GERSHON, District Judge:
Plaintiff Steven Castro brings this action seeking damages and equitable relief pursuant to Titles I and V of the Americans With Disabilities Act of 1990 (the "ADA"); the Rehabilitation Act of 1973 (29 U.S.C. § 794); 42 U.S.C. § 1983; and the New York State and City Human Rights Laws (New York State Executive Law § 296 and N.Y.C. Admin. Code § 8-107, respectively). Plaintiff asserts these claims against the City of New York, the Council of the City of New York, Council Member Julissa Ferreras, and Yoselin Genao, the Council Member's Deputy Chief of Staff.
Plaintiffs complaint, filed October 25, 2010, initially included as a defendant
The following recitation of the events giving rise to this lawsuit is based on factual assertions which are, unless otherwise noted, undisputed.
Plaintiff Steven Castro ("Castro") is a resident of Queens County, New York and was at the time of these events approximately 23 years old. Castro suffers from cerebral palsy, a medical condition resulting from an injury he sustained at birth. Notwithstanding his condition, plaintiff "is high functioning, can ambulate on his own, drive a motor vehicle and is capable of full time work." (Compl. ¶ 25.)
Defendant Julissa Ferreras ("Ferreras" or the "Council Member") was elected to membership in the New York City Council in 2009 and represents District 21, which includes the Elmhurst, East Elmhurst, Corona and Jackson Heights neighborhoods of Queens. Ferreras had a friendly relationship with Castro's uncle, Charles A. Castro ("Charles Castro" or "Charlie"), which dated back to around 1999 or 2000. (C. Castro Dep.
Sometime in 2009, Charles Castro began to seek out employment opportunities for plaintiff, as plaintiff had not, prior to that time, had any experience with office or clerical work. When Charles Castro asked Senator Monserrate about the possibility of his employing plaintiff, the senator suggested
Castro began working in Ferreras's district office, in Queens, on September 7, 2009. His supervisor was Angel Audiffred, Ferreras's chief of staff at the time. Charles Castro told Audiffred "not to treat plaintiff any differently," and plaintiff enjoyed a good relationship with Audiffred at the outset of his employment.
Castro's responsibilities in the Council Member's office included some typing and other clerical tasks, and he was also asked, along with other employees, to empty the office garbage cans twice weekly. (See id. ¶ 15.
During his time in the Council Member's office, Castro did not form close relationships with the other staff members. He testified that, aside from Smith-Jackson, "nobody talked to me, nobody had a conversation with me." (Id. at 40.) However, he also testified that he was "shy" and that he "kept [] to himself' his feelings of being excluded by the other staff members. (Id. at 40-41.) Plaintiff further testified that, on at least one occasion, Genao "was laughing [about] the way I walked.... When I walked by, she looked at me and laughed." (Id. at 36; see also Plf. R56.1 Response ¶ 62.) Castro also testified that there was a time he believed Genao called him a derogatory name in Spanish, but he was not sure of the word she used or of its meaning. (Plf. R56.1 Response ¶ 63.) On another occasion, Council Member Ferreras "yelled at" Castro; and although he testified that she yelled at him because he "didn't finish [his] work on time," he also testified that he believed she yelled at him because of his disability. (Castro Dep. 76; see also Plf. R.56.1 Response ¶ 21.) Plaintiff also testified that there was a time that he asked Audiffred for a MetroCard so that he could travel to Manhattan, but Audiffred instead asked him to see if Charles Castro would cover the trip.
To the extent Castro believed be was being treated unfairly, he complained to his uncle but did not mention any of these incidents to anyone in the Council Member's office, nor did he file any type of formal grievance or complaint during the time of his employment.
With the exception of the time that Ferreras "yelled at" plaintiff, neither she nor any of her staff members made any other comments about Castro's work during the time of his employment. However, Audiffred testified that, in response to plaintiffs periodic tardiness and absence, he reminded Castro "that if he is going to
In early November, 2009, Audiffred notified all staff members, including plaintiff, that their seats were being reassigned. There is no dispute that plaintiff was not informed of the reason for the change.
In or around October 2009, several weeks after Castro began working in Ferreras's office, he completed, with his uncle's assistance, a packet of personnel forms. He returned the completed paperwork but subsequently was told that the forms had been lost, and he was therefore asked to complete them again. Plaintiff completed the forms a second time in late October or November 2009 but still was not placed on the Council payroll and did not receive any pay. (Plf. R56.1 Response ¶ 30; see also Castro Dep. 28.)
Sometime after the second set of forms was completed, Charles Castro met with Audiffred and Michael Nieves in order to discuss plaintiffs pay.
On November 30, 2009, Castro emailed to Audiffred a calendar setting forth the dates he had reported to work prior to that time. In a December 14, 2009 email to Ferreras, Charles Castro wrote that Audiffred had indicated to him that plaintiff
In January 2010, Ferreras terminated Audiffred as her chief of staff and hired Emmett Hare to replace him.
In early March, 2010, Castro and Ferreras signed an "Office Clerical Consultant Contract" (the "Consulting Contract"), pursuant to which Castro was to be paid as a "Consultant" at the rate of $10.00 per hour, up to a total of $5,000, for the provision of certain clerical services including "assigned office work," "storage and filing of documents" and "distribution of mail and faxes to appropriate staff."
On April 15, 2010, plaintiff filed a charge of discrimination, hostile work environment and retaliation with the United States Equal Employment Opportunity Commission ("EEOC") and the New York State Division of Human Rights ("NYSDHR"). The NYSDHR dismissed the charge for administrative convenience (so that plaintiff could pursue his rights via an action in this court) on June 23, 2010. (Eichenholz Am. Decl. Ex. C.) On August 4, 2010, the EEOC issued a "Right to Sue" notice.
A motion for summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. See, e.g., Nationwide Life Insurance Co. v. Bankers Leasing Association, Inc., 182 F.3d 157, 160 (2d Cir.1999). The court construes the facts in the light most favorable to the non-moving party, and it "resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir.2001); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party, however, may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 12 (2d Cir.1986). Nor may it rely upon the allegations contained in its pleadings. See, e.g., Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir.1996). The non-moving party must, instead, produce specific facts to establish that there is a genuine factual issue to be tried. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. If the evidence is "merely colorable," or "not significantly probative," summary judgment will be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. Moreover, where the non-moving party will bear the burden of proof at trial, Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim. Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991). And, even to the extent a factual issue is raised, summary judgment may nonetheless be granted: "the mere existence of factual issues — where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp. (Motors Holding Div.), 758 F.2d 839, 840 (2d Cir.1985).
When intent is at issue, district courts must use caution resolving motions for summary judgment in discrimination cases, since "[a] victim of discrimination is... seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence." Rosen v. Thomburgh, 928 F.2d 528, 533 (2d Cir. 1991). "The summary judgment rule
Before turning to the merits of plaintiffs ADA and Rehabilitation Act claims, I note that defendants have moved for summary judgment dismissing these claims against the individual defendants, Genao and Ferreras, on the basis that neither statute provides for individual liability. In this Circuit, it is now well-settled that there is no individual liability under the retaliation provision of the ADA. Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir.2010) (per curiam). Many courts have concluded that this bar to individual liability extends to claims brought pursuant to both Title I of the ADA and the Rehabilitation Act, even where the claims are asserted against individuals acting in their official capacities.
Under Title I of the ADA, "[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to ... 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). A "covered entity" includes an employer, and a "qualified individual" refers to "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. §§ 12111(2), (8).
"Discrimination" under this section may include "limiting, segregating, or classifying a[n] ... employee in a way that adversely affects [his or her] opportunities or status ... because of [his or her] disability" and "not making reasonable accommodations to the known physical or mental
Like the ADA, the Rehabilitation Act "prohibits disability-based discrimination," but it applies specifically to "government agencies and other recipients of federal funds." Lyons v. Legal Aid Society, 68 F.3d 1512, 1514-15 (2d Cir.1995). "Reasonable accommodation" is "interpreted in the same way with respect to both the ADA and the Rehabilitation Act." Id. at 1515. Moreover, the statute expressly provides that "the standards used to determine whether this section has been violated in a complaint alleging employment discrimination ... shall be the standards applied under title I ... and the provisions of sections 501 through 504, and 510, of the [ADA], as such sections relate to employment." 29 U.S.C. § 794(d) (statutory citations omitted). Like his ADA claim, plaintiffs Rehabilitation Act claim is apparently based upon both disparate treatment and failure to accommodate.
Claims brought pursuant to the ADA and the Rehabilitation Act are also similar insofar as they are analyzed under the three-step burden-shifting framework originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., McBride v. BIC Consumer Products Mfg. Co., 583 F.3d 92, 96 (2d Cir.2009) (ADA); see also Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48-49 (2d Cir.2002) (applying McDonnell Douglas framework to claims of intentional discrimination under the ADA, FHA and Rehabilitation Act). Accordingly, a plaintiff alleging discrimination under these statutes must establish a prima facie case; if he does so, then "the employer must offer through the introduction of admissible evidence a legitimate non-discriminatory reason for the [adverse action]; and the plaintiff must then produce evidence and carry the burden of persuasion that the proffered reason is a pretext." Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 169 (2d Cir.2006). "[T]he ultimate burden rests with the plaintiff to offer evidence sufficient to support a reasonable inference that prohibited [disability] discrimination occurred." Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir.2005) (quotation marks and citation omitted).
In order to make out a prima facie claim of disparate treatment based on disability under the ADA, a plaintiff must show that his employer is subject to the ADA, that he is disabled within the meaning of the statute, that he was "otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation," and that "he suffered an adverse employment action because of his disability." Shannon v. N.Y. City Transit Authority, 332 F.3d 95, 99 (2d Cir.2003). The elements of a prima facie claim under the Rehabilitation Act are identical. See, e.g., Kilcullen v. New York State Department of Labor, 205 F.3d 77, 79, n. 1 (2d Cir.2000) ("The ADA, adopted in 1992, is broader in scope [than the Rehabilitation Act]," and although "the statutes are not absolutely congruent in their other requirements,
Here, there is no dispute that plaintiffs cerebral palsy constitutes a disability within the meaning of the relevant statutes, nor that he was otherwise qualified for his job.
An adverse employment action is defined "as a materially adverse change in the terms and conditions of employment." Sanders v. New York City Human Resources Administration, 361 F.3d 749, 755 (2d Cir.2004) (internal quotation marks omitted). A "materially adverse" change must be something "more disruptive than a mere inconvenience or an alteration of job responsibilities," and may include, for example, "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities," among others. Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.2003) (internal quotation marks and citations omitted).
It is not enough, however, for plaintiff to demonstrate that he suffered an adverse action. He must also offer evidence showing that any such action occurred under circumstances giving rise to an inference of discrimination. Such an inference may be drawn, for example, where an employer has made "invidious comments about others in the employee's protected group" or where an employer has exhibited "more favorable treatment of employees not in the protected group." Abdu-Brisson, 239 F.3d at 468 (citation omitted). The plaintiffs subjective belief that he was discriminated against based on his membership in a protected class, without more, is not sufficient to sustain a claim of discrimination. See, e.g., Moore v. Kingsbrook Jewish Medical Center, 2013 WL 3968748, at **6-7 (E.D.N.Y., July 30, 2013) (plaintiffs belief that he was discriminated against based on his national origin was insufficient to survive summary judgment).
Here, plaintiff argues that the defendants' delay in paying him, the assignment of physically challenging tasks, and the steady reduction in his hours constitute adverse actions. He also argues that the combination of these three actions effectively compelled his resignation, and that
Turning, first, to the delay in plaintiffs receipt of his paycheck, there is some support in this Circuit for defendant's argument that such a delay is merely an inconvenience and therefore not sufficient to constitute an adverse employment action. In Miller v. New York City Health & Hospital Corp., for example, the plaintiff argued that the delayed receipt of overtime pay constituted an adverse employment action under Title VII. 2005 WL 2022016 (S.D.N.Y., Aug. 22, 2005), aff'd 198 Fed.Appx. 87 (2d Cir.2006). The Miller court concluded that, although the compensation was delayed by several months, it was ultimately paid, and that plaintiff thus did not establish that he suffered "anything more than a mere inconvenience" with respect to the delay. Id. at *6.
Here, it is undisputed that plaintiff failed to receive any compensation for nearly the entire duration of his employment, but it is also undisputed that he was ultimately paid a sum intended to compensate him for all of the hours he had worked. Plaintiff has offered no evidence
Even assuming, however, that plaintiffs unpaid status did constitute a materially adverse change to the terms of his employment, there is simply no evidence upon which to conclude that such change took place under circumstances giving rise to an inference of impermissible discrimination.
Plaintiff argues that the discriminatory intent behind defendants' failure to pay him is evidenced by the more expeditious payment of larger stipends or fees to other individuals who performed services for Ferreras, but that argument is undermined by plaintiffs failure to point to any similarly situated individuals. While a plaintiff seeking to make out a prima facie case "is not obligated to show disparate treatment of an identically situated employee," he must show that any such employees "have a situation sufficiently similar to plaintiffs to support at least a minimal inference that the difference of treatment may be attributable to discrimination." McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir.2001) (emphasis in original).
Here, plaintiff points, first, to Michael Olmeda, a consultant hired to conduct staff training sessions including team building and constituent services training. (Ferreras Dep. 55.
Anne Meredith, an intern who received a stipend of $1,500 during the course of her internship (see Ferreras Dep. 45-46), is likewise not a suitable comparator. Leaving aside that Meredith was hired as an intern and plaintiff insists that he was hired as a paid employee, plaintiff has offered no details as to Meredith's level of experience, education, or any other "objectively identifiable basis for comparability," and thus the contention that a similarly situated employee outside his protected class was treated more favorably amounts to nothing more than a conclusory statement insufficient to defeat summary judgment. Desir, 803 F.Supp.2d at 180-81. In any event, plaintiff has not shown that Meredith was treated more favorably than he was, as the evidence shows that Meredith received her $1,500 stipend on July 26, 2011, but her position commenced June 1 of that year, if not earlier.
Plaintiff thus has not shown that similarly situated individuals were treated more favorably than he was, and he has offered no other evidence that would connect the delay in his compensation with his disability. He has therefore not made out a prima facie case of disparate treatment on this ground.
Although Plaintiff argues that other staff members were not required to move boxes and empty the waste baskets, "simply being assigned undesirable work duties ... [is] insufficient to establish adverse employment action, since [it does] not have a material impact on the terms and conditions of plaintiffs employment." Figueroa v. Neiv York City Health and Hospitals Corp., 2007 WL 2274253, at *4 (S.D.N.Y., August 7, 2007). Moreover, any argument that such work assignments occurred under circumstances giving rise to an inference of discrimination is belied by plaintiffs own testimony that the employees "took turns" doing these tasks. (See Castro Dep. 48; see also n. 8, supra.) While plaintiff argues that neither Genao nor Audiffred was required to perform these chores, this comparison neither supports an inference of discrimination nor raises an issue of fact because, like Meredith and Olmeda, neither the Deputy Chief of Staff (Genao) nor the Chief of Staff (Audiffred) was similarly situated to plaintiff. See Desir, 803 F.Supp.2d at 180, n. 2. Plaintiff therefore has not established a prima facie case of discrimination on this basis.
While the reduction of plaintiffs hours in October 2009, and again in January and March 2010, would appear to constitute a materially adverse change in the terms and conditions of plaintiffs employment, there is no basis upon which to infer that this was the result of discrimination. Plaintiff asserts, in a conclusory manner, that his hours were cut without explanation and that this act, itself, is sufficient to raise an inference of discrimination. However
Even assuming a prima face case for the purposes of this motion, however, defendants have offered a legitimate, nondiscriminatory reason for their action. Defendants assert that plaintiffs hours were cut because he was not a productive and responsible employee. To that end, Audiffred testified that:
Further evidence of Castro's poor work performance is Castro's own testimony that Ferreras "yelled" at him because he did not complete his work (Castro Dep. 76); and that Castro's desk was reassigned because he had been viewing "inappropriate" online material while seated at the front of the office (Audiffred Aff. ¶ 13; see also n. 14, supra). Defendants' evidence on this point is not voluminous, but their burden at this stage is merely "one of production, not persuasion." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Defendants have produced admissible evidence demonstrating a legitimate, non-discriminatory reason for the change to plaintiffs schedule.
Although plaintiff testified that he "just felt like [Ferreras] treated [him] way different[ly]" from the other employees (Castro Dep. 76), he offers no other evidence that would raise an issue of fact as to whether defendants' stated reason for reducing his hours is mere pretext for unlawful discrimination. Plaintiff argues that the pretext "is evident from the fact that [he] never received any kind of feedback or evaluation from defendants" and further, that an email from Audiffred demonstrates that Audiffred "understood" that plaintiffs absences were related to medical issues. (Opp. Mem. 10.) However, the October 2009 email exchange actually demonstrates that Castro was absent for two days without notifying Audiffred or anyone else. In Audiffred's message, sent on Saturday, October 17, he asks Castro about his absence from work on the previous Thursday and Friday. (See Cronin Decl. Ex. J.) Plaintiff responded, on the following Monday, that he had not been feeling well, that his "lungs [were] acting up badly," and that he would be seeing some doctors on the following Thursday and Friday. (Id.) Audiffred may have approved the intended subsequent absence,
Since defendants have, through admissible evidence, offered a legitimate, non-discriminatory reason for reducing plaintiffs hours, and since "plaintiff has failed to show that there is evidence that would permit a rational factfinder to infer that the employer's proffered rationale is pretext," summary judgment is appropriate. Patterson v. County of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir.2004), superseded in part on other grounds by the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, amending 42 U.S.C. § 1981.
"An adverse employment action may also take the form of a constructive discharge, which occurs "when the employer, rather than acting directly, deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation." Caskey v. County of Ontario, 560 Fed.Appx. 57, 59, 2014 WL 1099232, at *2 (2d Cir., March 21, 2014) (quoting Morris v. Schroder Capital Management International, 481 F.3d 86, 88 (2d Cir.2007)). An employee must show more than that the conditions of his employment were merely unpleasant. Rather, he must demonstrate, first, that the employer acted deliberately, and not merely negligently or ineffectively, in bringing about the intolerable work conditions, and next, that, when assessed objectively, a reasonable person in the employee's position would have felt compelled to resign. Petrosino v. Bell Atlantic, 385 F.3d 210, 229-30 (2d Cir.2004).
Here, plaintiff alleges that defendants' reduction of his hours, delay in compensating him, and the nature of some of his work assignments, amounts to a constructive discharge. However, even when viewed in the light most favorable to plaintiff, the evidence does not permit such a finding. First, although plaintiff argues that "Ferreras created an environment ... in which any reasonable employee will feel compelled to resign, as there was no hope of future payment if plaintiff continued working" (Opp. Mem. 17), the evidence shows that Castro did not resign until after he received a check compensating him for the hours he previously worked and signed an agreement pursuant to which he would be compensated going forward. The receipt of back pay and an agreement as to future pay would not cause a reasonable person to feel hopeless about future payment.
Plaintiff further argues that he was assigned physical tasks like trash removal and the moving of boxes as part of a deliberate effort to place his health in jeopardy, but the evidence, including plaintiffs own testimony cited previously, demonstrates both that plaintiff was not the only employee to be asked to perform such tasks, and also that, on each occasion plaintiff made other staff members aware that a given task was difficult for him, he was excused from completing it.
Finally, plaintiff contends that his hours were reduced in an effort to compel his resignation, but he concedes that he never informed anyone in the office that he, in fact, wanted to work more hours. Plaintiff testified that, after each time his hours were reduced, he neither asked why nor asked for additional hours, and that, up until the very end, he did not complain about his truncated schedule because he "just wanted to like work," and that he "didn't care about the hours." (See Castro Dep. 58-60.) There is no evidence that defendants were aware of plaintiffs negative feelings about the changes to his schedule, let alone that they intentionally implemented those changes in an effort to compel his resignation. As such, no rational
The ADA requires employers to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability. See 42 U.S.C. § 12112(b)(5)(A). The term "reasonable accommodation" means "[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position... is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position." 29 C.F.R. § 1630.2(o )(1)(ii).
To establish a prima facie case for failure to accommodate, a plaintiff must demonstrate that he is disabled within the meaning of the ADA, that his employer is a covered entity, that he could perform the essential functions of his job with an accommodation, and that the defendants refused to provide such an accommodation. See, e.g., McBride v. BIC Consumer Products Manufacturing Co., Inc., 583 F.3d 92, 96-97 (2d Cir.2009). Such a claim under the Rehabilitation Act requires the same showing. Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir.1997). There must also be a causal connection between the disability and the requested accommodation. See, e.g., Rogers v. Roosevelt Union Free School District, 2012 WL 6163130, at *6 (E.D.N.Y., December 7, 2012) (granting summary judgment in favor of defendants where plaintiff "failed to demonstrate a causal connection between her disability and her request" for a reasonable accommodation), aff'd 553 Fed. Appx. 88 (2d Cir.2014). "Although it is generally `the responsibility of the individual with a disability to inform the employer that an accommodation is needed,' under certain circumstances, an employer is required to act proactively and engage in an interactive process to accommodate the disability of an employee even if the employee does not request accommodation." McElwee v. County of Orange, 700 F.3d 635, 641-2 (2d Cir.2012) (quoting Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir.2008)).
Here, plaintiff does not argue that defendants failed to engage in the required interactive process and, in any event, it is undisputed that, each time plaintiff complained that a given task was too difficult, he was either given assistance or told that he could do it slowly or not at all. In the absence of a refusal to provide a reasonable accommodation, plaintiff fails to establish a prima facie case.
To the extent that plaintiff argues that the denial by Audiffred of his request for a MetroCard so that he could take one trip into Manhattan constitutes a failure to accommodate, plaintiff points to no evidence that would demonstrate that this request was made in an effort to enable him to better perform the essential functions of his job. Plaintiff argues that he asked Audiffred for the MetroCard as a reasonable accommodation, "as other staff members received MetroCards and plaintiff had to travel to and from City Hall as he transported heavy boxes." (Opp. Mem. 11.) But plaintiffs own testimony refutes this contention.
In response to the question whether he had ever asked for a MetroCard, Plaintiff testified that, on a single occasion, "I did, I asked Angel, he was like — what did he tell me? Because I didn't have it one time, so he — my uncle — my uncle had to lend me
Accordingly, summary judgment is granted to defendants on all of plaintiffs ADA and Rehabilitation Act claims of discrimination.
Title V of the ADA prohibits discrimination in the form of retaliation against any individual who "has opposed any act or practice made unlawful by this chapter."
The claims of retaliation, as asserted against the City Council and the City, are analyzed under the McDonnell Douglas framework, discussed earlier. See, e.g., Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.2002). In order to make out a prima facie case of retaliation, "plaintiff must establish that (l)[he] was engaged in an activity protected by the ADA, (2) the employer was aware of that activity, (3) an employment action adverse to the plaintiff occurred, and (4) there existed a causal connection between the protected activity and the adverse employment action." Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir.2000). "Protected activity" includes "oppos[ing] any act or practice made unlawful by this chapter," as well as "ma[king] a charge, testif[ying], assist[ing], or participat[ing] in any manner in an investigation, proceeding or hearing under this chapter." 42 U.S.C. § 12203(a).
Here, plaintiff argues that his complaints to Charles Castro constitute protected activity under the ADA, that Charles Castro's subsequent communications
Plaintiffs retaliation claim fails because the evidence does not support a conclusion that he engaged in protected activity. "The term `protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir.2000), superseded by statute on other grounds, Local Civil Rights Restoration Act, N.Y.C. Local L. No. 85. There is no dispute that plaintiff did not speak to anyone in the office about his disability or any belief that he was being treated differently or poorly as a result of it. However, "for purposes of a prima facie case, a plaintiff may rely on `general corporate knowledge' of [his] protected activity to establish the knowledge prong of the prima face case." Kwan v. Andalex Group LLC, 737 F.3d 834, 844 (2d Cir.2013). Here, plaintiff argues that his conversations with his uncle constitute protected activity and that defendants had general knowledge of these conversations. Even assuming that complaints to his uncle rather than to his employer could constitute protected activity, and construing the evidence in the light most favorable to plaintiff, it is clear that plaintiffs conversations with his uncle were not intended to be efforts to protest or oppose discrimination, and plaintiff therefore fails to establish a prima facie case.
For example, plaintiff testified that he told his uncle in October 2009 that he had not yet been paid (Castro Dep. 17); and that, when Ferreras yelled at him for not completing his work on time, "I told my uncle about it. I was like, why is she yelling at me ... he was like don't mind her" (Id. at 76). If plaintiff believed, at the time he discussed these complaints with his uncle, that his treatment was in any way related to his disability, there is no evidence that he conveyed this belief to his uncle. Similarly, plaintiff testified that he "thinks" he told his uncle that Genao laughed at him and made a derogatory comment in Spanish. (Castro Dep. 37.) However, even if plaintiff perceived Genao's behavior to have been motivated by a discriminatory animus, there is no evidence that he discussed it in those terms with his uncle. Charles Castro testified that plaintiff told him only "that they were laughing at him because they knew he wasn't getting paid" — not because of his disability — "and they would call him slave." (C. Castro Dep. 25, emphasis added.)
Plaintiffs Complaint contains no explicit statutory basis for his hostile work environment claim. (See Compl. ¶¶ 95-102.) Rather, he asserts only the conclusory allegation that "[t]he [d]efendants intentionally and wrongfully discriminated against [him] in his employment on the account [sic] of his disability and retaliated by creating a hostile work environment in violation of the Constitution of the United States and applicable statutes."
Here, plaintiff alleges that the delay in his compensation and the requirement that he move boxes and empty trash cans, combined with Ferreras's yelling at him and Genao's laughter and name-calling, all amount to instances of discriminatory behavior that contributed to the creation of a hostile work environment.
Section 1983 provides a right of civil action against any person who, under the
Much like his hostile work environment claim, plaintiff does not provide a clear basis for his claim under § 1983. Rather, he alleges only that he was deprived of "rights, privileges and immunities secured by the Equal Protection and Due Process guarantees of the Fourteenth Amendment of the Constitution," and that the "[d]efendants have altered rules and regulations and have amended existing policies of anti-discrimination and harassment so as to eliminate the employment of disabled employees." (Compl. ¶¶ 76-77.) Since the latter allegation appears to have been asserted in connection with plaintiffs now-withdrawn claim of municipal liability, and, since plaintiff has withdrawn his due process claim, the sole remaining ground for any purported claim under § 1983 is the denial of equal protection on the basis of disability.
First, it is not clear that such a claim is even cognizable under § 1983. See, e.g., Chick v. County of Suffolk, 546 Fed.Appx. 58, 60 (2d Cir.2013) (affirming dismissal of § 1983 claim where "district court correctly determined that disability is not a suspect classification under the Equal Protection Clause, and that a class of one does not exist in the public employment context") (internal quotation marks and citation omitted); see also Valenzisi v. Stamford Board of Education, 948 F.Supp.2d 227, 245 (D.Conn.2013) (applying the same reasoning to grant summary judgment in defendant's favor on § 1983 claim based on disability discrimination).
Even assuming the availability of a § 1983 claim, such a claim would fail for the same reasons as plaintiffs other federal claims have failed. Section 1983 does not, itself, create substantive rights, but rather, "provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993). In order to prevail on a claim under this Section, "the plaintiff must show that the defendant's conduct deprived him of a federal right." Id. Here, as discussed in detail above, plaintiff has not established that he was deprived of any federal right — i.e., he has not demonstrated that he was subjected to disparate treatment, retaliation, or any other type of discrimination on the basis of his disability. He therefore has not established a violation of his constitutional rights and his equal protection claim also fails.
Since defendants are entitled to summary judgment on all of plaintiffs federal claims, all claims over which this court has
Accordingly, for the reasons set forth above, defendants' motion for summary judgment is GRANTED. Plaintiffs claims under the ADA, Rehabilitation Act and Section 1983 (those claims corresponding to the Third, Fourth, Fifth, Sixth and Seventh Causes of Action) are hereby dismissed. Plaintiffs claims asserted under the NYSHRL and NYCHRL (those corresponding to the Eighth and Ninth Causes of Action) are dismissed without prejudice. The Clerk of Court is directed to enter judgment accordingly.
