Opinion
00 Civ. 8332 (KNF)
March 10, 2003
MEMORANDUM AND ORDER
I. INTRODUCTION
Plaintiff James Gill ("Gill") alleges that defendants City of New York, Howard Safir, Police Commissioner, NYCPD Board of Trustees of the Police Pension Fund, Article H ("Pension Board"), Medical Board of the Police Pension Fund, Article II ("Medical Board"), Michael Markman, Chief of Personnel, NYCPD, and Nicholas Rungo ("Rungo"), Captain, NYCPD (collectively "defendants") violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., 42 U.S.C. § 1983, the Equal Protection Clause of the Fourteenth Amendment, and state and municipal anti-discrimination laws when they denied him accidental disability retirement ("ADR") benefits based on plaintiffs history of alcoholism. The defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff opposes the motion; it is addressed below.
II. BACKGROUND
Gill was appointed to the New York City Police Department ("NYPD") on January 26, 1982. Following his graduation from the Police Academy and the satisfactory completion of a probationary term, plaintiff was assigned to the 111th precinct. There plaintiff received "meets standard" and "above standard" job performance evaluations as a police officer.
In 1989, Gill was robbed at gun point. During the robbery, Gill was relieved of his firearm and police shield and identification credentials. At the time of the robbery, Rungo was the commanding officer of the 11th precinct. Several days after the robbery, Rungo lodged a command discipline charge against plaintiff for the loss of his firearm and shield. The command discipline charge was dismissed on July 26, 1990.
On June 20, 1990, Gill was referred by Rungo to the counseling unit of the NYPD, which provides treatment and counseling for members of the NYPD who are alcoholics. According to Gill, he reported to the counseling unit as directed, was interviewed by an alcoholism counselor, and was then directed to return to his duties as a police officer. Gill recalls that he was not enrolled in the unit's counseling treatment program at that time, but continued to work at the 111th precinct, where he performed all of his assignments satisfactorily.
Gill avers that, during the period that he served under Rungo's command, his job assignments were monitored closely and, on one occasion, he was singled out by Rungo for disciplinary action. Gill claims that, as a result of having to work under these conditions, he became nervous and experienced mental anxiety and stress. In order to relieve his nervousness, plaintiff began consuming alcohol after work.
In December 1994, Gill, believing that he had developed a stress-induced reliance on alcohol, reported to the NYPD counseling unit and enrolled in the unit's alcoholism treatment program. He was then referred to the New Directions Rehabilitation Facility for treatment and counseling. After completing that course of treatment successfully, plaintiff participated in the NYPD's 90-Day Alcoholism Rehabilitation Program. During this period, plaintiff was assigned to the 111th precinct and placed in restricted duty status.
Plaintiff contends that after Rungo became aware of plaintiffs participation in the alcoholism programs, Rungo and another superior officer under his command attempted to assign plaintiff to janitor duty in the precinct. Plaintiff maintains that his superior officers attempted to give him such assignments because they were biased against him because of his alcoholism.
Plaintiff returned to full duty on April 26, 1995. Thereafter, plaintiff participated in Alcoholics Anonymous ("AA"), achieved sobriety and remained sober throughout 1995 and 1996.
On July 17, 1996, plaintiff and a partner were assigned to radio motor patrol in the 11th precinct, a tour of duty which began at 7:00 a.m. and concluded at approximately 3:35 p.m. The police vehicle in which plaintiff and his partner spent the day lacked an operable air-conditioning unit. Plaintiff recalls that, due to the extreme heat, his partner removed his vest; however, plaintiff wore his vest throughout the day. Plaintiff recalls that by the end of the tour of duty, he was sweating profusely and felt dehydrated, weak and tired. According to plaintiff, when he returned to the station house his condition was observed by several police officers, one of whom is a registered nurse. Plaintiff remained at the station house for approximately forty-five minutes and then returned home.
Like the police car in which he had spent the day, plaintiffs own vehicle lacked an operable air-conditioning unit. Plaintiff arrived at his home at approximately 5:10 p.m. Plaintiffs home did not have an operable air-conditioning unit. While at home, plaintiff rested but did not consume any food or liquid. Plaintiff acknowledged that he did not consume any fluids during the afternoon or early evening of that day.
At 8:00 p.m., plaintiff went to an AA meeting. The building in which the AA meeting took place was not air-conditioned. During a break in the meeting, plaintiff went outside because he felt weak and dizzy. There, he collapsed and struck his head on the pavement. He also injured his neck and shoulder in the fall. Plaintiff was taken to St. John's Hospital where he remained from July 17 through July 19, 1996. During that period, plaintiff, who had suffered a Grand Mal seizure, was treated for heat exhaustion, dehydration and seizure disorder. Plaintiff suffered a second Grand Mal seizure on September 21, 1996, and a third such seizure on September 27, 1996.
After a period of convalescence, plaintiff returned to work in a restricted duty capacity. In October 1996, plaintiff was examined by Dr. Norman Lanes, a police surgeon employed by the NYPD Medical Division. Plaintiff contends that Dr. Lanes advised him that his seizures may have been "alcohol-related" and referred plaintiff to the NYPD's counseling unit. Plaintiff claims that Dr. Lanes suggested that plaintiff was drinking alcohol on July 17, 1996, and that this was the cause of the seizure he experienced on that day. Plaintiff maintains, however, that he was not drinking on July 17, 1996, that a hospital report prepared on that day confirmed an absence of alcohol in plaintiffs blood, and that he has consumed no alcohol since he first reported to the NYPD's counseling unit in 1994. It appears that the counseling unit examined plaintiff and consulted his family and AA associates, and confirmed that plaintiff had remained sober from 1994 until 1996. Since the incident of July 17, 1996, plaintiff has suffered multiple seizures and has not been restored to full police duty.
Plaintiff submitted an application seeking to have his injury of July 17, 1996, designated as having occurred in the line of duty. Plaintiffs application for a line of duty designation for his injury includes the recommendation of plaintiffs supervising officer that the request for such a designation be approved because plaintiffs seizure disorder and related injuries could be attributed to heat exhaustion caused by the conditions in the radio motor patrol car that plaintiff had driven that day. However, plaintiffs request was denied by the NYPD. Plaintiff sought review of the denial of his application; however, upon review, plaintiffs request for the line of duty designation was again denied. Plaintiff claims that the basis for the denial by the NYPD of his requests for the line of duty designation was his history of alcoholism.
Plaintiff sought an examination by the Medical Board. Plaintiff asserts that during the Medical Board's examination of him, he was questioned regarding his use of alcohol. On March 13, 1998, the Medical Board determined that, while plaintiff was disabled, his disability was not the natural and proximate cause of an accident suffered while in city service. Accordingly, the Medical Board recommended that plaintiff be granted Ordinary Disability Retirement ("ODR") rather than ADR. On April 16, 1999, and May 12, 2000, the Medical Board affirmed its earlier conclusion. Thereafter, the Pension Board adopted the Medical Board's recommendation that plaintiff be granted ODR. Plaintiff was notified of the Pension Board's decision on November 8, 2000.
According to plaintiff, ADR entitles a police officer to receive three-quarters of his annual salary upon retirement and the payments are exempt from taxation. ODR entitles a police officer to receive half of his annual salary upon retirement and does not provide exemption from taxation.
Plaintiff avers that the Medical Board, in reaching its determination that he was not entitled to ADR, failed improperly to consider the medical report of plaintiffs personal physician, Dr. Justin Willer, regarding the cause of plaintiffs seizure disorder and related injuries. Plaintiff claims further that the Medical Board and Pension Board had knowledge of plaintiffs history of alcoholism, that such knowledge was improper because plaintiffs alcoholism treatment records should have been confidential, and that defendants considered plaintiffs history of alcoholism improperly in making their determination regarding his request for an ADR pension.
As the defendants note, the Medical Board's recommendation of March 13, 1998, includes a reference to a "report," dated February 12, 1998, from plaintiffs personal physician. The document in question is a letter from Dr. Willer, addressed to another physician, stating, inter alia, that after "becoming dehydrated while on duty [plaintiff] suffered a seizure later that evening."
On October 30, 2000, Gill commenced the instant action alleging violations of the ADA, 42 U.S.C. § 12101 et seq., 42 U.S.C. § 1983, the Equal Protection Clause of the Fourteenth Amendment, New York Executive Law § 296 ("State Human Rights Law") and the Administrative Code of the City of New York § 8-107 ("City Human Rights Law"). Plaintiff filed a charge with the United States Equal Employment Opportunity Commission ("EEOC") on July 17, 2000, alleging that he had been discriminated against on the basis of, inter alia, disability. The EEOC issued plaintiff a right to sue letter on August 10, 2000. The right to sue letter indicates that the EEOC could not investigate plaintiffs charge of discrimination because it was not filed within the time limit required by law.
Defendants' motion for summary judgment against plaintiff was made on July 13, 2002. Defendants maintain that they are entitled to summary judgment because: (1) plaintiff cannot establish a prima facie case of discrimination under the ADA; (2) plaintiff cannot establish a prima facie case of discrimination under the State Human Rights Law or the City Human Rights Law; (3) plaintiffs ADA claims for acts that occurred prior to September 22, 1999, are barred due to plaintiffs failure to file timely a charge of discrimination with the EEOC; (4) plaintiffs claims under 42 U.S.C. § 1983 and state and municipal anti-discrimination laws that accrued prior to October 31, 1997, are barred by the applicable statutes of limitations; (5) plaintiffs claim under the City Human Rights Law is barred by plaintiffs failure to file a notice of claim; and (6) plaintiff cannot establish a prima facie case of discrimination under the Equal Protection Clause of the Fourteenth Amendment.
III. DISCUSSION
Standard of Review for Summary Judgment
Summary judgment may be granted in favor of the moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(c); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911, 118 S.Ct. 2075 (1998). When considering a motion for summary judgment, "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L. B. Foster Co. v. America Piles. Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356).
The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552 (1986). Once the moving party has satisfied its burden, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Anderson v. Liberty Lobby. Inc, 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986).
In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon the allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts."Matsushita, 475 U.S. at 586, 106 S.Ct. at 1355. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2510. The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Summary judgment should only be granted if no rational jury could find in favor of the non-moving party. See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994).
ADA Claim
The ADA bars discrimination by covered entities against qualified individuals with a disability. Accordingly, no covered employer may "discriminate against a qualified individual with a disability because of the disability of such individual 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). The ADA explains that a "qualified individual with a disability" is a person "with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that [the person] holds or desires." 42 U.S.C. § 12111 (8).
The legal standards for discrimination claims under the ADA and under New York state and city laws are essentially the same. Therefore, discussion of plaintiffs federal ADA claims applies to his claims under New York Executive Law § 296 and § 8-107 of the Administrative Code of the City of New York, as well. See, e.g., Rogers v. New York University, No. 98 Civ. 2089, 2002 WL 2031567, at *3 n. 4 (S.D.N.Y. Sept. 4, 2002).
A plaintiff bringing a claim under the ADA bears the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Community Adolescent Program. Inc., 198 F.3d 68, 72 (2d Cir. 1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817). In order to establish 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 the job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability.Id. In this case, plaintiff asserts, and the defendants do not dispute, that plaintiff has satisfied the first, second and fourth of these elements. However, the parties disagree about whether plaintiff can satisfy the third element of his prima facie case. Plaintiff, adapting the pertinent language of the statute to the circumstances of this action, asserts that he was "otherwise qualified" to receive a "job benefit or term of employment." That is, according to plaintiff, he was "otherwise qualified" to receive ADR benefits. The defendants contend, however, that plaintiff was not "otherwise qualified" to receive an ADR pension and, thus, cannot meet the requirements for a preliminary showing of discrimination under the ADA.
In order to be eligible for ADR benefits, an applicant must show that he suffered physical or mental incapacitation "as a natural and proximate result of an accidental injury" received in the line of duty, and that the disability was not the result of "wilful negligence" on the applicant's part. Starnella v. Bratton, 92 N.Y.2d 836, 838, 677 N.Y.S.2d 62, 63 (1998) (quoting Administrative Code of the City of New York § 13-252); see also Rosenthal v. Bd. of Trustees of New York City Police Pension Fund, 999 F. Supp. 498, 500 (S.D.N.Y. 1998). A line of duty injury entitles an applicant to an award of accident disability only if the injury was the result of an accident, that is, of "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." Starnella, 92 N.Y.2d at 838, 677 N.Y.S.2d at 63 (quoting Matter of Lichtenstein v. Bd. of Trustees, 57 N.Y.2d 1010, 457 N.Y.S.2d 472) (internal quotation marks omitted). Specifically, there must be a "precipitating accidental event" which is "not a risk of the work performed." Id. at 839, 63 (quoting Matter of McCambridge v. McGuire, 62 N.Y.2d 563, 479 N.Y.S.2d 171).
The defendants assert that plaintiff is unable to demonstrate that his seizure disorder, and the injuries he sustained to his head, neck and shoulder, were a "natural and proximate result of an accidental injury" received in the line of duty. According to the defendants, the circumstances that resulted in plaintiffs injury were "merely a customary part of his ordinary employment duties" and did not involve the requisite "unexpected event." In addition, the defendants claim, plaintiff cannot prove that his seizure disorder is causally connected to activities he performed in the line of duty because, during the five-hour period between the end of plaintiffs tour of duty and the moment when plaintiff suffered a seizure and related injuries, plaintiff "voluntarily and continuously" exposed himself to the same conditions he had experienced during the day in the radio motor patrol car. Consequently, the defendants maintain, since plaintiff cannot show that his disability is "a natural and proximate result of an accidental injury," he cannot establish that he was "otherwise qualified" to receive an ADR pension. Moreover, the defendants contend, since the Medical Board's denial of plaintiffs application for ADR benefits was based solely on plaintiffs failure to meet the relevant legal requirements, there is no evidence that plaintiff was discriminated against on the basis of his history of alcoholism.
However, it appears that plaintiff has raised an issue of triable fact about whether his seizure disorder and related injuries were the result of an accidental injury sustained in the line of duty. Plaintiffs application for the line of duty designation includes the recommendation of plaintiffs supervising officer that plaintiff be granted such designation because, "after several days in the hospital, [plaintiffs] illness was attributed to heat exhaustion and that day [plaintiff] performed patrol in extreme temperatures in a [radio motor patrol vehicle] with no air conditioning." Additionally, a medical report prepared by plaintiffs personal physician, dated February 26, 2002, states, in pertinent part:
The proximate cause of these events was the heat exhaustion. The exact mechanism is not entirely clear. It could have been caused in one of two ways. It could have directly caused him to develop a seizure, or more likely, it caused him to lose consciousness, fall, and develop post-traumatic epilepsy. . . . All other possible causes for these events were sought and no evidence for anything other than the episode [that] was related to the heat exhaustion that he developed while on duty was ever found. Therefore, the only conclusion to a reasonable medical certainty is that the heat exhaustion was the proximate and direct cause of the seizures and the fall. . .
The defendants' claim that plaintiff "voluntarily and continuously" exposed himself to conditions like those he experienced while in the radio motor patrol vehicle in the hours after he completed his tour of duty simply raises an issue of fact to be decided at trial.
Therefore, for the reasons set forth above, there appears to be a genuine issue of material fact about whether plaintiff can establish a prima facie case of discrimination under the ADA by showing that he was "otherwise qualified" to receive ADR benefits. Accordingly, the defendants are not entitled to summary judgment as a matter of law against plaintiff with respect to his claims under the ADA and related state and municipal statutes.
Timeliness of Plaintiff's Claims
Before bringing a claim under the ADA, a plaintiff must file a timely charge of discrimination with the EEOC. See Stalter v. Bd. of Coop. Educ. Servs. of Rockland County, 235 F. Supp.2d 323, 332 (S.D.N.Y. 2002) (citing Harris v. City of New York, 186 F.3d 243, 247 [2d Cir. 1999]). In New York, a plaintiff must file a charge with the EEOC within 300 days of the allegedly discriminatory event. See id. "When a plaintiff fails to file a timely charge with the EEOC, the claim is time-barred." Id. (quoting Butts v. City of New York Dep't of Housing Preservation Dev., 990 F.2d 1397, 1401 [2d Cir. 1993]).
The ADA incorporates the statute of limitations applicable to a claim brought under Title VII of the Civil Rights Act of 1964. See Stalter, 235 F. Supp.2d at 332.
The defendants contend that they are entitled to summary judgment with respect to claims that are based on alleged acts of discrimination which occurred prior to September 21, 1999. Since plaintiff filed his charge of discrimination with the EEOC on July 17, 2000, any events which occurred prior to the EEOC's 300-day limitation period, that is, prior to September 1999, could not be the basis of a claim under the ADA. Thus, defendants contend, all claims based on such events are time-barred. In this context, the defendants refer to plaintiffs filing of an application for a line of duty designation with respect to his seizure and related injuries and to Rungo's allegedly discriminatory conduct during the period that he served as plaintiffs commanding officer.
In response, plaintiff notes that the Medical Board has authority under the Administrative Code of the City of New York to determine whether an applicant for ADR benefits became disabled "in the performance of City service." Plaintiff notes further that the Medical Board examined plaintiff in connection with his application for ADR benefits "as late as May 12, 2000," and made its concluding recommendation concerning the application on that date. Therefore, plaintiff claims, the instant action is not time-barred: plaintiff filed his EEOC complaint on July 18, 2000, well within 300 days of the date on which the Medical Board reached a conclusion in the matter.
The Court agrees with plaintiff that his EEOC complaint was filed timely. However, it should be noted that the May 12, 2000 recommendation of the Medical Board became final only upon approval and adoption by the Pension Board, which has the authority to decide the type of pension to which an applicant is entitled and which issued its determination denying plaintiffs application for an ADR pension on or about November 8, 2000.See New York City Administrative Code §§ 13-168, 13-123 and 13-252. Nevertheless, the Medical Board's recommendation may be considered the relevant "discriminatory event" for the purposes of this action — that is, the event which establishes the date upon which the EEOC's limitation period accrued — inasmuch as a finding by the Medical Board constitutes a complete determination of: (1) an applicant's physical or mental capacity to perform his duties as a police officer; and (2) whether a disability is "a natural and proximate result of an accidental injury" received in the line of duty. New York City Administrative Code § 13-252.
Furthermore, although Gill's EEOC complaint alleges discrimination based on a disability by the Medical Board, the Court has jurisdiction to hear claims concerning the Pension Board that have been raised in the complaint because those claims are "reasonably related" to the claim filed with the EEOC. See Shah v. New York State Dep't of Civil Service, 168 F.3d 610, 613-14 (2d Cir. 1999) (stating that a district court only has jurisdiction to hear discrimination claims that either are included in an EEOC complaint or are "reasonably related" to the claims of discrimination raised in the EEOC complaint). Specifically, plaintiffs claim against the Pension Board, namely, that it denied his application for ADR benefits improperly because of his history of alcoholism, alleges an additional incident of discrimination "carried out in precisely the same manner" as the incident alleged in the EEOC complaint. Butts v. City of New York Dep't of Housing Preservation Dev., 990 F.2d 1397, 1402-03 (2d Cir. 1993). Consequently, the claim against the Pension Board is sufficiently related to the allegations contained in the EEOC complaint that it would be unfair to the plaintiff to bar the claim in this action. See id. at 1402.
For their part, the defendants state that they do not dispute plaintiffs contention that his ADA claim "as it relates to his claim that he was wrongfully denied an [ADR] pension was timely filed with the EEOC. Apparently, then, the defendants' only concern is with claims based on events that may have occurred outside the relevant limitation period. However, the defendants do not indicate the nature of those claims or in what way, if any, they differ from plaintiffs claim concerning the allegedly wrongful denial of ADR benefits. Furthermore, neither party has addressed the question whether the Court should confine its consideration to those incidents alleged to have occurred within the applicable limitation period or, instead, whether the limitation period should be extended in this case. Thus, it would appear that the only claim properly before the Court at this time is whether plaintiffs ADA claim is time-barred. As the defendants concede, since plaintiffs EEOC complaint was filed within the applicable limitations period, that is, within 300 days of the May 12, 2000 finding of the Medical Board, plaintiffs ADA claim was filed timely.
Specifically, neither party has addressed the question whether the continuing violation exception, which provides that a limitation period may be extended to include all claims of discriminatory actions committed under an ongoing policy of discrimination, even if those acts, standing alone would have been barred by the statute of limitations, applies in this case. See, e.g., Stalter, 235 F. Supp.2d at 332; Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2dCir. 1998).
The defendants also allege that plaintiffs claims under 42 U.S.C. § 1983, the State Human Rights Law and the City Human Rights Law, to the extent that they are based on events which occurred before October 11, 1997, are barred by the applicable statutes of limitations.
The statute of limitations for actions brought under 42 U.S.C. § 1983 and the State Human Rights Law is three years. See Owens v. Okure, 488 U.S. 235, 236, 251, 109 S.Ct. 573, 574, 582 (1989); Quinn v. Green Tree Credit Corp., 159 F.3d at 765. The statute of limitations for actions brought under the City Human Rights Law also is three years. See New York City Administrative Code § 8-502(d).
Plaintiff filed the instant action on October 30, 2000. Thus, for the purposes of his section 1983 and State and City Human Rights Laws claims, any incidents of discrimination alleged to have occurred prior to October 1997, would ordinarily be time-barred.
As noted in connection with the discussion of the timeliness of plaintiffs ADA claim, the defendants do not state precisely what claims they have in mind when they refer to claims based on events which occurred prior to October 11, 1997. Nor do the defendants address the question whether an extension of the limitation period would be warranted with respect to plaintiffs section 1983 and state and municipal anti-discrimination law claims. Assuming that, as with plaintiffs ADA claim, the relevant date for the purposes of determining the applicable limitation period is the date upon which the Pension Board issued its final determination with respect to plaintiffs application for ADR benefits, plaintiffs claims under 42 U.S.C. § 1983, the State Human Rights Law and the City Human Rights Law were filed timely. Therefore, the Court finds that the defendants are not entitled to summary judgment as a matter of law on that part of their motion which seeks to have plaintiffs claims dismissed as time-barred.
Failure to File a Notice of Claim
The defendants contend that plaintiffs claims brought pursuant to the City Human Rights Law are barred because he failed to file a notice of claim as was required of him pursuant to New York General Municipal Law §§ 50-e(1)(a) and 50-i(1). In response, plaintiff argues that state statutory provisions concerning the filing of a notice of claim do not apply to claims of discrimination brought pursuant to the State Human Rights Law. However, plaintiff does not address the defendants' contention regarding the applicability of the notice-of-claim requirement to claims of discrimination brought under the relevant municipal law.
"New York law requires, as a condition precedent to a tort against a municipality, the filing of a notice of claim within ninety days after the claim arises." Benjamin v. N.Y.C. Dep't of Health, 2002 WL 485731, at *8 (S.D.N.Y. Mar. 29, 2002) (citing N.Y. Gen. Mun. Law §§ 50-e[1][a] and 50-i[1]). Courts in this judicial district have found that actions brought pursuant to the State and City Human Rights Laws are not tort actions and, therefore, not subject to the notice of claim requirements found at §§ 50-e and 50-i of the General Municipal Law. See Dworkin v. City of New York, No. 95 Civ. 10261, 1996 WL 673815, at *4 (S.D.N.Y. Nov. 20, 1996) (citing Dimonda v. New York City Police Dep't, 1996 WL 194325, at *6 [S.D.N.Y. Apr. 22, 1996]; Dortz v. City of New York, 904 F. Supp. 127, 141-42 [S.D.N.Y. 1995]). Therefore, a plaintiffs failure to file a notice of a discrimination claim pursuant to § 50-e does not bar the claim under State or City Human Rights Law. See id.
Accordingly, that part of defendants' motion for summary judgment which seeks to have plaintiffs claim under the City Human Rights Law dismissed for failure to file a notice of claim is denied.
Equal Protection Claim
"The Equal Protection Clause requires that the government treat all similarly situated people alike." Harlen Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 499 (2d. Cir. 2001). Although an equal protection claim typically alleges discrimination based on membership in a vulnerable class, individuals who do not claim membership in a specific class but allege that they have been subjected to invidious discrimination by government officials also are entitled to equal protection. See id. Such "class of one" claims are considered to be valid "where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Id. (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073). Whether two individuals are similarly situated ordinarily is an issue of fact that should be submitted to a jury. see, e.g., Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000).
Defendants claim that plaintiff cannot establish a claim of discrimination under the Equal Protection Clause of the Fourteenth Amendment because, at his deposition, plaintiff failed to identify any similarly situated individuals who were treated differently. At his deposition, plaintiff stated that he did not know anyone else who had a seizure disorder who was not an alcoholic and who was retired from the Police Department. When asked whether he knew anyone who had a shoulder or neck injury who was not an alcoholic and who was retired from the Police Department, plaintiff stated: "Not that I can remember. . . . I'm sure there's officers that I know that were retired on a shoulder injury over the years, nineteen years, with the department that I know but I can't remember offhand any particular officer by name."
Although plaintiff was not able to identify any specific individuals who presented circumstances analogous to his own, the Court finds that, under the circumstances, whether there are others who could be considered similarly situated to the plaintiff and who have been treated differently is a question best left to the trier of fact. Accordingly, the defendants are not entitled to summary judgment dismissing plaintiffs claim based on the Equal Protection Clause of the Fourteenth Amendment.
¶ IV. CONCLUSION
For the reasons set forth above, the defendants' motion for summary judgment, made pursuant to Fed.R.Civ.P. 56, is denied.
SO ORDERED: