Ross v. State Of New York et al
OPINION AND ORDER: re: 56 MOTION for Judgment on the Pleadings filed by Ricardo Fernandez, Stefan Becker, Dene Hurley. For the foregoing reasons, the remaining Defendant' motion for judgment on the pleadings is GRANTED. The Clerk of Court is directed to close the motion at Docket Number 56 and to close the case. SO ORDERED. (Signed by Judge J. Paul Oetken on 1/24/2017) Copies Mailed By Chambers. (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al,
OPINION AND ORDER
J. PAUL OETKEN, District Judge:
On April 29, 2015, Plaintiff Marshall Ross filed this pro se action against eleven
Defendants, alleging that they discriminated and retaliated against him in violation of state and
federal law. (Dkt. No. 1 (“Compl.”).) By Opinions and Orders dated February 16, 2016 (Dkt.
No. 38), and April 6, 2016 (Dkt. No. 43), the Court dismissed all of Plaintiff’s claims except for
his claim against Defendants Ricardo Fernández, Dene Hurley, and Stefan Becker, in their
official capacities, under Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12101 et seq., alleging that Fernández, Hurley, and Becker failed to accommodate his disability.
Defendants Hurley, Becker, and José L. Cruz, 1 in their official capacities, move for
judgment on the pleadings on this remaining claim under Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons that follow, the motion is granted.
On August 15, 2016, José L. Cruz became President of Lehman College,
replacing Ricardo Fernández, leading to the substitution of Cruz, in his official capacity, as
defendant here. (See Dkt. No. 56 at 1 n.1.) See Fed. R. Civ. P. 25(d).
Familiarity with the facts of this case is presumed. See Ross v. New York, No. 15 Civ.
3286, 2016 WL 626561 (S.D.N.Y. Feb. 16, 2016) (“Ross I”).
Defendants argue that judgment on the pleadings should be granted because Plaintiff’s
ADA failure-to-accommodate claim is time barred due to his failure to initiate Equal
Employment Opportunity Commission (“EEOC”) proceedings within 300 days of his employer’s
rejection of his proposed accommodation.
A party is entitled to judgment on the pleadings under Rule 12(c) if it has established that
it is entitled to judgment as a matter of law and that no material issue of fact remains unresolved.
See Juster Assocs. v. City of Rutland, 901 F.2d 266, 269 (2d Cir. 1990). “‘The standard for
granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6)
motion for failure to state a claim,’ and, as in a 12(b)(6) motion, the Court takes the facts alleged
in the complaint as true.” Zurich Ins. Co. v. Crowley Latin Am. Servs., LLC, No. 16 Civ. 1861,
2016 WL 7377047, at *2 (S.D.N.Y. Dec. 20, 2016) (quoting Patel v. Contemporary Classics of
Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001)). A complaint “filed pro se is ‘to be liberally
construed,’ and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
“An ADA claimant may bring suit in federal court only if he has first filed a timely
complaint with the [EEOC] and obtained a right to sue letter.” Jacobsen v. N.Y. City Health &
Hosps. Corp., No. 12 Civ. 7460, 2013 WL 4565037, at *4 (S.D.N.Y. Aug. 28, 2013) (citing
Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001)). To be
considered timely, a plaintiff bringing an ADA claim who also files a charge with the appropriate
state agency must file a charge with the EEOC “within three hundred days after the alleged
unlawful employment practice occurred, or within thirty days after receiving notice that the State
or local agency has terminated the proceedings under the State or local law, whichever is
earlier.” 42 U.S.C. § 2000e-5(e)(1) (describing the Title VII standard, which is incorporated into
the ADA by 42 U.S.C. § 12117(a)); see McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d
Plaintiff’s claim for failure to accommodate, as described in the Court’s previous opinion,
arises from allegations that his employer knew that he was prohibited from doing work other
than in-class teaching due to his diabetes, but nonetheless denied his request to stay in the
classroom. Ross I, 2016 WL 626561, at *7. Plaintiff’s request was denied on May 3, 2013;
Defendants assigned Plaintiff office work, which Plaintiff refused. (Compl. ¶ 27.) Plaintiff did
not initiate proceedings with the EEOC until May 28, 2014, which is more than 300 days from
the denial of plaintiff’s requested accommodation. (Compl. at 3.)
Though the request was renewed and again rejected in late January of 2014 (Compl.
¶¶ 35-37), the statute of limitations runs from the initial request, as repeated requests for the
same accommodation or requests for reconsideration of a denial of an accommodation do not
restart the clock under the ADA. See Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 134-35
(2d Cir. 2003). Nor has Plaintiff described the sort of “extraordinary” circumstances justifying
equitable tolling. Zerilli–Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80-81 (2d Cir. 2003).
Plaintiff’s only defense regarding Defendants’ statute-of-limitations argument is that the
“wrongdoings committed against [him] . . . continue up to this day.” (Dkt. No. 61 at 1.)
However, because the only claim allowed to proceed by the Court’s prior opinion was the failure
to accommodate claim relating to the denial of Plaintiff’s request to stay in the classroom, this
denial does not amount to a continuing violation of the sort Plaintiff describes. See Valtchev v.
City of New York, 400 F. App’x 586, 588 (2d Cir. 2010) (finding claims time barred where they
are based on “‘discrete acts’ which are ‘easy to identify’” (quoting Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 114 (2002))); Elmenayer, 318 F.3d at 135 (“The rejection of a proposed
accommodation is a single completed action when taken . . . .”); Dodson v. N.Y. Times Co., No.
97 Civ. 3838, 1998 WL 702277, at *2 (S.D.N.Y. Oct. 7, 1998) (“The mere fact that past
discriminatory acts have a present effect on a plaintiff does not mean that plaintiff has
demonstrated a continuing violation.”).
For the foregoing reasons, the remaining Defendants’ motion for judgment on the
pleadings is GRANTED.
The Clerk of Court is directed to close the motion at Docket Number 56 and to close the
Dated: January 24, 2017
New York, New York
J. PAUL OETKEN
United States District Judge
COPY MAILED TO PRO SE PARTY BY CHAMBERS
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