disabled.”). Plaintiff did not attach Dr. Johnston’s opinion or the accompanying
medical records to the Complaint, nor does he explain what standards Dr. Johnston used in reaching
her conclusion that Plaintiff was “disabled.” Accordingly, Plaintiff’s ADA claim fails under the
“recorded” disability prong.
c. Whether Defendant “Regarded” Plaintiff as Disabled
Alternatively, Plaintiff argues that he has pleaded a disability under the ADA because
Defendant regarded him as being disabled, “such that there existed a stigma associated with said
disabilities.” Resp. at 11. Under the “regarded as disabled” approach to stating a disability, the
decisive issue is the employer’s perception of an employee’s alleged impairment. Colwell, 158 F.3d
at 646. Under this approach, a plaintiff must show that not only did his employer regard him as
somehow disabled, but that they regarded him as disabled within the meaning of the ADA. Id.
Under this prong, the focus is on the employer’s intent, not whether the employee has a disability.
Capobianco, 422 F.3d at 57.
Plaintiff’s claim under this theory fails for two reasons. First, the Complaint asserts only the

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conclusory allegation that Defendant had an “adverse and stigmatic” perception of Plaintiff because
of his disabilities in support of the “regarded as” prong, with no factual material to substantiate this
allegation. See Compl. ¶ 21. Second, Plaintiff’s allegations that Defendant ordered him back to
work on two occasions and refused to allow him to return with “light duty” establishes that
Defendant did not perceive Plaintiff to be disabled within the meaning of the ADA. See
Capobianco, 422 F.3d at 57. Consequently, Plaintiff has failed to allege a disability within the
meaning of the ADA under any of the three approaches. Plaintiff’s ADA claim is therefore subject
to dismissal without prejudice. Plaintiff will be given the opportunity to submit an Amended
Complaint within thirty (30) days of the issuance of this Memorandum-Decision and Order. If
Plaintiff fails to submit an Amended Complaint within thirty days, the Court may dismiss this
action.
2. Title VII Claims
As Defendant points out, Plaintiff’s Title VII claims are not precisely clear. The Complaint
includes vague statements that Plaintiff intends to bring claims under Title VII, and that Plaintiff
was discriminated and retaliated against, however, it is not clear whether these allegations pertain to
Plaintiff’s ADA claims or are intended to also assert causes of action under Title VII. Nevertheless,
the Court finds that to the extent that Plaintiff intends to assert claims under Title VII, these claims
are insufficiently pleaded.
In order to establish liability on behalf of a municipality for a violation of civil or
constitutional rights, a plaintiff must plead and prove that the deprivation of his constitutional rights
“was caused by a governmental custom, policy, or usage of the municipality.” Jones v. Town of E.
Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658,

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692 (1978)). Normally, a single incidence of unconstitutional conduct is insufficient to establish
municipal liability, unless there is proof that the incident was caused by an existing,
unconstitutional municipal policy that can be attributed to the municipal policymaker. City of
Oklahoma v. Tuttle, 471 U.S. 808, 823-24 (1985); see also Brogdon v. City of New Rochelle, 200
F. Supp. 2d 411, 427 (S.D.N.Y. 2002) (“A single incident by itself is generally insufficient to
establish the affirmative link between the municipal policy or custom and the alleged constitutional
violation.”).
In the present case, the Complaint is devoid of any allegations to suggest that Defendant was
acting pursuant to a municipal policy or custom. Although Defendant fails to raise Plaintiff’s
failure to satisfy Monell as a basis for dismissal, dismissal is appropriate as long as Plaintiff has
notice of the grounds for dismissal and an opportunity to be hear. Wisoff v. City of Schenectady,
568 F. App’x 28, 29 n.2 (2d Cir. 2014) (affirming district court’s sua sponte dismissal of plaintiff’s
due process claim where plaintiff had notice and an opportunity to be heard). Accordingly,
Plaintiff’s Title VII claims are dismissed without prejudice, and Plaintiff is afforded the opportunity
to file an amended complaint to assert grounds for imposing municipal liability within thirty (30)
days of the issuance of this Memorandum-Decision and Order.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendant’s Motion (Dkt No. 9) to dismiss is GRANTED; and it is

further
ORDERED, that the Complaint (Dkt. No. 1) is DISMISSED in its entirety without
prejudice; and it is further

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ORDERED, that Plaintiff is afforded the opportunity to submit an amended complaint
within thirty (30) days of the filing date of this Memorandum-Decision and Order, and it is further
ORDERED, that if Plaintiff fails to submit an amended complaint within thirty (30) days,
the Court, in its discretion, may dismiss the action; and it is further
ORDERED, 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:

March 16, 2016
Albany, New York

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