Hoehn v. International Security Services, 97-CV-0974A(F) (W.D.N.Y. 3/4/1999)
| Decision Date | 04 March 1999 |
| Docket Number | 97-CV-0974A(F). |
| Parties | FRANCIS L. HOEHN, Plaintiff, v. INTERNATIONAL SECURITY SERVICES and INVESTIGATIONS, INC., OUSAMA KARAWIJA, CLAYTON WILLMAN, DONNA M. METZ, JOHN DOE, JANE DOE, and ROBERT SODEN Defendants. |
| Court | U.S. District Court — Western District of New York |
RAYMOND J. DZIEDZIC, Buffalo, New York, Attorney for Plaintiff.
HARRIS BEACH & WILCOX, Ousama Karawija, Clayton Willman, Donna M. Metz, John Doe, and Jane Doe JONATHAN G. JOHNSEN, of Counsel, Hamburg, New York, Attorneys for Defendants International Security Systems, Inc.
DENISE E. O'DONNELL, United States Attorney, Attorney for Defendant Soden LYNN S. EDELMAN Assistant United States Attorney, of Counsel Buffalo, New York.
REPORT and RECOMMENDATION
This matter was referred to the undersigned on March 4, 1998 by the Hon. Richard J. Arcara, District Judge. The matter is currently before the court on the motions to dismiss filed by Defendants International Security Services and Investigations, Inc., Willman, Metz, Karawija, John Doe, and Jane Doe on March 2, 1998 (Docket Item No. 14) and by Defendant Soden on March 31, 1998 (Docket Item No. 18).
Plaintiff Francis L. Hoehn ("Hoehn")("Plaintiff") brought this action on December 11, 1997 seeking damages and equitable relief for wrongful termination in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., ("ADA"); the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq., ("ADEA"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq., ("Title VII"); and the Fifth and Fourteenth Amendments. Complaint, filed December 11, 1997 (Docket Item No. 1)("Complaint"). Hoehn contends that he was terminated from his position as an armed security guard / control center operator on the basis of his physical disability, age, gender, and racial or ethnic background.1 Plaintiff also seeks damages under 42 U.S.C. § 1985(3), alleging a conspiracy to deprive him of his equal protection rights.
On March 2, 1998 Defendants International Security Services and Investigations Inc. ("ISSI"), Karawija, Willman, Metz, John Doe, and Jane Doe filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (Docket Item No. 14)("Defendants' Motion to Dismiss"), accompanied by a Memorandum of Law in Support of the motion to dismiss, filed March 2, 1998 (Docket Item No. 15)("Defendants' Memorandum in Support of Motion"). Defendant Soden filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6) on March 31, 1998 (Docket Item No. 18)("Defendant Soden's Motion to Dismiss"), and a Memorandum of Law in Support of this motion on April 1, 1998 (Docket Item No. 20)("Defendant Soden's Memorandum in Support of Motion").2 Plaintiff filed his responses to these motions on August 20, 1998. Plaintiff's Memorandum in Opposition to Defendant ISSI, Karawija, Willman, and Metz' Fed. R. Civ. P. Motions, filed August 20, 1996 (Docket Item No. 25)("Plaintiff's Memorandum in Opposition to Defendants' Motion"); Plaintiff's Memorandum in Opposition to Defendant Soden's Fed. R. Civ. P. Motions, filed August 20, 1998 (Docket Item No. 26)("Plaintiff's Memorandum in Opposition to Defendant Soden's Motion").
Defendants ISSI, Karawija, Willman, Metz, John Doe, and Jane Doe filed a reply memorandum on September 14, 1998 (Docket Item No. 28)("Defendants' Reply Memorandum"). Defendant Soden filed a reply memorandum on September 23, 1998 (Docket Item No. 29)("Defendant Soden's Reply Memorandum in Support of Motion"), and a Certification of Scope of Employment on September 28, 1998 (Docket Item No. 30). Oral argument was deemed unnecessary. For the reasons that follow, the motion to dismiss filed by Defendants ISSI, Karawija, Willman, Metz, John Doe, Jane Doe, should be GRANTED in part and DENIED in part, and the motion to dismiss filed by Defendant Soden should be GRANTED.
Plaintiff Hoehn commenced employment as an armed security guard / control center operator with Defendant International Security Services and Investigations, Inc. ("ISSI") on March 1, 1996. ISSI is a California corporation with its principal place of business in Torrance, California, which had contracted on March 1, 1996 with the United States General Services Administration ("GSA") to provide security services at the Thaddeus J. Dulski Federal Office Building in Buffalo, New York. Hoehn continued his employment with ISSI until September 30, 1996, at which time he was terminated from his position.
Hoehn, who was born on January 22, 1931, was 65 years old at the time of his termination. Hoehn is blind in his right eye, as a result of a work related accident which occurred in 1956.
Prior to his termination, Hoehn was employed as an armed security guard/ control center operator from July 7, 1988 by RJD Security, Inc., Command Security Inc., and Great Lakes Security and Maintenance Corp.. To maintain his employment qualifications and obtain recertification for his position with his employers, Hoehn was required on a semiannual basis to obtain a minimum score of 220 points out of a possible 300 on a firearms test. According to Hoehn, he consistently scored between 260 and 300 points on these tests over his eight year career as a security guard. Hoehn's only such recertification with ISSI occurred in August 1996. Hoehn alleges that Defendant was aware of his vision deficiency as a result of prior recertification tests, as well as medical examination reports prepared by his previous employers.
Hoehn alleges that he was terminated as a direct result of a conspiracy and collusion among several of ISSI's employees and Robert Soden, an employee of the Federal Protective Services of the GSA. Defendant Ousama Karawija ("Karawija") is the President and Chief Executive Officer of ISSI who resides in California. Defendant Clayton Willman ("Willman") is the New York State District Supervisor of ISSI, who resides in Albany, New York. Defendant Donna M. Metz ("Metz") was Defendant's immediate supervisor at the time of his termination from employment, and resides in Buffalo, New York. Specifically, Hoehn alleges that Soden, Karawija, Willman, Metz, and John and Jane Doe4 fraudulently altered or conspired to fraudulently alter a Certificate of Medical Examination issued by Dr. Mark Costanza on August 21, 1996 to read that Hoehn had a physical condition limiting his ability to perform his job. Certificate of Medical Examination, Exhibits A, B to Complaint.
Hoehn filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on October 18, 1996, alleging discrimination by Defendant ISSI on the basis of his disability in violation of the Americans with Disabilities Act. Exhibit D to Complaint. Specifically, Hoehn claimed that although he had performed the essential functions of his position successfully despite his disability, Defendant ISSI nevertheless terminated his employment because of a failed physical examination. Id. According to Hoehn, he did not fail this physical examination; rather, the Defendants' fraudulent alteration of the August 21, 1996 Certificate of Medical Examination resulted in his termination.
Hoehn contacted GSA EEOC Counselor Victoria A. O'Dougherty on October 28, 1996. Plaintiff's Memorandum in Opposition to Defendant Soden's Motion at 20. At O'Dougherty's direction, Hoehn, then acting pro se, forwarded his October 18, 1996 EEOC charge to EEOC Officer Francine Meanor. Id.; Plaintiff's Memorandum in Opposition to Defendants' Motion at 13.
Meanor informed Hoehn by letter dated December 3, 1996 that his discrimination complaint was dismissed, and advised him of the administrative appeals process. Plaintiff's Memorandum in Opposition to Defendant Soden's Motion to Dismiss at 20; Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss at 13. Hoehn obtained counsel to represent him on this matter on December 8, 1996. Plaintiff's Memorandum in Opposition to Defendants' Motion at 14. On December 16, 1996, Hoehn appealed the EEOC's dismissal of his charge. Id. On January 21, 1997, Hoehn received a letter from the Director of the EEOC Compliance and Control Division indicating that his appeal was received. Id.
The EEOC issued a Notice of Right to Sue on September 17, 1997, Exhibit F to Complaint, in which the EEOC found reasonable cause to believe that violations of Title VII, the ADA, and the ADEA had occurred with respect to Hoehn's termination on September 30, 1996.
Hoehn filed the instant actions on December 11, 1997, alleging wrongful termination and discrimination by Defendants on the basis of his physical disability, age, gender, race, and ethnicity, in violation of the ADA, ADEA, Title VII, and the Fifth and Fourteenth Amendments. Additionally, Hoehn asserts a claim pursuant to 42 U.S.C. § 1985(3), alleging that Defendants conspired to deprive him of his right to equal protection.
On a motion to dismiss, the court looks to the four corners of the complaint and is required to accept the plaintiff's allegations as true and to construe those allegations in the light most favorable to the plaintiff. See Scheurer v. Rhodes, 416 U.S. 232, 236 (1974); Darey v. New York County Lawyers' Association, 423 F.2d 188, 191 (2d Cir. 1969), cert. denied, 398 U.S. 929 (1970). The court is required to read the complaint with great generosity on a motion to dismiss. See Yoder v. Orthomolecular Nutrition Institute, 751 F.2d 555, 558 (2d Cir. 1985). The complaint will be dismissed only if "it appears beyond doubt" that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985). This standard is "applied with particular strictness when the plaintiff complains of a civil rights violation." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1993)(quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991))...
To continue reading
Request your trial