Opinion
No. 99 Civ. 12348 (SAS).
November 21, 2000.
Howard K. Van Ever, Sr., Elizabeth, New Jersey, for Plaintiff (Pro Se).
Hillary Tennant, Esq., Assistant Attorney General New York, New York, for Defendants.
OPINION AND ORDER
Plaintiff, appearing pro se, has brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112 et seq. ("ADA"), against the New York State Department of Correctional Services ("NYSDOCS"); Kathy Shaw, the head of Personnel; and Ronald Bolt, the Employee Assistance Program Coordinator. Plaintiff claims that the defendants forced him to resign from his position with NYSDOCS due to his alcoholism and use of mood altering substances. See Complaint ¶ 8. Plaintiff also claims that he was retaliated against. See id. ¶ 4. Defendants move to dismiss the Complaint on the following grounds: (1) plaintiff's right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC") does not cover his claims under Title VII as the charge only alleged a violation of the ADA; (2) individuals may not be sued under either Title VII or the ADA; (3) plaintiff has failed to allege a prima facie case under Title VII; (4) plaintiff has failed to establish a claim of retaliation under Title VII; and (5) plaintiff has failed to allege a prima facie case under the ADA. For the following reasons, defendants' motion is granted and the Complaint is dismissed.
Plaintiff's Title VII discrimination claim and his retaliation claim against all defendants were dismissed for reasons discussed at a conference held on November 3, 2000. See Transcript of November 3, 2000 Conference ("Tr.") at 2-3.
I. FACTS
Because plaintiff filed a form Complaint that contains very few factual allegations, some of the following background facts were learned during a conference held on November 3, 2000. Plaintiff began working for the NYSDOCS as a corrections officer in August of 1993. See Tr. at 10, 12. Although plaintiff alleged that he was discriminated against on the basis of his alcoholism and use of mood altering substances, see Complaint ¶ 7, he also stated that he was forced to resign solely because of alcoholism and that the inclusion of mood altering substances in his Complaint was an error. Tr. at 8-9. Specifically, plaintiff has alleged the following:
On August 18, 1998, I was called to talk to (Personnel Director) Kathy Shaw. She stated to me that the Dept. of Corrections is dissatisfied with my past recent actions, and have decided to fire me (terminate). I explained to her Mr. Ronald Bolt (E.A.P. Coordinator) what steps I had plan to take to resolve my problems. She then told me that was not good enough and that there is nothing else left, is to resign, go to long term treatment and get reinstated, also saying that termination would have negative effects on my chances for reinstatement or other civil service jobs. Mr. Bolt then reaffirmed by saying that a person in my situation should go to long term rehab to show that you are trying to resolve things and that I am not the only person who has to take time off and that he's witnessed other employees come back to work after 6 month, to a year. I was also told that because I'm on D.E.P. that I would have to resign.
Complaint ¶ 8 (emphasis added).
With regard to his alcoholism, plaintiff admitted that he was given unpaid leave on three separate occasions while employed at NYSDOCS to attend rehabilitation programs. Tr. at 11. The first such program was in August of 1996. Id. at 12. After that program, plaintiff returned to work a month later and continued on the job until March of 1997, at which time he participated in a two-week rehabilitation program. Id. Plaintiff's third rehabilitation attempt occurred in the early part of 1998. Id. Plaintiff relapsed within an eight to nine-month period after each program. Id. at 11.
Plaintiff was forced to resign in August of 1998. Id. at 12. At the November 3, 2000 conference, plaintiff conceded that he had been disciplined in the past. Tr. at 13. Specifically, plaintiff was once disciplined for keeping a rental car too long and he was once suspended for one week in August of 1997 for not punching out of work. Id. Plaintiff also stated that as far as he knew, he was forced to resign because of his continuing problems with alcohol. Id. at 9. According to defendants' attorney, plaintiff was terminated, in part, for time and attendance problems and generally "not acting capably on the job." Id. at 15.
II. DISCUSSION
A. Legal Standard for a Motion to Dismiss
Dismissal of a complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is proper only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). "[T]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (internal quotation marks and citation omitted) See also Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) ("The task of the court in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.") (internal quotation marks and citation omitted)
To properly rule on a 12(b)(6) motion, the court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the nonmoving party's favor. See Harris, 186 F.3d at 247. Nevertheless, "[a] complaint which consists of conclusory allegations unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6)." De Jesus v. Sears, Roebuck Co., 87 F.3d 65, 70 (2d Cir. 1996) (internal quotation marks and citations omitted). Pro se complaints, however, are held to "less stringent standards than formal pleadings drafted by lawyers," and are to be construed liberally on a motion to dismiss. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). Thus, a pro se complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hughes v. Rowe, 449 U.S. 5, 10 (1980) (internal quotation marks and citation omitted).
In deciding a Rule 12(b)(6) motion, the court must limit itself to facts stated in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference. See Dangler v. New York City Offf Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999) (citation omitted).
B. Individual Liability Under the ADA
The Second Circuit has held that individuals are not generally liable under Title VII. See Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir. 1995). While the Second Circuit has yet to address the issue of individual liability under the ADA, other courts have held that individuals who do not otherwise meet the statutory definition of "employer" cannot be held liable under the ADA. See Nucifora v. Bridgeport Bd. of Ed., No. 99 Civ. 79, 2000 WL 887650, at *2 (D. Conn. May 23, 2000) (citations omitted). "Moreover, as Title VII's definition of "employer" mirrors the ADA's, (compare 42 U.S.C. § 2000e(b) with 42 U.S.C. § 12111 (5)(A)). district courts within the Second Circuit considering the issue have similarly held that no individual liability exists under the ADA." Corr v. MTA Long Island Bus, 27 F. Supp.2d 359, 370 (E.D.N.Y. 1998) (collecting cases), aff'd, 199 F.3d 1321 (2d Cir. 1999). Accordingly, defendants Shaw and Bolt are dismissed from this lawsuit.
C. Alcoholism and the ADA
Under the ADA, an employer is prohibited from discriminating 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). To establish a prima facie case of discriminatory discharge under the ADA, a plaintiff must prove that: (1) his employer is subject to the ADA; (2) he suffers from a disability within the meaning of the ADA; (3) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (4) he was fired because of his disability. See Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 869 (2d Cir. 1998) (citations omitted). In other words, plaintiff must prove that he is a "qualified individual with a disability" who suffered an adverse employment decision as a result of discrimination. See Woolcott v. E.I. Dupont De Nemours Co., Inc., No. 95 Civ. 721, 1997 WL 251475, at *3 (W.D.N.Y. 1997).
A "qualified individual with a disability" is defined as an "individual with a disability, 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 (8). The ADA defines a "disability" as:
(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.
42 U.S.C. § 12102 (2). The Second Circuit has held that alcoholism may qualify as a disability for purposes of the ADA. See Buckley v. Consolidated Edison Co. of New York, 127 F.3d 270, 273 (2d Cir. 1997).
Because Congress has excluded illegal drug users from ADA protection, only plaintiff's alcoholism will be addressed herein. See 42 U.S.C. § 12114 (a).
Alcoholism is not a per se disability under the ADA. See Roberts v. NYSDOCS, 63 F. Supp.2d 272, 285 (W.D.N.Y. 1999) (citation omitted). Rather, "[t]o qualify for protection under the ADA, plaintiff must show that his alcoholism substantially limits a major life activity." Id. at 286 (citing, inter alia, 42 U.S.C. § 12112 (a) and 29 C.F.R. § 1630.2 (g)). "Whether an impairment substantially limits a major life activity depends on the following factors: (1) the nature and severity of the impairment, (2) the duration or expected duration of the impairment, and (3) the permanent or expected long term impact." Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998) (citing 29 C.F.R. § 1630.2 (j)(2)). Thus, a plaintiff must first demonstrate substantial impairment of a major life activity at the time the accommodation is sought to trigger the reasonable accommodation requirement of the ADA. See Roberts, 63 F. Supp.2d at 286 (citing Burch v. Coca-Cola, Co., 119 F.3d 305, 315 (5th Cir. 1997)).
Working constitutes a major life activity under the EEOC Regulations accompanying the ADA. See Roberts, 63 P.Supp.2d at 286 (citing 29 C.F.R. § 1630.2 (i)).
With regard to alcoholic plaintiff's, the "ADA's requirement that an employer reasonably accommodate an alcoholic employee requires no more than that such employee be given unpaid time off to participate in a treatment program." Woolcott, 1997 WL 251475, at *4 (citations omitted). See also Williams v. Widnall, 79 F.3d 1003, 1006 (10th Cir. 1996) ("Reasonable accommodation for the handicap of alcoholism requires, inter alia, that an employee be given time off to participate in a treatment program.") (citation omitted). Furthermore, "[i]t is the responsibility of the disabled individual to inform the employer of the need for an accommodation." Woolcott, 1997 WL 251475. at *4 (citation omitted). In this regard, asking for a second chance or to be absolved of past misconduct is not a request for an accommodation. See Seifken v. Village of Arlington Heights, 65 F.3d 664, 666-67 (7th Cir. 1995).
Thus, while the ADA affords limited protection to alcoholics who timely ask for an accommodation, it does not protect an alcoholic from the consequences of his behavior. See Woolcott, 1997 WL 2514745, at *4 ("While the ADA, in proper circumstances, protects an individual's status as an alcoholic, it is equally clear that alcoholics are not exempt from reasonable rules of conduct and that an employer need not tolerate an alcoholic's misconduct such as sporadic attendance or on-the-job intoxication."); Brennan v. New York City Police Department, No. 93 Civ. 8461, 1997 WL 811543, at *5 (S.D.N.Y. May 27, 1997), aff'd, 141 F.3d 1151 (2d Cir. 1998) ("ADA provides that an employer may hold an alcoholic employee to the same job performance standards that the employer holds other employees, even if unsatisfactory performance is related to alcoholism.") See also 42 U.S.C. § 12114 (c)(4) (a covered employer "may hold an employee who . . . is an alcoholic to the same qualification standards for employment or job performance and behavior that such [employer] holds other employees, even if unsatisfactory performance or behavior is related to the . . . alcoholism of such employee").
With regard to plaintiff's prima facie case, defendants do not dispute that NYSDOCS is subject to the ADA. With regard to the second element, one court has found that
Plaintiff's allegation that he suffers from the "disability of alcoholism" satisfactorily alleges the disability element of Plaintiff's ADA claim . . . Plaintiff need not specifically plead his alleged condition satisfies each aspect of the definition of a "disability." Pleading the factual conclusion, rather than each and every element of the definition, is sufficient. By stating that the alleged disability is alcoholism, Plaintiff gives Defendants adequate notice of his claim. Therefore, the Court finds that Plaintiff's conclusory allegation of a disability is sufficient.McKay v. Town and Country Cadillac, Inc., 991 F. Supp. 966, 970 (N.D.Ill. 1997). Under this liberal interpretation, plaintiff has satisfied the second element of his prima facie case.
However, the Complaint fails to allege sufficient facts to satisfy the third and fourth prongs of plaintiff's prima facie case. Nowhere does plaintiff allege that he was competent to perform his job as a corrections officer, either with or without reasonable accommodation. Moreover, the Complaint does not allege that plaintiff was terminated because of his status as an alcoholic. These deficiencies are fatal to plaintiff's ADA claim. The only question remaining is whether leave to amend should be granted in order to give plaintiff a chance to conform his allegations to the requirements of a prima facie case.
D. Leave to Amend
Under the Federal Rules of Civil Procedure, "leave to amend shall be freely granted when justice so requires." Fed.R.Civ.P. 15(a). "Although the decision whether to grant leave to amend is within the discretion of the district court, refusal to grant leave must be based on a solid ground." Oliver Sch., Inc. v. Foley, 930 F.2d 248, 253 (2d Cir. 1991) (internal quotation marks and citations omitted). "Futility" provides one such solid ground on which to deny leave to amend. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991).
Based on the oral argument held on November 3, 2000, I conclude that amendment would be futile here. First, and most important, plaintiff conceded that he was reasonably accommodated three times prior to his termination by being given unpaid leave to attend various rehabilitation programs. Each time he reverted to the abuse of alcohol. Because of plaintiff's inability to overcome his alcoholism and the consequences resulting from that addiction, it is apparent that he is not qualified for his position, with or without reasonable accommodation. See Woolcott, 1997 WL 2514745 at *4; Brennan, 1997 WL 811543 at *5; and 42 U.S.C. § 12114 (c)(4). While plaintiff believes he was terminated because of his alcoholism, and denies any time or attendance problems, he does admit to at least two disciplinary actions prior to termination. In view of the conceded reasonable accommodations by the employer and the conceded disciplinary actions, amendment of the Complaint would be futile.
III. CONCLUSION
For the reasons discussed above, the Complaint is dismissed in its entirety with prejudice and without leave to amend. The Clerk of the Court is directed to close this case.
SO ORDERED: