18‐2816‐cv
Costabile v. NYCHHC, et al.




                                       In the
               United States Court of Appeals
                              for the Second Circuit


                                  AUGUST TERM 2019

                                    No. 18‐2816‐cv

                                  ROCCO COSTABILE,
                                  Plaintiff‐Appellant,

                                           v.

    NEW YORK CITY HEALTH AND HOSPITALS CORPORATION; MALICK
           BYRNE; DOLORES M. LEITE; AND SHOBA JOSEPH,
                      Defendants‐Appellees.



               On Appeal from the United States District Court
                   for the Southern District of New York



                              ARGUED: JANUARY 30, 2020
                              DECIDED: FEBRUARY 25, 2020



Before: CABRANES, SACK, AND LOHIER, Circuit Judges.
      Plaintiff‐Appellant Rocco Costabile (“Plaintiff”) appeals from
an August 21, 2018 judgment of the District Court (Robert W. Sweet,
Judge) granting the motion to dismiss of Defendants‐Appellees New
York City Health and Hospitals Corporation, Malick Byrne, Dolores
Leite, and Shoba Joseph, in an action alleging violations of the
Rehabilitation Act of 1973 and related state and municipal laws.
Plaintiff also sues under 42 U.S.C. § 1983 for the same alleged
violations of the Rehabilitation Act. The main questions presented in
this appeal are (1) whether an employee alleging a failure‐to‐
accommodate claim under the Rehabilitation Act has carried his initial
burden to make a prima facie case where the employer allegedly has
notice that the employee is on extended disability leave, but the
employee never requests an accommodation; and (2) whether rights
established by the Rehabilitation Act are enforceable under 42 U.S.C.
§ 1983.

      We conclude that an employee cannot make a prima facie case
against   his   employer     for   failure   to   provide   a   reasonable
accommodation under the circumstances presented here. We also
conclude that the rights established by the Rehabilitation Act are not
enforceable under 42 U.S.C. § 1983. Accordingly, we AFFIRM the
District Court’s judgment.




                           MICHAEL H. SUSSMAN, Sussman &
                           Associates, Goshen, NY, for Plaintiff‐
                           Appellant.




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                         MACKENZIE FILLOW, Assistant Corporation
                         Counsel (Richard P. Dearing and Scott
                         Shorr, Assistant Corporation Counsel, on the
                         brief), for Zachary W. Carter, Corporation
                         Counsel of the City of New York, New
                         York, NY, for Defendants‐Appellees.




PER CURIAM:

      Plaintiff‐Appellant Rocco Costabile (“Plaintiff”) appeals from
an August 21, 2018 judgment of the District Court (Robert W. Sweet,
Judge) granting the motion to dismiss of Defendants‐Appellees New
York City Health and Hospitals Corporation (“NYCHHC”), Malick
Byrne, Dolores Leite, and Shoba Joseph (jointly, “Defendants”), in an
action alleging violations of the Rehabilitation Act of 1973 and related
state and municipal laws. Plaintiff also sues under 42 U.S.C. § 1983 for
the same alleged violations of the Rehabilitation Act.

      There are two main questions presented in this appeal. First, we
consider whether an employee alleging a failure‐to‐accommodate
claim under the Rehabilitation Act has carried his initial burden to
make a prima facie case where the employer allegedly has notice that
the employee is on extended disability leave, but the employee never
requests an accommodation. On de novo review, we conclude that an
employee cannot make a prima facie case against his employer for




                                   3
failure     to   provide    a    reasonable      accommodation    under    the
circumstances presented in this appeal. Second, we consider whether
rights established by the Rehabilitation Act are enforceable under 42
U.S.C. § 1983. We conclude that they are not. Accordingly, we
AFFIRM the District Court’s judgment dismissing Plaintiff’s claims
brought under the Rehabilitation Act and 42 U.S.C. § 1983.

                                I. BACKGROUND

          Plaintiff   worked     as      a   carpenter   for   NYCHHC     from
approximately July 2001 to September 2015. During that period, he
suffered several work‐related injuries for which he took multiple
leaves of absence before returning to full‐time employment. Plaintiff
also has multiple sclerosis, which primarily impairs his vision. Plaintiff
has alleged that his on‐the‐job injuries and multiple sclerosis
substantially limit his major life activities.


      After sustaining a work‐related injury in May 2014, Plaintiff
remained on a leave of absence from his position as a permanent
carpenter for over a year. During his leave, pursuant to NYCHHC
policy, Plaintiff “provided NYCHHC with regular updates from his
doctor as to his condition and ability to work.”1


On August 10, 2015, Jeff Smodish, Associate Director of Human
Resources at NYCHHC, sent Plaintiff a letter regarding his leave status
(the “Notice”). The Notice explained that his leave period was

      1   Joint Appendix (“JA”) at 19.




                                             4
expiring, and that Plaintiff would be fired from his job on September
10, 2015, unless he “submit[s] medical documentation prior to that
date stating that [he is] fit to return to full duty.”2 The Notice did not
define “full duty” and did not offer Plaintiff any specific
accommodation in returning to work. The Notice referenced and
attached a copy of Section 7.3.4 of the New York City Health and
Hospitals Corporation Personnel Rules and Regulations, which sets
forth Plaintiff’s rights concerning requests for reinstatement following
“termination” at the expiration of disability leave.3 The attachment
indicates that permanent employees may take up to one year of leave
because of a job‐related disability but may be fired thereafter. It further
provides that:
             If, upon appeal to the Personal Review Board [(“PRB”)]
      within one year following termination of the disability or
      disease the PRB medial officer certifies that such person is
      physically, medically, and mentally fit to perform the
      essential duties of his/her former title with or without a
      reasonable accommodation, he/she shall be reinstated to
      his/her former title if there is a vacancy or to a similar or
      lower tittle in the same occupational field or to a vacant
      position for which he/she is eligible for transfer.4

      Plaintiff avers that he interpreted the letter to mean that he could
only return to “full duty” if he could complete all functions of his job


      2   Id. at 28.
      3   Id. at 30.
      4   Id. (emphasis in original).




                                        5
without accommodation. He alleges that, although he could perform
the job’s essential functions with or without accommodations, he
could no longer perform certain functions, like climbing and
descending ladders, that were “marginal functions” of the carpenter
job, even with an accommodation. Plaintiff did not respond to the
Notice and was therefore fired in September 2015. At no point did
Plaintiff request any accommodation from Defendants. Plaintiff
alleges that his disability is ongoing. He did not appeal to the PRB for
reinstatement.


          On November 2, 2017, Plaintiff, proceeding pro se, filed the
instant suit before the District Court. Plaintiff’s amended complaint
alleges that Defendants failed to provide him with a reasonable
accommodation for his alleged disability in violation of Section 504 the
Rehabilitation Act of 1973, codified at 29 U.S.C.A. §§ 701, et seq., and in
violation of 42 U.S.C. § 1983.5 The District Court read the pro se
complaint as alleging a failure‐to‐accommodate claim based on the
factual allegations relating to Plaintiff’s September 2015 firing. Relying
on the general proposition that “no one is entitled to judicial relief for
a supposed or threatened injury until the prescribed administrative
remedy has been exhausted,”6 the District Court concluded that
Plaintiff failed to exhaust his administrative remedies and dismissed

      5  The amended complaint also alleges violations of the New York State
Human Rights Law and New York City Human Rights Law, but these claims are
not raised on appeal.
      6   Kennedy v. Empire Blue Cross Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993).




                                           6
the claim because Plaintiff did not file medical documentation with his
employer or appeal his firing to the PRB. The District Court also
dismissed Plaintiff’s claim under 42 U.S.C. § 1983 because Plaintiff
failed to state a claim against NYCHHC under Monell v. Department of
Social Services of City of New York,7 and against the individual
defendants for failure to plausibly allege their “personal involvement”
under Patterson v. Cty. of Oneida, N.Y.8


       Plaintiff, represented by counsel on appeal, now challenges the
dismissal of his Rehabilitation Act and § 1983 claims.9 For the reasons
stated below, we find Plaintiff’s arguments to be without merit and
affirm the judgment of the District Court dismissing the complaint.


                                   II. DISCUSSION

       On appeal, Plaintiff challenges the dismissal of his complaint
under Federal Rule of Civil Procedure 12(b)(6). We review that
dismissal de novo.10 Specifically, we accept the complaint’s factual
allegations as true and draw all reasonable inferences in favor of the


       7   436 U.S. 658 (1978).
       8   375 F.3d 206, 226 (2d Cir. 2004).
       9 Plaintiff also appears to argue violations of the Americans with Disabilities
Act (the “ADA”) in his opening brief. Plaintiff now concedes that those references
were inadvertent, as they are not addressed in his reply brief. Accordingly, we do
not consider Plaintiff’s references to the ADA.
       10   Harris v. Mills, 572 F. 3d 66, 71 (2d Cir. 2009).




                                               7
non‐movant.11 We also construe Plaintiff’s pro se complaint liberally to
raise the strongest arguments that it suggests.12 To survive dismissal,
however, a complaint must plead “enough facts to state a claim to
relief that is plausible on its face,”13 and that “allows the court to draw
the reasonable inference that the defendant is liable for the misconduct
alleged.”14 “[T]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”15 Finally,
“though we are obligated to draw the most favorable inferences that
[plaintiff’s] complaint supports, we cannot invent factual allegations
that he has not pled.”16

                                               A.

       Plaintiff’s amended complaint alleges that Defendants failed to
provide him with a reasonable accommodation for his alleged
disability in violation of Section 504 of the Rehabilitation Act. To
establish a prima facie case of discrimination under the Rehabilitation
Act based on an employer’s failure to accommodate a disability, a
plaintiff must demonstrate that “(1) the plaintiff is a person with a

       11   Id.
       12   Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 141 (2d Cir. 2002).
       13   Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
       14   Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
       15 Harris, 572 F.3d 66, 72 (2d Cir. 2009) (internal quotation marks and
brackets omitted).
       16   Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).




                                              8
disability under the meaning of the statute in question; (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.”17

       Our focus here relates to the second and fourth elements.
“[G]enerally, it is the responsibility of the individual with a disability
to inform the employer that an accommodation is needed.”18 We held
in Brady v. Walmart,19 however, that where “the disability is obvious—
which is to say, if the employer knew or reasonably should have
known that the employee was disabled,” the employer is obligated to
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.”20 To trigger the duty to engage the
interactive accommodations process, the employer must have known,
or have had sufficient notice such that the employer reasonably should



       17  Natofsky v. City of New York, 921 F.3d 337, 352 (2d Cir. 2019) (internal
citations and quotations omitted).
       18Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006) (internal
quotation marks omitted).
       19   531 F.3d 127 (2d Cir. 2008).
       20Id. at 135; accord McElwee v. Cty. of Orange, 700 F.3d 635, 642 (2d Cir. 2012)
(“[U]nder certain circumstances, an employer is required to act proactively and
engage in an interactive process to accommodate the disability of an employee even
if the employee does not request accommodation.”).




                                           9
have known, that the employee has a disability within the meaning of
the Act, as opposed to a mere impairment.21

       The District Court concluded that Plaintiff failed to state a
reasonable accommodation claim because, by not responding to the
Notice or appealing to the PRB, Plaintiff failed to exhaust NYCHHC’s
administrative remedies. But we have never held that a Rehabilitation
Act claim against a non‐federal employer is subject to an
administrative exhaustion requirement, nor is there any statutory
basis for imposing one.22 Accordingly, we reject the District Court’s
conclusion that Plaintiff failed to state a reasonable accommodation
claim because, by not responding to the Notice or appealing to the
PRB, Plaintiff failed to exhaust NYCHHC’s administrative remedies.

       The question on appeal, therefore, is whether Plaintiff
sufficiently alleged that Defendants had knowledge of his disability
and were therefore obligated under Brady to initiate an interactive


       21Brady, 531 F.3d at 134; see also Widomski v. State Univ. of N.Y., 748 F.3d 471,
475 (2d Cir. 2014).
       22 Mary Jo C. v. NY State & Local Retirement Sys., 707 F.3d 144, 170 n.11 (2d
Cir. 2013) (“Courts have construed [29 U.S.C. § 794a, the applicable procedures and
remedies] section of the Rehabilitation Act[,] as not imposing any exhaustion
requirement as to claims against a recipient of federal funding, but as imposing one
as to claims against a federal employer.”); Tsombanidis v. W. Haven Fire Dep’t, 352
F.3d 565, 579 (2d Cir. 2003) (stating that, to state a reasonable accommodation claim
under Title II, which incorporates 29 U.S.C. § 794a, “a plaintiff must first use the
procedures available to notify the governmental entity that it seeks an exception or
variance from [a] facially neutral law,” but distinguishing that notice requirement
from an exhaustion requirement).




                                          10
accommodation process “to assess whether an employee’s disability
can be reasonably accommodated.”23 On review of the record before
us, we hold that he has not.

      Plaintiff          does   not   allege   that   he   ever   requested   an
accommodation from Defendants, either formally or informally. It is
undisputed that Defendants knew Plaintiff was on an extended
disability leave from work‐related injuries. But this alone is
insufficient to plausibly allege notice that those injuries constituted a
disability under the Act. As Plaintiff alleged, he took work‐related
disability leave on multiple prior occasions for conditions that did not
prevent him from returning to work without any accommodations.
Similarly, while Plaintiff alleged that Defendants received notice of his
multiple sclerosis diagnosis in April 2010, his multiple sclerosis was
not a qualifying disability at that time, as he continued working
without any accommodations until his 2014 leave.

      Finally, although Plaintiff alleged that Defendants received
“regular updates from his doctor on his condition and ability to
work,”24 he alleged no facts about the content of those updates from
which it could plausibly be inferred that Plaintiff’s disability was
“obvious” to Defendants.25 In Brady, the employer directly observed
the plaintiff in the workplace, and the plaintiff’s supervisor effectively

      23   Id. at 135.
      24   JA 19.
      25   Brady, 531 F.3d at 135.




                                          11
admitted that she perceived him to be disabled.26 Here, by contrast,
Plaintiff at most alleged that his doctor informed Defendants that his
condition required leave. We cannot reasonably infer from that
general allegation that the updates adequately informed Defendants
about the nature of Plaintiff’s condition such that Defendants should
have known he was disabled27 and that Plaintiff was thereby excused
from the requirement that he request an accommodation.

       Because Plaintiff failed to plausibly allege that Defendants knew
or should reasonably have known he was disabled, Defendants were
under no obligation to initiate the interactive process, and Plaintiff’s
failure to affirmatively request an accommodation is a sound basis for
dismissal of his claim.

                                           B.

       Finally, we also affirm the judgment of the District Court
dismissing Plaintiff’s § 1983 claim. That claim merely restates the
alleged violation of the Rehabilitation Act. The question of whether
rights established in the Rehabilitation Act may be enforced under
§ 1983 presents an issue of first impression in this Circuit. Several of
our Sister Circuits have addressed the issue, and all have concluded
that § 1983 cannot be used to alter the categories of persons potentially



       26   Id. at 134.
       27  Even for a pro se complaint, “we cannot invent factual allegations that [the
plaintiff] has not pled.” Chavis, 618 F.3d at 170.




                                          12
liable in private actions under the Rehabilitation Act or the ADA.28 The
Third Circuit’s decision in A.W. v. Jersey City Public Schools,29 holding
that § 1983 may not be used to enforce the rights provided in the
Rehabilitation Act, is particularly relevant in this appeal. We find that
decision persuasive.

        We conclude that the comprehensive remedial scheme of the
Rehabilitation Act suggests that Congress did not intend that § 1983
be an available remedy.30 Because nothing has been directed to our
attention to challenge the “ordinary inference that the remedy
provided in the statute is exclusive,”31 we hold that the rights



        28 Tri–Corp Hous. Inc. v. Bauman, 826 F.3d 446, 448–49 (7th Cir. 2016) (ADA
and Rehabilitation Act); Ramirez–Senda v. Puerto Rico, 528 F.3d 9, 13 n.3 (1st Cir.
2008) (ADA and Rehabilitation Act); A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 803–
06 (3d Cir. 2007) (en banc) (Rehabilitation Act); Lollar v. Baker, 196 F.3d 603, 608–10
(5th Cir. 1999) (Rehabilitation Act); Alsbrook v. Maumelle, 184 F.3d 999, 1010–12 (8th
Cir. 1999) (en banc) (ADA); Vinson v. Thomas, 288 F.3d 1145, 1155–56 (9th Cir. 2002)
(ADA and Rehabilitation Act); Holbrook v. City of Alpharetta, 112 F.3d 1522, 1530–31
(11th Cir. 1997) (ADA and Rehabilitation Act).
        29   486 F.3d at 803–06.
        30 The Rehabilitation Act adopts the scheme of “remedies, procedures, and
rights set forth in Title VI of the Civil Rights Act of 1964,” 42 U.S.C. § 2000d et seq., to
remedy alleged violations of . . . Section 504 by recipients of federal funding. 29
U.S.C. § 794a(a)(2). The “remedies for violations of § 504 of the Rehabilitation Act
are coextensive with the remedies available in a private cause of action brought
under Title VI of the Civil Rights Act of 1964.” Barnes v. Gorman, 536 U.S. 181, 185
(2002).
        31   City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 122 (2005).




                                             13
established in the Rehabilitation Act may not be enforced through
§ 1983.32

                               III. CONCLUSION

       We have reviewed all of the arguments raised by Plaintiff on
appeal and find them to be without merit. For the foregoing reasons,
we AFFIRM the August 21, 2018 judgment of the District Court.




       32See Morris‐Hayes v. Bd. of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153,
161 (2d Cir. 2005) (holding that plaintiff could not enforce, through a § 1983 action,
protections provided by the Uniformed Services Employment and Reemployment
Rights Act where plaintiff was unable to point to any indication, express or implicit,
that the remedy provided in the Act is to complement, rather than
supplant, § 1983).




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