# Chesebro v. Town of Guilderland

> District Court, N.D. New York · August 19, 2019

URL: https://www.frixlaw.com/law-library/cases/10311951

## Case

- **Court:** District Court, N.D. New York
- **Decided:** August 19, 2019
- **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/10311951

## How later opinions describe it (automated extraction)

- noting that "a plaintiff is not required to plead a prima facie case under McDonnell Douglas, at least as the test was originally formulated, to defeat a motion to dismiss"
- holding that "a workers' compensation claim is not something that is covered by the ADA"
- holding that "filing a complaint with the DOT is not protected participation under the ADA"
- holding that failure to accommodate amounts to an adverse employment action in "scenarios where the failure to accommodate resulted in an adverse employment action"
- holding that temporal proximity was insufficient to support the plaintiff's retaliation claim where there was a five-month interval between the plaintiff's complaint with the EEOC and the alleged adverse employment action

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
RICHARD CHESEBRO,
Plaintiff,
vs. 1:18-CV-01294
(MAD/CFH)
TOWN OF GUILDERLAND,
Defendant.
____________________________________________
APPEARANCES: OF COUNSEL:
RICHARD CHESEBRO
7 Wilber Avenue, #3
Schenectady, New York 12304
Plaintiff pro se
SOLOMON & SOLOMON, P.C. NORINA A. MELITA, ESQ.
5 Columbia Circle
Albany, New York 12212
Attorneys for Defendant
Town of Guilderland
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On November 5, 2018, pro se plaintiff Richard Chesebro ("Plaintiff") commenced this
action against Defendant Town of Guilderland ("Defendant") by alleging that Defendant had
discriminated against him in violation of the Americans with Disabilities Act ("ADA") and the
Age Discrimination in Employment Act ("ADEA"). See Dkt. No. 1 at 1. Specifically, Plaintiff
alleges that Defendant discriminated against him on the basis of Plaintiff's "age [and] injurys
[sic]" by refusing to assign Plaintiff to "light duty" after he returned from workers' compensation,
ultimately leading to his termination. Id. at 3-5. Plaintiff also alleges that Defendant terminated
him in retaliation for cooperating with the Equal Employment Opportunity Commission
("EEOC") and with the New York Public Employee Safety and Health Bureau ("PESH"). See id.
at 4. Plaintiff seeks "[j]udgment against the defendents [sic][,] compenatory [sic], statutory and
punitive damages, back pay and any further relief." Id. at 9. Plaintiff also seeks "[h]ealth
insurance[,] [a]ll my [i]ncome for [four] years[,] and [damages for] pain and suffering[.]" Id. at
13. Because Defendant failed to timely answer Plaintiff's complaint, Plaintiff applied for entry of

default, which the Clerk of the Court entered on March 8, 2019. See Dkt. No. 14. On April 30,
2019, Plaintiff moved for entry of default judgment. See Dkt. No. 16. On May 17, 2019,
Defendant filed a motion to vacate the entry of default and moved to dismiss the complaint. See
Dkt. No. 17.
Currently before the Court are Defendant's motions to vacate the entry of default an to
dismiss the complaint, and Plaintiff's motion for default judgment.
II. BACKGROUND
On February 22, 2018, Defendant terminated Plaintiff from his employment with

Defendant's Water and Wastewater Department. See Dkt. No. 17-1 at ¶ 29. Plaintiff's complaint,
construed liberally, presents five claims related to his termination. See Dkt. No. 1 at 3-6. First,
Plaintiff alleges that Defendant violated the ADEA by terminating Plaintiff because of Plaintiff's
age. See id. Second, Plaintiff alleges that Defendant violated the ADA by terminating Plaintiff
because of his neck injury. See id. at 3, 5. Third, Plaintiff also alleges that Defendant violated the
ADA by failing to provide a reasonable accommodation for his neck injury. See id. at 3. Fourth,
Plaintiff further alleges that Defendant's failure to accommodate his neck injury constituted

disparate treatment and discrimination under the ADA. See id. Finally, Plaintiff alleges that
Defendant violated the ADA by terminating him in retaliation for his cooperation with the EEOC
2
and with PESH. See id. at 4. Defendant, however, claims that it terminated Plaintiff because he
endangered coworkers when he left his post as a traffic flagger "during a project on a busy Town
road" and also because he had "an extensive history of disciplinary action." Dkt. No. 17-4 at ¶¶
11, 16.
On February 28, 2018, six days after Plaintiff's termination, Plaintiff filed a complaint for
both his ADEA and ADA claims with the EEOC. See Dkt. No. 1 at 4. On March 15, 2018, the

EEOC dismissed Plaintiff's ADEA claim and "forwarded [the ADA claim] to the [United States]
Department of Justice (DOJ) for review to determine whether the DOJ will bring suit in Federal
District Court against [Defendant] regarding [Plaintiff's] ADA allegations." Dkt. No. 17-2 at 19-
20. The EEOC's dismissal letter included a "Notice of Suit Rights" section informing Plaintiff
that "[t]his will be the only notice of dismissal and of your right to sue that [the EEOC] will send
you. . . . Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice[,] or your
right to sue based on this charge will be lost." Id. at 20. On August 17, 2018, the DOJ dismissed
Plaintiff's ADA claims and informed Plaintiff that "conciliation on [Plaintiff's ADA] case was

unsuccessful by the EEOC." Dkt. No. 20 at 17. This letter also notified Plaintiff that he must file
his ADA suit within ninety days of receipt. See id.
Plaintiff filed his ADEA and ADA claims together on November 5, 2018, eighty days after
the DOJ mailed its right-to-sue notice and 232 days after the EEOC mailed its right-to-sue notice.
See Dkt. No. 1 at 1. Defendant was served with a summons and complaint on December 3, 2018,
and forwarded the complaint to its risk management servicer for insurance coverage on December
6, 2018. See Dkt. No. 17-3 at 1. However, Plaintiff's "claim [was never] forwarded to the

insurance company through an error on [the risk management servicer's] side." Id. Because of
this error, Defendant failed to respond to Plaintiff's complaint, and the Clerk of the Court entered
3
default against Defendant on May 1, 2019. See Dkt. No. 16. Defendant claims that it "was under
the reasonable impression that its insurance carrier was handling the defense of the matter and had
no notification of the entry of default by the Clerk." Dkt. No. 17-3 at 1. Upon receiving Plaintiff's
motion to enter default judgment, Defendant contacted its risk management servicer, who
uncovered its error, and Defendant promptly filed a motion to vacate the entry of default on May
17, 2019. See id.

III. DISCUSSION
A. Motion to Vacate Entry of Default
Defendant has moved to vacate default pursuant to Rule 60 of the Federal Rules of Civil
Procedure, which provides for relief from an order or judgment. In this case, the Clerk has
entered default, but there is no default judgment. Where there has been a certificate of default, but
not default judgment, the Court decides the motion to vacate the entry of default pursuant to Rule
55(c), which is more lenient than the standard to set aside a default judgment under Rule 60(b).
See Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981).

The court may set aside an entry of default for good cause shown. Fed. R. Civ. P. 55(c).
While vacating entry of default is in the discretion of the district court, there is a "'preference for
resolving disputes on the merits.'" Powerserve Int'l, Inc. v. Lavi, 239 F.3d 508, 514 (2d Cir. 2001)
(quoting Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993)). Defaults generally are
disfavored and are reserved for rare occasions. See Enron Oil Corp., 10 F.3d at 96. Accordingly,
all doubts must be resolved in favor of the party seeking relief from the default in order to ensure
that, to the extent possible, disputes are resolved on their merits. See Powerserve Int'l, Inc., 239

F.3d at 514.

4
When determining whether there is "good cause" to vacate entry of default under Rule
55(c), a district court must consider three factors: (1) the willfulness of the default; (2) the
existence of a meritorious defense to the defaulted claims; and (3) prejudice to the non-defaulting
party should relief be granted. See Pecarsky v. Galaxiworld.com, Ltd., 249 F.3d 167, 171 (2d Cir.
2001). "[N]o single factor is dispositive." FedEx TechConnect, Inc. v. OTI, Inc., No. 12 Civ.
1674, 2013 WL 5405699, *4 (S.D.N.Y. Sept. 23, 2013); see also Wagstaff–El v. Carlton Press

Co., 913 F.2d 56, 57 (2d Cir. 1990) (holding that the district court did not abuse its discretion by
vacating a default judgment despite a finding of willfulness, because the defaulting party had a
meritorious defense and the plaintiff would not be prejudiced if the default was vacated). "When
doubt exists as to whether a default should be granted or vacated, the doubt should be resolved in
favor of the defaulting party." Enron Oil Corp., 10 F.3d at 96. "Good cause" should be construed
generously. Id. "While courts are entitled to enforce compliance with the time limits of the Rules
by various means, the extreme sanction of a default judgment must remain a weapon of last, rather
than first, resort." Meehan, 652 F.2d at 277.

In the present matter, the Court finds that Defendant has established good cause to vacate
the entry of default. Three days after Defendant was served with the summons and complaint in
this matter, it forwarded those documents to Arthur Gallagher, its risk management service for
insurance coverage. See Dkt. No. 17-1 at ¶ 4. At this point, Defendant was under the impression
that its insurance carrier was handling the defense of this matter and had no notification of the
entry of default. See id. at ¶ 5. When Defendant received Plaintiff's motion for default judgment,
it immediately contacted its risk management service, who advised that the claim had not been

forwarded to the insurance company through an error on the part of the risk management service.

5
See id. at ¶ 6. Based on these representations, it is clear that Defendant did not willfully fail to
respond to Plaintiff's complaint.
Moreover, as discussed in more detail below, Defendant has a meritorious defense to
some, if not all of the claims asserted. Finally, Plaintiff has not identified any prejudice he will
suffer should the Court vacate the entry of default.
Based on the foregoing, the Court grants Defendant's motion to vacate the entry of default.

B. Timeliness
"A disability-discrimination claimant must exhaust administrative remedies with the
EEOC before filing ADA claims in district court." Carmichael v. Morrison Mgmt. Specialists,
No. 13-CV-00692-A, 2014 WL 1270042, *2 (W.D.N.Y. Mar. 26, 2014) (citing 42 U.S.C. §
2000e-5(e),(f); D'Lima v. Cuba Mem'l Hosp., Inc., 833 F. Supp. 2d 383, 388 (W.D.N.Y.2011)).
"The administrative process begins when the claimant files a charge of discrimination with the
EEOC." Id. at *2 (citing 42 U.S.C. § 2000e-5(b)). Once the plaintiff files the charges, the EEOC
begins to investigate them, but "if the charges do not have merit, the EEOC may dismiss them and

give the claimant notice of a [ninety]-day deadline to sue in district court." Id. at *2 (citing 42
U.S.C. § 2000e-5(b), (f)). While "42 U.S.C. § 2000e-5(f)(1) . . . requires that the [right-to-sue]
notice be issued by the Attorney General in a case involving a government, government agency, or
political subdivision[,] . . . 29 C.F.R. § 1601.28(d) . . . authorizes such notice by the EEOC" if the
EEOC has dismissed the charge. Parks v. Office of Temp. & Disability Assistance, 675 F. Supp.
2d 440, 443 (S.D.N.Y. 2009). Although "[c]ourts have disagreed whether the regulation is at odds
with the statute[,]" courts in the Second Circuit have recognized the EEOC's authority to issue the

right-to-sue notice in such cases. Id. Furthermore, the Justice Department and the EEOC have
agreed that "'[t]he Attorney General will issue [right-to-sue notices] only when the EEOC finds
6
probable cause, conciliation efforts fail, and the EEOC refers the case to the Justice Department,
but the Attorney General decides not to pursue the action.'" Thompson v. Conn. State Univ., 466
F. Supp. 2d 444, 450 (D. Conn. 2006) (quoting Dougherty v. Barry, 869 F.2d 605, 612 (D.C. Cir.
1989) (citations omitted)); see also Spencer v. N.Y.C. Transit Auth., No. 95-CV-4779, 1999 WL
51814, *13-14 (E.D.N.Y. Jan. 14, 1999) (holding that "only when the EEOC did not dismiss the
charge will 'the Attorney General . . . issue the notice of right to sue'") (quoting 29 C.F.R. §

1601.28(d)).
However, "a right to sue notice issued by the Justice Department does not revoke a prior
notice issued by the EEOC, and so does not revive a private right to sue." Dougherty, 869 F.2d at
611. Thus, when the EEOC dismisses a discrimination claim, including an ADEA claim, "the
EEOC, not the Attorney General, remains the agency whose issuance of a right to sue notice
triggers the commencement of the ninety-day period in which to file a lawsuit." Spencer,1999
WL 51814, at *13-14; see also Holowecki v. Fed. Express Corp., 440 F.3d 558, 563 (2d Cir.
2006) (holding that "in the event that the EEOC issues a right-to-sue letter to an ADEA claimant,

the claimant must file [his] federal suit within [ninety] days after receipt of the letter") (citing 29
U.S.C. § 626(e)). "The [ninety]-day period is strictly enforced and cannot be extended by even
one day." Hughes v. Elmira Coll., 584 F. Supp. 2d 588, 589 (W.D.N.Y. 2008).
The ninety-day period in which an EEOC claimant must file suit is presumed to begin
three days after either the EEOC or DOJ issues a right-to-sue letter, as "'[n]ormally it is assumed
that a mail document is received three days after its mailing,' and it is [also] 'normally presumed
that a notice provided by a government agency has been mailed on the date shown on the notice.'"

Edwards v. Onondaga Cmty. Coll., No. 5:14-CV-1329, 2015 WL 7283187, *3 (N.D.N.Y. Nov.
16, 2015) (quoting Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525-26 (2d Cir.1996) (citation
7
omitted)); see also Fed. R. Civ. P. 6(e) ("Whenever a party has the right or is required to do some
act or take some proceedings within a prescribed period after the service of a notice or other paper
upon the party and the notice or paper is served upon the party by mail, [three] days shall be added
to the prescribed period").
In the present matter, on March 15, 2018, the EEOC dismissed Plaintiff's ADEA claim but
"forwarded [Plaintiff's ADA claims] to the U.S. Department of Justice (DOJ) for review to

determine whether the DOJ will bring suit in Federal District Court against [Defendant] regarding
[Plaintiff's] ADA allegations." Dkt. No. 17-2 at 19. Thus, Plaintiff's ninety-day period for filing
his ADEA claim began on March 18, 2018, when Plaintiff is assumed to have received the EEOC
dismissal, and closed on June 16, 2018. See id. at 20. Therefore, Plaintiff's November 5, 2018,
ADEA claim is untimely, and the Court grants Defendant's motion to dismiss this claim. See Dkt.
No. 1 at 1.
In certain circumstances, the Court may equitably toll the ninety-day statute of limitations.
See Colon v. Sabic Innovative Plastics US, LLC, No. 1:15-CV-651, 2017 WL 3503681, *4

(N.D.N.Y. Aug. 15, 2017). However, equitable tolling applies only in "rare and exceptional
circumstance[s]." Martinez v. Superintendent of E. Corr. Facility, 806 F.3d 27, 31 (2d Cir. 2015)
(quoting Smith v. McGinnis, 208 F.3d 13, 15 (2d Cir. 2000)). To determine whether equitable
tolling is available, a court must decide whether the party attempting to invoke the doctrine "(1)
has acted with reasonable diligence during the time period []he seeks to have tolled, and (2) has
proved that the circumstances are so extraordinary that the doctrine should apply."
Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80-81 (2d Cir. 2003) (quoting Chapman v.

Choicecare Long Island Term Disability Plan, 288 F.3d 506, 512 (2d Cir. 2002)). The party

8
seeking to extend the limitations period bears the burden of proving that tolling is appropriate. See
Chapman, 288 F.3d at 512 (citing Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)).
In the present matter, Plaintiff has not requested that the Court grant this extraordinary
relief. Even if Plaintiff had requested this relief, nothing in the record supports granting such a
request. Plaintiff has failed to address Defendant's claim that his ADEA claims are time-barred
and has also failed to provide any explanation for his delay in filing these claims in federal court.

See Dkt. No. 20 at 1-4. Furthermore, the record reflects no indication that Plaintiff acted with
reasonable diligence to file his suit within the ninety days very clearly required by the EEOC's
dismissal. See Dkt. No. 17-2 at 20. Thus, the Court finds that even if Plaintiff had requested this
relief, both his complaint and the record as a whole fail to establish facts meeting the equitable
tolling test's first prong, and equitable tolling is not available for Plaintiff's ADEA claims.
In the alternative, even if equitable tolling were available, Plaintiff's bald allegation that
Defendant discriminated against Plaintiff because of his age falls short of making a plausible
claim for ADEA discrimination. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 107 (2d

Cir. 2010) (discussing the requirements for a prima facie ADEA discrimination claim). Plaintiff
fails to allege any facts other than stating his age to support his allegation of age discrimination.
See Dkt. No. 1 at 2-13. Thus, even if Plaintiff's ADEA claims were not time-barred, the Court
would grant Defendant's motion to dismiss these claims.
As to the timeliness of Plaintiff's ADA claims, on August 17, 2018, the DOJ issued a letter
informing Plaintiff "that conciliation on your case was unsuccessful by the EEOC. You are
further notified that you have the right to institute a civil action under Title I of the [ADA.] . . .

[S]uch suit must be filed in the appropriate court within [ninety] days of your receipt of this
Notice." Dkt. No. 20 at 17. Thus, Plaintiff's ninety-day period for filing his ADA claims began
9
on August 20, 2018, when Plaintiff is assumed to have received the DOJ notice, and ended on
November 18, 2018. See Dkt. No. 17-2 at 20; see also Fed. R. Civ. P. 6(e). Therefore, Plaintiff's
ADA claims, filed on November 5, 2018, are timely. See Leon-Rodriguez v. Corrections Dept. of
Puerto Rico, No. 08-cv-1584, 2010 WL 11679321, *6 (D.P.R. June 29, 2010).
Based on the foregoing, Defendant's motion to dismiss is granted as to Plaintiff's ADEA
claims and denied as to Plaintiff's ADA claims.

C. Failure to State a Claim
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.
Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering a claim's legal
sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all
reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493
F.3d 87, 98 (2d Cir. 2007) (citation omitted). However, this presumption of truth does not extend
to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

Although a court's review of a motion to dismiss is generally limited to the facts presented in the
pleading, the court may consider documents that are "integral" to that pleading, even if they are
neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico v.
Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d
147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is entitled to

relief,'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted). Under this
standard, the pleading's "[f]actual allegations must be enough to raise a right of relief above the
10
speculative level," id. at 555 (citation omitted), and present claims that are "plausible on [their]
face," id. at 570. "The plausibility standard is not akin to a 'probability requirement,' but it asks
for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678
(citation omitted). "Where a complaint pleads facts that are 'merely consistent with' a defendant's
liability, it 'stops short of the line between possibility and plausibility of "entitlement to relief."'"
Id. (quoting Twombly, 550 U.S. at 557). Ultimately, "when the allegations in a complaint,

however true, could not raise a claim of entitlement to relief," Twombly, 550 U.S. at 558, or where
a plaintiff has "not nudged [his] claims across the line from conceivable to plausible, the[ ]
complaint must be dismissed," id. at 570.
"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d
289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (citations
omitted). The Second Circuit has held that the court is obligated to "make reasonable
allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely because

they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
1. ADA Disability Discrimination
"Claims alleging disability discrimination in violation of the ADA are subject to the
burden-shifting analysis originally established by the Supreme Court in McDonnell Douglas Corp.
v. Green[.]" McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Sista v. CDC Ixis N. Am., Inc.,
445 F.3d 161, 169 (2d Cir. 2006)). Under the McDonnell Douglas framework, "the survival of a

complaint under Rule 12(b)(6) scrutiny in an employment discrimination case 'does not rest on
whether it contains specific facts establishing a prima facie case.'" Figueroa v. RSquared NY,
11
Inc., 89 F. Supp. 3d 484, 489 (E.D.N.Y. 2015) (quoting Lax v. 29 Woodmere Blvd. Owners, Inc.,
812 F. Supp. 2d 228, 236 (E.D.N.Y. 2011)). "This is because, at the pleading stage, courts do not
apply the McDonnell Douglas burden shifting test to analyze the evidentiary support for the
discrimination claims." Id. (citing Gonzalez v. Carestream Health, Inc., 520 Fed. Appx. 8, 9-10
(2d Cir. 2013)). "Instead, '[the court] consider[s] only whether the complaint includes factual
allegations sufficient "to raise a right to relief above the speculative level."'" Laface v. E. Suffolk

BOCES, 349 F. Supp. 3d 126, 145 (E.D.N.Y. 2018) (quoting Gonzalez, 520 Fed. Appx. at 10
(quoting Twombly, 550 U.S. at 555)). "In other words, the [c]ourt asks only whether a plaintiff
has pled a prima facie case, not whether a plaintiff has established that case." Id. at 145 (quoting
Figueroa, 89 F. Supp. 3d at 489); see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,
84 (2d Cir. 2015) (noting that "a plaintiff is not required to plead a prima facie case under
McDonnell Douglas, at least as the test was originally formulated, to defeat a motion to dismiss");
Dooley v. JetBlue Airways Corp., 636 Fed. Appx. 16, 21 (2d Cir. 2015) (applying this pleading
standard to an ADA discrimination claim). "Nevertheless, while a plaintiff need not allege

specific facts establishing all the elements of a prima facie case under McDonnell Douglas, these
elements can still 'provide [a helpful] outline of what is necessary to render [a plaintiff's] claims
for relief plausible.'" Fanelli v. New York, 51 F. Supp. 3d 219, 231 (E.D.N.Y. 2014) (quoting
Sommersett v. City of New York, No. 09-CV-5916, 2011 WL 2565301, *5 (S.D.N.Y. June 28,
2011) (alterations in original)).
A prima facie case of discrimination under the ADA requires that the plaintiff demonstrate
that "(1) [his] employer is subject to the ADA; (2) [he] is disabled within the meaning of the

ADA; (3) [he] is otherwise qualified to perform the essential functions of [his] job with or without
accommodation; and (4) [he] suffered an adverse employment action because of [his] disability."
12
Harvin v. Manhattan & Bronx Surface Transit Operating Auth., 767 Fed. Appx. 123, 127 (2d Cir.
2019) (citing Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 2004)).
In the present matter, the Court finds that Plaintiff has, albeit barely, alleged a plausible
claim of disability discrimination. As to the first element, it is undisputed that Defendant is
subject to the ADA. As to the second element, the ADA's definition of "disability" includes "a
physical or mental impairment that substantially limits one or more of the major life activities of

[an] individual[.]" 42 U.S.C. § 12102(1). "Major life activities" include, inter alia, "performing
manual tasks, . . . lifting, bending, . . . and working." 42 U.S.C. § 12102(2)(A). However, "[t]he
mere presence of a medical condition does not establish that a plaintiff is disabled." O'Donnell v.
King B 100, LLC, No. 14-CV-1345, 2016 WL 7742779, *9 (N.D.N.Y. May 3, 2016) (citations
omitted). "In addition, it is well settled that temporary impairments with little or no long-term
permanent impact are not disabilities under the ADA." Id. (citations omitted). "Such temporary
or 'transitory' impairments are defined 'as lasting six months or less.'" Crosby v. McDonald's of
Guilderland, LLC, No. 1:17-CV-1160, 2018 WL 2077884, *3 (N.D.N.Y. May 2, 2018) (quoting

42 U.S.C. § 12102(3)(B)).
Here, Plaintiff alleges that he suffered from herniated disks in his neck that caused him to
spend nine months on workers' compensation. See Dkt. No. 1 at 11. Plaintiff's complaint also
suggests that this neck injury continued to impair his ability to work after he returned from
medical leave, as Plaintiff's doctor "tried to return [Plaintiff] back to [his] job on light duty." Id.
at 5. Plaintiff's period of impairment thus well exceeded six months and surpassed the period of
"transitory" impairments under the ADA. See Crosby, 2018 WL 2077884, at *3. Therefore,

Plaintiff's complaint plausibly alleges specific factual averments as to both his injury's effect and
duration to establish a disability under the ADA.
13
As to the third element of an ADA discrimination claim, "the determination of whether a
person is 'qualified' [to perform the essential functions of his job] should be made at the time of
the discriminatory employment action." Smith v. Town of Ramapo, 745 Fed. Appx. 424, 426 (2d
Cir. 2018). To determine a particular job's "essential functions," "[c]ourts must conduct 'a
fact-specific inquiry into both the employer's description of a job and how the job is actually
performed in practice.'" Stevens v. Rite Aid Corp., 851 F.3d 224, 229 (2d Cir. 2017) (quoting

McMillan v. City of New York, 711 F.3d 120, 126 (2d Cir. 2013)). Factors to consider include,
inter alia, "'the employer's judgment, written job descriptions, the amount of time spent on the job
performing the function, . . . and the work experience of current employees in similar positions."
Id. (quoting McMillan, 711 F.3d at 126) (citations omitted).
Liberally construed, Plaintiff has alleged sufficient facts to satisfy this element. In support
of their motion, Defendant submitted an affidavit from Timothy McIntyre, who is the
Superintendent of the Water and Wastewater Department. See Dkt. No. 17-4. In his affidavit,
Mr. McIntyre discusses the job description of a laborer and how that position is performed in

practice. Specifically, Mr. McIntyre indicates that "'light duty' is not offered to Laborer's for the
Town given the nature of the work," which consists of mainly manual activities that involve
lifting. See id. at ¶¶ 5-6. While this may be accurate, this information is not properly considered
on a motion to dismiss, since it is outside the pleadings and not information that the Court can
take judicial notice of. Thus, making all reasonable inferences in Plaintiff's favor, as it must, the
Court concludes that Plaintiff plausibly alleges that he was qualified for his job with or without
reasonable accommodation at the time of his termination. See ATSI Commc'ns, Inc., 493 F.3d at

98 (citation omitted).

14
As to the fourth element of an ADA discrimination claim, "[a]n adverse employment
action includes any 'materially adverse change in the terms and conditions of employment.'"
Dotson v. City of Syracuse, No. 5:18-CV-750, 2019 WL 2009076, *3 (N.D.N.Y. May 7, 2019)
(quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). "Examples of
materially adverse changes include termination of employment[.]" Vega, 801 F.3d at 85 (quoting
Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.2003)). "[A]t the pleadings stage, . . . a plaintiff

must allege that the employer took adverse action against [him] at least in part for a
discriminatory reason." Id. at 87. A plaintiff may meet this standard "by alleging facts that
directly show discrimination or facts that indirectly show discrimination by giving rise to a
plausible inference of discrimination." Id. (citing Littlejohn v. City of New York, 795 F.3d 297,
310 (2d Cir. 2015)). "A plaintiff can raise an inference of discrimination by demonstrating the
disparate treatment of similarly situated employees but 'must show [he] was similarly situated in
all material respects to the individuals with whom [he] seeks to compare [him]self.'" Novick v.
Vill. of Wappingers Falls, New York, 376 F. Supp. 3d 318, 342 (S.D.N.Y. 2019) (quoting Kosack

v. Entergy Enters., Inc., No. 14-CV-9605, 2019 WL 330870, *6-7 (S.D.N.Y. Jan. 25, 2019)
(quoting Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003))). "[T]o satisfy [the] 'all
material respects' standard for being similarly situated, a plaintiff must show that . . . similarly
situated employees who went undisciplined engaged in comparable conduct." Graham v. Long
Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) (citation omitted).
Again, Plaintiff has plausibly alleged, given the special solicitude shown to pro se
litigants, that he was terminated because of his disability. Again, Defendant relies on the affidavit

of Timothy McIntyre to argue that Plaintiff was in fact terminated because of a number of
disciplinary and job performance issues. See Dkt. No. 17-4 at ¶¶ 8-17. Most recently, Defendant
15
contends that, on February 13, 2018, the Town brought a disciplinary action against Plaintiff,
which ultimately led to his termination on February 22, 2018. See id. While Defendant may
ultimately establish that Plaintiff was terminated for reasons other than those alleged in the
complaint, reliance on such evidence at this stage is impermissible.
Based on the foregoing, the Court denies Defendant's motion to dismiss as to Plaintiff's
disability discrimination claim.

2. ADA Failure to Accommodate Claim
"An employer may . . . [also] violate the ADA by failing to provide a reasonable
accommodation" for an employee's disability. Dominelli v. N. Country Acad., No. 1:16-CV-203,
2016 WL 6833992, *2 (N.D.N.Y. Nov. 18, 2016) (quoting McMillan, 711 F.3d at 125). To state a
claim under the failure to accommodate framework, a plaintiff must show that "(1) [p]laintiff is a
person with a disability under the meaning of the ADA; (2) an employer covered by the statute
had notice of [his] disability; (3) with reasonable accommodation, plaintiff could perform the
essential functions of the job at issue; and (4) the employer has refused to make such

accommodations." Harvin v. Manhattan and Bronx Surface Transit Operating Auth., 767 Fed.
Appx. 123, 126 (2d Cir. 2019) (quoting McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92,
96-97 (2d Cir. 2009)).
In addition to an employer's obligation to provide reasonable accommodation for
"disabilities for which accommodation has been requested[,]" employers also have "a duty
reasonably to accommodate an employee's disability if the disability is obvious—which is to say,
if the employer knew or reasonably should have known that the employee was disabled." Brady v.
Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008). Thus, even when an employee fails to

request specific accommodation for his disability, "the ADA contemplates that employers will
16
engage in 'an "interactive process" [with their employees and in that way] work together to assess
whether an employee's disability can be reasonably accommodated.'" Id. (quoting Jackan v.
N.Y.S. Dep't of Labor, 205 F.3d 562, 566 (2d Cir. 2000)). "'Reasonable accommodations' may
include adjustments to work schedules or other job restructuring." McMillan, 711 F.3d at 127
(citing 45 C.F.R. § 84.12(b) (2005)). However, "an accommodation is reasonable only if its costs
are not clearly disproportionate to the benefits that it will produce." Borkowski v. Valley Cent.

Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995) (citing Vande Zande v. Wis. Dep't of Admin., 44 F.3d
538, 542 (7th Cir.1995)). Furthermore, "[t]he accommodation must allow the employee to
perform the essential functions of [his] job at the same level as the rest of the workforce." Fowler
v. Kohl's Dep't Stores, Inc., No. 1:07-CV-1197, 2009 WL 2155481, *5 (N.D.N.Y. July 16, 2009)
(citing Borkowski, 63 F.3d at 138 n.3).
In the present matter, Plaintiff has plausibly alleged a prima facie failure to accommodate
claim under the ADA. As discussed in the discriminatory discharge analysis directly above, the
Court has already found that Plaintiff plausibly alleged elements one and three of a failure to

accommodate claim. Plaintiff has also plausibly alleged facts supporting the second element of
this claim: that Defendant had notice of Plaintiff's disability. See McBride, 583 F.3d at 96-97.
Plaintiff alleges that he requested light duty when he tried to return to work after injuring his neck,
but that Defendant "refuse[d] [Plaintiff] light duty while other employees where [sic] granted light
duty." Dkt. No. 1 at 5. Additionally, even if Plaintiff had not put Defendant on notice by
requesting accommodation for his injury, Defendant "knew or reasonably should have known that
[Plaintiff] was disabled," Brady, 531 F.3d at 135, as Plaintiff had been on workers' compensation

for nine months after injuring his neck, see Dkt. No. 1 at 11. Furthermore, Defendant does not
contend that it had no notice of Plaintiff's disability but contends only that light duty is not
17
available to any of Defendant's employees in Plaintiff's department. See Dkt. No. 17-3 at 6.
While it may ultimately be determined that light duty would have been an unreasonable
accommodation, Plaintiff's complaint plausibly alleges that Defendant granted this
accommodation to others in the past and that he could perform the essential functions of his job
with such an accommodation. See Berger v. N.Y.C. Police Dep't, 304 F. Supp. 3d 360, 368
(S.D.N.Y. 2018) (holding that failure to accommodate amounts to an adverse employment action

in "scenarios where the failure to accommodate resulted in an adverse employment action").
Based on the foregoing, the Court denies Defendant's motion to dismiss as to Plaintiff's
failure to accommodate cause of action.
3. ADA Retaliation
The ADA makes it unlawful for an employer to retaliate against an employee by
"discriminat[ing] against any individual because such individual has opposed any act or practice
made unlawful by this chapter or because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this chapter." 42

U.S.C. § 12203(a). ADA retaliation claims are also analyzed under "the same McDonnell-
Douglas burden-shifting framework discussed earlier." Wagner v. Cty. of Nassau, No.
11-CV-1613, 2014 WL 3489747, *8 (E.D.N.Y. July 11, 2014). Accordingly, once more "the
[c]ourt asks only whether a plaintiff has pled a prima facie case, not whether a plaintiff has
established that case." Laface, 349 F. Supp. 3d at 145 (quoting Figueroa, 89 F. Supp. 3d at 489).
A prima facie case for retaliation under the ADA requires that a plaintiff show that "'(1)
[he] engaged in protected activity; (2) the employer was aware of that activity; (3) the employee
suffered a materially adverse [employment] action; and (4) there was a causal connection between

the protected activity and that adverse action.'" Kelly v. Howard I. Shapiro & Assocs. Consulting
18
Eng'rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (quoting Lore v. City of Syracuse, 670 F.3d 127, 157
(2d Cir. 2012)).
"The ADA is not, however, a catchall statute creating a cause of action for any workplace
retaliation, but protects individuals only from retaliation for engaging in, or aiding another who
engages in, activity covered by the ADA." Rorrer v. City of Stow, 743 F.3d 1025, 1046 (6th Cir.
2014) (citing 42 U.S.C. § 12203(a)). "The ADA's retaliation provision only prohibits retaliation

against a person because the person 'opposed any act or practice made unlawful by this chapter' or
'made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or
hearing under this chapter.'" Reynolds v. Am. Nat'l Red Cross, 701 F.3d 143, 154 (4th Cir. 2012)
(holding that "a workers' compensation claim is not something that is covered by the ADA")
(emphases in original); see also Skinner v. City of Amsterdam, 824 F. Supp. 2d 317, 332
(N.D.N.Y. 2010) (holding that "filing a complaint with the DOT is not protected participation
under the ADA").
In the present matter, Plaintiff's complaint fails to make a facially plausible claim for

retaliation under the ADA. In his complaint, Plaintiff alleges that he was terminated from his job
"for cooperating with the EEOC & PESH" investigations.1 See Dkt. No. 1 at 4. He provides no
additional facts in support of this claim. Although temporal proximity between a filing a claim
with the EEOC and an adverse employment action can often support an inference of retaliation,
no such inference can be drawn from the complaint in the present matter. Plaintiff alleges that he
filed his claim with the EEOC on February 28, 2017 and that he was terminated almost a year
later on February 23, 2018. Courts have generally found that, when relying on temporal

1 The Court notes that "PESH" is the acronym commonly used for the New York State
Department of Labor Public Employee Safety and Health Bureau.
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proximity, the protected activity must be "'very close'" to the adverse employment action, "which
ordinarily means close in time than a few months." Cortez v. Connecticut, Dep't of Transp., 606
F. Supp. 2d 246, 251 (D. Conn. 2009) (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,
273 (2001)); see also Chamberlin v. Principi, 247 Fed. Appx. 251, 254 (2d Cir. 2007) (holding
that temporal proximity was insufficient to support the plaintiff's retaliation claim where there was
a five-month interval between the plaintiff's complaint with the EEOC and the alleged adverse

employment action).
In his response to Defendant's motion to dismiss, Plaintiff provides a few more details
regarding the alleged retaliation. Dkt. No. 20 at 1-2. Specifically, Plaintiff alleges that he "spoke
with both EEOC and PESH reprentatives [sic] regarding safety issues within the department. The
next time I cooperated with a PESH representative, I was terminated 5 days later." Id. While
Plaintiff's cooperation with the EEOC is a protected activity under the ADA, see 42 U.S.C. §
12203(a), Plaintiff's bare allegation that he "was also[] terminated for cooperating with the
EEOC" would still be insufficient to support this claim.

Moreover, the response makes clear that Plaintiff's retaliation claim centers almost
exclusively on his cooperation with the PESH investigation. See Dkt. No. 20 at 2. Plaintiff
claims that he was terminated in retaliation for reporting Defendant's failure to supply Plaintiff
with a two-way radio while Plaintiff was acting as a flagperson on a busy road. See id. However,
Plaintiff's cooperation with PESH regarding this alleged violation of PESH safety rules is utterly
unrelated to Plaintiff's disability and is therefore not a protected activity under the ADA. See 42
U.S.C. § 12203(a); see also Gorbea v. Verizon New York, Inc., No. 11-CV-3758, 2014 WL

917198, *11 (E.D.N.Y. Mar. 10, 2014) (holding that, to be protected activity, a complaint,
whether formal or informal, about working conditions must be related to one's disability).
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Having failed to plausibly allege a causal connection between any protected activity and
the adverse employment action, the Court grants Plaintiff's motion to dismiss as to Plaintiff's
ADA retaliation claim.
D. Leave to Amend
Based on the allegations presented, the Court is doubtful that Plaintiff will be able to assert
a plausible claim of retaliation under the ADA. However, a district court should generally "not

dismiss a pro se complaint without granting the plaintiff leave to amend." Tylicki v. Schwartz,
401 Fed. Appx. 603, 604 (2d Cir. 2010) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000)). Thus, in light of the special latitude afforded to pro se litigants, the Court will provide
Plaintiff with an opportunity to amend his complaint as to his ADA retaliation claim. If Plaintiff
files an amended complaint, it must be a wholly-integrated and complete pleading that does not
rely upon or incorporate by reference any pleading or document previously filed with the Court.
Since the claims under the ADEA are untimely, any amendment as to those claims would
be futile. As such, those claims are dismissed with prejudice.

IV. CONCLUSION
For the reasons stated herein, the Court hereby
ORDERS that Defendant's motion to vacate entry of default is GRANTED; and the Court
further
ORDERS that Defendant's motion to dismiss is GRANTED in part and DENIED in
part;2 and the Court further

2 As a result of this Memorandum-Decision and Order, the only remaining claims are
disability discrimination and failure to accommodate under the ADA.
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ORDERS that Plaintiff's motion for default judgment is DENIED as moot; and the Court
further
ORDERS that Plaintiff may file an amended complaint within thirty (30) days of the date
of this Memorandum-Decision and Order; and the Court further
ORDERS that Defendant shall filed its answer to Plaintiff's complaint within ten (10)
days of the date of this Memorandum-Decision and Order; and the Court further

ORDERS that the Clerk of the Court shall serve Plaintiff with a copy of this
Memorandum-Decision and Order in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: August 19, 2019
Albany, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311951. Public record. Not legal advice.