Mulvaney v. City of Rochester et al

Filing 14

DECISION AND ORDER granting in part and denying in part 10 Motion to Dismiss for Failure to State a Claim consistent with this Decision and Order. Signed by Hon. Michael A. Telesca on 5/22/19. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROBERT MULVANEY,
Plaintiff,

6:18-CV-06367 MAT
DECISION and ORDER

v.
CITY OF ROCHESTER and
LAURA C. MILLER,
Defendants.

INTRODUCTION
Plaintiff Robert Mulvaney (“Plaintiff”) brings this action
against defendants City of Rochester (hereinafter, “the City”) and
Laura C. Miller (“Miller”)

(collectively, the “Defendants”),

alleging employment discrimination related to his age, pursuant to
the Age Discrimination in Employment Act of 1967 (ADEA), and
disability, pursuant to the Americans with Disabilities Act of 1990
(ADA).

(Dkt. 8 at 2).

Plaintiff also alleges violations of the

New York State Executive/Human Rights Law § 296 (“NY HRL”), the New
York Civil Service Law, and breach of contract.

(Id.).

Presently before the Court is Defendants’ motion to dismiss
Plaintiff’s amended complaint for failure to state a claim pursuant
to

Rule

12(b)(6)

of

the

Federal

Rules

of

Civil

Procedure,

contending that Plaintiff's allegations fail to state a claim upon
which relief can be granted.

(Dkt. 10).

For the reasons set forth

below, Defendants’ motion to dismiss the complaint is granted in
part and denied in part. Plaintiff’s hostile work environment

claims, as well as his ADA, ADEA, and whistleblower claims against
defendant Miller, are hereby dismissed. Plaintiff’s claims against
the City under the ADA, ADEA, NY HRL.
BACKGROUND
Unless otherwise noted, the following facts are taken from
Plaintiff’s first amended complaint (Docket No. 8).
At the time the first amended complaint was filed, Plaintiff
had been employed by the City for more than twenty-six years.
(Docket No. 8 at ¶ 15).

He held various positions throughout his

time

Construction

there,

including

Supply

Handler,

Building

Maintenance Helper, Management Trainee, Municipal Assistant and,
finally, in 2010, Parking Facility Manager.

(Id. at ¶¶ 16-31).

During his position as the Parking Facility Manager, Plaintiff
underwent a triple fusion surgery in his back, which left him with
certain limitations.

(Id. at ¶¶ 41-42). Following his surgery,

Plaintiff requested reasonable accommodations from his supervisor,
defendant Miller, who denied his requests for help and instead gave
him a “hard time” about his disability and need for accommodations.
(Id. at ¶¶ 46-47).
On or about May 18, 2017, Plaintiff was informed that his
position as Parking Facility Manager was going to be eliminated for
the 2017-2018 budget year.

(Id. at ¶ 48).

Plaintiff was offered

a temporary position as a Municipal Assistant, which was eight pay
brackets below the Parking Facility Manager position, and a salary

-2-

reduction of $18,000 per year.

(Id. at ¶ 49).

Plaintiff was not

considered for the new position as Supervisor of Structures and
Equipment, which was a “reduced version” of the Parking Facility
Manager position, with a higher pay grade than the position he was
offered. (Id. at ¶¶ 50, 52). Plaintiff alleges that the individual
who received the Supervisor of Structures and Equipment position
was a “probationary City employee” who was younger than him and did
not require reasonable accommodations because of a disability.
(Id. at ¶ 53).
Plaintiff subsequently filed a charge with the New York State
Division of Human Rights (“NYSDHR”) and the Equal Employment
Opportunity Commission (“EEOC”) against Defendants. (Id. at ¶ 10).
On February 26, 2018, the NYSDHR found probable cause to believe
that Defendants engaged in or were in engaging in the unlawful
discriminatory acts alleged by Plaintiff.

(Id. at ¶ 12). The EEOC

issued a Dismissal and Notice of Rights letter on August 14, 2018.
(Id. at ¶ 14).
Plaintiff filed the instant action on May 16, 2018, alleging
eleven separate causes of action, including violations of the ADEA
for disparate treatment and a hostile work environment; violations
of the ADA for disparate treatment and a hostile work environment;
violations of the NY HRL for disparate treatment and a hostile work
environment based on his age and disability; aiding and abetting as
against defendant Miller; the New York State Civil Service Law

-3-

§ 75-b (“§ 75-b”); and breach of contract, as against the City.
Docket No. 1.

On August 23, 2018, Plaintiff filed his first

amended complaint.

Docket Nos. 5, 8.

On September 7, 2018,

Defendants filed a motion to dismiss the first amended complaint.
Docket No. 10.

Plaintiff responded on October 22, 2018.

Docket

No. 12.
DISCUSSION
I.

Standard

To withstand a Rule 12(b)(6) motion to dismiss, the complaint
must plead facts sufficient “to state a claim for relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (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.” Id. Thus, “[w]here a complaint pleads facts that are
merely consistent with a defendant's liability, it stops short of
the line between possibility and plausibility of entitlement to
relief.” Id. (internal citations and quotation marks omitted).
Determining whether a complaint meets the plausibility standard is
“context-specific”

and

requires

that

the

court

judicial experience and common sense.” Id. at 679.

-4-

“draw

on

its

II.

Exhaustion of Plaintiff’s NY HRL Claims
Defendants first argue that Plaintiff’s NY HRL claims must be

dismissed because those claims were previously filed before the
state agency, which issued a probable cause finding.
at 3.

Docket 10-1

Defendants cite to well-established precedent holding that

when a plaintiff elects to pursue claims of discrimination through
an administrative body, rather than in federal court, Section 297
acts as a jurisdictional bar to the claim.

See Klaes v. Jamestown

Bd. of Pub. Utilities, No. 11-CV-606, 2013 WL 1337188, at *18
(W.D.N.Y. Mar. 29, 2013) (“Section 297 of the Executive Law,
commonly known as the ‘election of remedies’ provision, requires a
plaintiff to pursue his claim for relief under Section 296 in
either a judicial forum or a ‘local commission on human rights’,
but not both.”).
In response, Plaintiff contends that because his NY HRL claims
were dismissed for administrative convenience, he is not barred
from bringing suit in federal court.

Docket No. 12-1 at 3.

Plaintiff provides an affirmation stating that the NYSDHR issued a
Notice and Final Order dismissing Plaintiff’s NY HRL claims on
June 14, 2018.

Docket No. 12 at 1.

A copy of the Notice and Final

Order is attached as Exhibit A to the affirmation.1

Id. at 4-8.

1

Although the Notice and Final Order is not attached to the first amended
complaint, the proceedings before the NYSDHR, including the results of that
proceeding, are discussed in the first amended complaint. Docket No. 8 at ¶¶ 10,
12. Accordingly, the Notice and Final Order is incorporated by reference into
the first amended complaint. See Done v. HSBC Bank USA, No. 09-CV-4878(JFB)(ARL),
2010 WL 3824141, at *2 (E.D.N.Y. Sept. 23, 2010) (“In reviewing a motion to

-5-

There is an exception to the above-mentioned jurisdictional
bar “when the local commission on human rights has dismissed the
claim ‘for administrative convenience.’” Klaes, 2013 WL 1337188, at
*18.

The Notice and Final Order submitted by Plaintiff provides

that the action was dismissed for administrative convenience.
Docket No. 12 at 4.

Accordingly, Defendants’ motion to dismiss

Plaintiff’s NY HRL claims on the ground that they are procedurally
barred is denied as moot.
III. Plaintiff’s Disparate Impact and Hostile Work Environment
Claims
A.

Plaintiff’s ADEA Claims

The ADEA prohibits workplace discrimination on the basis of
age.

“In order to establish a disparate treatment claim under the

ADEA, an employee must make a prima facie case of discrimination,
Auerbach v. Bd. of Educ. of the Harborfields Cent. Sch. Dist. of
Greenlawn, 136 F.3d 104, 109 (2d Cir. 1998), by showing (1) that
the employee is a member of the protected class, (2) that the
employee is qualified for the position, (3) that the employee
suffered adverse employment action, and (4) that the circumstances
surrounding

the

discrimination.”

action

give

rise

to

an

inference

of

age

Abrahamson v. Bd. of Educ. Of Wappingers Falls

Cent. Sch. Dist., 374 F.3d 66, 71 (2d Cir. 2004).

“The same

dismiss, a court may consider, inter alia, (1) documents that are incorporated
by reference into the complaint, and (2) documents that, even if not incorporated
by reference, the defendant has notice of and that are ‘integral’ to the
complaint.”).

-6-

analysis applies to age discrimination claims brought pursuant to
the New York Human Rights Law.”

Stouter v. Smithtown Cent. Sch.

Dist., 687 F. Supp.2d 224, 234 (E.D.N.Y. 2010).
Defendants contend that Plaintiff’s age discrimination claims
must be dismissed because Plaintiff’s job was eliminated due to
“budgetary imperatives,” rather than age discrimination.
No. 10-1 at 4.

Docket

In support of this contention, Defendants submit

the twelve-page affidavit (Docket No. 10-3) of Thomas J. Miller,
Principal Staff Assistant in the City of Rochester’s Department of
Human Resource Management, which states, among other things, that
Plaintiff’s Parking Facility Manager position was eliminated for
the 2017-2018 fiscal year in order to close a $50.1 million budget
gap, and that the Supervisor of Structures and Equipment position
was not comparable to the Parking Facility Manager position.
Docket No. 10-3.

See

Defendants also offer that a female employee who

is eight years older than Plaintiff was placed in a comparable
position after her layoff from the Parking Bureau, and defendant
Miller is over the age of forty.

Dkt. 10-1 at 4.

Further,

Defendants contend that Plaintiff failed to present any facts
showing that he was performing his job duties satisfactorily, as he
conceded that he had a “bad back” throughout his employment with
the City.

Id.

Finally, Defendants contend that defendant Miller

cannot be held personally liable under the ADEA.

-7-

Id. at 7.

As an initial matter, the Court agrees that defendant Miller
may not be held liable under the ADEA.

See Martin v. Chemical

Bank, 129 F.3d 114, 1997 WL 710359 (Table), at *3 (2d Cir. 1997)
(unpublished opn.) (holding that “individual supervisors may not be
held

personally

liable

under

the

ADEA”)

(citations

omitted).

Accordingly, Plaintiff’s ADEA claim as it pertains to defendant
Miller is dismissed.
“There is no heightened pleading standard for employment
discrimination cases.”

Holmes v. Air Line Pilots Ass’n, Intern.,

745 F. Supp. 2d 176, 194 (E.D.N.Y. 2010).

Rather, “the complaint

must be facially plausible and must give fair notice to the
defendants of the basis for the claim.”

Id. (internal quotations

and citation omitted).
Plaintiff pleads the following facts in support of his ADEA
claim, which are relevant to the above-described elements for
stating a claim for age discrimination. As to the first element,
Plaintiff contends that he was over the age of forty when the
conduct alleged in the first amended complaint occurred, and
therefore he was a member of a class protected by the ADEA.

As to

the second element, Plaintiff pleads that he was qualified for the
Supervisor of Structures and Equipment position, as it was a
“reduced version” of the Parking Facility Manager position he
previously held.

He states that he has a master’s degree in Public

Administration,

which

qualifies

-8-

him

for

a

wide

variety

of

managerial roles in the City, and that the Parking Facility Manager
position was a higher grade, with more responsibility than, the
Supervisor of Structures and Equipment position.
As to the third element, Plaintiff states that he faced an
adverse

employment

eliminated

action

position

and

because
placed

he
into

was
a

demoted

from

“temporary,

his

junior

administrator’s position far inferior to his capabilities and
experience,” and the new position was eight grades below his prior
position, resulting in an $18,000 pay cut.
contends

that

the

individual

who

received

Fourth, Plaintiff
the

Supervisor

of

Structures and Equipment position was a probationary City employee,
who is younger than Plaintiff, in his late 20s, and physically fit,
and defendant Miller wanted someone younger and physically fit to
work for her.
111, 142.

See Docket No. 8 at ¶¶ 49, 52, 53, 85-90, 95, 100,

These allegations satisfy the minimal pleading standard

for stating a claim for age-related discrimination.
Defendants’ arguments for dismissal of Plaintiff’s ADEA claims
rely primarily on factual information contained in the affidavit
(Docket No. 10-3) submitted by Thomas Miller, which constitutes
evidence offered to contradict the allegations in Plaintiff’s first
amended complaint. This would be inappropriate for the Court to
consider in support of a motion to dismiss.

Schonholz v. Long

Island Jewish Med. Ctr., 858 F. Supp. 350, 352 (E.D.N.Y. 1994)
(“[T]he

court

is

not

permitted

to

consider

factual

matters

submitted outside of the complaint unless the parties are given
notice that the motion to dismiss is being converted to a motion
-9-

for summary judgment under Rule 56 and are afforded an opportunity
to submit additional affidavits.”) (citing Festa v. Local 3 Int’l
Bhd. of Elec. Workers, 905 F.2d 35, 38 (2d Cir. 1990); other
citation omitted); see also Oxman v. Downs, 999 F. Supp.2d 404, 407
(E.D.N.Y. 2014) (“Generally, when a defendant attempts to counter
a plaintiff’s Complaint with its own factual allegations and
exhibits, such allegations and exhibits are inappropriate for
consideration by this Court at the motion to dismiss stage.”)
(citation omitted).

Rather, “[i]n deciding a motion to dismiss

under Rule 12(b)(6), a court must accept factual allegations as
true and construe all reasonable inferences in the plaintiff's
favor.”

Ambac Assurance Corp. v. U.S. Bank Nat’l Assoc., 328 F.

Supp.3d 141, 155 (S.D.N.Y. 2018) (citing ECA, Local 134 IBEW Joint
Pension Tr. of Chi. v. J.P. Morgan Chase Co., 533 F.3d 187, 196
(2d Cir. 2009)).

Accordingly, the Court declines to consider

Thomas Miller’s affidavit at this time.
The Court further notes that Defendants’ reliance on the
burden-shifting framework articulated in the McDonnell-Douglas
case, see Docket No. 10-1 at 3, is not applicable on a motion to
dismiss.

See O’Toole v. Cnty. of Orange, 255 F. Supp. 3d 433, 437

(S.D.N.Y. 2017) (“‘[A] plaintiff is not required to plead a prima
facie case under McDonnell Douglas, at least as the test was
originally formulated, to defeat a motion to dismiss.’”) (quoting
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir.
2015)); see also Docket No. 10-1 at 2 (defense assertion that “bare
legal conclusions and factual claims which are flatly contradicted
-10-

by the record are not presumed to be true,” is not the federal
standard on a motion to dismiss). If Defendants desire to submit
evidence showing that elimination of Plaintiff’s position was not
due to his age, they may do so at the summary judgment stage.
Accordingly,

Defendants’

motion

to

dismiss

Plaintiff’s

age

discrimination claims brought pursuant to the ADEA is denied as to
the City but granted as to Miller. With regard to Plaintiff’s age
discrimination claims brought pursuant to the NY HRL, the motion to
dismiss is denied as to the City and Miller.
B.

Plaintiff’s ADA Claims

“To establish a prima facie case of unlawful discrimination on
the basis of disability under the Americans with Disabilities Act
. . . a plaintiff must show that (1) the defendant is an employer
subject to the ADA; (2) the plaintiff was disabled within the
meaning of the ADA or perceived to be so by his employer; (3) the
plaintiff

was

otherwise

qualified

to

perform

the

essential

functions of the job, with or without reasonable accommodation; and
(4) the plaintiff suffered an adverse employment action because of
his disability.”

Trane v. Northrup Grumman Corp., 94 F. Supp. 3d

367, 375-76 (E.D.N.Y. 2015) (citing Brady v. Wal-Mart Stores, Inc.,
531 F.3d 127, 132 (2d Cir. 2008)), aff’d, 639 F. App’x 50 (2d Cir.
2015).

“The Court reviews New York State Executive Law § 296

claims under the same standards as ADA claims.”

Trane, 94 F. Supp.

3d at 376.
Defendants argue that Plaintiff has failed to allege facts
that the City had notice of Plaintiff’s disability, that he was
-11-

able to effectively perform his job, or that he suffered an adverse
employment action, because he was not subject to a hostile work
environment.

Docket No. 10-1 at 8.

Defendants also contend that

Plaintiff’s ADA claim against defendant Miller must be dismissed.
Id. at 11.
The Court agrees with Defendants that Plaintiff may not
maintain an ADA claim against defendant Miller. See Carrasquillo v.
City of N.Y., 324 F. Supp.2d 428, 441 (S.D.N.Y. 2004) (“Individuals
cannot be named as defendants in ADA suits in either their official
or representative capacities.”).
The

first

amended

complaint

contains

several

allegations

relevant to the requirements for alleging a claim for disability
discrimination.2

As to the second element, Plaintiff contends that

he is disabled within the meaning of the ADA and NY HRL, because
while working in the Parking Facility Manager position, he asked
for reasonable accommodations, after he underwent a triple fusion
surgery in his back.

Following his back surgery, he was not able

to carry or climb ladders.

Moreover, Plaintiff’s co-workers knew

that he had a bad back, even prior to surgery because he had
injured his back fifteen years earlier.
As to the third element, Plaintiff states that although his
back surgery left him with certain limitations, Plaintiff was able
to perform the essential functions of his position, or a similar
position, with reasonable accommodation by the City.

Plaintiff

2

Defendants do not appear to contest that the City of Rochester is an
employer subject to the ADA.

-12-

requested reasonable accommodations from his superior, defendant
Miller, which she refused and did not “engage in the interactive
process” of determining a reasonable accommodation, as required by
the ADA.

Plaintiff was specifically denied assistance in November

and December 2016, when two employees assisting him were reassigned
to a different supervisor, and was denied certain accommodations,
including an appropriate vehicle.
Finally, as to the fourth element, Plaintiff contends that on
or about May 18, 2017, he was informed that his Parking Facility
Manager position was going to be eliminated and was offered the
position of temporary Municipal Assistant, which would result in a
salary reduction of $18,000.

Yet, another employee who did not

require an accommodation for a disability was appointed Supervisor
of Structures and Equipment, which was comparable to the Parking
Facility Manager position, which Plaintiff had held.

See Docket

No. 8 at 41-43, 46-49, 53, 54, 56, 57, 60-62, 66-68.

These

allegations are sufficient to state a claim for discrimination
based on disability and to place the City on notice of Plaintiff’s
claims.
As to Plaintiff’s allegations of an adverse employment action,
Plaintiff alleges that, as a result of his disability, he was
demoted and received a significant decrease in salary.
changes

clearly

qualify

as

adverse

employment

actions.

Both
See

Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004) (“Examples
of materially adverse employment actions include termination of
employment, a demotion evidenced by a decrease in wage or salary,
-13-

a

less

distinguished

significantly
indices .

.

title,

diminished
. unique

to

a

material

material
a

loss

of

responsibilities,

particular

situation.”)

benefits,
or

other

(internal

quotations and citations omitted) (emphasis added).
Regarding whether Plaintiff has alleged that he is disabled
within the meaning of the ADA, “[t]he ADA provides that ‘[t]he term
“disability” means, with respect to an individual (A) a physical or
mental impairment that substantially limits one or more of the
major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.’”
Ingram v. Nassau Health Care Corp., No. 17-CV-05556(JMA)(SIL), 2019
WL 1332857, at *4 (E.D.N.Y. Mar. 25, 2019) (quoting 42 U.S.C.
§ 12102(1)).

“A disability can be shown following one of [these]

three definitions.” Schaefer v. State Ins. Fund, 207 F.3d 139, 142
(2d Cir. 2000).

“Th[is] definition of disability [is to be]

construed in favor of broad coverage. . . . [M]ajor life activities
include . . . performing manual tasks, . . . lifting, . . . and
working, . . . and 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.” Dooley
v. JetBlue Airways Corp., 636 F. App’x 16, 21 (2d Cir. 2015)
(internal

quotations

and

citations

omitted)

(alterations

in

original).
As noted above, Plaintiff alleges that he has experienced back
pain for over fifteen years, and in 2016 ultimately underwent a
triple fusion surgery in his back. This surgery prevented him from
-14-

performing certain activities, such as lifting and climbing on a
ladder,

requiring

limitations.
which

was

an

appropriate

vehicle

because

of

his

Therefore, Plaintiff has alleged a long-term injury,

serious

enough

to

require

surgery,

and

ultimately

prevented him from certain forms of climbing and lifting. Taken as
true, these allegations are sufficient for pleading a disability.
Dooley, 636 F. App’x at 21 (holding that Plaintiff sufficiently
alleged a disability under the ADA, where she suffered a fracture
and damage

to

the

ulnar and

median

nerve

distributions, had

limitations in lifting and repetitive motion, and her injury took
her off of work for medical care and treatment); D’Entremont v.
Atlas

Health

(LEK/RFT),

Care

2013

WL

Linen

Servs.,

998040,

at

Co.,

*6-7

LLC,

(N.D.N.Y.

No.

1:12-CV-0060

Mar.

13,

2013)

(construed liberally, pro se Plaintiff’s allegations that he had
chronic back issues, was physically able to perform his job duties,
his back problem was aggravated by heavy lifting, his employer was
aware of his disability, and he was fired because he was disabled,
was sufficient to state an ADA claim); c.f. Horsham v. Fresh
Direct, 136 F. Supp. 3d 253, 269 (E.D.N.Y. 2015) (“For example,
although it is clear Plaintiff underwent hernia surgery, he does
not describe how the hernia surgery affected or limited him in any
major life activity like lifting, standing, walking or working.”).
Accordingly, Defendants’ motion to dismiss Plaintiff’s disability
discrimination claims under the ADA is denied as to the City and
granted as to defendant Miller, and the motion to dismiss the

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disability discrimination claims under the NY HRL is denied as to
the City and defendant Miller.
C.

Plaintiff’s Hostile Work Environment Claims

“Under

.

.

.

the

ADEA,

and

NYSHRL,

‘[a]

hostile

work

environment claim requires a showing [1] that the harassment was
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment, and
[2] that a specific basis exists for imputing the objectionable
conduct to the employer.’”

Donahue v. Asia TV USA Ltd., 208 F.

Supp. 3d 505, 514 (S.D.N.Y. 2016) (quoting Alfano v. Costello, 294
F.3d 365, 373 (2d Cir. 2002)).

“This standard has both objective

and subjective components: the conduct complained of must be severe
or pervasive enough that a reasonable person would find it hostile
or abusive, and the victim must subjectively perceive the work
environment to be abusive. . . .

In assessing the totality of the

circumstances, a court might consider factors including: (1) the
frequency

of

the

discriminatory

conduct;

(2)

its

severity;

(3) whether it is threatening and humiliating, or a mere offensive
utterance; and (4) whether it unreasonably interferes with an
employee’s work performance.

As a general rule, to constitute a

hostile work environment, incidents must be more than episodic;
they must be sufficiently continuous and concerted in order to be
deemed pervasive.

Isolated acts, unless very serious, do not meet

the threshold of severity or pervasiveness.”

Lebowitz v. N.Y.C.

Dep’t of Educ., No. 15-cv-2890, 15-cv-5548 (LDH)(ST), 2017 WL

-16-

1232472, at *14 (E.D.N.Y. Mar. 31, 2017) (internal quotations and
citations omitted).
The Second Circuit has recently recognized that hostile work
environment claims are actionable under the ADA. See Fox v. Costco
Wholesale Corp., 918 F.3d 65, 74 (2d Cir. 2019). Specifically, the
Court instructed that “[a] plaintiff alleging a hostile work
environment claim under the ADA . . . must demonstrate either that
a single incident was extraordinarily severe, or that a series of
incidents

were

sufficiently

continuous

and

concerted

altered the conditions of her working environment.”

to

have

Id. (internal

quotations and citations omitted).
Defendants argue that Plaintiff’s hostile work environment
claims must be dismissed because the conduct alleged by Plaintiff
does not rise to the level of a hostile work environment.
No. 10-1 at 9-11.

Docket

Plaintiff pleads the following facts in support

of his hostile work environment claims: (1) defendant Miller
refused Plaintiff’s requests for help, and gave him “a hard time”
about his disability and needing accommodation; (2) Plaintiff was
initially denied a vehicle that would have been easier on his back,
and “had to push to get a different car”; (3) defendant Miller reassigned two employees who had assisted Plaintiff, which left him
with no help; (4) defendant Miller asked Plaintiff a sarcastic
question

regarding

his

ability

to

change

a

light

bulb;

(5) defendant Miller continued to require and harass Plaintiff to
do heavy lifting, which compromised his back; (6) defendant Miller
asked Plaintiff hurtful questions, such as “why he couldn’t change
-17-

a bulb, why he couldn’t do this or that, or why he couldn’t pick up
a garden hose left on a parking garage floor by the City garage
mechanics”; (7) defendant Miller asked Plaintiff to explain his
medical situation in an email that included another co-worker,
thereby revealing his disability; (8) Plaintiff was ostracized in
the workplace, including being excluded from events (a mayor’s
visit, a comptroller audit, and Christmas party planning), and from
staff lunches; (9) a co-worker made “comedic impersonations” of
Plaintiff concerning his age and disability, and defendant Miller
did not respond to his complaints.

See Docket No. 8 at ¶¶ 54, 55,

58, 59, 62, 63, 66, 70-72, 76-81.
Even taking the allegations contained in the first amended
complaint

as

true,

the

conduct

alleged

by

Plaintiff

is

not

sufficiently severe to constitute a hostile work environment.
First, many of the allegations pertaining to Plaintiff’s hostile
work environment claim are very general, and lack the specificity
needed to sustain a claim for a hostile work environment.

See

Torres v. City of N.Y., No. 18 Civ. 3644(LGS), 2019 WL 1765223, at
*4 (S.D.N.Y. Apr. 22, 2019) (dismissing hostile work environment
claim where the complaint provided no details about the duration
and frequency

of

discriminatory conduct,

how

it

was

tied

to

Plaintiff’s membership in a protected class, who observed it, and
noting that the allegations were “too vague to support a hostile
work environment claim.”).
Second, many of the actions alleged by Plaintiff in the first
amended complaint - such as being excluded from meetings, asked
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“hurtful questions” by Defendant Miller, and having to “push” for
a new work car - simply are not severe enough to rise to the level
of a hostile work environment.

See Fleming v. MaxMara USA, Inc.,

371 F. App’x 115, 119 (2d Cir. 2010) (holding that a plaintiff who
was excluded from meetings, criticized, and sent rude e-mails did
not have a hostile work environment claim); Isbell v. City of N.Y.,
316

F.

Supp.3d

571,

591-92

(S.D.N.Y.

2018)

(the

plaintiff’s

allegations that the defendant, among other things, delayed the
plaintiff’s

use

of

a

DOC

vehicle,

harshly

criticized

the

plaintiff’s work, and used a harsh and sarcastic tone, failed to
state a claim for a hostile work environment).

Accordingly,

Plaintiff’s hostile work environment claims under the ADA, ADEA,
and NY HRL are dismissed.
IV.

Plaintiff’s NY Civil Service Law § 75-b Claim (the
“whistleblower claim”)
“Section 75-b prohibits a public employer in New York State

from taking adverse personnel action against a public employee in
retaliation for the employee’s disclosure of illegal activity.”
Maher v. Town of Stony Point, No. 16-CV-607(KMK), 2018 WL 4759786,
at *10 (S.D.N.Y. Sept. 29, 2018).

“To assert a claim under § 75-b,

a

an

plaintiff

must

allege:

(1)

adverse

personnel

action;

(2) disclosure of information to a governmental body (a) regarding
a violation of a law, rule, or regulation that endangers public
health

or

safety,

or

(b)

which

[

]he

reasonably

believes

constitutes an improper governmental action; and (3) a causal
connection

between

the

disclosure

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and

the

adverse

personnel

action.”

Id.

(internal

quotations

and

citation

omitted)

(alteration in original).
Defendants

contend

that

Plaintiff’s

whistleblower

claim,

brought pursuant to New York State Civil Service Law § 75-b, must
be dismissed because (1) such a claim cannot be maintained against
individual

public

employees,

such

as

defendant

Miller,

and

(2) Plaintiff has failed to identify complaints he made relating to
unlawful government action, as opposed to merely reporting safety
concerns or alleged nepotism.

Docket No. 10-1 at 12-14.

The Court agrees that Plaintiff’s Section 75-b claim cannot be
maintained against defendant Miller.

See Verdi v. City of N.Y.,

306 F. Supp.3d 532, 549 (S.D.N.Y. 2018) (due to how “public
employer” is defined by the statute, “claims under [Section] 75–b
cannot

be

(internal

maintained
quotations

against
and

individual

citations

public

omitted).

employees.”)
Accordingly,

Plaintiff’s Section 75-b claim, insofar as it pertains to defendant
Miller, is dismissed.
In support of his whistleblower claim, Plaintiff pleads that
he

“has

consistently

raised

concerns

to

[defendant]

Miller

regarding the City’s failure to comply with its own policies, in
addition to various federal and state laws, concerning public
health and safety.”
first

amended

Docket No. 8 at ¶ 112 (emphasis added).

complaint

specifically

identifies

The

Plaintiff’s

complaints regarding contractors failing to perform in accordance
with their service contracts with the city (id. at ¶¶ 113-114),
reports he made regarding water leakage and fire suppression
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systems (id. at ¶¶ 121-127), and a concern regarding the violation
of a City policy addressing relationships to a contractor with an
active financial interest in the City (id. at ¶ 117).

Plaintiff

also points to instances in which actual fires occurred in City
parking facilities while he was serving as Parking Facility Manager
and reporting fire safety concerns, thereby endangering public
health or safety

(id. at ¶¶ 125-126).

Plaintiff alleges that as

a result of these reports, which he continued to bring to the
attention of his supervisors through spring 2017 (id. at ¶ 127), he
was notified in May 2017 that his position would be eliminated (id.
at ¶ 128).

Accordingly, the first amended complaint contains

allegations sufficiently detailed to state a claim for violation of
NY Civil Service Law § 75-b.
As noted above, Defendants argue that Plaintiff fails to
identify any specific laws or regulations that were violated by the
City.

Docket No. 10-1 at 12-13.

However, Plaintiff has alleged

that he “raised concerns . . . regarding the

City’s failure to

comply with its own policies, in addition to various federal and
state laws, concerning public health and safety.”
¶ 112.

Docket No. 8 at

Regardless of whether the reports made by Plaintiff were

violations of an actual law or regulation, Plaintiff may have
“reasonably

believed”

the

City’s

actions

constituted

improper

government action, which is sufficient to state a claim for a
violation of NY Civil Service Law § 75-b.
4759786, at *11.

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See Maher, 2018 WL

As to Defendants’ contention that Plaintiff’s reporting safety
violations was a part of his duties as Parking Facility Manager
rather than whistleblowing, that assertion is a factual matter and
not appropriate for the Court to resolve on a motion to dismiss.
Accordingly,

Defendants’

motion

to

dismiss

Plaintiff’s

whistleblower claim against the City is denied but is granted as to
defendant Miller.
V.

Plaintiff’s Breach of Contract Claim
“Under New York law, a breach of contract claim has four

elements: ‘(1) a contract; (2) performance of the contract by one
party; (3) breach by the other party; and (4) damages.’” First
Technology Capital, Inc. v. Airborne, Inc., No. 6:15-CV-06063 EAW,
2019 WL 1995546, at *4 (W.D.N.Y. May 6, 2019) (quoting First Inv'rs
Corp. v. Liberty Mut. Ins. Co., 152 F.3d 162, 168 (2d Cir. 1998)).
Defendants argue that Plaintiff’s breach of contract claim
must be dismissed, because Plaintiff has not shown that he was
qualified for the alternative positions he could have been offered,
including Supervisor of Structures or Business Analyst I.

Docket

10-1 at 15-16.
Plaintiff alleges that, in 2010, he and the City of Rochester
entered into a “settlement agreement,” under which he was placed
into the Parking Facility Manager position.

Docket No. 8 at ¶ 31.

Pursuant to the settlement agreement, Plaintiff was provided with
“retreat rights” to the position of Municipal Assistant, and it was
further agreed that should a municipal assistant position not be
available, the City would “use its best efforts” to find an
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equivalent position for Plaintiff.

Id. at ¶¶ 32-33; see also id.

at ¶ 133 (“The Settlement Agreement requires a ‘good faith effort’
to find [Plaintiff] a comparable position to the Parking Facilities
Manager position which the city abolished. . . .”).
further

alleges

agreement,
position.

he

that

following

continued

Id. at ¶ 36.

to

execution

perform

the

of

the

Plaintiff
settlement

requirements

of

his

Upon learning that his position as Parking

Facility Manager would be eliminated, the City offered Plaintiff
the position of Temporary Municipal Assistant, rather than offering
him the position of Supervisor of Structures and Equipment, which
was a “reduced version” of the Parking Facility Manager position.
Id. at ¶¶ 48-52.
Supervisor

of

Plaintiff concludes that he was not offered the
Structures

and

Equipment

position

“which

is

comparable to the Parking Facility Manager position, and for which
[Plaintiff] is qualified based on his work history with the City.”
Id.

at

¶

135.

Plaintiff

alleges

that

the

City’s

actions

constituted a breach of the settlement agreement and caused damage
to him, as it resulted in a significantly reduced salary.
¶¶ 49, 208-210, 215.

Id. at

Taking the allegations in the first amended

complaint as true, Plaintiff has adequately pleaded a claim for
breach of contract.
The City does not dispute that it failed to offer Plaintiff
the Supervisor of Structures and Equipment position; rather, it
argues that Plaintiff was not qualified for the position.
No. 10-1 at 15.

Docket

The City’s argument in this respect suffers from

the same defect as does its argument that Plaintiff’s ADEA and ADA
-23-

claims should be dismissed; that is, it is a factual one meant to
counter the information contained in the first amended complaint
regarding

Plaintiff’s

Structures

and

qualifications

Facilities

for

position,

and

the

Supervisor

therefore

is

of
not

appropriate for the Court to consider on a motion to dismiss.
As explained above, the first amended complaint contains
allegations sufficient to make out a prima facie case for breach of
contract.

Further, Plaintiff alleges that he worked in many

positions for the City (id. at ¶¶ 16-31); he holds a master’s
degree in public management (id. at ¶ 19), and the position of
Supervisor of Structures and Equipment was a reduced version of the
Parking Facility Manager position (id. at

¶ 52).

In other words,

the first amended complaint contains allegations sufficient to show
that Plaintiff was qualified to perform the comparable position of
Supervisor of Structures and Facilities, and the City denied him
this

position,

in

contravention

of

the

settlement

agreement.

Accordingly, Defendants’ motion to dismiss Plaintiff’s breach of
contract claim against the City is denied.
VI.

Plaintiff’s Aiding and Abetting Claim Under the NY HRL
Defendants contend that Plaintiff’s aiding and abetting claim

should be dismissed because “[t]here is not accessory liability
where

substantive

elements

actionable conduct.”

fail

and

no

plausible

showing

of

Docket No. 10-1 at 14-15.

Plaintiff’s aiding and abetting claim is based on defendant
Miller’s participation in the alleged discriminatory conduct taken
against Plaintiff.

Docket No. 8 at ¶ 196.
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As noted above, the

Court has found that, taking the allegations in the first amended
complaint as true, Plaintiff has adequately pleaded claims for
discrimination based on his disability and age.

Accordingly,

Defendants’ argument to dismiss the aiding and abetting claim on
this theory fails.
VII. Other Issues
A.

Vicarious Liability

Defendants next argue that the City cannot be held liable for
the acts of defendant Miller, because “defendant Miller did not
have ultimate authority over layoffs, hiring, safety regulations or
aspects

of

employment.”

Civil

Service

Requirements

Docket No. 10-1 at 14.

impacting

Plaintiff’s

Defendants cite to Magilton

v. Tocco, 379 F. Supp. 2d 495 (S.D.N.Y. 2005), and Rucci v.
Thoubboron, 68 F. Supp. 2d 311 (S.D.N.Y. 1999), for the proposition
that “[f]or municipal liability to attach to the decision of one
policymaking official, it is not sufficient for this official to
have discretion in the exercise of particular functions.”

(Id.).

Defendant concludes that “all claims sounding in Title VII or 1983
should be dismissed.”
Magilton

and

(Id.).

Rucci

address

claims

brought

pursuant

to

42 U.S.C. § 1983, including when municipal liability attaches in
those cases.

Here, neither the first amended complaint, nor

Plaintiff’s response papers, appear to allege claims pursuant to
Section 1983. Accordingly, Defendants’ argument is inapplicable to
this case, and their motion to dismiss the claims against the City
on this ground is denied.
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B.

Plaintiff’s Alleged Retaliation Claims

Defendants next contend that Plaintiff has failed to allege a
prima facie case for retaliation under the ADEA or the ADA, because
Plaintiff

did

not

communicate

his

belief

discriminated against to his supervisors.

that

he

was

being

Docket No. 10-1 at 15

(citations omitted). In response, Plaintiff argues that a litigant
is not required to plead a prima face case of retaliation or
discrimination at the motion to dismiss stage. Docket No. 12-1 at
8 (citations omitted).
Plaintiff is correct that at the pleading stage, a litigant
asserting a claim subject to the McDonnell Douglas burden-shifting
standard is not required to plead facts sufficient to establish a
prima facie case, and need only allege sufficient facts to give the
defendant “fair notice of the basis for his claims.” Boykin v.
KeyCorp., 521 F.3d 202, 212 (2d Cir. 2008) (citing Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 510-11, 514 (2002) (holding that a
plaintiff asserting disparate treatment claims under Title VII and
the ADEA need not allege “specific facts establishing a prima facie
case of

discrimination”

to

survive

a

motion

to

dismiss;

the

McDonnell Douglas burden-shifting framework “is an evidentiary
standard, not a pleading requirement,” and to require more than
Fed. R. Civ. P. 8(a)’s “simplified notice pleading standard” would
unjustifiedly impose a heightened pleading requirement on the
plaintiff)). Nonetheless, “courts in this Circuit have noted that
in evaluating a Rule 12(b)(6) motion, the court should still
consider the elements of a prima facie case of retaliation in
-26-

making a determination of whether a plaintiff’s complaint gives a
defendant fair notice of the grounds of his claim.” Corbett v.
Napolitano, 897 F. Supp.2d 96, 111 (E.D.N.Y. 2012) (collecting
cases).
The elements of a retaliation claim under the ADA are as
follows: the plaintiff was engaged in protected activity; the
alleged retaliator knew that he was involved in protected activity;
an adverse decision or course of action was taken against him; and
a causal connection exists between the protected activity and the
adverse action.” Weixel v. Bd. of Educ. of City of New York, 287
F.3d

138,

148

(2d

Cir.

2002)

(citation

omitted).

“[S]eeking

reasonable accommodation of [a plaintiff]’s disability constitutes
protected activity under Section 504/ADA.” Id. at 149 (citing
Muller v. Costello, 187 F.3d 298, 311 (2d Cir. 1999) (retaliation
claim

can

be

based

on,

inter

alia,

request

for

reasonable

accommodation). Plaintiff’s amended complaint contains allegations
that while he was in the Parking Facility Manager position, he
underwent back surgery; after that he repeatedly sought reasonable
accommodations of his back disability from Miller, which were
denied. Thus, he has alleged he has engaged in protected activity
by seeking reasonable accommodations for his disability and that
the City was aware of his attempts to obtain such accommodations.
See id. With regard to the adverse action or course of conduct,
Plaintiff

alleges

that

his

employment

position

was

being

eliminated; though he was offered an alternative position, the
salary was $18,000 less. See Feingold v. New York, 366 F.3d 138,
-27-

152 (2d Cir. 2004) (“Examples of materially adverse employment
actions include termination of employment, a demotion evidenced by
a decrease in wage or salary, a less distinguished title, a
material

loss

of

benefits,

significantly

diminished

material

responsibilities, or other indices . . . unique to a particular
situation.”) (quotation marks and quotations omitted; ellipsis in
original).

Finally,

at

this

early

stage

of

the

proceeding,

Plaintiff has adequately alleged a causal connection by alleging
that two months after Miller subjected to discrimination and
harassment based on his disability and refused his requests for
accommodation, his job position was eliminated. Therefore, the
Court finds that Plaintiff has plausibly alleged a retaliation
claim under the ADA against the City.
The

ADEA

employment

also

prohibits

discrimination

on

retaliation
the

basis

for
of

complaining

age.

Kessler

of
v.

Westchester Cty. Dept. of Soc. Servs., 461 F.3d 199, 205 (2d Cir.
2006) (citation omitted). A prima facie case consists of the
following

elements:

(1)

the

employee

engaged

in

protected

participation or opposition under the ADEA; (2) the employer was
aware of this activity; (3) the employer took adverse action; and
(4) a retaliatory motive played a part in the adverse action. Id.
at 205-06 (quotation and citations omitted). With regard to his
retaliation claim under the ADEA, the Court cannot discern any
allegations in the amended complaint that Plaintiff engaged in
protected

activity

of

which

the

City

was

aware,

such

as

by

complaining about any discrimination based on his age. Therefore,
-28-

the

Court

finds

that

Plaintiff

has

not

plausibly

alleged

a

retaliation claim under the ADEA against the City.
Accordingly,

Defendants’

motion

to

dismiss

Plaintiff’s

retaliation claim under the ADA is denied as to the City but
granted as to Miller, and the motion to dismiss is granted as to
the ADEA retaliation claim with regard to both Miller and the
City.3
CONCLUSION
For the reasons set forth above, the Court grants in part and
denies in part Defendants’ motion to dismiss (Docket No. 10) the
first amended complaint, as follows:
Defendants’ motion to dismiss the age discrimination claim
under

the

ADEA

against

Miller

is

granted

on

the

basis

that

individuals may not be held personally liable under the ADEA.
Defendants’ motion to dismiss the age discrimination claim under
the ADEA against the City is denied.
Defendants’ motion to dismiss the disability discrimination
claim under the ADA against Miller is granted on the basis that
individuals may not be held personally liable under the ADA.
Defendants’ motion to dismiss the disability discrimination claim
under the ADA against the City of Rochester is denied.
Defendants’ motion to dismiss the retaliation claim under the
ADA is denied as to the City but granted as to Miller. The motion

3

As noted above, individuals may not be held personally liable under the
ADEA and ADA.

-29-

to dismiss the retaliation claim under the ADEA is granted as to
both Miller and the City.
Defendants’ motion to dismiss the hostile work environment
claims under the ADA, ADEA, and NY HRL against the City and Miller
is granted for failure to state a claim.
Defendants’ motion to dismiss the age discrimination and
disability discrimination claims under the NY HRL against Miller
and the City is denied.
Defendants’ motion to dismiss the “whistleblower claim” under
NY Civil Service Law § 75-b is granted as to Miller because
individuals may not be held personally liable under this statute.
Defendants’ motion to dismiss the “whistleblower claim” under NY
Civil Service Law § 75-b is denied as to the City.
Defendants’ motion to dismiss the breach of contract claim,
asserted against the City only, is denied.
Defendants’ motion to dismiss the aiding and abetting claim
under NY HRL, asserted against Miller only, is denied.
Defendants’ motion to dismiss the claims against the City for
violations of Title VII and Section 1983 is denied.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
May 22, 2019

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