Freeman v. Kirisits et al

Filing 17

DECISION AND ORDER granting in part and denying in part 9 Motion to Dismiss for Failure to State a Claim as follows: (1) The defendants motion to dismiss plaintiffs due process claims is granted; (2) The defendants motion to dismiss plaintiffs eq ual protection claim is granted; (3) The defendants motion to dismiss plaintiffs employment discrimination claim pursuant to § 504 of the Rehabilitation Act in favor of all individual defendants is granted but is denied against defendant Rochest er Psychiatric Center only; (4) The Court denies as moot plaintiffs motion for a temporary restraining order (Docket No. 3), which arises out of the due process claims that are dismissed by this Court for the reasons stated in this Decision and (5) T he Court grants defendants motion to dismiss the complaint in all other respects. The Clerk of Court is further directed to amended the caption in this case to reflect the sole remaining defendant, Rochester Psychiatric Center, for purposes of the r emaining cause of action under § 504 of the Rehabilitation Act of 1973. Signed by Hon. Michael A. Telesca on 2/6/2017. Copy of this Decision and Order sent by first class mail to Plaintiff. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Dwayne Freeman,
Plaintiff,
16-CV-06668
DECISION AND ORDER

-v-

Christopher Kirisits, Phil
Griffin, Colomba Misseritti,
Doug Lee, Cynthia Crowell,
John Burrows, Linda Gray,
Lidia Colak, Thomas Rinaldo,
Andrew Cuomo, and Rochester
Psychiatric Center,
Defendants.

I.

Introduction
Plaintiff Dwayne Freeman (“plaintiff” or

“Freeman”), former

employee of defendant Rochester Psychiatric Center (“RPC”), an
agency of the New York State Office of Mental Health (“OMH”),
brings this pro se action pursuant to 42 U.S.C. § 1983 and
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 701
et seq., seeking monetary, declaratory and injunctive relief for
violations of his federal civil rights. Plaintiff alleges that his
employment

was

unlawfully

suspended

and

terminated

after

he

requested a reasonable accommodation to be exempt from working in
the geriatric unit because it exacerbated his anxiety disorder.
Defendants Christopher Kirisits (“Kirisits”), Phil Griffin, Colomba
Misseritti (“Misseritti”), Doug Lee (“Lee”), Cynthia Crowell, John
Burrows, Linda Gray (“Gray”), Lidia Colak, Thomas Rinaldo, Andrew
Cuomo, and RPC (collectively, “defendants”) have filed a motion to

dismiss the complaint for lack of subject matter jurisdiction
pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of
Civil Procedure. For the reasons stated below, the Court grants in
part and denies in part defendants’ motion to dismiss plaintiff’s
complaint.
II. Factual Background
Plaintiff was employed by RPC as a Mental Hygiene Therapy Aide
from July 3, 2000 to April 18, 2016.

Plaintiff alleges that, on or

about December 4, 2014, RPC approved an FMLA application submitted
by him in connection to his anxiety disorder.

Plaintiff asserts

that his anxiety disorder stemmed in part from an ultimately
unsubstantiated abuse allegation made against him by a coworker
concerning a resident of the geriatric unit (hereafter referred to
as the “E-1 Unit”).
place between

During the ensuing investigation, which took

October 2014 and February 3, 2015, plaintiff was

allegedly forbidden from any contact with the residents or staff
members of the E-1 Unit.

Plaintiff began seeing a therapist to

treat his anxiety symptoms, which he told the therapist were
exacerbated by working in the E-1 Unit.
In January or February 2015, plaintiff submitted a written
request for a “reasonable accommodation” that relieved him any
duties in E-1 Unit, at the recommendation of his therapist, Jeffrey
Schumacher, LCSW. Mr. Schumacher opined that plaintiff was at risk
of

having

angry

outbursts,

among

2

other

symptoms,

if

he

was

subjected to working with geriatric residents. Plaintiff’s request
was sent to defendant Misseritti, the Director of RPC’s Human
Resources Office, who forwarded it to OMH’s Affirmative Action
Administrator, Vickie Eudell, on February 13, 2015.
On February 3, 2015, plaintiff was instructed by an RPC nurse
administrator to report for work in the E-1 Unit when he returned
to work.

Plaintiff refused to comply with this directive and

requested to be assigned to another unit.

He also repeatedly

rejected the same order when it was given to him by the Director of
Nursing, defendant Kirisits, and defendant Gray.

Plaintiff was

subsequently questioned by defendant Lee in the Personnel Office
and sent home later that day.
Plaintiff then took a medical leave of absence from February
4, 2015 to February 18, 2015. Before returning to work on February
19, 2015, plaintiff was informed during a meeting with defendant
Misseritti that he was being suspended without pay pending the
outcome

of

a

termination

proceeding

resulting

from

his

insubordination.
As an attachment to their motion to dismiss, defendants have
submitted the “OPINION AND AWARD” decision issued by arbitrator
Lise Gelernter on April 18, 2016, which contains her factual
findings and determination of a second disciplinary hearing held
against plaintiff on February 11, 2016.

The factual background

contained in Ms. Gelertner’s 2016 decision reveals the details of

3

plaintiff’s

first,

expedited

disciplinary

hearing,

which

was

related to the February 3, 2015 incident (the “first hearing”). In
the instant complaint, plaintiff claims that all charges related to
his alleged insubordination were based on his refusal to comply
with orders due to documented medical reasons.
Plaintiff asserts that his unpaid suspension by defendants was
“arbitrary in a constitutional sense” because they were aware that
plaintiff

had

applied

for

a

reasonable

accommodation

reassigned to another unit. Complaint, ¶ 76.

to

be

Although plaintiff

was found guilty of the charges presented during the first hearing,
he was not recommended for termination because of his expressed
willingness to return to work without restriction.

Plaintiff

reluctantly consented to the terms of the expedited arbitration
award after being advised that he would have to otherwise endure
the lengthy process of a full hearing.
The record reveals that on February 20, 2015, plaintiff had
asked

Ms.

Eudell,

who

had

been

handling

his

reasonable

accommodation request, to put the request on hold pending the
outcome

of

his

disciplinary

proceedings.

On

May

14,

2015,

plaintiff attempted to “revive” his accommodation request during a
telephone call and email conversation with Ms. Eudell.

In June

2015, Ms. Eudell advised plaintiff that his documentation was out
of date and that he had to submit an updated medical form from his
therapist.

4

The record indicates that plaintiff remained out of work on
FMLA leave and worker’s compensation leave following the first
disciplinary hearing and suspension period until July 20, 2015.
Upon returning to work on July 20, plaintiff was immediately asked
to report to the E-1 Unit due to a staffing shortage.
plaintiff

refused

to

do

so,

defendant

Lee

After

reviewed

the

insubordination policy with plaintiff and gave him a direct order
to report to the E-1 Unit.

Plaintiff again refused and as a

result, Lee placed him on administrative leave.
On August 24, 2015, Ms. Eudell, having been advised that
plaintiff was not currently working, notified him that she was
closing out his application for a reasonable accommodation.

On

August 26, 2015, the OMH issued a notice that it was suspending
plaintiff “without pay after finding that he was a potential danger
to persons or property, or that his continued presence would
severely interfere with operations.”
history,

performance

evaluations,

and

Due to his disciplinary
a

second

incident

of

insubordination in less than one year, plaintiff was recommended
for termination.
At his second disciplinary hearing, held on February 11, 2016,
plaintiff acknowledged that he had not submitted the updated form
in support of his application for a reasonable accommodation, but
he nonetheless protested the closing of his application.

He

testified that he had been under the impression that he could not

5

revive his reasonable accommodation request until he had returned
to work. Plaintiff further testified that he believed his refusals
to report to the unit fell into the health and safety exception of
the insubordination policy, which allowed employees to refuse any
order constituting a threat to health and safety.

Plaintiff went

on to describe the tension headaches that he experienced as a
result of the constant loud outbursts and patient noise that
occurred on the E-1 Unit.

The factual findings of the second

hearing indicated that plaintiff was subject to 17 disciplinary
actions between 2009 and 2015.

In her April 18, 2016 decision,

Ms. Gelernter, although acknowledging plaintiff’s “15-year tenure
with RPC,” found plaintiff guilty of insubordination as charged in
the August 26, 2016 notice and recommended his termination.

She

also found that there was probable cause to suspend plaintiff
without pay.
Plaintiff filed the present action against RPC and several
individual RPC employees on October 11, 2016.
III. Discussion
When considering a 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction, a court must assume as true the
factual allegations set forth in the complaint. Pleadings prepared
by a pro se plaintiff, as here, are held to less stringent
standards than those prepared by counsel, and

a Rule 12(b)(1)

dismissal is not appropriate unless plaintiff’s federal claim is

6

not

even

minimally

plausible.

“The

issue

is

not

whether

a

plaintiff will ultimately prevail but whether [he] is entitled to
offer evidence to support [his] claims.” Villager Pond, Inc. v.
Town of Darien, 56 F.3d 375, 378 (2d Cir.1995), cert. denied, 519
U.S. 808 (1996).
Pursuant

to

42

U.S.C.

§

1983,

plaintiff

asserts

that

defendants, acting under color of law, denied him his substantive
due process right not to be terminated for requesting a reasonable
accommodation, and that he was denied his procedural due process
right

to

a

fair

hearing

before

termination of his employment.

the

unpaid

suspension

and

Plaintiff also alleges a claim

under § 504 of the Rehabilitation Act, asserting that defendants’
approval

of

his

FMLA

leave,

which

was

based

on

his

anxiety

disorder, establishes a record of his disability and defendants’
notice thereof.
A.

Due Process Claims

Title 42 of the United States Code, Section 1983 “provides an
instrument by which an individual deprived of a federal right by a
person acting

under

color

of

state

law

may

be

compensated.”

Eagleston v. Guido, 41 F.3d 865, 875 (2d Cir. 1994), citing Parratt
v. Taylor, 451 U.S. 527, 535 (1981).

Section 1983 itself creates

no

provides

substantive

rights

but

rather

a

procedure

for

redressing the deprivation of rights established elsewhere. See
Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993), cert. denied, 512
7

U.S.

1240

(1994).

The

necessary

elements

of

a

claim

under

42 U.S.C. § 1983 are (1) conduct attributable at least in part to
a person acting under color of state law and (2) the deprivation,
by such conduct, of a right, privilege or immunity secured by the
Constitution or laws of the United States. See Eagleston, 41 F.3d
at 875–876, citing Dwares v. City of N.Y., 985 F.2d 94, 98 (2d Cir.
1993).
Plaintiff

contends

that

defendants

deprived

him

of

his

property interest in his continued paid employment without due
process of law.

Defendants argue that plaintiff’s § 1983 claim

should be dismissed on the ground he could have pursued an Article
78 proceeding, and that the availability of state remedies is
sufficient to satisfy due process requirements.
“In procedural due process claims, the deprivation by state
action of a constitutionally protected interest in ‘life, liberty,
or

property’

is

not

in

itself

unconstitutional;

what

is

unconstitutional is the deprivation of such an interest without due
process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990)
(emphasis

in

original).

The

two-step

inquiry

involved

in

analyzing a procedural due process claim asks “(1) whether the
plaintiff possessed a liberty or property interest and, if so,
(2) what process was due before he could be deprived of that
interest.” Ciambriello v. County of Nassau, 292 F.3d 307, 313 (2d
Cir.2002).

8

“To

state

a

due
must

substantive-Plaintiff

process
first

violation—procedural
show

a

deprivation

or

of

a

constitutionally protected property or liberty interest.” Berrios
v. State Univ. of N.Y. at Stony Brook, 518 F.Supp.2d 409, 418
(E.D.N.Y.2007) (emphasis added), citing White Plains Towing Corp.
v. Patterson, 991 F.2d 1049, 1061–62 (2d Cir. 1993), cert. denied,
510 U.S. 865 (1993).

“It is only when such a right is established

that the court may turn to a discussion of whether there has been
a deprivation of that right without due process.” Id.
Here, the Court finds that, even based on the most liberal
construction of plaintiff’s complaint, he fails to allege any facts
to plausibly suggest that he was employed in such a manner to
confer a guarantee of continued employment.

The complaint alleges

that plaintiff had a “constitutionally protected property interest
in

his

continued

Bargaining

employment

Agreement

stemm[ing]

between

The

from

Civil

The

Collective

Service

Employment

Association, Inc. (“C.S.E.A.”) and the State of New York, which is
effectuated

by

the

provisions

of

the

Public

Employee's

Fair

Employment Act.” Complaint, ¶ 32.
The Court has carefully reviewed the submissions attached to
plaintiff’s complaint and finds that there is nothing in the
specific sections of the Collective Bargaining Agreement provided
that give rise to his claim of a legitimate entitlement to his
continued

employment.

There

is,
9

further,

no

other

factual

assertions, contracts, or agreements in the record to support
plaintiff’s conclusory allegation that he has protected property
interest in his employment.

Consequently, plaintiff’s procedural

due process claims cannot survive defendants’ motion to dismiss.
With respect to plaintiff’s substantive due process claim,
unlike procedural due process, this type of claim “refers not to
particular hearing procedures, but circumscribes an ‘outer limit’
on permissible governmental action.” Berrios, 518 F.Supp.2d at 418
(citation omitted). However, in light of the Court’s determination
that plaintiff has failed to satisfy the first step of the dueprocess inquiry by failing to establish a property interest in his
continued employment, his substantive due process claim is also
subject to dismissal.

Therefore, neither plaintiff’s procedural

due process claims nor his substantive due process claims survive
defendants’

motion

to

dismiss.

The

Court

therefore

grants

defendants’ motion to dismiss plaintiff’s due process claims.
B. Equal Protection Claim
To the extent that the pleadings can be construed raise a
“class of one” cause of action under the Equal Protection Clause,
the Court agrees with defendants that this claim must be dismissed.
Plaintiff’s conclusory allegations that he was treated differently
from another employee with the same job title and responsibilities
are wholly insufficient to establish that “no rational person could
regard the circumstances of the plaintiff to differ from those of

10

[the] comparator to a degree that would justify the differential
treatment on the basis of a legitimate government policy.” Neilson
v. D'Angelis, 409 F.3d 100, 104 (2d Cir. 2005), abrogated on other
grounds, Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008).

Apart

from their job titles, plaintiff does not allege any facts to
suggest that

he

and

the

other

named

employee

were

similarly

situated in relevant respects or how they were treated differently.
See Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 143
(2d Cir. 2010).

Consequently, to the extent that this claim has

been raised, it is dismissed with prejudice.
B.

Section 504 of the Rehabilitation Act of 1973 Claims

A prima facie case of employment discrimination under the
Rehabilitation Act requires a showing that: (1) plaintiff is an
individual with a disability within the meaning of the Act; (2) he
is otherwise qualified to perform the job in question; (3) he was
excluded from the job solely because of his disability, and (4) his
employer received federal funding. See Borkowski v. Valley Cent.
Sch.

Dist.,

63

F.3d

131,

135

(2d

Cir.

1995);

see

also Rehabilitation Act of 1973, § 504(a), 29 U.S.C.A. § 794(a);
Harris v. Mills, 572 F.3d 66, 73-74 (2d Cir. 2009).
The Americans with Disabilities Act of 1990 (“ADA”) defines
“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
11

regarded as having such an impairment.” 42 U.S.C. § 12102(1).

The

term “qualified individual with a disability” is defined as “an
individual who, with or without reasonable accommodation, can
perform the essential functions of the employment position that
such individual holds or desires.”

42 U.S.C. § 12112; 29 U.S.C.

§ 794(d).
Section 504, which is subject to the standards applied under
the

ADA,

provides

that

employment

discrimination

thereunder

includes “denying employment opportunities to [an] . . .

employee

who is an otherwise qualified individual with a disability, if such
denial is based on the need of such [employer] to make reasonable
accommodation to the physical or mental impairments of the employee
or applicant.” 42 U.S.C. § 12112(b)(5)(A).

Defendants do not

dispute that plaintiff was otherwise qualified for his position or
that RPC receives federal funding.

The only argument advanced by

defendants to defeat plaintiff’s § 504 claim is that he failed to
adequately establish having a “disability” for purposes of the
Rehabilitation Act because he failed to allege any major life
activity affected by his anxiety disorder.

However, to establish

that he was regarded as having a disability, plaintiff was not
required to plead that his impairment substantially limited any
major

life

activity

or

present

evidence

as

to

what

degree

defendants believed that the impairment affected him. See Kelly v.
N.Y. State Office of Mental Health, __ F.Supp.3d __, 2016 WL

12

4203470, at *10 (E.D.N.Y. Aug. 9, 2016); see also 42 U.S.C.
§

12102(3)

(“An

individual

meets

the

requirement

[by]

establish[ing] that he or she has been subjected to an action
prohibited under this chapter because of an actual or perceived
physical or mental impairment whether or not the impairment limits
or is perceived to limit a major life activity.”).
Based on the remaining factual allegations related to this
claim and a liberal construction of the pro se pleadings, the Court
concludes that, at this early stage of the proceedings, plaintiff
has raised a plausible claim that he was regarded as having a
disability and that RPC failed to reasonably accommodate him in
violation of the Rehabilitation Act. See, e.g., Quadir v. N.Y.
State

Dep't

of

Labor,

2014)(psychiatrist’s

39

notes

F.

Supp.

clarifying

3d

528,

that

540

employee

(S.D.N.Y.
should

be

excused from certain assignments “appear to raise a plausible
inference that [employer] was on notice of [employee’s] alleged
need

to

be

excused

from”

those

assignments,

which

raised

a

plausible failure to reasonably accommodate claim).
The facts alleged in the complaint, taken as true, establish
that plaintiff notified his employer of his anxiety issues by
January

2015,

the

time

of

his

request

for

an

accommodation

exempting him from working in the geriatric unit.

Plaintiff

alleges that his request for an accommodation was not withdrawn
prior to his disciplinary hearing and termination, which was based

13

on his refusal to work in the E-1 Unit due to his anxiety issues.
The symptoms reported by his therapist to his employer included
increased tension, headaches, difficulty concentrating, episodes of
confusion,

and

difficulties

with

decision

making.

Moreover,

plaintiff took FMLA leave for extended periods between February
2015 and July 2015, and his request for leave due to his “chronic
condition” was approved by RPC in November 2014. See Complaint,
Exhibit C. Consequently, the Court finds that plaintiff has stated
a

plausible

claim

that

he

was

regarded

by

RPC

as

having

a

disability.
As an alternative ground for dismissal, defendants assert that
plaintiff’s claims against the state agency and Governor Cuomo, in
his official capacity, are barred by sovereign immunity.
“because

the

Rehabilitation

Act

was

enacted

However,

pursuant

to

the

Spending Clause of Article I, Congress can require states to waive
their

sovereign

immunity

for

Rehabilitation

Act

claims

as

a

condition of accepting federal funds.” Quadir v. N.Y. State Dep't
of Labor, 39 F.Supp.3d 528, 537 (S.D.N.Y. 2014)(internal quotation
marks omitted).

“Since the Rehabilitation Act does include such a

requirement and New York does accept federal funds, New York has
waived

sovereign

claims.” Id.
Rehabilitation
immunity

immunity

with

respect

to

Rehabilitation

Act

The Court concludes, therefore, that plaintiff’s
Act

analysis.

claim

against

Since

RPC

plaintiff

14

survives
is

able

the
to

sovereign
assert

his

Rehabilitation Act claim against the state agency itself, there is
no justification for allowing plaintiff to also assert the same
claims against the Governor in his official capacity. See Hallett
v. N.Y. State Dep't of Corr. Servs., 109 F. Supp. 2d 190, 200
(S.D.N.Y. 2000).
The

remaining

individual

defendants

correctly

contend

plaintiff’s claims against them, in their individual capacities,
are also barred. Courts have held that individuals may not be held
liable under the Rehabilitation Act in their individual capacities.
See Alster v. Goord, 745 F. Supp. 2d 317, 339 (S.D.N.Y. 2010),
citing Candelaria v. Cunningham, 2000 WL 798636, at *2 (S.D.N.Y.
2000).

Therefore,

the

Court

grants

defendants’

motion

to

dismiss the § 504 claims against the aforementioned individual
defendants and Governor Cuomo in his official capacity, with
prejudice, but denies dismissal of plaintiff’s § 504 claim against
RPC.
IV.

Conclusion
For the foregoing reasons, defendants’ motion to dismiss

(Docket No. 9) is granted in part and denied in part as follows:
1.

The defendants’ motion to dismiss plaintiff’s due process
claims is granted.

2.

The

defendants’

motion

to

protection claim is granted.

15

dismiss

plaintiff’s

equal

3.

The defendants’ motion to dismiss plaintiff’s employment
discrimination

claim

pursuant

to

§

504

of

the

Rehabilitation Act in favor of all individual defendants
is granted but is denied against defendant Rochester
Psychiatric Center only.
4.

The

Court

denies

as

moot

plaintiff’s

motion

for a

temporary restraining order (Docket No. 3), which arises
out of the due process claims that are dismissed by this
Court for the reasons stated in this Decision.
5.

The

Court

grants

defendants’

motion

to

dismiss

the

complaint in all other respects.
The Clerk of Court is further directed to amended the caption
in this case to reflect the sole remaining defendant, Rochester
Psychiatric Center, for purposes of the remaining cause of action
under § 504 of the Rehabilitation Act of 1973.
IT IS SO ORDERED.
S/Michael A. Telesca
______________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

February 6, 2017
Rochester, New York

16