Albertelli v. Monroe County et al
Filing
18
ORDER granting in part and denying in part 14 Motion to Dismiss for Failure to State a Claim. Signed by Hon. Michael A. Telesca on 5/22/12. (BMB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHELLE ALBERTELLI,
Plaintiff,
-vs-
No. 09-CV-6039(MAT)
DECISION AND ORDER
MONROE COUNTY, PATRICK O’FLYNN,
SHERIFF, MONROE COUNTY; GARY
CAIOLA, UNDERSHERIFF, MONROE
COUNTY SHERIFF’S DEPARTMENT,
Individually and in His Official
Capacity; & DR. BORRIS SCHMIGEL,
Individually and in His Official
Capacity, and ROBERT BILSKY,
Individually and in His Official
Capacity,
Defendants.
I.
Introduction
Plaintiff Michelle Albertelli (“Albertelli” or “Plaintiff”),
represented by counsel, has filed the instant proceeding against
the named Defendants charging them with, inter alia, violations of
the Americans with Disabilities Act (“ADA”), the New York State
Human Rights Law (“NYHRL”); and her rights to equal protection,
substantive due process, and procedural due process under the
United States Constitution. Defendants have filed their First
Motion to Dismiss the Complaint (Dkt. #14) to which Plaintiff has
filed opposition papers (Dkt. #15). For the reasons that follow,
the Motion to Dismiss is granted in part and denied in part.
II.
Factual Background
In the following factual recitation, the Court accepts as true
all facts
alleged
in
the
complaint
and
draws
all
reasonable
inferences in favor of the plaintiff. E.g., Faulkner v. Beer, 463
F.3d 130, 134 (2d Cir. 2006) (citation omitted).
On July 15, 2004, Plaintiff was employed as a Deputy Sheriff
at the Monroe County Jail (the Jail), responsible for, inter alia,
guarding inmates and ensuring that order, discipline, safety, and
security were maintained in the Jail. On that date, inmate Louis
Delvalle (“Delvalle”) and another inmate were involved in verbal
altercation at the Jail. Delvalle was outside of his own cell, and
the other inmate was inside a locked cell. Plaintiff asked Delvalle
to go into his own cell and “lock in”. When Delvalle did not
immediately comply, Plaintiff took hold of his right arm, and
another deputy took hold of Delvalle’s left arm so as to escort him
out of the cell block and into his own cell. Delvalle swung around
suddenly, causing Plaintiff to lose her balance and fall to the
floor, dislocating her left shoulder. Plaintiff characterizes the
incident as a “violent attack”, which Defendants dispute.
Beginning in July 2004, Plaintiff was paid benefits pursuant
to New York State General Municipal Law § 207-c. She received these
benefits for a period of over three years.
Plaintiff remained out of work until September 2008. During
that time, she submitted to three independent medical examinations
by Dr. Totero (September 2008), Dr. Auerbach (September 21, 2007),
and Dr. Durning (May 8, 2008).
Page -2-
Plaintiff filed for disability retirement on October 31, 2008,
as her private physician, Dr. Maloney, deemed her “totally disabled
to work . . . in large part because she only had use of one arm.”
Amended Complaint (“Am. Compl.”), ¶18 (Dkt. #2). She states that
she “has been rendered lame to protect herself or others in the
jail-house setting” because she “cannot carry a gun, pepper spray,
or
even
handcuffs”
and
cannot
“assist
in
the
use
of
force
continuum[.]” Id., ¶¶20, 21. Due to what she describes as the
“violent nature” of the July 15, 2004 “attack in the line of duty
that rendered her disabled”, Plaintiff “suffers from emotional
issues, in particular, depression and anxiety.” Id., ¶22. She
states she is limited to the use of only her right arm. To this
day, Plaintiff says, she remains under the care of a rehabilitation
specialist and undergoes treatment for the condition in her left
upper arm and shoulder.
On October 31, 2008, the date she claims she filed for
disability retirement, Defendants ordered her to return to duty on
November 3, 2008, at 8 a.m., per in-house physician Dr. Shmigel’s
orders. Am. Compl.,
return
her
to
(“Undersheriff
work
¶26. Plaintiff alleges that the decision to
was
Caiola”),
made
who
by
“has
Undersheriff
a
pattern
and
Gary
Caiola
practice
of
returning disabled [employees in the] Sheriff’s Department back to
work despite their inability to do so, and without conducting a
hearing in violation of Plaintiff’s due process rights to her
Page -3-
section 207-c benefits.” Id., ¶27. Plaintiff alleges that Dr.
Shmigel and Undersheriff Caiola acted under the directive of Risk
Manager Robert J. Bilsky (“Bilsky”) pursuant to a policy of cutting
costs by returning disabled employees to work. Id., ¶28.
“Mysteriously”, on the same day that Plaintiff filed for
disability retirement and was ordered to return to work, her
physician,
Dr.
Maloney,
“was
compelled
to
change
Plaintiff’s
diagnosis to read that Plaintiff ‘[m]ay return to work on 10/31/08’
by Dr. Schmigel [sic].” Am. Compl., ¶29 (emphasis in original).
Plaintiff’s Section 207-c disability benefits were terminated on an
unspecified date in November 2008, and she was not afforded a
hearing prior to the termination.
On November 24, 2008, Plaintiff sought an accommodation from
Defendants to allow her to return to a position which, “at the bare
minimum[,] would not require her to pass into the secured portion
of the jail and there would be no inmate contact, that she would
not utilize her left arm, and that these restrictions would be
adhered to, and that she would not be involved in any situation
that would place herself or others in danger.” Id., ¶33.
Plaintiff
states
that
despite
the
fact
she
was
deemed
“unqualified” pursuant to New York law to assist in the use of
force continuum, Defendants compelled Plaintiff to report to the
Jail in uniform at the “Visits Lobby” front counter. Id., ¶34.
Plaintiff alleges that a position was available in “Staff Services”
Page -4-
which would have removed Plaintiff from the inmate population, but
it was never offered to her. Id., ¶35.
Plaintiff returned to work at the “Visits Lobby” for a twoweek period during which time she was subjected to three incidents
in which the use of force was necessary. Id., ¶36. Plaintiff
describes only two incidents in her Amended Complaint. On December
6, 2008, an inmate entered the “Visits Lobby” front counter and
became disruptive, knocking over jail property. Id., ¶37. Plaintiff
contacted 911 in vain while the inmate stood in close proximity to
her, placing her in fear for her safety because she could not
defend herself. On December 23, 2008, Plaintiff was confronted,
while at work, with a situation in which a male was pointing a gun
at a female. Plaintiff could not protect herself or the victim due
to her disability which precluded her from carrying a service
weapon.
Plaintiff complained to her supervisors that she could not
perform the essential functions of her job, and that she felt she
was being placed in the untenable position of being forced to quit
her job and forego her benefits. Plaintiff’s supervisor allegedly
took
no
actions
to
accommodate
her
known
disabilities
and
responded, “[W]here do we draw the line?” Am. Compl., ¶42.
On December 31, 2008, Plaintiff met with Sheriff’s Department
Physician Dr. Shmigel who “informed Plaintiff that it was ‘out of
his
hands,’
and
returned
the
Plaintiff
Page -5-
to
work.”
Id.,
¶43.
Plaintiff’s private physician contradicted Dr. Shmigel’s finding
that Plaintiff was able to return to work, and removed Plaintiff
from work due to the failure of the County to accommodate her known
disabilities
or
to
comply
with
the
job
restrictions
she
had
demanded (i.e., no use-of-force continuum).
On
January
3,
2009,
Plaintiff
was
served
by
Sheriff’s
Department deputies with a “Return to Work Order” threatening
disciplinary action if she did not return to work. On January 5,
2009, Plaintiff’s private physician rendered her “totally disabled”
due to the Sheriff’s Department’s lack of adherence to her job
restrictions.
Dr.
Shmigel
allegedly
continued
to
contact
Plaintiff’s doctor to persuade him to alter his medical opinion.
Plaintiff’s physician refused to take his calls.
Although Plaintiff’s Section 207-c benefits were terminated in
November 2008, Defendants served her with a notice on January 15,
2009, stating that the County “is seeking to terminate your GML207-c benefits based upon your refusal to work a light duty
assignment for which you have been deemed capable of working” and
threatening further disciplinary action “as a result of [her]
continued insubordination.” Am. Comp., ¶49. Plaintiff’s counsel
advised the County that Plaintiff’s Section 207-c benefits had
already been terminated.
After being served with the original Complaint in this action,
Undersheriff Caiola threatened Plaintiff on February 3, 2009, with
Page -6-
insubordination if she did not return to work in her uniform.
On
February 5, 2009, Plaintiff’s treating physician deemed Plaintiff
totally
disabled
until
reevaluation
on
March
12,
2009.
The
narrative in Plaintiff’s Amended Complaint ends at that point.
Plaintiff filed three complaints with the Equal Employment
Opportunity Commission (“EEOC”). The first, EEOC #585-2009-00265,
was filed on January 6, 2009, and named Undersheriff Caiola as an
Aider and Abettor of violations of the ADA. The EEOC informed
Plaintiff that it lacked jurisdiction to investigate her ADA charge
because she was not a “qualified individual with a disability”
based upon her statements that she “can no longer perform the
essential
functions
of
[her]
position
and
that
there
is
no
accommodation that will enable [her] to perform the essential
functions of a Deputy Sheriff.” Def. Ex. A, Dkt. #14-2. The EEOC
issued a dismissal notice and right to sue letter. Id.
In
the
second
complaint,
EEOC
#525-2009-00326,
Plaintiff
states that she previously filed an EEOC complaint on January 6,
2009, after which she was served on January 14, 2009 with papers
ordering
her
to
report
to
an
Internal
Affairs
hearing,
“in
retaliation for having engaged in protected activity under the
ADA.” Def. Ex. B, Dkt. #14-3. The EEOC forwarded Plaintiff’s
request for a right to sue letter to the Unites States Department
of Justice. Id.
Page -7-
On April 1, 2009, Robert Bilsky, the Monroe County Risk
Manager, stated that he was pleased to offer Plaintiff a temporary
modified-duty assignment which would accommodate the restrictions
her doctors deemed appropriate for her present medical condition.
The position would include clerical work, answering phones, data
entry, recordkeeping. Plaintiff stated that these “make-work” tasks
led to feelings of “incompetency” and “worthlessness”–which were
the basis for her third EEOC complaint, discussed below. The
modified duty assignment was to continue until July 3, 2009, at
which time she would be required to provide an update on her
medical condition so that the Sheriff’s Department could determine
whether her work restrictions should be removed. Plaintiff admitted
that she did not work from February 4, 2009, until March 2, 2009,
because the Sheriff’s Department did not meet her restrictions.
On
April
8,
2009,
Plaintiff
was
charged
with
two
insubordination disciplinary actions–one being a violation of rules
set forth in Undersheriff Caiola’s letter dated February 3, 2009;
and the second being her refusal to work in the position she was
offered as an accommodation.
On May 13, 2009, Plaintiff alleges, Undersheriff Caiola gave
her
“an
evil
eye”
until
she
looked
away.
On
May
12,
2009,
Investigator Pat Crow stared her down and gave her “an evil eye”.
Plaintiff then filed her third complaint, EEOC #525-200900729, against the Monroe County Sheriff’s Department on May 13,
Page -8-
2009. She alleged that she was given the “evil eye” by Undersheriff
Caiola and Investigator Crow, was assigned menial work that made
her feel worthless, and was issued a memorandum stating she was
insubordinate for not reporting to work because of her disability
and in retaliation for filing a previous EEOC charge, #525-200900265. The EEOC found that Plaintiff failed to report to work
despite her employer’s agreement to accommodate her restrictions,
which was a non-discriminatory reason for disciplinary action. With
regard to her complaints of feeling “worthless”, the EEOC stated
that her
employer
was
not
required
to
provide
her preferred
accommodation as long as it provided a reasonable accommodation
that
met
her
restrictions.
With
regard
to
the
“evil
eye”
allegation, the EEOC found that it was not severe or pervasive, and
it did not rise to the level of a hostile work environment. In sum,
the EEOC was unable to conclude that the information established a
violation of federal law by the Sheriff’s Department. The EEOC
issued a Notice of Dismissal and a Right to Sue on April 20, 2010.
Defendants state that Plaintiff is currently employed three
days a week at Jail Administration and two days a week at Jail
Fleet. Prior to that she was assigned to Jail Visitation, which she
did not like. She was given a transfer to Booking, which she also
did not like. She was transferred to Jail Monitor, which she did
not like. According to Defendants, Plaintiff does not like her
current assignment in Jail Fleet.
Page -9-
III. Legal Principles Applicable to a Rule 12(b)(6) Motion to
Dismiss
Defendants’ motion seeks dismissal of the complaint pursuant
to Fed. R. Civ. P. (“Rule”) 12©. The standards applicable in
deciding a motion to dismiss under Rule 12(b)© apply in the Rule
12© context:
To sufficiently state a claim to relief and survive a
12(b)(6) motion, a complaint “does not need detailed
factual allegations” but the “[f]actual allegations must
be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). Mere “labels and conclusions” or a
“formulaic recitation of the elements of a cause of
action will not do.” Id. Rather, there must be “enough
facts to state a claim to relief that is plausible on its
face.”
Id. at 570; see also Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009). “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. Where a
complaint
pleads
facts
defendant’s
liability,
possibility
and
that
it
are
stops
plausibility
of
merely
short
consistent
of
the
entitlement
to
line
with
a
between
relief.”
Id.
(internal citation and quotation marks omitted).
In deciding whether to grant a motion to dismiss, the court
must accept as true all “well-pleaded factual allegations,” Iqbal,
129 S. Ct. at 1950, and must consider “not only the assertions made
within the four corners of the complaint itself, but also those
contained in documents attached to the pleadings or in documents
Page -10-
incorporated by reference.” Gregory v. Daly, 243 F.3d 687, 690 (2d
Cir. 2001); see Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d
Cir. 1998). In addition, the Court may consider documents that are
in the plaintiff’s possession or that the plaintiff knew of and
relied
on
in
bringing
suit.
See
Brass
v.
American
Film
Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993); Cortec
Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47–48 (2d Cir.
1991).
IV.
Analysis
A.
First Cause of Action: Violation of the ADA
1.
Administrative Exhaustion
Defendants argue that Plaintiff has failed to exhaust her ADA
claim because the EEOC dismissed her complaint on the basis that it
lacked jurisdiction to investigate the ADA charge because her
“allegations did not involve a disability as defined by the [ADA].”
EEOC Dismissal, Defendants’ Exhibit (“Def. Ex.”) A (quoted in
Defendants’ Memorandum of Law (“Def. Mem.”) at 7 (Dkt. #14-7)).
Plaintiff
asserts
that
she
has
complied
with
all
relevant
procedural conditions precedent to filing this action, but does not
directly address whether she is required to exhaust administrative
remedies under the ADA. See Pl. Mem. at 11 (stating that she need
not have filed an EEOC charge prior to commencing an action under
42 U.S.C. § 1983; and that she did not need to name Dr. Shmigel,
Page -11-
Bilsky, and Sheriff O’Flynn in the EEOC complaint because there is
no individual liability under the ADA as a matter of law).1
“Whether
an
ADA
claim
must
first
be
presented
to
an
administrative agency depends on which precise title of the ADA the
claim invokes. Title I prohibits employers from discriminating
against disabled employees, see 42 U.S.C. § 12112(a), while Title
III forbids discrimination “‘on the basis of disability in the full
and equal enjoyment of the goods, services, facilities, privileges,
advantages,
or
accommodation,’
accommodations
id.
§
of
12182(a).”
any
place
McInerney
v.
of
public
Rensselaer
Polytechnic Inst., 505 F.3d 135, 138 (2d Cir. 2005). Albertelli’s
claim is brought under Title I of the ADA, 42 U.S.C. § 12112(a),
see
Pl.
Mem.
at
8
(Dkt.
#15),
and
therefore
exhaustion
of
administrative remedies is required, McInerney, 505 F.3d at 138
(citations omitted).
“[A] plaintiff claiming employment discrimination based upon
disability pursuant to Title I of the ADA would be required to
exhaust administrative remedies by filing a timely complaint with
the EEOC, obtaining a right to sue letter, and commencing suit
within 300 days.” Sworn v. Western N.Y. Childrens’ Psychiatric
Ctr., 269 F. Supp.2d 152, 158 n.4 (W.D.N.Y. 2003) (citing 42 U.S.C.
§ 12117 (applying Title VII administrative procedures to ADA
1
Notwithstanding this assertion, Plaintiff did
individual in her EEOC complaint, Undersheriff Caiola.
Page -12-
name
one
claims); 42 U.S.C. § 2000e-5). Defendants argue that Plaintiff
failed to exhaust her remedies with regard to her ADA claim because
the EEOC dismissed her first complaint for lack of jurisdiction.
However, as Defendants admit, the EEOC did provide Plaintiff with
a right to sue letter in connection with her second complaint
alleging a violation of the ADA as well as a claim of retaliation.
See Def. Mem. at 3 (citing Def. Ex. B, EEOC #525-2009-00326), and
Plaintiff timely commenced suit in this Court. Therefore, the Court
concludes
that
Plaintiff
has
adequately
exhausted
her
administrative remedies with regard to her ADA claim.
2.
The ADA
The ADA provides in relevant part as follows:
No covered entity shall discriminate against a qualified
individual with a disability because of the disability of
such individual 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)
(emphasis
added).
A
plaintiff
alleging
employment discrimination under the ADA bears the initial burden of
establishing a prima facie case. Ryan v. Grae & Rybicki, P.C., 135
F.3d 867, 869 (2d Cir. 1998) (citing Wernick v. Federal Reserve
Bank of N.Y., 91 F.3d 379, 383 (2d Cir.1996)). Albertelli’s ADA
claim is of the “failure to reasonably accommodate” variety, which
requires that she demonstrate the following elements: (1) her
employer is subject to the ADA; (2) she is an individual with a
disability within the meaning of the ADA; (3) with or without
Page -13-
reasonable accommodation, she could perform the essential functions
of the job; and (4) the employer had notice of the employee’s
disability and failed to provide such accommodation. E.g., Rodal v.
Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir.
2004); Lyons v. Legal Aid Society, 68 F.3d 1512, 1515 (2d Cir.
1995). Defendants argue that Plaintiff has failed to demonstrate
that she fulfills any of the four requirements. See Defendants’
Memorandum of Law (“Def. Mem.”) at 7-13) (Dkt. #14-7).
a.
Plaintiff is not a qualified individual with a
disability.
“Title I of the ADA . . . is only applicable to a ‘qualified
individual
with
a
disability’
which
has
been
defined
as
“an
individual with a disability who, with or without reasonable
accommodation,
can
perform
the
essential
functions
of
the
employment position that such individual holds or desires.” Bril v.
Dean Witter, Discover & Co., 986 F. Supp. 171, 172-73 (S.D.N.Y.
1997) (footnote omitted) (quoting 42 U.S.C. § 12111(8)) & id. n.2
(citing Kennedy v. Applause, Inc., 90 F.3d 1477, 1480-81 (9th Cir.
1996) (citations omitted)). A plaintiff asserting an ADA claim
bears the burden of proving that she is a qualified individual with
a disability. See Cleveland v. Policy Management Sys. Corp., 526
U.S. 795, 119 S.Ct. 1597, 1603 (1999). “Accordingly, where an
individual claims that he/she is totally disabled and unable to
perform any of the essential functions of his/her job, he/she is
not a [qualified individual with a disability] under the ADA.”
Page -14-
Muller v. First Unum Life Ins. Co., 90 F. Supp.2d 204, 208
(N.D.N.Y. 2000) (citing Violette v. International Bus. Machines
Corp., 962 F.Supp. 446, 449 (D.Vt. 1996), aff’d, 116 F.3d 466, 1997
WL 314750 (2d Cir. 1997); other citation omitted).
Defendants argue that because Plaintiff has continuously sworn
that she was completely disabled, she cannot demonstrate that she
is disabled for purposes of the ADA. See EEOC Letter & Dismissal,
1/8/09, Def. Ex. A (“You have stated that you can no longer perform
the essential function of your position and that there is no
accommodation
that
will
enable
you
to
perform
the
essential
functions of a Deputy Sheriff.”); see also EEOC Charges, Def. Exs.
B & C (Dkt. #14). See Bril v. Dean Witter, Discover & Co., 986 F.
Supp.
171,
175
(S.D.N.Y.
1997)
(holding
that
plaintiff
“who
admittedly was totally disabled at the time her benefits were
discontinued” was not a qualified individual with a disability and
therefore, could not sue her employer under the ADA).
The Supreme Court has held that “statements made for the
purpose
of
securing
disability
benefits,
describing
why
the
claimant is too disabled to work, do not necessarily bar the
disabled individual from claiming in an ADA action that he can
perform the essential functions of the job at issue.” Parker v.
Columbia Pictures Indus., 204 F.3d 326, 333 (2d Cir. 2000) (citing
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, ____, 119 S.Ct.
at
1602). Where an ADA plaintiff has, for example, claimed total
Page -15-
disability from working in a different forum, “the court must
undertake a fact-specific analysis of whether the claims made in
the [earlier] application directly contradict the allegations made
in the ADA context.” Id. (citing
Cleveland, 526 U.S. at ____, 119
S.Ct. at 1603). “Where a case involves an apparent conflict between
the
two
sets
of
statements,
the
plaintiff
must
offer
some
explanation for the inconsistency.” Id.
Here, Plaintiff has offered no such explanation for the
inconsistencies
of
her
statements
regarding
her
level
of
disability. See Potter v. Xerox Corp., No. 00-7470, 1 Fed. Appx.
34, *36, 2001 WL 15617, at **1 (2d Cir. Jan. 5, 2001) (unpublished
opn.) (“Potter has alternately stated-and the record supports-two
contradicting propositions: 1) that he is totally disabled and
thereby unable to perform any job; and 2) that he can perform any
job provided his stress-related problems are resolved by placing
him under a new supervisor. Neither proposition brings Potter
within
the
reach
of
the
ADA’s
protections.”).
Moreover,
her
assertion that she was totally disabled and unable to perform her
job even with reasonable accommodations not made in a different
forum or context, as in Cleveland, but instead was made in support
of her ADA claim presented to the EEOC. Contrast with Cleveland,
526 U.S. at ___, ___, 119 S. Ct. at 1600, 1604 (although the
plaintiff’s SSDI forms stated at various points that she had “not
been able to work since” her termination from her job, that she was
Page -16-
“still disabled,” and that she was “totally disabled,” the Supreme
Court accepted the plaintiff’s assertion that these statements
“were made in a forum which does not consider the effect that
reasonable workplace accommodations would have on the ability to
work”, in contrast to the ADA, which was designed “to guarantee
[disabled] individuals equal opportunity” to work by requiring that
employers make accommodations where appropriate) (quotation to
record omitted).
Plaintiff’s sworn averments preclude a finding that she is a
qualified individual with a disability for purposes of the ADA. Her
inability to establish this necessary element is fatal to her ADA
claim. See Muller v. First Unum Life Ins. Co., 90 F. Supp.2d 204,
208 (N.D.N.Y. 2000) “[T]he amended complaint states that ‘Muller
remains unable to perform each of the material duties of his former
regular occupation.’ (emphasis in the original). Muller has never
claimed that he is capable of working with or without a reasonable
accommodation.
Muller’s
failure
to
establish
that
he
is
a
[qualified individual with a disability] is fatal to his ADA
claim.”).
Accordingly,
the
first
cause
of
action
alleging
a
violation of the ADA is dismissed.
B.
Second Cause of Action: The NYHRL Claim
Plaintiff
contends
in
her
second
cause
of
action
that
Undersheriff Caiola violated the NYHRL, N.Y. Exec. Law §296.6, as
an “aider and abettor”. Executive Law § 296.6 provides that “[i]t
Page -17-
shall be an unlawful discriminatory practice for any person to aid,
abet, incite, compel or coerce the doing of the acts forbidden
under [the NYHRL], or to attempt to do so.” N.Y. EXEC. LAW § 296.6.
Defendants argue that Plaintiff failed to serve a timely notice of
claim on the County of Monroe in compliance with New York General
Municipal
Law
(“G.M.L.”)
§
50-e.
Plaintiff
claims
that
this
argument is misplaced because her third cause of action is pursuant
to the equal protection clause, and her fourth through sixth causes
of action are pursuant to 42 U.S.C. § 1983. Therefore, Plaintiff
argues, according to the Supremacy Clause of the United States
Constitution, she did not need to comply with G.M.L. § 50-e.
Defendants also argue that because Monroe County, Sheriff
O’Flynn, Dr. Shmigel, and Bilsky were not named in any of the EEOC
complaints or right to sue letters, the NYHRL claims as to them
must be dismissed. Plaintiff argues that this is “nonsensical”
because she seeks redress under 42 U.S.C. § 1983, and it is wellsettled that there can be no individual liability under the ADA as
a matter of law. Plaintiff has overlooked that she expressly
pleaded a claim under the NYHRL in her second cause of action, and
fails to address Defendants’ arguments regarding the G.M.L. as
applied to the NYHRL claim.
New York General Municipal Law § Section 50–e(1)(a) provides
that “[i]n any case founded upon tort where a notice of claim is
required by law as a condition precedent to the commencement of an
Page -18-
action . . . against a public corporation, . . . the notice of
claim shall . . .
be served . . . within ninety days after the
claim arises.” N.Y. GENERAL MUNICIPAL LAW § 50-e. G.M.L. § 50–e(1)(b)
also states that “[i]f an action or special proceeding is commenced
against
[an
officer,
appointee
or
employee
of
a
public
corporation], but not against the public corporation, service of
the notice of claim upon the public corporation shall be required
only if the corporation has a statutory obligation to indemnify
such person under this chapter or any other provision of law.” N.Y.
GENERAL MUNICIPAL LAW § 50-e. “A public corporation has a statutory
obligation to indemnify if the officer, appointee or employee was
acting within the scope of his or her employment in committing the
alleged tortious acts.” Smith v. Scott, 294 A.D.2d 11, 19, 740
N.Y.S.2d 425 (2d Dept. 2002).
However, the applicability of G.M.L. § 50-e “is confined to
tort claims for personal injury, wrongful death, or damage to
property and not to torts generally.” Mills v. Monroe County, 89
A.D.2d 776, 776, 453 N.Y.S.2d 486, 487 (4th Dept. 1982) (citing N.Y.
GENERAL MUNICIPAL LAW
§ 50-i(1) (“No action or special proceeding
shall be prosecuted or maintained against a city, county, town,
village, fire district or school district for personal injury,
wrongful death or damage to real or personal property alleged to
have been sustained by reason of the negligence or wrongful act .
. . unless . . . a notice of claim shall have been made and served
Page -19-
. . .”).
An action brought under the NYHRL, N.Y. Exec. Law § 296
“is not a tort claim which falls within the notice provisions of
the
General
Municipal
Law.”
Mills,
453
N.Y.S.2d
at
487.
Nonetheless, Albertelli’s second cause of action must be dismissed
for
failure
to
comply
with
the
applicable
notice
of
claim
requirement.
Section 52 of the New York County Law requires a notice of
claim to be served, in compliance with G.M.L. § 50–e, upon a county
in any “claim for damages arising at law or in equity, alleged to
have been caused or sustained in whole or in part by or because of
any misfeasance, omission of duty, negligence or wrongful act on
the part of the county, its officers, agents, servants or employees
. . .” Plaintiff’s action seeks money damages for the alleged
wrongful acts of Monroe County and the Monroe County Sheriff’s
Department and its employees. Her conceded failure to file the
requisite notice of claim within 90 days after her claim accrued
bars her
action.
See Mills,
453 N.Y.S.2d
at
487
(dismissing
plaintiff’s action for money damages alleging wrongful discharge
(racial discrimination) from employment by defendant in violation
of the NYHRL, N.Y. Exec. Law § 296 due to plaintiff’s failure to
file a timely notice of claim pursuant to G.M.L. § 50-e and N.Y.
County Law § 52) (citations omitted). The second cause of action
alleging a violation of the NYHRL accordingly is dismissed.
Page -20-
C.
Third Cause of Action: Equal Protection and Due Process
Plaintiff
asserts
that
Defendants
violated
her
right
to
procedural due process under the Fourteenth Amendment by denying
her benefits under G.M.L. § 207-c without a hearing. In addition,
Plaintiff asserts in the Amended Complaint that “in particular” her
rights under the Equal Protection Clause were violated by the
deprivation of an administrative hearing. Id., ¶69.2
Although Plaintiff’s Amended Complaint contains allegations
reciting the legal standard applicable to a substantive due process
claim (as opposed to a procedural due process claim) (e.g., she
claims
that
the
deprivation
of
her
due
process
rights
was
“egregious and shocking to the conscience”, Am. Comp., ¶69),
Plaintiff expressly states in her opposition papers that she is not
asserting a substantive due process claim. Therefore, the Court
analyzes Defendants’ motion to dismiss in relation to Plaintiff’s
equal protection and procedural due process claims.
1.
Equal Protection
The Equal Protection Clause requires that the government treat
all similarly situated people alike. City of Cleburne v. Cleburne
Living Ctr.,
473
U.S. 432,
Complaint
far
from
is
clear
439
on
(1985).
this
Although
point,
it
the
Amended
appears
that
Albertelli is claiming that the termination of her G.M.L. § 207-c
2
This citation refers to the second “¶69” on page 11 of the
Amended Complaint.
Page -21-
benefits without a hearing violated her right to equal protection
of the laws. Such a claim would have to be based upon the “class of
one” equal protection doctrine, which provides that a successful
equal protection claim can be brought by a “class of one,” “where
the plaintiff alleges that she has been intentionally treated
differently from others similarly situated and that there is no
rational
basis
for
the
difference
in
treatment.”
Analytical
Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010)
(internal quotation marks omitted).
In 2008, the United States Supreme Court held that “the
class-of-one theory of equal protection does not apply in the
public employment context.” Engquist v. Oregon Dept. of Agr., 553
U.S. 591 (2008). Here, Plaintiff is a public employee challenging
a decision made by her employer, and Engquist controls. See, e.g.,
Appel v. Spiridon, 531 F.3d 138, 139–40 (2d Cir. 2008) (per curiam)
(holding that, in light of Engquist, “the Equal Protection Clause
does not apply to a public employee asserting a violation of the
Clause based on a ‘class of one’ theory of liability”); Gentile v.
Nulty, 769 F. Supp.2d 573, S.D.N.Y. 2011) (dismissing, pursuant to
Engquist, equal protection claim brought by police officer alleging
erroneous decision by his employer that he was no longer eligible
for G.M.L. § 207-c benefits). Plaintiff’s third cause of action, to
the extent it alleges an equal protection violation, is dismissed.
Page -22-
2.
Procedural Due Process
“Pursuant to General Municipal Law § 207–c, municipalities
meeting certain population criteria are directed to pay continued
salary or wages to officers who sustain a disability in the course
of their employment.” Park v. Kapica, 8 N.Y.3d 302, 310 (2007).
The continued receipt of G.M.L. § 207–c disability payments is “not
absolute”, and a “municipality is entitled to its own medical
examination of its employee[.]” Id. (citing N.Y. GENERAL MUNICIPAL LAW
§ 207–c(1)). If the municipality’s physician’s opinion is that the
officer can perform “specified types of light police duty,” payment
of the full amount of salary or wages may be discontinued should
the officer refuse to return to work if a light-duty assignment “is
available and offered to him”. Id. (citing N.Y. GENERAL MUNICIPAL LAW
§ 207–c(3)).
The right of a disabled public employee to receive disability
payments under G.M.L. § 207-c constitutes “a property interest
giving
rise
to
procedural
due
process
protection,
under
the
Fourteenth Amendment, before those benefits are terminated[.]”
Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO
v. City of Cohoes, 94 N.Y.2d 686, 691 (2000) (“Uniform Firefighters
of Cohoes”). Accordingly, the right to a “due process hearing is
triggered when an officer on section 207-c status submits evidence
from his treating physician supporting the officer’s claim of
‘continued total disability[.]’” Park, 8 N.Y.3d at 310 (quoting
Page -23-
Uniform Firefighters of Cohoes, 94 N.Y.2d at 692 (pursuant to the
analogous provision G.M.L. § 207–a, firefighters who contest a
light-duty determination are entitled to a due process hearing)).
Although the Defendants entirely failed to address Plaintiff’s
procedural due process claim in their motion to dismiss, discussing
only her equal protection and substantive due process claims, the
Court concludes that Albertelli’s complaint adequately pleads a
cause of action alleging a procedural due process violation.
Plaintiff alleges that her disability benefits issued pursuant to
G.M.L. § 207-c were discontinued without her first receiving a
hearing.
Therefore, Defendants’ motion to dismiss plaintiff’s due
process claim is denied.
D.
Fourth Cause of Action: Civil Rights Conspiracy
Plaintiff contends in the Amended Complaint that Undersheriff
Caiola, Dr. Shmigel, and Bilsky conspired to violate her civil
rights in violation of 42 U.S.C. § 1983. As Defendants point out,
the
claim
should
be
asserted
under
42
U.S.C.
§
1985,
which
specifically applies to alleged conspiracies. E.g., Webb v. Goord,
340 F.3d 105, 111 (2d Cir. 2003).
In order to maintain an action under § 1985, “a plaintiff
‘must provide some factual basis supporting a meeting of the minds,
such that defendants entered into an agreement, express or tacit,
to achieve the unlawful end.’” Id. (quoting Romer v. Morgenthau,
119 F. Supp.2d 346, 363 (S.D.N.Y. 2000) (citations omitted)).
Page -24-
Plaintiff
alleges
that
Undersheriff
Caiola,
Dr.
Shmigel,
and
unidentified “others” “procured through coercion and pressure the
denial of Plaintiff’s § 207-c benefits without a hearing upon the
directive from . . . Bilsky to return all disabled workers to work
to save on costs”; “compelled Plaintiff back to work without
compelling
Plaintiff’s
medical
evidence,
treating
and
physician
disregarded
and/or
the
compelled
evidence
of
Plaintiff’s
treating physician to alter his medical findings . . . .”; and
“placed Plaintiff in a precarious position at work, forcing here to
were a uniform in a jail setting with no ability to use any
defensive measures to protect herself . . . .” Am. Compl., ¶¶75(A)(C) (Dkt. #2).
The Court concludes that Plaintiff has “not alleged, except in
the most conclusory fashion, that any such meeting of the minds
occurred among any or all of the defendants.” Webb, 340 F.3d at
111. Her “conspiracy allegation must therefore fail.” Id. (citing
Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (dismissal of
“conclusory, vague or general allegations of conspiracy to deprive
a person of constitutional rights” is proper)); see also Warren v.
Fischl, 33 F. Supp.2d 171, 177 (E.D.N.Y. 1999) (finding plaintiff’s
allegation of conspiracy insufficient despite specific claims of
conspiracy to alter tapes and create illegal search warrants, as
there was no basis for the assertion that defendants actually
conspired together to bring about these actions); Hickey–McAllister
Page -25-
v. British Airways, 978 F. Supp. 133, 139 (E.D.N.Y.1997) (mere
allegations that defendants' actions were committed “in furtherance
of a conspiracy” were not enough, as “plaintiff has alleged no
facts at all from which a meeting of the minds between [defendants]
on
a
course
of
action
intended
to
deprive
plaintiff
of
her
constitutional rights can be inferred”) (citing San Filippo v.
United States Trust Co. of N.Y., 737 F.2d 246, 256 (2d Cir. 1984)).
Plaintiff’s fourth cause of action accordingly is dismissed.
E.
Fifth Cause of Action: Supervisor’s Liability
Plaintiff’s fifth cause of action titled “42 U.S.C. § 1983
Supervisory Liability” is brought against Sheriff Patrick O’Flynn,
whom she alleges allowed Undersheriff Caiola, Dr. Shmigel, and
Bilsky, to “act[ ] with impunity in an environment in which they
were not trained, supervised, or disciplined . . . .” Am. Compl.,
¶78 (Dkt. #2). Defendants’ memorandum of law does not specifically
address the Fifth Cause of Action against Sheriff O’Flynn, but
instead treats the Fifth Cause of Action as essentially duplicative
of the Sixth Cause of Action alleging municipal liability against
Monroe County. See Def. Mem. at 22-25 (Dkt. #14-7). They are
legally distinct, however.
Under section 1983 only a defendant who “personally ‘subjects,
or causes to be subjected’ any person to the deprivation of any
federal
right
will
be
held
liable.
Accordingly,
‘personal
involvement of defendants in alleged constitutional deprivations is
Page -26-
a prerequisite to an award of damages under § 1983.’” Dove v.
Fordham University, 56 F. Supp.2d 330, 336 (S.D.N.Y. 1999)(quoting
Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986)).
Plaintiff’s allegations against Sheriff O’Flynn appear to be
based entirely on his position at the top of the chain-of-command.
However,
a
“plaintiff
cannot
base
liability
solely
on
[the
defendant]’s supervisory capacity or the fact that he held the
highest position of authority” within the relevant governmental
agency or department. Burgess v. Morse, 259 F. Supp.2d 240, 248
(W.D.N.Y.2003) (citing inter alia, Black v. Coughlin, 76 F.3d 72,
74 (2d Cir. 1996) (“[A] defendant in a § 1983 action may not be
held
liable
because
he
for
held
damages
a
high
for
constitutional
position
of
violations
authority.”)
merely
(citations
omitted)).
The Amended Complaint alleges that Sheriff O’Flynn provided
“grossly
inadequate
training,
supervision
and
discipline”
of
Undersheriff Caiola, Dr. Shmigel, and Bilsky, which caused them to
deprive
Plaintiff
of
her
“clearly
established
constitutional
rights, including her right to be free from the deprivation of
property without due process of law”, see Am. Compl., ¶79; and that
“no reasonable police supervisor in 2009 would have believed that
grossly
negligent,
supervision
in
the
reckless
face
of
and
actual
deliberately
or constructive
indifferent
notice
of
misconduct by subordinates such as Bilsky, Caiola or Schmigel [sic]
Page -27-
was lawful”, see id., ¶80. Other than these conclusory allegations,
however, there is no factual basis established to demonstrate
Sheriff
O’Flynn’s
personal
involvement
in
the
alleged
constitutional violations. The fifth cause of action accordingly is
dismissed. See Black, 76 F.3d at 75 (“Since there was no indication
in the present case that Coughlin had any role in the proceedings
concerning Black, the dismissal of Black’s claim against Coughlin
was proper.”);
Houghton
v.
Cardone,
295
F.
Supp.2d
268, 276
(W.D.N.Y. 2003) (complaint alleging that defendant sheriff (1)
failed to adequately train or supervise the officers; (2) knew
about and tolerated the officers’ allegedly unlawful behavior; and
(3) “failed to institute a proper system of review and reprimand”
of his deputies so as to prevent the types of unlawful acts alleged
was too conclusory to establish defendant’s personal involvement).
Plaintiff’s fifth cause of action accordingly is dismissed.
F.
Sixth Cause of Action: Municipal Liability
For
her
sixth
cause
of
action,
Plaintiff
alleges
that
“[t]hrough the deliberate indifference of its final policy maker
for the Monroe County Sheriff’s Office, defendant Patrick O’Flynn,
[sic] intentionally, maliciously, and with reckless disregard for
and deliberate indifference to Plaintiff’s rights, created and
maintained
an
unconstitutional
official
custom,
practice,
or
policy, by participating in the denial of due process upon the
directive of Robert J. Bilsky, Risk Manager for the County of
Page -28-
Monroe.” Am. Compl., ¶83 (Dkt. #2).
A municipality is subject to
liability for damages under 42 U.S.C. § 1983 when an official
municipal
policy
or
custom
contributes
to
a
constitutional
deprivation. See Monell v. Department of Soc. Servs., 436 U.S. 658,
694 (1978) (“[W]hen execution of a government’s policy or custom .
. . inflicts [an] injury . . . the government as an entity is
responsible under § 1983.”). The “policy or custom” requirement “is
intended simply to distinguish acts of the municipality from acts
of its employees, in order that municipal liability be limited to
conduct
for
which
the
municipality
is
actually
responsible.”
Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 142
(2d Cir. 1999) (citing Pembaur v. City of Cincinnati, 475 U.S. 469,
478–80 (1986)). A plaintiff must establish that an identified
municipal policy or practice was the “moving force [behind] the
constitutional violation.” Monell, 436 U.S. at 694.
Defendants contend that Plaintiff has “fail[ed] to plead, in
any fashion, the existence of any municipal policy which caused
Monroe
County
Employees
to
allegedly
violate
Plaintiff’s
constitutional rights.” Def. Mem. at 22 (Dkt. #14-7). Plaintiff
argues in her opposition papers that her rights were deprived “not
as a result of the enforcement of an unconstitutional official
policy or ordinance, but by the unconstitutional application of a
valid policy, or by a [municipal] employee’s single tortious
decision or course of action,” Pl. Mem. at 15 (quoting Amnesty Am.
Page -29-
v. Town of West Hartland, 361 F.3d 113, 126 (2d Cir. 2004)).
Plaintiff’s Amended Complaint alleges that the constitutionally
offensive policy was that of “returning disabled employees back to
work without competent medical evidence in an attempt to compel
them to quit their positions with the County, and depriving them of
their property interest in [G.M.L.] § 207-c benefits without due
process in the form of a hearing, and in returning otherwise
disabled persons to work upon the directive of Robert J. Bilsky.”
Am. Compl., ¶84.
Keeping in mind that the Court has not yet dismissed the
procedural due process cause of action relating to the termination
of Plaintiff’s G.M.L. § 207-c benefits, the Court finds that the
Monell allegations quoted above state “enough facts to state a
claim to relief that is plausible on its face,” Twombly, 550 U.S.
at 570. They are therefore sufficient to avoid dismissal.
IV.
Conclusion
The first, second, fourth, and fifth causes of action are
dismissed in their entirety for the reasons stated above. The third
cause of action is dismissed to the extent that it alleges a
violation of the equal protection clause. The allegations in
support of the procedural due process claim in the third cause of
action are sufficient to withstand a motion to dismiss, and,
moreover, Defendants did not address the due process cause of
action in their motion. Finally, the allegations of municipal
Page -30-
liability in the sixth cause of action are sufficient to withstand
a motion to dismiss the complaint.
V.
Orders
Accordingly, it is hereby
ORDERED that the first cause of action alleging a violation of
the ADA is dismissed; and it is further
ORDERED that the second cause of action alleging a violation
of the NYHRL is dismissed; and it is further
ORDERED that the third cause of action, to the extent it
alleges a violation of the equal protection clause, is dismissed;
and it is further
ORDERED that the third cause of action, to the extent it
alleges a violation of procedural due process, may proceed; and it
is further
ORDERED that the fourth cause of action alleging conspiracy
under 42 U.S.C. § 1985 is dismissed; and it is further
ORDERED that the fifth cause of action alleging supervisor’s
liability is dismissed; and it is further
ORDERED that the sixth cause of action alleging municipal
liability may proceed
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
Rochester, New York
May 22, 2012
Page -31-
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