Dossous v. NYC Health & Hospitals

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LOUIS DOSSOUS,

Plaintiff, MEMORANDUM & ORDER

19-CV-3098 (MKB)

v.

NYC HEALTH & HOSPITALS,

Defendant.

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MARGO K. BRODIE, United States District Judge:

Plaintiff Louis Dossous, proceeding pro se, commenced the above-captioned action on

May 23, 2019, against Defendant the New York City Health and Hospitals Corporation, pursuant

to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”).1 (Compl.,

Docket Entry No. 1.) Plaintiff asserts that Defendant, his former employer, declined to

accommodate his disability (a back injury) by, inter alia, terminating his employment and

declining to re-hire him after a medical examination. (Id. at 4–10.) He also alleges that

Defendant declined to promote him, retaliated against him, and subjected him to unequal terms

of employment. (Id. at 5.)

Defendant moves to dismiss the Complaint for failure to state a claim upon which relief

may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Def.’s Mot.

to Dismiss, Docket Entry No. 13; Def.’s Mem. in Supp. of Def.’s Mot. (“Def.’s Mem.”), Docket

Entry No. 14; Decl. in Supp. of Def.’s Mot., Docket Entry No. 15.) Plaintiff opposes the motion

to dismiss. (Pl.’s Mem. in Opp’n to Def.’s Mot. (“Pl.’s Opp’n”), Docket Entry No. 17.) For the

1 On September 3, 2019, the Court granted Plaintiff’s application to proceed in forma

pauperis pursuant to 28 U.S.C. § 1915(a). (Order dated Sept. 3, 2019, Docket Entry No. 4.)

reasons explained below, the Court denies in part and grants in part the motion to dismiss.

Plaintiff may proceed with his discrimination claim based on his termination.

I. Background

The Court assumes the truth of the factual allegations in the Complaint and Plaintiff’s

opposition for the purposes of this Memorandum and Order. See Walker v. Schult, 717 F.3d 119,

122 n.1 (2d Cir. 2013) (finding that district courts may consider factual allegations made by a

pro se party in his papers opposing a motion to dismiss).

Plaintiff alleges that Defendant, his former employer, failed to provide reasonable

accommodations for his disability both before and after he hurt his back. (Compl. 5.) Defendant

had ignored his request for accommodations, which caused him to become reinjured, exacerbated

his existing “psychiatric symptoms,” and caused new ones. (Id. at 4.) Defendant had “never

been committed” to accommodating his disability and providing him with an equal opportunity

to work. Instead, Defendant’s “choice was to discriminate against [his] disability before and

after [he] injured [his] lower back twice at work.” (Id. at 5.)

On August 21, 2018, Plaintiff filed a complaint with the New York State Division of

Human Rights (the “NYSDHR”), which, in a determination attached to the Complaint, found no

probable cause to believe that Defendant discriminated against Plaintiff.2 (Id. at 9–11.) Plaintiff

told the NYSDHR that he was a patient care technician until he injured his back at work in May

of 2007 and Defendant placed him on Workers’ Compensation leave. (Id.) Then, in August of

2 The Court considers the NYSDHR determination that Plaintiff attached to the

Complaint. See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230–31 (2d Cir. 2016) (holding that

on a motion to dismiss, courts may consider “any written instrument attached to [the complaint]

as an exhibit or any statements or documents incorporated in it by reference” and other

documents “integral” to the complaint (quoting Chambers v. Time Warner, Inc., 282 F.3d 147,

152 (2d Cir. 2002))).

2018, Defendant denied him reinstatement because of his age and preexisting back injury.3 (Id.

at 9.) Defendant told the NYSDHR that Plaintiff was separated from employment because a

medical examination revealed that he could not perform the essential functions of his job. (Id. at

9–10.) The Equal Employment Opportunity Commission adopted the findings of the NYSDHR

and provided Plaintiff with a right to sue letter dated May 15, 2019. (Id. at 6, 8 (Right to Sue

Letter, Docket Entry No. 1.)).

Plaintiff seeks $500,000 in compensatory and punitive damages, as well as reinstatement

to his position. (Id. at 6.)

II. Discussion

a. Standard of review

In reviewing a motion to dismiss under Rule 12(b)(6), a court must construe the

complaint liberally, “accepting all factual allegations in the complaint as true, and drawing all

reasonable inferences in the plaintiff’s favor.” Kim v. Kimm, 884 F.3d 98, 103 (2d Cir. 2018)

(quoting Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002)); see also Tsirelman

v. Daines, 794 F.3d 310, 313 (2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep’t of Educ., 131

F.3d 326, 329 (2d Cir. 1997)). A complaint must plead “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is

plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631

F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all

3 The Court accepts Plaintiff’s version of the facts as true in evaluating this motion to

dismiss. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). The Court

notes, however, that Defendant asserts that it released Plaintiff from his position after one year

and Plaintiff sought reinstatement (Def.’s Mem. 5), while the Complaint can be construed as

stating that Plaintiff was on disability leave until he sought reinstatement in 2018.

allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal

conclusions.” Iqbal, 556 U.S. at 678.

In reviewing a pro se complaint, the court must be mindful that a plaintiff’s pleadings

should be held “to less stringent standards than formal pleadings drafted by lawyers.” Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106

(1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, the

court “remain[s] obligated to construe a pro se complaint liberally”).

b. Plaintiff’s ADA claims

In a form complaint, Plaintiff checks boxes indicating that he is bringing a claim under

the ADA and that the discriminatory conduct he complains of consists of (1) termination of his

employment, (2) failure to promote him, (3) failure to accommodate his disability, (4) unequal

terms and conditions of employment, and (5) retaliation. (Compl. 3–4.) He also alleges that

Defendant is still committing these wrongful acts against him. (Id. at 5.)

Defendant argues that Plaintiff was legitimately terminated from his position and is not

entitled to reinstatement under section 71 of the Civil Service Law because he had admitted

during a medical examination that he could not perform his position even with accommodations.

(Def.’s Mem. 4–7.)

For the reasons explained below, the Court finds that Plaintiff has sufficiently alleged

discrimination based on his termination but has failed to allege claims of failure to promote,

unequal terms and conditions of employment, and retaliation.

ADA employment discrimination claims are assessed using the burden-shifting

framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). Fox v. Costco Wholesale Corp., 918 F.3d 65, 71 (2d Cir. 2019); Burke v. N.Y.C.

Transit Auth., 758 F. App’x 192, 194 (2d Cir. 2019) (applying the burden-shifting framework to

analyze the plaintiff’s ADA employment discrimination claim); Littlejohn v. City of N.Y., 795

F.3d 297, 307–09 (2d Cir. 2015) (discussing burden-shifting) (citing Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133 (2000)); Davis v. N.Y.C. Dep’t of Educ., 804 F.3d 231, 235

(2d Cir. 2015) (applying McDonnell Douglas framework to ADA discrimination claim). Under

the framework, a plaintiff must first establish a prima facie case of discrimination by showing

that: “(1) the employer is subject to the ADA; (2) the plaintiff is disabled within the meaning of

the ADA or perceived to be so by her employer; (3) she was otherwise qualified to perform the

essential functions of the job with or without reasonable accommodation; (4) she suffered an

adverse employment action; and (5) the adverse action was imposed because of her disability.”

Davis, 804 F.3d at 235; Dooley v. JetBlue Airways Corp., 636 F. App’x 16, 21 (2d Cir. 2015).

If the plaintiff meets this “minimal” burden, Holcomb v. Iona College, 521 F.3d 130, 139

(2d Cir. 2008) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)), a “temporary

‘presumption’” of discrimination arises, and the burden shifts to the defendant-employer to

articulate a legitimate, nondiscriminatory reason for the challenged conduct, Vega v. Hempstead

Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015) (quoting Littlejohn, 795 F.3d at 307). If

the defendant-employer articulates such a reason, the burden shifts back to the plaintiff to show

that the defendant-employer’s reason was pretext for the discrimination. Id. at 83.

At the pleading stage, however, “the plaintiff does not need substantial evidence of

discriminatory intent,” and need only “sustain a minimal burden of showing facts suggesting an

inference of discriminatory motivation.” Littlejohn, 795 F.3d at 311; see also Burke, 758 F.

App’x at 194 (holding that to state an ADA employment discrimination claim, “a plaintiff must

allege an adverse employment action that occurred under circumstances giving rise to an

inference of discrimination”); Vega, 801 F.3d at 87 (“[A] plaintiff must allege that the employer

took adverse action against her at least in part for a discriminatory reason, and she may do so by

alleging facts that directly show discrimination or facts that indirectly show discrimination by

giving rise to a plausible inference of discrimination.”). “[A] plaintiff ‘need only give plausible

support to a minimal inference of discriminatory motivation.’” Id. at 84 (quoting Littlejohn, 795

F.3d at 311)).

However, “a discrimination complaint . . . must [still] at a minimum assert nonconclusory

factual matter sufficient to ‘nudge its claims . . . across the line from conceivable to plausible’ to

proceed.” E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014) (alterations

and citations omitted) (quoting Iqbal, 556 U.S. at 680); see also Giambattista v. Am. Airlines,

Inc., 584 F. App’x 23, 25 (2d Cir. 2014) (“To state a claim for discrimination under the ADA, a

plaintiff must allege facts which plausibly suggest, inter alia, that she ‘suffered [an] adverse

employment action because of [her] disability.’” (alterations in original) (quoting Giordano v.

City of N.Y., 274 F.3d 740, 747 (2d Cir. 2001))). The ADA defines “disability” as “(A) a

physical or mental impairment that substantially limits one or more major life activities of such

individual; (B) a record of such impairment; or (C) being regarded as having such an

impairment.” 42 U.S.C. § 12102(1).

i. Plaintiff has plausibly alleged an ADA discrimination claim based on

his termination

Defendant is an employer subject to the ADA, satisfying the first element of a prima facie

case, see Giordano, 274 F.3d at 747, and Plaintiff alleges that Defendant perceived him to be

disabled, (Compl. 5), thereby satisfying the second element. See Alleyne v. NAACP Legal Def.

& Educ. Fund, Inc., No. 14-CV-6675, 2015 WL 6869731, at *7 (E.D.N.Y. Nov. 6, 2015) (“Even

absent an actual or recorded disability, an employee is still disabled if the employee is ‘regarded

as having such an impairment.’” (quoting 42 U.S.C. § 12102)).

In addition, Plaintiff alleges that Defendant engaged in an adverse employment action

when it terminated him. See Davis, 804 F.3d at 235 (“[A]dverse employment action” means a

“materially adverse” change in “the terms and conditions of employment.” (quoting Sanders v.

N.Y.C. Hum. Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004)); Terry v. Ashcroft, 336 F.3d 128,

138 (2d Cir. 2003) (“Examples of materially adverse changes include ‘termination of

employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a

material loss of benefits, significantly diminished material responsibilities, or other

indices . . . unique to a particular situation.’” (quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d

636, 640 (2d Cir. 2000))); see also Robinson v. Dibble, 613 F. App’x 9, 12 (2d Cir. 2015)

(termination of employment).

Moreover, Plaintiff alleges that he was terminated as a result of his back injury, and that

Defendant refused to provide any accommodation at work.4 See Howard v. MTA Metro-N.

Commuter R.R., 866 F. Supp. 2d 196, 204 (S.D.N.Y. 2011) (noting that inference of

discrimination “is a ‘flexible [standard] that can be satisfied differently in differing factual

scenarios.’” (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996));

Littlejohn, 795 F.3d at 311 (“The facts required . . . to be alleged in the complaint need not give

plausible support to the ultimate question of whether the adverse employment action was

attributable to discrimination. They need only give plausible support to a minimal inference of

discriminatory motive.”); Opoku v. Brega, No. 15-CV-2213, 2016 WL 5720807, at *5 (S.D.N.Y.

Sept. 30, 2016) (“Courts making the plausibility determination should do so ‘mindful of the

4 The Court acknowledges that Plaintiff, in his opposition, alleges that he “neither

resigned nor formally received a letter of termination from [D]efendant,” and has “never been

legally separated from his job.” (Pl.’s Opp’n 4.) However, Plaintiff articulates that, at

minimum, he faces imminent separation from his job because of Defendant’s medical exam. (Id.

at 2.)

elusive nature of intentional discrimination’ and the concomitant frequency by which [the]

plaintiffs must ‘rely on bits and pieces of information to support an inference of discrimination,

i.e., a “mosaic” of intentional discrimination.’” (quoting Vega, 801 F.3d at 86). Although brief,

these allegations meet Plaintiff’s “minimal” burden at the pleading stage as to his discrimination

claim based on his termination. Holcomb, 521 F.3d at 139 (quoting St. Mary’s Honor Ctr., 509

U.S. at 506).

Accordingly, Plaintiff has sufficiently alleged a discrimination claim based on his

termination.

ii. Plaintiff fails to allege claims for failure to promote, unequal terms

and conditions of employment, and retaliation

Plaintiff fails to plausibly state claims for failure to promote, unequal terms and

conditions of employment, and retaliation.

Plaintiff alleges failure to promote, unequal terms and conditions of employment, and

retaliation by checking boxes in the form complaint without adding any supporting facts.

(Compl. 4.) As to these claims, Plaintiff has failed to “assert nonconclusory factual matter

sufficient to “‘nudge[ ] [his] claims’ . . . ‘across the line from conceivable to plausible.’” Port

Auth. of N.Y. & N.J., 768 F.3d at 254 (first and third alterations in original) (quoting Iqbal, 556

U.S. at 680). Accordingly, the Court grants Defendant’s motion to dismiss Plaintiff’s failure to

promote, unequal terms and conditions of employment, and retaliation claims.

iii. Defendant’s asserted legitimate, nondiscriminatory basis for

terminating Plaintiff is not properly addressed on a motion to dismiss

Defendant argues that it has a nondiscriminatory reason for its employment decision —

that Plaintiff sought reinstatement under section 71 of the Civil Service Law, and that he was not

qualified for reinstatement because he conceded during a medical exam that he could not

perform the duties of his former position with a reasonable accommodation. (Def.’s Mem.) In

support, Defendant submits letters from Plaintiff’s doctor stating that Plaintiff could “return to

work on light duty” but was to “avoid any heavy lifting, pushing, pulling and/or strenuous

activities,” and from a doctor who examined Plaintiff, stating that “[Plaintiff] specifically told

[the doctor] that he is not capable of performing the job of patient care technician.” (Letters

from Dr. Timur Hanan, Docket Entry No. 15-1; Letter from Dr. Gross; Docket Entry No. 15-2.)

Defendant also argues that based on the doctors’ letters, no reasonable accommodation would

allow Plaintiff to perform his former job. (Def.’s Reply in Supp. of Def.’s Mot. (“Def.’s Reply”)

8–9, Docket Entry No. 18.) Defendant does not explain why the Court should consider this

information on a motion to dismiss but asserts generally that Defendant relies on the Complaint,

documents attached to it, and “documents of which judicial notice may be taken.” (Def.’s Mem.

n.1.) In effect, Defendant asks the Court to take judicial notice of (1) the requirements of section

71 of the Civil Service Law, (2) the outcome of the application of that section to Plaintiff, and

(3) the accuracy of that outcome.

In opposition, Plaintiff contests that he told the examining doctor any such thing and

asserts that the doctor had informed him “that he was going to make a recommendation for a

reasonable accommodation; but [Defendant’s Personnel Review Board] told him not to.”5 (Pl.’s.

Opp’n 2.)

5 Plaintiff notes that he received training in medical billing and coding during his period

of medical leave, (Pl.’s Opp’n 3), which could be liberally construed as an assertion that he is

qualified to perform a different position. “The ADA lists reassignment to an existing, vacant

position as a possible reasonable accommodation, 42 U.S.C. § 12111(9)(B), but the ADA does

not require creating a new position for a disabled employee.” Graves v. Finch Pruyn & Co., 457

F.3d 181, 187 (2d Cir. 2006). Accordingly, to the extent he argues that he should be hired into a

newly created position, his argument lacks merit.

A court may take judicial notice of “a fact that is not subject to reasonable dispute

because it . . . can be accurately and readily determined from sources whose accuracy cannot

reasonably be questioned” or commonly known within the court’s jurisdiction. Fed. R. Evid.

201; Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70–71 (2d

Cir. 1998). Examples of judicially noticeable sources include, inter alia, court opinions, public

filings by and with federal agencies, and testimonies. See, e.g., Bristol v. Nassau Cnty., 685 F.

App’x 26, 28 (2d Cir. 2017) (taking judicial notice of decisions in related state criminal

proceedings); Glob. Network Commc’ns, Inc. v. City of N.Y., 458 F.3d 150, 157 (2d Cir. 2006)

(testimony); Int’l Star Class Yacht Racing Ass’n, 146 F.3d at 70–71 (court opinions); Kramer v.

Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991) (filings with the Securities and Exchange

Commission). A court may take judicial notice of a document for the document’s existence “but

not for the truth of the matters asserted.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007);

Glob. Network Commc’ns, Inc., 458 F.3d at 157 (“[A]lthough . . . [the] testimony may be public

record[] of which a court may take judicial notice, ‘it may do so . . . only to establish the

existence of the opinion, not for the truth of the facts asserted in the opinion.’” (quoting Kramer,

937 F.2d at 774)). A court may take judicial notice of administrative records to establish the fact

of the proceedings and the outcome but not for the truth of the matters within them. Colvin v.

State Univ. Coll. at Farmingdale, No. 13-CV-3595, 2014 WL 2863224, at *16 (E.D.N.Y. June

19, 2014) (citing Kramer, 937 F.2d at 774).

“[A] district court may rely on matters of public record in deciding a motion to dismiss

under Rule 12(b)(6), including . . . statutes.” Williams v. N.Y.C. Hous. Auth., 816 F. App’x 532,

534 (2d Cir. 2020) (quoting Kramer, 937 F.2d at 774). Thus, the Court may take judicial notice

of Section 71, which provides, in relevant part, that:

Where an employee has been separated from the service by reason

of a disability . . . he or she shall be entitled to a leave of absence for

at least one year, unless his or her disability is of such a nature as to

permanently incapacitate him or her for the performance of the

duties of his or her position. . . . Such employee may, within one

year after the termination of such disability, make application to the

civil service department or municipal commission having

jurisdiction over the position last held by such employee for a

medical examination to be conducted by a medical officer selected

for that purpose by such department or commission. If, upon such

medical examination, such medical officer shall certify that such

person is physically and mentally fit to perform the duties of his or

her former position, he or she shall be reinstated to his or her former

position, if vacant, or to a vacancy in a similar position or a position

in a lower grade in the same occupational field, or to a vacant

position for which he or she was eligible for transfer.

N.Y. Civ. Serv. § 71 (McKinney); see also Felix v. N.Y.C. Transit Auth., 324 F.3d 102, 104 (2d

Cir. 2003) (“Civil Service Law [section] 71 . . . authorizes the termination of a civil service

employee who has been unable to return to work for a year.”). Where undisputed, dismissal

under section 71 “is a legitimate, nondiscriminatory basis for . . . termination.” Morris v. Town

of Islip, No. 12-CV-2984, 2014 WL 4700227, at *15 (E.D.N.Y. Sept. 22, 2014) (granting

summary judgment for [the] defendant).

However, the Court cannot take judicial notice of Defendant’s assertion that Plaintiff was

properly terminated under section 71. Although the Court may take judicial notice of the

existence of the doctor’s letter asserting that Plaintiff is unfit to return to work, it cannot do so

for the truth of the matters asserted in the letter. See Liberty Mut. Ins. Co. v. Rotches Pork

Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992) (finding that court cannot rely on a document

filed in another court “to establish facts asserted therein”); Rosseter v. Annetts, No. 10-CV-1097,

2012 WL 4486082, at *14 (N.D.N.Y. June 29, 2012) (taking judicial notice that medical records

were filed, but “declin[ing] to consider these records . . . for the purpose of determining [the

defendants’] motion to dismiss), report and recommendation adopted, No. 10-CV-1097, 2012

WL 4482858 (N.D.N.Y. Sept. 27, 2012).

Further, Plaintiff argues that his termination under section 71 was a pretext for disability

discrimination because he was fit to return to work with accommodations but Defendant

pressured the doctor examining him into declaring him unfit to return. See Vega, 801 F.3d at 83.

Plaintiff does not concede that he was properly dismissed under that section, and judicial notice

of the truth of Defendant’s claims is not appropriate. Cf. Meyer v. William Floyd Union Free

Sch. Dist., No. 07-CV-2524, 2008 WL 4415271, at *6 (E.D.N.Y. Sept. 24, 2008) (granting

motion to dismiss ADA claim where “Plaintiff . . . [did] not respond whatsoever to [the]

[d]efendants’ argument that [d]efendants terminated Plaintiff pursuant to the Civil Service

Law.”).

iv. Article 78 is not the exclusive remedy for Plaintiff’s claim

Defendant argues that, to the extent Plaintiff challenges his discharge pursuant to section

71, his sole remedy is to file a proceeding in state court pursuant to Article 78 of the New York

Civil Practice Law and Rules (“Article 78”). (Def.’s Mem. 8.)

Plaintiff argues that he is bringing an ADA claim, not an Article 78 claim. (Pl.’s Opp’n

2.)

An available Article 78 remedy does not supplant federal remedies under the ADA or

require an ADA plaintiff to bring his claims in state court. See Purcell v. N.Y. Inst. of Tech. -

Coll. of Osteopathic Med., 931 F.3d 59, 64 (2d Cir. 2019) (reversing district court’s grant of

motion to dismiss in relevant part as to the plaintiff’s ADA claims and holding that “an Article

78 Proceeding brought in New York state court” was not “the exclusive remedy for [the

plaintiff’s] alleged wrongs”); Sass v. MTA Bus Co., 6 F. Supp. 3d 238, 252 n.5 (E.D.N.Y. 2014)

(distinguishing “case law limiting specific performance in the context of breach of contract

claims,” which generally restricted the plaintiffs to Article 78 proceedings, from suit seeking

“reinstatement [a]s an equitable remedy designed to redress statutorily-proscribed

discrimination”). “New York cannot ‘nullify a federal right or cause of action [it] believe[s] is

inconsistent with [its] local policies.’” Purcell, 931 F.3d at 64 (alterations in original) (quoting

Haywood v. Drown, 556 U.S. 729, 736 (2009))). Therefore, because Plaintiff has chosen to

bring his claims in federal court under the ADA, the Court may consider them under that statute.

III. Conclusion

For the reasons set forth above, the Court denies the motion to dismiss as to Plaintiff’s

ADA discrimination claim based on his termination and otherwise dismisses the action for

failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk of Court is directed

to mail a copy of this Memorandum and Order to Plaintiff at the address of record. The Court

certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and

therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v.

United States, 369 U.S. 438, 444–45 (1962).

Dated: September 25, 2020

Brooklyn, New York

SO ORDERED:

s/ MKB

MARGO K. BRODIE

United States District Judge