# Dossous v. NYC Health & Hospitals

> District Court, E.D. New York · September 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10304882

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10304882

## How later opinions describe it (automated extraction)

- noting that even after Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”
- applying McDonnell Douglas framework to ADA discrimination claim

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------
LOUIS DOSSOUS,

Plaintiff, MEMORANDUM & ORDER
19-CV-3098 (MKB)
v.

NYC HEALTH & HOSPITALS,

Defendant.
---------------------------------------------------------------
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304882. Public record. Not legal advice.