Scuteri et al v. City of New York et al

Motion to Dismiss for Failure to State a Claim

E.D.N.Y.January 17, 2017

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK JOSEPH SCUTERI, Plaintiff, - against - THE CITY OF NEW YORK, THE CITY OF NEW YORK DEPARTMENT OF SANITATION, KATHRYN GARCIA as COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF SANITATION, THE NEW YORK CITY CIVIL SERVICE COMMISSION and NANCY G. CHAFFETZ, as CHAIRPERSON OF THE NEW YORK CITY CIVIL SERVICE COMMISSION, Defendants. NOTICE OF MOTION TO DISMISS THE COMPLAINT 15-CV-05082 (FB) (MDG) PLEASE TAKE NOTICE that upon the annexed Declaration of Assistant Corporation Counsel Garrett Kamen, dated June 27, 2016, together with annexed exhibits, the accompanying Memorandum of Law, and upon all prior pleadings and proceedings, defendants New York City Department of Sanitation and its Commissioner Kathryn Garcia, the New York City Civil Service Commission and its Chairperson Nancy Chaffetz, and the City of New York (collectively, “defendants”) will move this Court before the Honorable Frederic Block, United States District Judge at the United States Courthouse for the Eastern District of New York, 225 Cadman Plaza East, Brooklyn, New York 11201, on a date and time to be determined by the Court, for an order pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure dismissing the Complaint with prejudice, on the ground that it fails to state a cause of action, and upon such dismissal, entering judgment for the moving defendants, and granting these defendants such other and further relief as the Court may deem just and proper. PLEASE TAKE FURTHER NOTICE that, pursuant to the May 20, 2016 stipulation between the parties (ECF No. 23), opposition papers, if any, must be filed no later Case 1:15-cv-05082-FB-LB Document 31 Filed 01/17/17 Page 1 of 2 PageID #: 74 2 than August 8, 2016 and reply papers, if any, must be filed no later than August 29, 2016. Dated: New York, New York June 27, 2016 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Defendants 100 Church Street, Room 2-117 New York, New York 10007 (212) 356-2479 gkamen@law.nyc.gov By: GARRETT S. KAMEN Assistant Corporation Counsel Case 1:15-cv-05082-FB-LB Document 31 Filed 01/17/17 Page 2 of 2 PageID #: 75 Index No. 15-CV-05082 (FB) (MDG) UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK JOSEPH SCUTERI, Plaintiff, - against - THE CITY OF NEW YORK, THE CITY OF NEW YORK DEPARTMENT OF SANITATION, KATHRYN GARCIA as COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF SANITATION, THE NEW YORK CITY CIVIL SERVICE COMMISSION and NANCY G. CHAFFETZ, as CHAIRPERSON OF THE NEW YORK CITY CIVIL SERVICE COMMISSION, Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Defendants 100 Church Street New York, N.Y. 10007 Of Counsel: Garrett S. Kamen Tel: (212) 356-2479 Matter #: 2015-042790 Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 1 of 23 PageID #: 76 TABLE OF CONTENTS Page STATEMENT OF FACTS ..............................................................................................................3 GOVERNING LAW ........................................................................................................................5 ARGUMENT ...................................................................................................................................6 POINT I ...................................................................................................................6 PLAINTIFF CANNOT ALLEGE DISABILITY DISCRIMINATION BECAUSE HE WAS NOT QUALIFIED FOR THE POSITION ................................................................................. 6 A. Plaintiff is Not Qualified to be a Sanitation Worker ..................... 6 B. Plaintiff Cannot Allege Facts That Plausibly Give Rise to Even a Minimal Inference of Discrimination. .......................................... 11 POINT II ................................................................................................................12 PLAINTIFF FAILS TO ALLEGE THAT DEFENDANTS REFUSED TO PROVIDE HIM A REASONABLE ACCOMMODATION .............................................................................. 12 POINT III ...............................................................................................................13 PLAINTIFF CANNOT SUPPORT HIS TITLE II CLAIMS UNDER THE ADA .................................................................................. 13 POINT IV...............................................................................................................14 THE DEPARTMENT OF SANITATION IS NOT A SUABLE ENTITY .................................................................................................... 14 POINT V ................................................................................................................14 THE CSC DEFENDANTS SHOULD BE DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION ...................................... 14 POINT VI...............................................................................................................15 THE CSC DEFENDANTS SHOULD BE DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES ............... 15 Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 2 of 23 PageID #: 77 POINT VII .............................................................................................................16 INJUNCTIVE RELIEF IS NOT AN INDEPENDENT CAUSE OF ACTION ................................................................................................... 16 CONCLUSION ..............................................................................................................................17 Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 3 of 23 PageID #: 78 TABLE OF AUTHORITIES Page(s) Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................................................11 Bay v. Cassens Transp. Co., 212 F.3d 969 (7th Cir. 2000) ...................................................................................................16 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................................11 Burgis v. N.Y.C. Dep’t of Sanitation, 2014 U.S. Dist. LEXIS 44759 (S.D.N.Y. 2014) ......................................................................19 Christopher v. Laidlaw Transit, 899 F. Supp. 1224 (S.D.N.Y. 1995).........................................................................................16 Cummings v. Dean Transp., Inc., 9 F. Supp. 3d 795, 803 (E.D. Mich. 2014) ...............................................................................16 D’Amico v. City of New York, 132 F.3d 145(2d Cir. 1998)......................................................................................................14 Fletcher v. Palazzo, 151 F. App’x 73 (2d Cir. 2005) ...............................................................................................20 Graham v. Connie’s Inc., 1999 U.S. App. LEXIS 5401 (9th Cir. Mar. 25, 1999) ............................................................16 Grant v. County of Erie, 542 Fed. Appx. 21 (2d Cir. 2013) ..............................................................................................9 Graves v. Finch Pruyn & Co., 457 F.3d 181 (2d Cir. 2006).....................................................................................................17 Gray v. Enco-Danesi, 1996 U.S. App. LEXIS 2422 (2d Cir. Jan. 3, 1996) ................................................................20 Katz v. Adecco United States, Inc., 845 F. Supp. 2d 539 (S.D.N.Y. 2012)......................................................................................12 KM Enters. v. McDonald, 2012 U.S. Dist. LEXIS 138599 (E.D.N.Y. Sep. 25, 2012) ......................................................18 Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 4 of 23 PageID #: 79 Lee v. Sony BMG Music Entm’t, Inc., 557 F. Supp. 2d 418 (S.D.N.Y. 2008)......................................................................................11 Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015)...............................................................................................11, 12 Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144 (2d Cir. 2013).....................................................................................................18 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .................................................................................................................11 McElwee v. Cty. of Orange, 700 F.3d 635 (2d Cir. 2012).....................................................................................................12 Myers v. Hose, 50 F.3d 278 (4th Cir. 1995) .....................................................................................................16 Ortiz v. Elgin Sweeping Servs., 2011 U.S. Dist. LEXIS 55041 (N.D. Ill. May 17, 2011) .........................................................16 Ortiz v. Standard & Poor’s, 2011 U.S. Dist. LEXIS 99122 (S.D.N.Y. Aug. 29, 2011) .......................................................16 Pearson-Fraser v. Bell Atl., 2002 U.S. Dist. LEXIS 25216 (S.D.N.Y. Oct. 15, 2002) ........................................................17 Sarmiento v. Queens College, 386 F. Supp. 2d 93 (E.D.N.Y. 2005) .......................................................................................15 Shannon v. Nicholson, 2006 U.S. Dist. LEXIS 14253 (S.D.N.Y. Mar. 31, 2006) .......................................................15 Vinokur v. Sovereign Bank, 701 F. Supp. 2d 276 (E.D.N.Y. 2010) .....................................................................................17 Wilkie v. Golub Corp., 2013 U.S. Dist. LEXIS 136099 (N.D.N.Y. Sep. 24, 2013) .....................................................12 Statutes & Regulations 49 C.F.R. § 391.11(a).....................................................................................................................15 49 C.F.R. § 391.41 (2013) ...........................................................................................12, 13, 14, 15 49 C.F.R. § 391.43 (2013) ...........................................................................................12, 13, 14, 15 17 N.Y.C.R.R. § 820.3 (2013) .................................................................................................14, 15 Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 5 of 23 PageID #: 80 49 U.S.C. § 113 ..............................................................................................................................12 Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112-12117 .................................. passim Federal Rule of Civil Procedure 12(b)(6) ..................................................................................7, 11 N.Y. City Charter § 396 .................................................................................................................19 N.Y. City Charter § 813 .................................................................................................................20 New York City Human Rights Law, Admin. Code §§ 8-101 et seq. ........................................8, 12 New York State Human Rights Law, Exec. Law §§ 290 et seq. ...............................................7, 12 Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 FR 16370 (Apr. 4, 1997), https://www.fmcsa.dot.gov/regulations/title49/section/391.41?guidance ...............................14 Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. ................................................................7, 12 Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 6 of 23 PageID #: 81 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK JOSEPH SCUTERI, Plaintiff, - against - THE CITY OF NEW YORK, THE CITY OF NEW YORK DEPARTMENT OF SANITATION, KATHRYN GARCIA as COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF SANITATION, THE NEW YORK CITY CIVIL SERVICE COMMISSION and NANCY G. CHAFFETZ, as CHAIRPERSON OF THE NEW YORK CITY CIVIL SERVICE COMMISSION, Defendants. 15-CV-05082 (FB) (MDG) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT Defendants New York City Department of Sanitation (“DSNY”) and its Commissioner Kathryn Garcia (together “DSNY defendants”), the New York City Civil Service Commission (“CSC”) and its Chairperson Nancy Chaffetz (together “CSC defendants”), and the City of New York (collectively, “defendants”) respectfully submit this Memorandum of Law and the Declaration of Assistant Corporation Counsel Garrett Kamen, dated June 27, 2016,1 in support of their motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and for other relief as may be just, proper, and equitable. Plaintiff filed this action against defendants alleging disability discrimination and failure to provide a reasonable accommodation. He contends that defendants’ actions violated the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12112-12117; Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq.; New York State Human Rights Law (“SHRL”), Exec. 1 All exhibits referenced below are annexed to this declaration. Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 7 of 23 PageID #: 82 2 Law §§ 290 et seq.; and New York City Human Rights Law (“CHRL”), Admin. Code §§ 8-101 et seq. In particular, plaintiff alleges that defendants wrongfully denied him appointment to the civil service title of Sanitation Worker with the DSNY after a medical examination revealed that he suffered from Diabetes Mellitus Type 1 (“Type 1 Diabetes”) and other secondary medical complications connected to his Type 1 Diabetes. Plaintiff cannot plausibly set forth a claim for disability discrimination or failure to reasonably accommodate a disability. Plaintiff acknowledged in a letter to this Court that he is an insulin-dependent diabetic. Based on that status, it is beyond dispute that federal and state regulations prohibit him from performing an essential function of the job he applied for: namely, operating a DSNY commercial vehicle. These federal and state regulations are beyond the purview of defendants to alter or ignore, and have been promulgated to protect public safety. Potential symptoms of a diabetic using insulin include, among other things, loss of consciousness, blurred vision, shaking, confusion and fatigue and weakness. The possibility of having plaintiff, or anyone else who is an insulin-dependent diabetic, experience one or more of these symptoms while operating a commercial motor vehicle creates enormous safety concerns. Since the ability to lawfully operate a commercial motor vehicle both interstate and intrastate is an essential job function of a Sanitation Worker, plaintiff is not qualified for the position at issue. Plaintiff also fails to state a claim against DSNY defendants and CSC defendants. DSNY defendants must be dismissed as DSNY is not a suable entity. CSC defendants must be dismissed, since plaintiff does not plausibly allege that they participated in any wrongful conduct giving rise to a claim of discrimination or retaliation. In sum, defendants cannot be liable for disability discrimination or failure to reasonably accommodate plaintiff’s alleged disability, and the case must be dismissed. Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 8 of 23 PageID #: 83 3 STATEMENT OF FACTS2 Plaintiff Joseph Scuteri is an unsuccessful applicant for the position of Sanitation Worker with the DSNY. Compl. at ¶ 5. To become a Sanitation Worker, DSNY requires applicants to possess a New York State Commercial Driver License (“NYS CDL”) without a “K” restriction at the time of appointment. See Def. Ex. A (Notice of Examination No. 6063) at 1-2.3 The “K” restriction is an intrastate limitation on the license, i.e., it limits the license holder to “driving in New York State only.”4 DSNY requires Sanitation Workers to possess a NYS CDL without a “K” restriction, because they “must be able to drive interstate” with the DSNY’s commercial motor vehicles. Def. Ex. A (Notice of Examination No. 6063) at 2. To underscore the importance of this requirement, DSNY commands applicants to “disclose any pending license issues that may render [this license] void after [their] appointment to the title of Sanitation Worker” and warns applicants that “[t]his license must be maintained for the duration of [their] employment.” Id. at 2. Plaintiff asserts that he applied for a position as a DSNY Sanitation Worker in 2008. Compl. at ¶ 16(A). He claims that in September 2013 he received a “notice to appear” for a “medical examination on September 16, 2013” in connection with that application. Id. at ¶ 2 This statement of facts is based on the allegations in the Complaint and supplemented by citations to material that may be considered on a motion to dismiss. See Grant v. County of Erie, 542 Fed. Appx. 21, 23 & n.1 (2d Cir. 2013) (ruling that a court resolving a motion to dismiss may consider matters of which judicial notice may be taken, as well as documents attached to or incorporated in the Complaint, and noting that this “Circuit has recognized an exception to the rule that a court must accept all factual assertions as true when attenuated allegations supporting the claim are contradicted by more specific allegations in the Complaint or when a claim is based on wholly conclusory and inconsistent allegations”). 3 Notice of Examination No. 6063 is also available online at http://www.nyc.gov/ html/dcas/downloads/pdf/noes/sanitationworker.pdf (last visited on June 27, 2016). 4 See “K” Restriction, N.Y.S. Department of Motor Vehicles, https://dmv.ny.gov/commercial- drivers/k-restriction (last visited on June 23, 2016). Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 9 of 23 PageID #: 84 4 16(B). During that examination, plaintiff contends that a physician examined him and that he provided “blood tests and was required to respind [sic] to inquiries about any health problems and disabilities he had.” Id. at ¶ 16(C)-(D). Plaintiff alleges that he received a Notice of Medical Disqualification dated January 8, 2014. Compl. at ¶ 16(E). It stated that plaintiff was found not qualified for employment as a Sanitation Worker based on “blood chemistry anomalies indicating target organ pathology - elevated creatinine and urea nitrogen.” Notice of Medical Disqualification, attached to Plaintiff’s Letter to the Court, ECF No. 13-1 (Feb. 20, 2016); Compl. at ¶ 16(E). Plaintiff contends that DSNY “disqualified” him after the medical examination revealed that he suffered from Type 1 Diabetes and other serious secondary medical complications connected to his Type 1 Diabetes. See Compl. at ¶¶ 5, 16(E). Type 1 Diabetes is a chronic condition in which the body produces little to no insulin. See Type 1 Diabetes, National Institutes of Health, https://www.nlm.nih.gov/medlineplus/ency/article/000305.htm (last visited on June 23, 2016). Insulin is a hormone that is needed to convert sugar (glucose) and other food into energy for daily life. See id. Signs and symptoms related to Type 1 Diabetes may include, but are not limited to, blurred vision, fatigue, shaking, confusion, and loss of consciousness. Id.; and An Overview of Type 1 Diabetes: What Are the Symptoms?, WebMD, http://www.webmd. com/diabetes/type-1-diabetes-guide/type-1-diabetes?page=2 (last visited on June 23, 2016). Plaintiff appealed the DSNY medical disqualification to the CSC on February 5, 2014. Compl. at ¶ 16(F). Plaintiff alleges that the CSC affirmed the DSNY decision “disqualifying him from employment as a Sanitation Worker . . . ‘for failure to meet the medical standards for the position’” on April 10, 2015. Compl. at ¶ 16(G). Plaintiff filed a charge of discrimination with the U.S. Equal Employment Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 10 of 23 PageID #: 85 5 Opportunity Commission (“EEOC”) against DSNY and the City of New York on November 4, 2014 for violations of the ADA, and he received a right-to-sue letter from EEOC on June 9, 2015. Id. at ¶ 3. See also Def. Ex. B (EEOC Charge). GOVERNING LAW Plaintiff’s claims should be dismissed pursuant to Rule (12)(6) of the Federal Rules of Civil Procedure. The Court must “accept the material facts alleged in the complaint as true” and draw “all reasonable inferences from its allegations in favor of the plaintiff.” Lee v. Sony BMG Music Entm’t, Inc., 557 F. Supp. 2d 418, 423 (S.D.N.Y. 2008). However, to “survive a motion to dismiss a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of . . . [his] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (quotations, citations and alterations omitted). The complaint must assert “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. Thus, unless a plaintiff’s well-pleaded allegations have “nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Id. In the context of an employment discrimination complaint, the “requirement to plead facts is assessed in light of the presumption in plaintiff’s favor under [McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),] in the first stage of the litigation.” Littlejohn v. City of New York, 795 F.3d 297, 310 (2d Cir. 2015). In other words, to survive a motion to dismiss, the complaint “must be plausibly supported by facts alleged . . . that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 11 of 23 PageID #: 86 6 support for the proposition that the employer was motivated by discriminatory intent.” Id. at 311. ARGUMENT POINT I PLAINTIFF CANNOT ALLEGE DISABILITY DISCRIMINATION BECAUSE HE WAS NOT QUALIFIED FOR THE POSITION Plaintiff fails to plausibly allege that defendants violated the provisions of the ADA, Rehabilitation Act, SHRL, and CHRL that prohibit discrimination by employers against disabled individuals in their hiring. To do so, plaintiff must show (1) membership in a protected class, (2) qualification for the position sought, (3) an adverse employment action, and (4) circumstances giving rise to an inference of discrimination. McElwee v. Cty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012) (the “standards adopted by the [ADA] and [Rehabilitation Act] are nearly identical, [thus] we consider the merits of these claims together”); Katz v. Adecco United States, Inc., 845 F. Supp. 2d 539, 547-48 (S.D.N.Y. 2012) (holding that disability claims under the SHRL and CHRL involve the same elements as under the ADA).5 A. Plaintiff is Not Qualified to be a Sanitation Worker Plaintiff is an insulin-dependent diabetic. Pl. Letter at 4, ECF No. 13 (Feb. 20, 2016). Accordingly, as set forth below, plaintiff is not qualified to be a Sanitation Worker, since federal and state regulations prohibit insulin dependent diabetics from operating commercial vehicles, which was a requirement for the position. Moreover, the applicable regulations offered plaintiff the opportunity to seek an exemption, but he does not plead that he sought such an exemption. 5 The CHRL is a broader statute than the federal laws at issue and the SHRL, in that the CHRL protects persons with an impairment. Nevertheless, even under the CHRL, plaintiff must prove that he was qualified for the position. See Katz, 845 F. Supp. 2d at 547-48. Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 12 of 23 PageID #: 87 7 1. Federal Regulations Federal regulation prohibits insulin-dependent diabetics from operating a commercial motor vehicle interstate. The Federal Motor Carrier Safety Administration (“FMCSA”) is an agency in the United States Department of Transportation (“US DOT”). See 49 U.S.C. § 113. It enacted regulations addressing the minimum medical and physical qualifications for interstate commercial drivers. See 49 C.F.R. § 391.41 and § 391.43 (2013); Wilkie v. Golub Corp., 2013 U.S. Dist. LEXIS 136099, 9 (N.D.N.Y. Sep. 24, 2013) (ruling that the “[US] DOT has promulgated regulations which establish certain qualifications for drivers of commercial motor vehicles in interstate commerce”). Under these regulations, a person interested in engaging in interstate commerce must pass a medical examination demonstrating that he is physically qualified to be a commercial driver. 49 C.F.R. § 391.41(a). Before concluding that the person is physically qualified to be a commercial driver, the medical examiner must determine that the “driver does not have any physical, mental, or organic condition that might affect the driver’s ability to operate a commercial motor vehicle safely.” 49 C.F.R. § 391.43(f). The FMCSA regulations provide a list of thirteen conditions that render an individual not qualified to drive a commercial motor vehicle in interstate commerce. See 49 C.F.R. § 391.41(b). Critically, the regulations state that a person with insulin-dependent diabetes cannot be medically certified to operate a commercial motor vehicle. The regulations specifically declare that “[i]f insulin is necessary to control a diabetic driver’s condition, the driver is not qualified to operate a commercial motor vehicle in interstate commerce.” 49 C.F.R. § 391.43 (emphasis added).6 6 The regulations also declare that “[a] person is physically qualified to drive a commercial vehicle if that person . . . [h]as no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control.” 49 C.F.R. § 391.41(b)(3). Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 13 of 23 PageID #: 88 8 The FMCSA provides the following regulatory guidance to further buttress what the agency describes as its “absolute” ban on insulin-dependent diabetics from operating commercial vehicles: Question 3: What are the physical qualification requirements for operating a [commercial motor vehicle] in interstate commerce? Guidance: The physical qualification regulations for drivers in interstate commerce are found at §391.41. Instructions to medical examiners performing physical examinations of these drivers are found at §391.43. Interpretive guidelines are distributed upon request. The qualification standards cover 13 areas which directly relate to the driving function. All but four of the standards require a judgement [sic] by the medical examiner. A person’s qualification to drive is determined by a medical examiner who is knowledgeable about the driver’s functions and whether a particular condition would interfere with the driver’s ability to operate a [commercial motor vehicle] safely. In the case of vision, hearing, insulin-using diabetes, and epilepsy, the current standards are absolute, providing no discretion to the medical examiner. Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 FR 16370 (Apr. 4, 1997) (emphasis added), also available at https://www.fmcsa.dot.gov/regulations/title49/section/ 391.41?guidance (visited on June 23, 2016). Notably, however, the FMCSA may authorize a formal exemption from the rule prohibiting insulin-dependent diabetics from driving a commercial vehicle. To qualify for this exemption, a candidate must submit an application through the Federal Diabetes Exemption Program. See FMCSA Diabetes Exemption Application, https://www.fmcsa.dot.gov/sites/ fmcsa.dot.gov/files/docs/Diabetes_Exemption_Package0706.pdf (last visited on June 23, 2016). Plaintiff does not indicate that he sought such an exemption, or what the results were of any request he made. See Complaint passim.7 7 If the FMCSA determines that the candidate is eligible for an exemption, the FMCSA is required to publish the candidate request for exemption in the Federal Register twice; this includes a 30 day period for public comment and notification of the FMCSA’s final decision. Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 14 of 23 PageID #: 89 9 2. State Regulations The New York State Department of Transportation has adopted the federal regulations concerning the operation of a commercial motor vehicle by an insulin-dependent diabetic. See 17 N.Y.C.R.R. § 820.3 (2013). It specifically adopted federal regulations 49 C.F.R. §§ 391.41 and 391.43,8 stating that these regulations operate “with the same force and effect as though herein fully set forth at length with respect to drivers operating solely in intrastate commerce.” 17 N.Y.C.R.R. § 820.3(c) (2013). Therefore, insulin-dependent diabetics are prohibited from operating a commercial motor vehicle intrastate in New York. Based on the above-described federal and state regulations, plaintiff is disqualified to the extent the position required operating a commercial motor vehicle. As discussed below, the Notice of Examination set forth that requirement for legitimate reasons. 3. The Relevant Notice of Examination It is well settled that courts “must give considerable deference to an employer’s judgment regarding what functions are essential for service in a particular position.” D’Amico v. City of New York, 132 F.3d 145, 151(2d Cir. 1998); see also Shannon v. Nicholson, 2006 U.S. Dist. LEXIS 14253, 11 (S.D.N.Y. Mar. 31, 2006) (concluding that plaintiff’s “qualifications must still be assessed by reference to the criteria the employer has specified for the position”) (emphasis in original; quotations and citations omitted); Sarmiento v. Queens College, 386 F. Supp. 2d 93, 97 (E.D.N.Y. 2005) (“Whether an individual is qualified for a job must be assessed in relation to the criteria the employer has specified for the position, not criteria that seem reasonable to the litigant.”). Id. at 3. The notice discloses the applicant’s full name, age, basic information related to the applicant’s insulin use to control diabetes, and the type of driving license held. Id. 8 As explained above, 49 C.F.R. § 391.41(b)(3) prohibits an insulin-dependent diabetic from driving interstate, and 49 C.F.R. § 391.43 sets forth FMCSA’s rationale for the prohibition. Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 15 of 23 PageID #: 90 10 Here, the relevant Notice of Examination – i.e., the posting for the position – makes clear that Sanitation Workers (1) must possess a valid NYS CDL without a “K” restriction, since they “must be able to drive interstate” with DSNY’s commercial motor vehicles, (2) must “disclose any pending license issues that may render [the license] void after [their] appointment to the title of Sanitation Worker”; and (3) and are warned that “[t]his license must be maintained for the duration of [their] employment.” Def. Ex. A (Notice of Examination No. 6063) at 1-2. In sum, as indicated in the Notice of Examination to which plaintiff responded, maintenance of a NYS CDL without a “K” restriction is an essential function of the job of Sanitation Worker. Id. at 1-2. Both federal and state regulations generally forbid the issuance of a NYS CDL to a person with diabetes who requires insulin to control that condition. 49 C.F.R. §§ 391.41, 391.43; 17 N.Y.C.R.R. § 820.3. Defendants had no discretion to deviate from these regulations. See, e.g., 49 C.F.R. § 391.11(a) (“a motor carrier shall not require or permit a person to drive a commercial vehicle unless that person is qualified to drive a commercial motor vehicle”) (emphasis added); 29 C.F.R. § 1630.15(e) (providing that compliance with federal regulations is a complete defense for an employer faced with a claim under the ADA). Plaintiff acknowledged to the Court that he is dependent on insulin to control his diabetes. See Pl. Letter, ECF No. 13 (Feb. 20, 2016). Therefore, under the facts alleged, plaintiff could not operate a commercial vehicle without violating federal and state requirements. Accordingly, plaintiff was not qualified to perform the job of Sanitation Worker. See, e.g., Christopher v. Laidlaw Transit, 899 F. Supp. 1224 (S.D.N.Y. 1995) (granting motion to dismiss where plaintiff was found not qualified for employment as school bus driver, since federal and state regulations prohibited him, as an insulin-dependent diabetic, from driving a commercial Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 16 of 23 PageID #: 91 11 vehicle). Other federal courts have reached the same conclusion when resolving whether an insulin-dependent diabetic is qualified for positions involving the operation of commercial vehicles. See, e.g., Bay v. Cassens Transp. Co., 212 F.3d 969 (7th Cir. 2000) (affirming that a truck driver is not otherwise qualified under ADA where he lacked the necessary US DOT certification); Graham v. Connie’s Inc., 1999 U.S. App. LEXIS 5401 (9th Cir. Mar. 25, 1999) (holding that plaintiff was not qualified as a commercial driver due to the fact that he was insulin-dependent diabetic and could not obtain a CDL, which was a prerequisite for the job); Myers v. Hose, 50 F.3d 278, 282-85 (4th Cir. 1995) (holding that a diabetic bus driver subject who failed a DOT medical examination was unable to perform the job’s essential functions); Cummings v. Dean Transp., Inc., 9 F. Supp. 3d 795, 803 (E.D. Mich. 2014) (ruling that “[w]here a plaintiff seeking a commercial driving position cannot obtain the required [US DOT] certifications [because he is an insulin-dependent diabetic] he is not an ‘otherwise qualified’ individual for purposes of the ADA”); Ortiz v. Elgin Sweeping Servs., 2011 U.S. Dist. LEXIS 55041, 9-13 (N.D. Ill. May 17, 2011) (ADA claim by highway sweeper operator who was discharged because his newly diagnosed diabetes prevented renewal of CDL required for US DOT certification was not a qualified individual at the time of his discharge due to his inability to hold a license). B. Plaintiff Cannot Allege Facts That Plausibly Give Rise to Even a Minimal Inference of Discrimination. Even if plaintiff overcame this hurdle, plaintiff has not alleged—and cannot allege—facts giving rise to an inference that the actions alleged were based on discriminatory animus. Plaintiff does not allege a scintilla of evidence to support such an inference of discrimination. He does not cite any statements by defendants suggesting discriminatory intent; nor does he identify any comparators to support his claim. At most, plaintiff alleges that he Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 17 of 23 PageID #: 92 12 suffers from Type 1 Diabetes and that defendants’ refused to hire him for the position of Sanitation Worker. However, even if plaintiff could show he was qualified for the position at issue, caselaw instructs that plaintiff cannot avoid dismissal by merely alleging that he is a member of a protected class and suffered some adverse employment action. See Ortiz v. Standard & Poor’s, 2011 U.S. Dist. LEXIS 99122, 14 (S.D.N.Y. Aug. 29, 2011) (“The fact that plaintiff was (a) fifty-nine years old and (b) terminated, cannot, without more, constitute a plausible age discrimination claim”); Pearson-Fraser v. Bell Atl., 2002 U.S. Dist. LEXIS 25216, 9 (S.D.N.Y. Oct. 15, 2002) (plaintiff “alleges no facts that indicate she was denied a job under circumstances giving rise to an inference of discrimination. Thus, she cannot establish a prima facie case”). As demonstrated above, federal and state regulation preclude plaintiff from being hired for the position of Sanitation Worker. Accordingly, plaintiff cannot allege that defendants acted with discriminatory animus, and his Complaint should be dismissed. POINT II PLAINTIFF FAILS TO ALLEGE THAT DEFENDANTS REFUSED TO PROVIDE HIM A REASONABLE ACCOMMODATION Plaintiff claims that defendants failed to provide him with a reasonable accommodation that would allow him to perform the essential job duties of Sanitation Worker. See Compl. at ¶ 18. To establish such a claim, plaintiff must show that (1) his employer is covered under the statute, (2) he has a disability, (3) he was qualified to perform the essential functions of the job with or without reasonable accommodation, and (4) defendants refused to make such an accommodation. Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006); Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 18 of 23 PageID #: 93 13 Vinokur v. Sovereign Bank, 701 F. Supp. 2d 276, 293 (E.D.N.Y. 2010).9 Plaintiff was not qualified to perform the essential functions of the job with or without reasonable accommodation, since plaintiff could not lawfully operate a commercial motor vehicle interstate or intrastate. See Point I, supra. Even assuming he was qualified to perform the job with a reasonable accommodation, plaintiff does not contend that defendants refused to make such an accommodation. In particular, plaintiff does not allege that he requested an accommodation before he received the January 8, 2014 Notice of Medical Disqualification notifying him that he was found not qualified for employment as a Sanitation Worker. See Notice of Medical Disqualification, attached to Plaintiff’s Letter to the Court, ECF No. 13-1 (Feb. 20, 2016); Compl. at ¶ 16(E). Moreover, as noted earlier, plaintiff himself had the opportunity to request an exemption from otherwise-applicable regulations that preclude his hiring. See Point I, supra. Plaintiff’s refusal to avail himself of that opportunity presumably speaks volumes about the absence of any purportedly reasonable accommodation. In any event, plaintiff does not articulate any specific accommodation in the Complaint that he believes would have assisted him in performing the essential functions of the job. See generally Compl. Accordingly, plaintiff’s claim that defendants failed to provide him a reasonable accommodations should be dismissed. POINT III PLAINTIFF CANNOT SUPPORT HIS TITLE II CLAIMS UNDER THE ADA In the second cause of action, plaintiff alleges that defendants violated Title II of the ADA. Title II states that “no qualified individual with a disability shall . . . be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, 9 Defendants acknowledge that under the CHRL, the question of whether an accommodation is reasonable is an affirmative defense. Admin. Code §§ 8-107(15). Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 19 of 23 PageID #: 94 14 or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. However, the Second Circuit has held that a “public employee may not bring a Title II claim against his or her employer” for employment discrimination, since the ADA “unambiguously limits employment discrimination claims to Title I.” Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 171 (2d Cir. 2013) (emphasis added). Plaintiff previously opined that this Court should defer ruling on this issue, because the “United States Supreme Court has not yet weighed in on this question and other Circuit Courts of Appeals have held to the contrary.” Pl. Letter, ECF No. 13 (Feb. 20, 2016). Plaintiff’s argument should be rejected. Defendants should not be forced to litigate this issue for months – if not years – on the off chance that the U.S. Supreme Court overturns what even plaintiff effectively concedes is black letter law in the Second Circuit. Accordingly, the second cause of action should be dismissed. POINT IV THE DEPARTMENT OF SANITATION IS NOT A SUABLE ENTITY The New York City Charter provides that “all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York, and not that of any agency, except where provided by law.” N.Y. City Charter § 396. The DSNY is a City agency that is not a suable entity. Burgis v. N.Y.C. Dep’t of Sanitation, 2014 U.S. Dist. LEXIS 44759, 12 (S.D.N.Y. 2014). Thus, the DSNY defendants should be dismissed. POINT V THE CSC DEFENDANTS SHOULD BE DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION Each cause of action asserted against the CSC defendants should be dismissed for failure to state a claim. Plaintiff does not allege a single fact in support of his claims against Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 20 of 23 PageID #: 95 15 these defendants. See Compl. at ¶¶ 7-13, 16(F)-(G) (listing all paragraphs referencing the CSC defendants). His entire complaint against them appears to be that CSC affirmed the DSNY determination medically disqualifying him from the position of Sanitation Worker. Id. at ¶ 16(F)- (G). However, he does not allege that the CSC defendants engaged in any wrongdoing in issuing that affirmation. Therefore, the CSC defendants should be dismissed. POINT VI THE CSC DEFENDANTS SHOULD BE DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES Plaintiff did not name the CSC defendants in his EEOC charge. See generally Def. Ex. B (EEOC Charge). Therefore, his claims against them should be dismissed for failure to exhaust administrative remedies. See Gray v. Enco-Danesi, 1996 U.S. App. LEXIS 2422, 2 (2d Cir. Jan. 3, 1996) (holding that in “order to bring either a Title VII or an ADA action, . . . a plaintiff must first file an administrative complaint naming the defendant”); Fletcher v. Palazzo, 151 F. App’x 73, 75 (2d Cir. 2005) (ruling that as a “prerequisite to pursuing a Title VII claim in federal court, a plaintiff must file an EEOC complaint, naming the appropriate party”). Plaintiff does name DSNY in his EEOC charge. However, DSNY and CSC are distinct agencies within the City of New York. DSNY is responsible for garbage collection, street cleaning, and snow removal. See About DSNY, http://www1.nyc.gov/assets/dsny/about/ inside-dsny.shtml (last visited on June 23, 2016). By contrast, CSC is an independent agency. See N.Y. City Charter § 813; About the CSC, http://www1.nyc.gov/site/csc/about/about.page (last visited on June 23, 2016). It decides appeals by applicants, like plaintiff, who have been disqualified for appointment to civil service positions. See CSC Mission Statement, http://www.nyc.gov/html/csc/html/home/home.shtml (last visited on June 23, 2016). The CSC assures that these applicants are treated consistent with civil service laws and the rules and Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 21 of 23 PageID #: 96 16 regulations of the City of New York. Id. It is authorized to affirm, modify, or reverse agency decisions that are appealed to it by these applicants. See id. Therefore, it cannot be reasonably argued that the interests of the CSC and the DSNY are so similar that it would have been unnecessary for plaintiff to have included the CSC in his EEOC charge. Accordingly, plaintiff’s claims against the CSC defendants should be dismissed for failure to exhaust administrative remedies. POINT VII INJUNCTIVE RELIEF IS NOT AN INDEPENDENT CAUSE OF ACTION The sixth cause of action must be dismissed, since an injunction is a remedy and not a separate cause of action. KM Enters. v. McDonald, 2012 U.S. Dist. LEXIS 138599, 58-59 (E.D.N.Y. Sep. 25, 2012) (collecting cases). To the extent that plaintiff argues that this separate cause of action is, in fact, a prayer for relief predicated on the five other causes of action in the complaint, it should still be dismissed as no other substantive claim remains upon which plaintiff can base his request for injunctive relief. Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 22 of 23 PageID #: 97 17 CONCLUSION For the foregoing reasons, defendants respectfully request that the Court issue an order granting their motion to dismiss the complaint, together with such other and further relief as this Court deems just and proper. Dated: New York, New York June 27, 2016 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Defendants 100 Church Street, Room 2-117 New York, New York 10007 (212) 356-2479 gkamen@law.nyc.gov By: GARRETT S. KAMEN Assistant Corporation Counsel Case 1:15-cv-05082-FB-LB Document 31-1 Filed 01/17/17 Page 23 of 23 PageID #: 98 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK JOSEPH SCUTERI, Plaintiff, - against - THE CITY OF NEW YORK, THE CITY OF NEW YORK DEPARTMENT OF SANITATION, KATHRYN GARCIA as COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF SANITATION, THE NEW YORK CITY CIVIL SERVICE COMMISSION and NANCY G. CHAFFETZ, as CHAIRPERSON OF THE NEW YORK CITY CIVIL SERVICE COMMISSION, Defendants. DECLARATION OF GARRETT S. KAMEN IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT 15-CV-05082 (FB) (MDG) Garrett S. Kamen declares, pursuant to 28 U.S.C. § 1746 and under penalty of perjury, that the following is true and correct: 1. I am an Assistant Corporation Counsel in the office of Zachary W. Carter, Corporation Counsel of the City of New York, attorney for defendants New York City Department of Sanitation and its Commissioner Kathryn Garcia, the New York City Civil Service Commission and its Chairperson Nancy Chaffetz, and the City of New York in the above-captioned action. I respectfully submit this declaration in support of defendants’ motion to dismiss the complaint. 2. Annexed as Exhibits “A” to “B” are true and correct copies of documents that are relied upon and cited in the memorandum of law, submitted in support of the motion. 3. The documents are as follows: A. Exhibit A is Notice of Examination No. 6063 bearing bates stamp numbers SCUTERI_D000026 to 28 (“Def. Ex. A (Notice of Examination No. 6063)”). Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 1 of 17 PageID #: 99 2 It is also available online at http://www.nyc.gov/html/dcas/downloads/pdf/ noes/sanitationworker.pdf (last visited on June 27, 2016). B. Exhibit B is plaintiff’s charge of discrimination with the U.S. Equal Employment Opportunity Commission filed on November 4, 2014 bearing bates stamp numbers SCUTERI_D000050-59 (“Def. Ex. B (EEOC Charge)”). Dated: New York, New York June 27, 2016 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Defendants 100 Church Street, Room 2-117 New York, New York 10007 (212) 356-2479 gkamen@law.nyc.gov By: GARRETT S. KAMEN Assistant Corporation Counsel Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 2 of 17 PageID #: 100 Exhibit A Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 3 of 17 PageID #: 101 SCUTERI_D000026 Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 4 of 17 PageID #: 102 SCUTERI_D000027 Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 5 of 17 PageID #: 103 SCUTERI_D000028 Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 6 of 17 PageID #: 104 Exhibit B Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 7 of 17 PageID #: 105 SCUTERI_D000050 Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 8 of 17 PageID #: 106 SCUTERI_D000051 Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 9 of 17 PageID #: 107 SCUTERI_D000052 Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 10 of 17 PageID #: 108 SCUTERI_D000053 Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 11 of 17 PageID #: 109 SCUTERI_D000054 Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 12 of 17 PageID #: 110 SCUTERI_D000055 Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 13 of 17 PageID #: 111 SCUTERI_D000056 Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 14 of 17 PageID #: 112 SCUTERI_D000057 Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 15 of 17 PageID #: 113 SCUTERI_D000058 Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 16 of 17 PageID #: 114 SCUTERI_D000059 Case 1:15-cv-05082-FB-LB Document 31-2 Filed 01/17/17 Page 17 of 17 PageID #: 115