Liss v. Nassau County

Citation425 F.Supp.2d 335
Decision Date04 April 2006
Docket NumberNo. 05-CV-4198 (ADS)(MLO).,05-CV-4198 (ADS)(MLO).
PartiesBarry LISS, Plaintiff, v. NASSAU COUNTY, The Nassau County Department of Recreation and Parks, and the Nassau County Department of Public Works, Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

Patrick W. Johnson, Brooklyn, NY, for Plaintiff.

Lorna B. Goodman, County Attorney of Nassau County by Deputy County Attorney Chuma Joclyn Diamond, Mineola, NY, for Defendants.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This case arises out of claims by Barry Liss (the "plaintiff") that Nassau County, the Nassau County Department of Recreation and Parks, and the Nassau County Department of Public Works (collectively, the "defendants") discriminated against him on the basis of a disability in violation the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq; and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law. § 296. Presently before the Court is the defendants' motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P.") to dismiss the complaint for failure to state a claim.

I. BACKGROUND

The following facts are derived from the complaint and several doctor's letters and notes that were incorporated into the complaint by reference and submitted with the papers on this motion. The facts are taken as true for the purpose of this motion.

The plaintiff began working for the defendants on April 1, 1994. The plaintiff does not specify the nature of his position with the defendants. All that can be discerned from the facts in the complaint is that the plaintiff's employment required him to (1) climb ladders; (2) work at heights, including on rooftops; and (3) work outdoors.

On or about March 23, 1999, the plaintiff was injured at work while climbing up and down ladders carrying "heavy roofing equipment." The plaintiff does not specify what type of equipment he was carrying; what function he was performing; or the precisely nature or circumstances of his injury. The plaintiff suffered injuries to his wrists on his left and right arms, and fractured his spine. As a result of these injuries the plaintiff was unable to work for approximately two years. The plaintiff returned to work for the defendants on March 9, 2001.

During the period between September, 1999, and July, 2003, the plaintiff provided the defendants with six doctors' letters and notes stating that the plaintiff suffered from several physical ailments, and suggesting that limitations be imposed on the type of tasks he should be required to perform. Specifically, the plaintiff provided the defendants with the following documents:

(1) a letter from Dr. Joel S. Delfiner of the Nassau County Medical Center, dated September 1, 1999, stating that the plaintiff suffered "abnormal neurological features" and that he should avoid heavy labor, climbing, and extreme temperatures, "especially hot temperatures";

(2) a letter from Dr. Naghma Shireen of the Nassau Medical Center, dated February 7, 2000, stating that the plaintiff "was to avoid heavy labor, climbing, and extremes of temperatures, especially hot temperatures";

(3) a letter from "the Nassau County Medical Center," dated February 14, 2001, stating that the plaintiff had "no neuro constrainment to return to work—but no inclined roofs. Flat roofs OK.";

(4) a letter from Dr. Karen Blitz of the Staten Island University Medical Center, dated March 7, 2001, advising the defendants that the plaintiff was "under [Dr. Blitz's] care in the Neurology clinic at Nassau County Medical Center (NCMC). He has been advised that he can return to work, but no work at any heights.";

(5) a letter from Dr. Oded Gerber of the University Physicians of Stony Brook, July 8, 2003, advising the defendants that "Mr. Liss has a neurological disorder that is worsened by heat. He requires a cool jacket and a vehicle with air conditioning."; and

(6) a letter from Karen Blitz-Shabbir of the Nassau County Medical Center, dated July 9, 2003, advising the defendants that the plaintiff had been diagnosed with multiple sclerosis and that he "is not able to work in hot temperatures or at any heights."

According to the complaint, the defendants continued to assign the plaintiff to perform tasks that involved working at heights and in hot temperatures without a "cooling jacket" and without access to conditioned air.

The plaintiff further alleges that on July 17, 2003, while in the course of his employment for the defendants, the plaintiff fell from a height while working on a ladder. The plaintiff suffered a broken right ankle and "severe permanent" cartilage damage as a result of this fall.

On or about April 23, 2004, the plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC").

On or about May 13, 2004, the plaintiff was injured again when he fell "onto a pile of bricks, on the back deck of his home." The plaintiff suffered a broken left wrist and a spinal fracture. Although the plaintiff was still employed by the defendants at this time, he was not on the job that day, and his activities were not employment-related. However, the plaintiff alleges that the damage caused to the cartilage of his ankle on July 17, 2003 precipitated this accident at his home.

In November 2004, the parties participated in a mediation session with the EEOC. The plaintiff alleges that as a result of this mediation session the defendants agreed to provide him with either a "cooling vest" or an air conditioned workspace when the outside temperature exceeded eighty degrees.

On June 21, 2005, the EEOC issued a Notice of Right to Sue letter to the plaintiff. On September 2, 2005, the plaintiff commenced this action within ninety days of receipt of the Right to Sue letter, alleging violations of the ADA, the NYSHRL and a claim for intentional infliction of emotional distress under New York State law.

II. DISCUSSION
A. Legal Standard

A court may grant a Rule 12(b)(6) motion to dismiss for failure to state a claim only where "`it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir.2000), abrogated on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). All of the factual allegations in the complaint must be accepted as true and all inferences drawn in the light most favorable to the plaintiff. Id. (citing Desiderio v. Nat'l Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999)).

In its analysis under Rule 12(b)(6), the court "must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Id. at 39 (citing Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991)). At the pleading stage, the plaintiff in an employment discrimination case need only provide a "short and plain statement" that "`give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz, 534 U.S. at 512-13, 122 S.Ct. at 998 (citing Conley, 355 U.S. at 47, 78 S.Ct. at 103).

The Court notes that the parties' motion papers refer to matters outside the pleadings. In deciding whether the plaintiff's complaint states a claim for relief under the ADA, the Court will only consider the doctor's notes dated February 14, 2001, March 7, 2001, July 8, 2003, and July 9, 2003. These documents are appropriate for consideration because they were incorporated by reference in the complaint. The Court declines to consider the several decisions of the New York State Worker's Compensation Board, the affidavit of Barry Liss, or the plaintiff's several applications for New York State Worker's Compensation benefits. As noted above, in considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a district court is required to limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference. Newman & Schwartz v. Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir.1996) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991)). Because these additional documents were not attached to the complaint, and because the plaintiff did not reference prior Worker's Compensation proceedings in the complaint, the documents are not properly before the Court on this motion to dismiss.

B. ADA CLAIMS

Section 12112 of the ADA provides that:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. § 12112(a). The ADA further states that the term "discriminate," as used in the statute, includes

not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.

42 U.S.C. § 12112(b)(5)(A).

To prove a claim for discrimination based upon an employer's failure to accommodate, the plaintiff must establish that: (1) he is an individual with a disability; (2) an employer covered by the ADA had notice of his disability; (3) with reasonable accommodation, he could perform the essential functions of the position; and (4) the employer had refused to make such accommodations. Lyons v. Legal Aid Soc., ...

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