Gentile v. Touro Law Center

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JAMES S. GENTILE,

Plaintiff, MEMORANDUM & ORDER

21-CV-1345 (JS)(ARL)

-against-

TOURO LAW CENTER,

Defendant.

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APPEARANCES

For Plaintiff: James S. Gentile, Esq., pro se

166 Dahlia Drive

Mastic Beach, New York 11951

For Defendant: Janice Sued Agresti, Esq.

Cozen O’Connor

3WTC 175 Greenwich Street, 55th Floor

New York, New York 10007

Mariah L. Passarelli, Esq.

Cozen O’Connor

One Oxford Centre, 41st Floor

301 Grant Street

Pittsburgh, Pennsylvania 15219

Michael B. Newman, Esq.

500 Seventh Avenue, Fourth Floor

New York, New York 10018

SEYBERT, District Judge:

Touro Law Center (“Defendant” or “Touro”) moves,

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,

to dismiss the Complaint of Plaintiff James S. Gentile

(“Plaintiff”) (hereafter, the “Motion”). (See Motion, in toto,

ECF No. 32.) For the reasons that follow, Defendant’s Motion is

GRANTED to the extent Plaintiff’s Complaint is dismissed WITHOUT

prejudice and with leave to amend within 30 days of this Order.

BACKGROUND1

Plaintiff’s Complaint was filed on the Court’s form

complaint for employment discrimination claims. In his Complaint,

Plaintiff gives his date of birth as 1964. (Compl. at 5.)

Plaintiff alleges that he is “a person with two qualifying

disabilities,” one of which is “diabetes.” (Id. at 5, 8.)

Plaintiff avers that “[o]n or about October 2018” he “responded to

an ad on the employment website Indeed.com for a position” at

Touro. (Id. at 8.) Plaintiff applied for the position of Director

of the Veteran Affair’s Clinic (hereafter, the “VA Director” or

the “VA Position”) and interviewed for that role later that month.

(Id.)

Plaintiff states that, due to his disabilities, he

“cannot stand for long periods, and need[s] to use the elevators

rather than the stairs.” (Id.) Plaintiff further alleges that

Defendant was twice “notified of [his disability,] [first] during

the application process, and [then] at the verbal interview.”

(Id.) Plaintiff contends that the position he applied for “would

not require standing for any length of time, and [that] the

1 The following facts are drawn from Plaintiff’s Complaint and are

accepted as true for purposes of this Motion; moreover, all

reasonable inferences are drawn in favor of the Plaintiff.

building has easy elevator access.” (Id.) Further, Plaintiff

notes that during the interview, he “discussed the facilities of

the law center” with the interviewer “and it was understood that

[the facilities] were adequate for [Plaintiff’s] needs.” (Id.)

Plaintiff alleges that “[a]fter the initial interview [he] was

informed by [the] interviewer that [he] was the best qualified

candidate for the position, but [that] the Dean of the center would

have the final say.” (Id.) Additionally, Plaintiff was told by

the interviewer that “after a second interview with the [D]ean,

the job would be available beginning in January 2019.” (Id.)

After several weeks, Plaintiff was informed via

telephone that he was not the successful candidate and “that the

Dean had decided to hire someone else with more combat military

experience and service related medals.” (Id.) Plaintiff contends

that “the position [had] nothing to do with combat planning or

execution,” and that “[d]uring [his] hourlong interview in October

there was virtually no discussion about [his] military service or

medals awarded.” (Id.) Plaintiff states that he has military

experience having served as “a nuclear weapons specialist, with

the highest possible security clearance.” (Id.) Plaintiff alleges

that the interviewer told him that “he agreed with [Plaintiff’s]

contention that the position ha[d] nothing to do with any combat

or military honors, [] that he still believed [Plaintiff] was the

best qualified candidate for the position” and that the interviewer

had gone “to bat for [Plaintiff], and argued with the Dean that

[Plaintiff] should be hired.” (Id.) Nevertheless, Plaintiff avers

that the interviewer said that “the Dean dismissed him and hired

the other person on his own authority.” (Id.)

Plaintiff asserts that the candidate Defendant

ultimately hired was “a far less qualified, younger person with no

disabilities,” who “was not even a lawyer in the military, and was

only admitted to the bar for about one year prior.” (Id. at 8, 9

(emphasis in original).) Conversely, Plaintiff has “been an

attorney in good standing for 18 years.” (Id. at 9.)

Further, Plaintiff alleges that one of the reasons he

applied to the VA Position was because of “the importance of [the]

medical benefits being offered.” (Id. at 8.) By way of context,

Plaintiff states that several months after the interview, he was

“hospitalized due to a heart problem aggravated by [his] diabetes.”

(Id. at 8.) As a result of his hospital stay, “and lack of

insurance,” Plaintiff states that he “now owe[s] [] over $60,000

in medical bills.” (Id.)

Plaintiff avers that since he pursued legal action,

Defendant’s “position and explanations about the situation ha[ve]

drastically changed” including “that some other unknown

person . . . was offered the position after” Plaintiff, “that the

Dean, who supposedly declined [Plaintiff’s] application, was never

even informed that [Plaintiff] was a candidate,” and “that the

last several people who held the position had little or no combat

experience or were particularly decorated with medals.” (Id.)

Plaintiff states that Defendant “stressed that ‘veteran’

status was important for the job” but that Defendant is “twisting

the meaning of veteran to suit [its] narrative.” (Id. at 9.)

According to Plaintiff, Defendant is interpreting veteran to mean

“experience with combat and current active duty military

experience” instead of “a person who has served and has been

discharged.” (Id. at 9.)

In terms of relief sought, Plaintiff demands:

(1) “Appointment as” VA Director; (2) “Past earnings of $140,000;”

(3) “Compensation for medical costs of $65,000;” (4) “Compensation

for medical insurance premiums;” (5) “Any financial incentives,

bonuses or other monetary compensation paid out to [the VA]

[P]osition from 1/1/18;” (6) “Any other compensation or damages

the Court may deem appropriate;” and (7) “Punitive damages [] based

on [Defendant’s] attempts to modify [the] facts of [the] situation

to avoid responsibility for discriminatory practices, if the facts

warrant such damages.” (Id. at 10.)

PROCEDURAL HISTORY

On November 14, 2019, Plaintiff filed a charge with the

Equal Employment Opportunity Commission. (Compl. at 6.) Plaintiff

was issued a right-to-sue letter on January 6, 2021. (Id.; see

also id. at 14.) On March 12, 2021, Plaintiff filed his Complaint

pursuant to the Age Discrimination in Employment Act of 1967

(hereafter, the “ADEA”), as codified, 29 U.S.C. §§ 621 to 634, and

the Americans with Disabilities Act of 1990 (hereafter, the “ADA”),

as codified, 42 U.S.C. §§ 12112 to 12117. (Id. at 1, 3.) On

January 18, 2022, after being granted an extension of time to serve

his Complaint, Plaintiff served Defendant. (See Apr. 12, 2022

Elec. Order.)

With leave of the Court, (see May 24, 2022 Elec. Order),

Defendant filed the instant Motion. Plaintiff filed his opposition

on August 30, 2022, attaching six exhibits not previously presented

to the Court (hereafter, the “Extrinsic Evidence”). (Opp’n, ECF

No. 35; see also Extrinsic Evidence at ECF No. 35, 24-38 (Docs. 1-

6), attached to Opp’n.) The extrinsic evidence consists of: (1) a

doctor’s letter stating that Plaintiff was diagnosed with diabetes

in 2018; (2) Plaintiff’s resume; (3) a job posting for the VA

Position; (4) two press releases from Defendant regarding

charitable events in which the current VA Director Chad H. Lennon

(hereafter “Lennon”) participated; and (5) a publicly available

copy of Lennon’s resume. (Id.) Defendant’s reply in support of

its Motion was filed on September 22, 2022. (Reply, ECF No. 38.)

ANALYSIS

I. Legal Standard

When considering a motion to dismiss under Rule

12(b)(6), the Court must “accept as true all factual statements

alleged in the complaint and draw all reasonable inferences in

favor of the non-moving party.” McCarthy v. Dun & Bradstreet

Corp., 482 F.3d 184, 191 (2d Cir. 2007). To survive a motion to

dismiss under Rule 12(b)(6), a complaint must state “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.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). Consequently, a complaint is

properly dismissed where, as a matter of law, “the allegations in

a complaint, however true, could not raise a claim of entitlement

to relief.” Twombly, 550 U.S. at 558. Similarly, a complaint is

also properly dismissed “where the well-pleaded facts do not permit

the court to infer more than the mere possibility of misconduct.”

Iqbal, 556 U.S. at 679. “Although all allegations contained in

the complaint are presumed true” at the motion to dismiss stage,

“this principle is ‘inapplicable to legal conclusions’ or

‘[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.’” Szewczyk v. City of

N.Y., No. 15-CV-918, 2016 WL 3920216, at *2 (E.D.N.Y. July 14,

2016) (alteration in original) (quoting Iqbal, 556 U.S. at 678).

Where “[a] plaintiff proceeds pro se . . . a court is

obliged to construe his pleadings liberally.” McEachin v.

McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). However, where the

pro se plaintiff is a lawyer, “he is not entitled to the special

solicitude given to pro se litigants.” Azaryev v. City of N.Y.,

No. 21-CV-3909, 2021 WL 3861773, at *2 (E.D.N.Y. Aug. 27, 2021)

(citing Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010)).

II. Discussion

A. Plaintiff’s Extrinsic Evidence is not Considered Part of

the Pleadings

As an initial matter, the Court first determines whether

it can consider the extrinsic evidence attached to Plaintiff’s

Opposition in deciding Defendant’s Motion.

“If, on a motion under Rule 12(b)(6) . . . matters

outside the pleadings are presented to and not excluded by the

court, the motion must be treated as one for summary judgment under

Rule 56 [and] [a]ll parties must be given a reasonable opportunity

to present all the material that is pertinent to the motion.” FED.

R. CIV. P. 12(d). “For purposes of this rule, ‘the complaint is

deemed to include any written instrument attached to it as an

exhibit or any statements or documents incorporated in it by

reference.’” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d

Cir. 2002) (quoting Int’l Audiotext Network, Inc. v. Am. Tel. &

Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)). When a “document is not

incorporated by reference, the court may [still] consider it where

the complaint ‘relies heavily upon its terms and effect,’ which

renders the document ‘integral’ to the complaint.” Id. at 153

(quoting Int’l Audiotext, 62 F.3d at 72). “However, ‘even if a

document is “integral” to the complaint, it must be clear on the

record that no dispute exists regarding the authenticity or

accuracy of the document.’” DiFolco v. MSNBC Cable L.L.C., 622

F.3d 104, 111 (2d Cir. 2010) (quoting Faulkner v. Beer, 463 F.3d

130, 134 (2d Cir. 2006)).

“Whether a document is attached to a complaint is self-

evident.” DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 60

(S.D.N.Y. 2010) (citing Cortec Indus., Inc. v. Sum Holding L.P.,

949 F.2d 42, 47 (2d Cir. 1991) (stating that any written instrument

attached as an exhibit to a complaint is deemed part of the

pleadings)). “To be incorporated by reference, the complaint must

make ‘a clear, definite and substantial reference to the

documents.’” Id. (quoting Helprin v. Harcourt, Inc., 227 F.Supp.2d

327, 330-31 (S.D.N.Y. 2003)). However, “[l]imited quotation does

not constitute incorporation by reference.” McLennon v. City of

N.Y., 171 F. Supp. 3d 69, 88-89 (E.D.N.Y. 2016) (quoting Looney v.

Black, 702 F.3d 701, 716 n.2 (2d Cir. 2012)). To be integral to

the complaint, a plaintiff must have: (1) “actual notice” of the

extrinsic information; and (2) have “relied upon [the] documents

in framing the complaint.” Chambers, 282 F.3d at 153 (quoting

Cortec Indus., 949 F.2d at 48). Indeed, “a plaintiff’s reliance

on the terms and effect of a document in drafting the complaint is

a necessary prerequisite to the court’s consideration of the

document on a dismissal motion.” Id. (emphasis in original).

Here, Plaintiff’s Complaint included four

attachments: (1) a letter from the EEOC acknowledging receipt of

his claims; (2) a copy of the Charge of Discrimination Plaintiff

filed with the EEOC; (3) an email from the EEOC regarding the

Agency’s determination of the action; and (4) Plaintiff’s Notice

of his Right to Sue. (See Compl.) Since these documents were

attached to the Complaint, they form part of the pleadings, and

the Court may consider them in deciding the instant motion.

However, Plaintiff’s Complaint did not include the Extrinsic

Evidence. Neither does Plaintiff make explicit reference to nor

quote from the Extrinsic Evidence attached to his Opposition

Papers. Although the Complaint makes a passing reference to the

job advertisement, it does not articulate the contents of the

advertisement, nor does it quote or cite from the advertisement in

any way. This falls far short of the “clear, definite and

substantial reference” standard necessary for the Court to warrant

this document as incorporated by reference or integral to the

Complaint. See DeLuca, 695 F. Supp. 2d at 60 (finding that

exhibits attached to affidavit submitted in opposition to motion

to dismiss were not incorporated by reference into complaint where

“the complaint [made] no explicit or implicit reference to, nor

[did] it quote at all from, the exhibits”); Madu, Edozie & Madu,

P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 124 (S.D.N.Y.

2010) (finding that affidavit and exhibits attached to plaintiff’s

brief in opposition to motion to dismiss were not incorporated by

reference where “plaintiffs’ complaint [made] no explicit

reference to, nor [did] it quote at all from” either document, and

finding that a single “scant reference” in the complaint to one

exhibit was insufficient to “meet the high bar courts have set to

recognize documents extraneous to a complaint as incorporated by

reference” (citation omitted)).

Furthermore, the Court is unconvinced that the Extrinsic

Evidence can be considered “integral” to the Complaint. While

Plaintiff clearly had notice of the Extrinsic Evidence -- since

they are attached to his Opposition -- there is no indication that

Plaintiff actually “relied upon the documents in framing the

complaint.” Chambers, 282 F.3d at 153 (quoting Cortec Indus., 949

F.2d at 48). As previously noted, other than the job

advertisement, the Complaint neither quotes from nor mentions any

of the other Extrinsic Evidence. Additionally, there is no

indication whatsoever that Plaintiff consulted the Extrinsic

Evidence during the drafting process. See DeLuca, 695 F. Supp. 2d

at 61 (finding plaintiff’s extrinsic evidence was not integral to

the complaint because: (1) it was “submitted in response to issues

raised in [defendant’s] motion to dismiss;” and (2) “the complaint

[did] not mention, let alone rely heavily upon, [the] the extrinsic

documents”).2

For these reasons, the Court finds that the Extrinsic

Evidence is neither incorporated by reference nor integral to the

complaint.3 Consequently, the Court will not consider the

Extrinsic Evidence as part of the pleadings in deciding Defendant’s

Motion.

2 Plaintiff’s reliance upon Walker v. Schult for the proposition

that the Court may consider the Extrinsic Evidence in deciding the

instant motion is misplaced. 717 F.3d 119 (2d Cir. 2013). In

Schult, the Second Circuit held that “[a] district court deciding

a motion to dismiss may consider factual allegations made by a pro

se party in his papers opposing the motion.” Id. at 122 n.1

(emphasis added). In so holding, the Second Circuit cited to a

case in which the Court had previously considered a pro se

plaintiff’s affidavit in addition to his complaint in opposing a

motion to dismiss. Id. (citing Gill v. Mooney, 824 F.2d 192, 195

(2d Cir. 1987)). Here, the Extrinsic Evidence is not an affidavit

containing factual allegations, but evidence used to support

factual allegations made throughout Plaintiff’s Opposition.

Additionally, while Plaintiff is pro se he is also a lawyer; as

such, he is not entitled to the special solicitude that the Court

would ordinarily extend to a pro se plaintiff. See Azaryev, 2021

WL 3861773, at *2. Generally, “[M]emoranda and supporting

affidavits in opposition to a motion to dismiss cannot be used to

cure a defective complaint.” Passiglia v. Northwell Health, Inc.,

252 F. Supp. 3d 129, 136-37 (E.D.N.Y. 2017) (quoting Goodman v.

Port Auth. of N.Y. & N.J., 850 F. Supp. 2d 363, 380 (S.D.N.Y.

2012)).

3 The Court also notes that there is an issue regarding the

authenticity of the Extrinsic Evidence in that Plaintiff himself

acknowledges that there may be “differences” in several of the

exhibits compared to the originals.

B. Employment Discrimination

1. Plaintiff’s Age Discrimination Claim Under the

ADEA

Pursuant to the ADEA, it is unlawful for an employer “to

fail or refuse to hire . . . or otherwise discriminate against any

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s age.”

29 U.S.C. § 623(a)(1). “To survive a motion to dismiss an age

discrimination claim brought under the ADEA . . . a plaintiff must

plausibly allege that [he] ‘is a member of a protected class, was

qualified, suffered an adverse employment action, and has at least

minimal support for the proposition that the employer was motivated

by discriminatory intent.’” Luka v. Bard Coll., 263 F. Supp. 3d

478, 484-85 (S.D.N.Y. 2017) (quoting Littlejohn v. City of N.Y.,

795 F.3d 297, 311 (2d Cir. 2015)). However, “it is not sufficient

for a plaintiff to show ‘that age was simply a motivating factor’

in the employer’s adverse action.” Lively v. WAFRA Inv. Advisory

Grp., Inc., 6 F.4th 293, 303 (2d Cir. 2021) (quoting Gross v. FBL

Fin. Servs., 557 U.S. 167, 174 (2009)). “Instead, ‘the ADEA’s

requirement that an employer took an adverse action “because of”

age [requires] that age was the “reason” that the employer decided

to act.’” Id. (quoting Gross, 557 U.S. at 176). This “but-for

causation standard for discrimination claims applies not only at

trial but at the pleading stage as well.” Id. (citing Comcast

Corp. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S.Ct. 1009, 1014

(2020)).

Defendant argues that Plaintiff “has not plausibly

alleged facts sufficient to show age discrimination by [Defendant]

in this case.” (Motion at 5.) Defendant highlights that Plaintiff

“provide[s] only conclusory statements with regard to his age

discrimination claim” in that he asserts “that the individual hired

by [Defendant] . . . was ‘younger’ without providing any

information to indicate (a) how old that individual is, or (b) how

[Plaintiff] would possibly know that person’s age.” (Id.)

Moreover, Defendant argues that the Complaint fails “to establish

that [Plaintiff’s] age was the but-for cause of [Defendant’s]

decision not to hire him.” (Id. at 6.) Defendant highlights

Plaintiff’s acknowledgment that Defendant “told him he was not

selected for the position based upon a comparative lack of military

combat experience and awards.” (Id.) Defendant argues that

Plaintiff “point[s] to nothing that suggests [this reasoning] was

false.” (Id.)

Plaintiff attempts to counter Defendant’s Motion by

primarily relying upon his Extrinsic Evidence, which the Court has

already determined it cannot consider. (See supra Part II.A.)

Plaintiff counters that: (1) he was over 40-years old “at the time

[he] applied to the position;” (2) that he was suffering from the

disabilities from which he was hospitalized in 2018; (3) that he

was qualified for the position; (4) that the adverse employment

action suffered was that he was “not [] hired for [the] position;”

and (5) that Defendant’s “wanted [to hire] a younger, healthier

individual to reap the benefits of good publicity.” (Opp’n at 6-

7, 11.) Plaintiff further avers that Defendant’s proffered non-

discriminatory reason for not hiring him -- that the other

candidate had more “military combat experience” and service medals

-- was pretextual. (Id. at 11-14.) Plaintiff argues that the VA

Position is an academic role and that military experience and

service medals are not relevant to the practice of law or in

teaching students. (Id. at 15-17.) Plaintiff anticipates that it

could be argued that the VA Position prioritized combat experience

as a requirement because Veterans may feel “more at ease . . . with

a person who has shared the experience of combat,” but counters

that the percentage of veterans who actually see military combat

is comparatively low to those who do not. (Id. at 15.)

Here, the Court agrees with Defendant that the

Complaint, as pled, is devoid of any facts from which the Court

can plausibly conclude Defendant discriminated against Plaintiff

based upon his age. It is true that Plaintiff’s Complaint

adequately pleads he is a member of a protected class when he

applied for the VA Position in 2018 since his date of birth is

1964. See Fu v. Consol. Edison Co. of N.Y, Inc., 855 F. App’x

787, 789 (2d Cir. 2021) (“The ADEA makes it unlawful for an

employer to . . . ‘discriminate against any

individual . . . because of such individuals age,’ where that

individual is ‘at least 40 years of age.’” (quoting 29 U.S.C.

§§ 623(a)(1), 631(a))). Additionally, an adverse employment

action includes an employer’s “refusal to hire.” Brown v. N.Y.

City Dep’t of Educ., No. 20-CV-2424, 2021 WL 4943490, at *7

(S.D.N.Y. Aug. 31, 2021). However, Plaintiff’s Complaint fails to

plead any facts whatsoever regarding the relevant academic

qualifications for the VA Position, how Plaintiff satisfied those

requirements, or how Lennon did not satisfy those requirements.

From the Complaint, Plaintiff has pled facts sufficient to show

that both he and Lennon boast military experience and that both

were qualified attorneys, although Plaintiff argues he was more

qualified in this area based solely on the amount of time each was

admitted to the bar. There are no facts pled as to any other

relevant academic qualifications necessary for the VA Position

that were held by Plaintiff and not by Lennon. From the Complaint,

military experience was a highly desired qualification for the VA

position, and both Plaintiff and Lennon met this prerequisite. On

these facts, the Court cannot credit Plaintiff’s conclusory

assertions that Lennon was “far less qualified” than Plaintiff,

(Compl. at 8 (emphasis in original)), such that it can be inferred

that, but-for Plaintiff’s age, he would have been hired. See

Delaney v. Bank of Am. Corp., 766 F.3d 163, 169 (2d Cir. 2014)

(“While [the court] must ensure that employers do not act in a

discriminatory fashion, we do ‘not sit as a super-personnel

department that reexamines an entity’s business decisions.’”

(quoting Scaria v. Rubin, 117 F.3d 652, 655 (2d Cir. 1997))).

Neither can the Court infer that Plaintiff was qualified for the

VA Position without facts establishing what the relevant

qualifications for the position were.

Additionally, the Court is unconvinced that the

Complaint contains sufficient facts that it can reasonably infer

that the proffered non-age explanation for not hiring Plaintiff

was pretextual. (See Compl. at 8.) Plaintiff’s Complaint

acknowledges that “[t]he [Defendant] stressed that ‘veteran’

status was important for the job.” (Id.) The Complaint further

states that, like Plaintiff, previous holders of the role, were

retired veterans who had little or no combat experience. (Id.)

The only reasonable inference the Court can draw from these facts

is that military experience, whether demonstrated through actual

combat experience, service-related medals, or simply by virtue of

service, has always been a quality that Defendant looks for in

filling the VA Position. The Complaint tacitly acknowledges that

Lennon had military experience and that the Dean credited Lennon’s

actual combat experience over the experience of other veterans,

including Plaintiff. The fact that the Dean’s interpretation of

the word “veteran” does not comport with Plaintiff’s does not mean

that the Dean’s prioritization of combat experience was a pretext

for age discrimination. Cf. Witkowich v. Gonzales, 541 F. Supp.

2d 572, 582 (S.D.N.Y. 2008) (finding that “[p]laintiff’s

disagreement with the way in which the [employer] weighed

[plaintiff’s] and [another candidate’s] qualifications does not

create an issue of material fact” because “[a]n employer has the

right to decide how it will value the various qualifications

different candidates bring to the table”).

Relatedly, the Complaint contains no facts supporting

Plaintiff’s conclusory assertion that Lennon was “younger” than

Plaintiff; in fact, the Complaint provides no facts at all

regarding the comparative ages of Lennon and Plaintiff, and merely

states that Plaintiff “believe[s] [he] was discriminated against

on the basis of both [] age and physical disability when [he] was

not hired for the [VA Position], but a far less qualified, younger

person with no disabilities was hired instead.” (Compl. at 8

(emphasis in original).) This assertion is entirely conclusory

and is insufficient even at the pleading stage. See Iqbal, 556

U.S. at 678 (holding that “a complaint [will not] suffice if it

tenders naked assertion[s] devoid of further factual enhancement”

(alteration in original) (internal citations omitted)). Several

courts in this Circuit have concluded likewise. See e.g., Bohnet

v. Valley Stream Union Free Sch. Dist. 13, 30 F. Supp. 3d 174, 180

(E.D.N.Y. 2014) (dismissing plaintiff’s ADEA claims where

plaintiff “allege[d] only that she applied for many positions in

the District while she was over the age of forty and the

[defendant] did not hire her for those positions but hired younger

individuals under the age of [forty]” without providing “any

details about the identity of the individuals that the [defendant]

hired or their particular ages”); Wang v. Palmisano, 157 F. Supp.

3d 306, 340 (S.D.N.Y. 2016) (finding plaintiff’s claim that

defendant “offered [] positions to persons significantly younger

and/or significantly less qualified than [p]laintiff” to be

“utterly conclusory” where plaintiff failed to “provide [] details

about the[] putative hires, such as their hire dates, ages,

qualifications, work experience, or whether [d]efendants knew

their age”); Ndremizara v. Swiss Re Am. Holding Corp., 93 F. Supp.

3d 301, 316-17 (S.D.N.Y. 2015) (dismissing plaintiff’s ADEA claims

where “[p]laintiff merely assert[ed] that he discovered that many

entry level candidates selected or hired by [d]efendant were

younger and less qualified than him,” and collecting cases).

2. Plaintiff’s ADA Claim

The ADA prohibits discrimination “against a qualified

individual on the basis of disability in regard to job application

procedures, the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms, conditions,

and privileges of employment.” 42 U.S.C. § 12112(a). To plead a

prima facie case of discrimination under the ADA, a plaintiff must

show that: “(1) his employer is subject to the ADA; (2) he was

disabled within the meaning of the ADA; (3) he was otherwise

qualified to perform the essential functions of his job, with or

without reasonable accommodation; and (4) he suffered adverse

employment action because of his disability.” Woolf v. Strada,

949 F.3d 89, 93 (2d Cir. 2020). Like Plaintiff’s ADEA claims,

“the ADA requires a plaintiff alleging a claim of employment

discrimination to prove that discrimination was the but-for cause

of any adverse employment action.” Natofsky v. City of N.Y., 921

F.3d 337, 348 (2d Cir. 2019). Again, “[t]he Supreme Court has

clarified [] that the but-for causation standard for

discrimination claims applies not only at trial, but also at the

pleading stage.” Mehta, 2022 WL 280460, at *5 (citing Comcast,

140 S. Ct. at 1014). “Accordingly, to defeat a motion to dismiss,

a plaintiff bringing an ADA discrimination claim must plausibly

allege that he would not have suffered an adverse employment action

but-for his disability.” Id.

Defendant argues that Plaintiff’s Complaint “does not

provide sufficient information from which the Court could

determine whether his health condition amounted to a qualifying

disability under the ADA” despite alluding to “receiving

treatment . . . for diabetes and a heart condition.” (Motion at

7.) Additionally, Defendant notes that the Complaint is devoid of

any facts supporting Plaintiff’s claim that Lennon has “no

disabilities.” (Id.) Instead, Defendant contends, Plaintiff’s

“ADA claim rests entirely on his own assumptions regarding the

physical condition of [Lennon], rather than on actual fact.” (Id.)

Defendant highlights that Plaintiff “disclosed his alleged

disability on his Touro job application” and that “he was selected

for an interview” despite this. (Id. at 7-8.) Defendant notes

that the Complaint is further devoid of any facts “indicat[ing]

that the decision-maker . . . had any knowledge whatsoever that

[Plaintiff] had an ADA qualifying-disability.” (Id. at 8.) As

with his age discrimination claim, Plaintiff primarily relies on

his Extrinsic Evidence in opposing Defendant’s request to dismiss

his ADA claims. (See Opp’n at 6-9.) Although most of Plaintiff’s

opposition focuses on his age discrimination claims, he notes that

Defendant “acted as [it] did [] because [it] wanted a younger,

healthier individual to reap the benefits of good publicity.” (Id.

at 11.)

The first element of a prima facie discrimination case

is met as Defendant does not dispute it is an entity covered by

the ADA. (See Motion in toto.) Additionally, the Court finds

that, reading the Complaint liberally, Plaintiff has sufficiently

pled facts showing he was a person with a qualifying disability

under the ADA at the time of his application, thereby meeting the

second element. For example, Plaintiff alleged that: he suffered

from diabetes; his interviewer was twice informed of Plaintiff’s

disabilities; and Plaintiff’s disabilities led to a medical

emergency several months following the interview. See Orellana v.

Farmingdale Sch. Dist., No. 20-CV-6050, 2022 WL 976811, at *4

(E.D.N.Y. March 4, 2022) (“[A]llegations that [plaintiff] has been

diagnosed with, and treated for, diabetes, are sufficient at the

pleading stage to raise a plausible inference that [he] has a

‘disability’ under the ADA.”). In terms of the third element, as

previously noted, a refusal to hire qualifies as an adverse

employment action. See Brown, 2021 WL 4943490, at *7.

However, as to the fourth element, Plaintiff’s ADA

claims suffer from the same issues as his ADEA claims in that the

Complaint is entirely devoid of any facts plausibly alleging that,

but-for Plaintiff’s disability, Defendant would have hired him

over Lennon. For example, the Complaint simply concludes that

Plaintiff was not hired because Defendant hired a “less qualified,

younger person with no disabilities.” (Compl. at 8.) Similarly,

Plaintiff’s Charge of Discrimination states that Plaintiff

believes he was discriminated against because “a lessor qualified,

younger, non-disabled applicant was hired.” (Charge of

Discrimination, ECF No. 1, attached to Compl. at 12.) These

conclusory assertions fall well short of pleading facts sufficient

to plausibly allege that but-for his disability Plaintiff would

have been hired. Plaintiff’s ADA claims must fail for this reason.

3. Plaintiff’s Request for Leave to Amend

“It is the usual practice upon granting a motion to

dismiss to allow leave to replead.” Cortec Indus., 949 F.2d at

48; see also FED. R. CIV. P. 15(a)(2) (“The court should freely give

leave [to amend] when justice so requires.”). In his Opposition,

Plaintiff requested that, if the Court dismissed his Complaint, it

do so without prejudice so that he may “refile after fixing any

defects the court may find based upon [Defendant’s]” Motion. (Opp’n

at 19.) Defendant offered no reply on this issue.

While “[l]eave may be denied for good reason, including

futility, bad faith, undue delay, or undue prejudice to the

opposing party,” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493,

505 (2d Cir. 2014) (citation omitted), none of those factors are

present here. Consequently, Plaintiff is granted leave to file an

amended complaint within 30 days of the date of this Memorandum &

Order. Since the Amended Complaint will completely replace the

original Complaint, Plaintiff must include all factual allegations

and claims that Plaintiff seeks to pursue in this case. PLAINTIFF

IS WARNED that if he does not file an amended complaint within 30

days from the date of this Memorandum & Order, judgment will enter

and this case will be closed.

CONCLUSION

For the stated reasons, IT IS HEREBY ORDERED that

Defendant’s Motion to Dismiss the Complaint (ECF No. 32) is

GRANTED.

IT IS FURTHER ORDERED that Plaintiff is granted leave to

file an amended complaint no later than 30 days from the date of

this Memorandum & Order, i.e., April 19, 2023. Any Amended

Complaint shall be clearly labeled “Amended Complaint” and shall

bear docket number 21-CV-01345 (JS)(ARL). Plaintiff is WARNED that

if he does not file an Amended Complaint within 30 days from the

date of this Memorandum & Order, judgment will enter and this case

will be closed; and

IT IS FURTHER ORDERED that Defendant shall answer or

otherwise respond to the amended complaint within twenty-one days

from the date that it is filed.

SO ORDERED.

/s/ JOANNA SEYBERT_____

Joanna Seybert, U.S.D.J.

Dated: March 20, 2023

Central Islip, New York