OPINION & ORDER
Before the Court is a motion for summary judgment brought by Defendants Touro College of Osteopathic Medicine (“Touro”) and Jerry Cammarata, the Dean of Student Affairs at Touro (collectively, “Defendants”) against Plaintiff Michael Maximilian Wolfgang Roggenbach (“Plaintiff’). Plaintiff alleges that Touro discriminated against him under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., (“RHA”), Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182 et seq., (“ADA”), Title VI of the Civil Rights Act of 1963 (“Title VI”), the New York State Human Rights Law, N.Y. Exec. Law § 296(4) (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107(4) (“NYCHRL”). Plaintiff also brings claims against Jerry Cammara-ta, Touro’s Dean of Student Affairs, under the NYSHRL and the NYCHRL, for aiding and abetting discrimination. For the following reasons, Defendants’ motion is GRANTED.
BACKGROUND
Plaintiff is a 36-year-old gay male, born in the United States of German national
In September 2010, Michael Beltrami (“Beltrami”), Plaintiffs former landlord, sent two letters to faculty at Touro and St. John’s. (56.1 ¶¶ 118,122; Exs. BD, BH.) In the first letter, dated September 10, 2010, Beltrami accused Plaintiff of theft and vandalism, and alluded to Plaintiff being gay. (56.1 ¶¶ 118, 119, Ex. BD.) Touro Dean Robert Goldberg responded by letter that Beltrami should notify the police of any suspected criminal activity and also spoke with Beltrami by phone. (56.1 ¶ 121, Ex. BG, Ex. 3, Goldberg Dep. at 13:25-16:6.) In the second letter, dated September 27, but not mailed until October 1, Beltrami mentioned, among other things, that Plaintiffs rent was paid by “an agency for disabled HIV+ men and women.” (56.1 ¶ 122, Ex. BH.)
On September 29 and September 30, 2010, Plaintiff was absent from his clinical rotation at St. John’s. (56.1 ¶ 67, Ex. AJ.) Plaintiff claims that he sent emails and text messages to notify his supervisors and team members of his absence, and that he was permitted to miss those days, but no such notices have been located or produced, nor has any other evidence of prior permission. (Def. 56.1 ¶¶ 68, 69, 83; Ex. D, PI. Dep. 214:12-215:5, Ex. AJ.) Eventually, it turned out that he had concocted an email to cover his failure to notify his supervisors of his impending absence. (Exs. AO, AP, Ex. BC, Formal Hearing Transcript, 27:11-17.) Plaintiff also signed a counseling form, acknowledging that “as of September 30, 2010, [Plaintiff was] currently absent without approved leave” from St. John’s. (Ex. AK.) Plaintiff claims he signed the form under duress. (Ex. D, PI. Dep. 223-227). On October 1, 2010, Dr. Al Strojan, Chairman of Family Medicine at St. John’s, prepared a reassignment memo for Plaintiff, and on October 5, 2010, he wrote a letter returning Plaintiff to Touro for reassignment to another program. (Exs. AK, AM.)
Pursuant to Touro policy, an informal hearing was conducted on October 6, 2010. (56.1 ¶¶ 16-20, 79; Ex. AQ; Ex. M, Touro Student Handbook; Ex. N Touro Clinical Rotations Manual.) The hearing committee decided that Plaintiff would be required to be evaluated and treated by the Committee for Physician Health (“CPH”) and that he would be taken off rotations until CPH made a recommendation. (Exs. AQ, AR.)
On March 25, 2011, Plaintiff filed a complaint with the New York State Division of Human Rights. (56.1 ¶ 91; Ex. F.) On March 21, 2011, he filed a complaint with the Commission on Osteopathic College Accreditation. (Def. 56.1 ¶ 91; Ex. AU.) On March 21, 2011, he filed a complaint with the United States Department of Education, Office for Civil Rights. (56.1 ¶ 91; Ex. BE.) In these complaints, he alleged, inter alia, that he was discriminated against on the basis of his sexual orienta
On May 20, 2011, Plaintiffs informal hearing recommenced. (56.1 ¶¶ 91, Ex. AW.) On May 26, 2011, the hearing committee recommended to the Dean that Plaintiff be dismissed from Touro because he “fabricated an email and demonstrated behavior in a hospital setting unbecoming of a student doctor.” (56.1 ¶ 97; Ex. AX.) On June 3, 2011, Plaintiff requested a Formal Hearing. (56.1 ¶ 98, Ex. AY.) The Formal Hearing was conducted on August 17, 2011 and Plaintiff was charged with violations of the Touro Code of Conduct including (1) fabrication; (2) furnishing false information to the college; (3) neglect of clinical and hospital duties; and (4) “... behavior in a hospital setting unbecoming a student doctor.” (56.1 ¶ 101; Ex. BA; Ex. BC, Formal Hearing Transcript, 5:20-6:10.) At the hearing, Plaintiff admitted again to dishonesty and fabrication. (Ex. BC, Formal Hearing Transcript, 27:11-17. (Plaintiff discusses the “things that I readily admit that I did wrong,” including “reconstituting an email that I had sent, with the assumption that it was true. That clearly relates to charge number two, which is furnishing false information to the college. In my defense, the lie was sustained for a very short period of time.”)) Following this hearing, Plaintiff was dismissed from Touro.
DISCUSSION
Summary judgment is appropriate “only if ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Kuebel v. Black & Decker Inc.,
A. Disability Claims Under the ADA and the RHA
“Title III of the ADA prohibits discrimination against individuals ‘on the basis of disability in the full and equal enjoyment of the ... services ... of any place of public accommodation ... ’ ” Roberts v. Royal Atl. Corp.,
The ADA defines disability as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; ... or (C) being regarded as having such an impairment.” 42 U.S.C.A. § 12102(1). “An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment ...” 42 U.S.C.A. § 12102(3)(A). The ADA Amendments Act of 2008 (“ADAAA”) clarified that a “major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system ...” 42 U.S.C.A. § 12102(2)(B). “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C.A. § 12102(4)(D).
Here, Plaintiff has not attempted to demonstrate that his HIV-positive status has inhibited a major life activity. Cf. Alexiadis v. New York Coll. of Health Professions,
Plaintiff also argues that Defendants discriminated against him as the result of a mental impairment, but he makes no suggestion of “how his supposed mental condition substantially limits a major life activity,” which is required under the Acts. Tylicki v. St. Onge,
The Plaintiff must also establish that Defendant discriminated against him within the meaning of the ADA, and that this “exclusion or discrimination was due to [his] disability,” Fulton v. Goord, 591
Although a demonstration of disparate treatment with respect to similarly situated employees may support an inference of discrimination, “[a] plaintiff relying on disparate treatment evidence must show she was similarly situated in all material respects to the individuals with whom she seeks to compare herself.” Mandell v. Cnty. of Suffolk,
Finally, in order to be “otherwise qualified” under the Acts, Plaintiff must be able, with or without a reasonable accommodation, to complete all of a program’s requirements. 29 C.F.R. § 1630.2(m) (Equal Employment Opportunity Commission regulations interpreting the ADA); 45 C.F.R. § 84.3(1)(1) (Health and Human Services regulations interpreting the Rehabilitation Act); see also Shannon v. New York City Transit Auth.,
Notwithstanding Plaintiffs HIV-positive status, he has failed to establish a prima facie case under the Acts: Defendants did not have knowledge of his HIV-positive status prior to commencing disciplinary action against him, he has not presented evidence that similarly situated individuals were treated differently, nor that he was otherwise qualified to remain a student. Rather, Defendant demonstrates that Plaintiff was dismissed from Touro because of undisputed violations of the school’s code of conduct. See Exs. AQ, AX, Ex. BC, Formal Hearing Transcript, 27:11-17.
B. Retaliation Claims Under the ADA and the RHA
Courts apply a burden shifting framework to evaluate retaliation claims under the ADA. See, e.g., Jute v. Hamilton Sundstrand Corp.,
Plaintiffs protected activities consist of complaints made with: (1) the New York State Division of Human Rights on March 25, 2011; (2) the Commission on Osteopathic College Accreditation on March 21, 2011; (3) the United States Department of Education on March 21, 2011; and (4) at Touro hearings during May and August of 2011. Where, as is undisputed here, Plaintiffs protected activities took place after the disciplinary proceedings against him began, he cannot establish that his protected activity caused the disciplinary proceedings against him. Accordingly, Plaintiff fails to establish the forth prong of a prima facie case for retaliation. See Kamrowski v. Morrison Mgmt. Specialist,
C. National Origin Claims Under Title VI
Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C.A. § 2000d. Title VI prohibits only intentional discrimination. Alexander v. Sandoval,
Plaintiff, an American-born white male, alleges national origin discrimination based on the fact that during his informal hearing, an administrator stated that Plaintiff had a “brusque, German manner,” which could be perceived as aggression, and that this may have led to Plaintiffs “failings and conflicts.” Ex. A. PI. Compl. ¶ 19. Although Plaintiff testified that besides this comment, he did not “hear any comment from anyone at Touro that [he] found to be offensive based on [his] national origin,” Ex. D. PL Dep. at 50:17-21, in his opposition brief, he now also alleges that “he was criticized about his German national origin on numerous occasions,” that a classmate commented “leave it to the German to not know [what ‘kosher’ meant],” and that a professor questioned him about his German heritage in an “arrogant tone.” PI. Mem. at 1..
“A plaintiff alleging racial or gender discrimination by a university must do more than recite conclusory assertions ... the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent.” Manolov v. Borough of Manhattan Cmty. Coll.,
To hold Defendants liable for deliberate indifference, “harassment must be ‘severe, pervasive, and objectively offensive.’ ” Zeno v. Pine Plains Cent. Sch. Dist.,
Further, Plaintiffs’ failure to notify Defendants of the alleged discrimination is fatal to his Title VI claim. See Manolov v. Borough of Manhattan Cmty. Coll.,
D. NYSHRL & NYCHRL Claims
Having dismissed all of Plaintiffs federal claims, I decline to exercise supplemental jurisdiction over Plaintiffs remaining state and city law claims pursuant to the NYSHRL and the NYCHRL. Kolari v. New York-Presbyterian Hosp.,
CONCLUSION
I have considered the parties’ remaining arguments and find them meritless. For the reasons stated above, Defendants’ motion for summary judgment is GRANTED. The Clerk of the Court is instructed to close this motion, close this case and remove it from my docket.
SO ORDERED.
Notes
. These facts are undisputed unless otherwise noted.
. I consider Plaintiff’s claims under the RHA and the ADA together. See Powell v. Nat’l Bd. of Med. Examiners,
. Even assuming, arguendo, that Plaintiff was "regarded as” being substantially limited in his ability to work as a doctor, this is insufficient to establish a disability claim under the ADA. See Murphy,
. Although the burden of persuasion under the ADA is not clear in this circuit, Plaintiff's claims would fail under either a but-for causation standard or a mixed-motive standard. See Widomski v. State Univ. of New York (SUNY) at Orange,