MEMORANDUM DECISION and ORDER I. INTRODUCTION On May 29, 2019, plaintiff Karen Consiglio (“Consiglio” or “plaintiff”), a state agency employee who was born without any fingers on her left hand, filed this civil rights action in the U.S. District Court for the Southern District of New York. Dkt. No. 1. Consiglio’s complaint alleged that defendants New York State Civil Service Commission (the “Civil Service Commission”), New York State Office for People with Developmental Disabilities (“OPWDD”), Employee Health Service (“EHS”) Medical Director Richard A. Ciulla (“Director Ciulla”), and Anatapur Panduranga, M.D. (“Dr. Panduranga”) discriminated against her on the basis of her disability when they refused to promote her to a higher paygrade position. Dkt. No. 1. On August 28, 2019, the parties stipulated to an order transferring this action to the U.S. District Court for the Northern District of New York. Dkt. No. 14. Thereafter, plaintiff amended her complaint to add the Department of Civil Service (“DCS”) as a named defendant. Dkt. No. 34. Plaintiff’s six-count amended complaint alleges that the Commission, OPWDD, DCS, Medical Director Ciulla, and Dr. Panduranga (collectively “defendants”) violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. §1983, and the New York Human Rights Law (“NYHRL”).1 On February 22, 2021, defendants moved under Rules 12(c) and 56 of the Federal Rule of Civil Procedure to dismiss Consiglio’s amended complaint in its entirety. Dkt. No. 47. The motion has been fully briefed and will be considered on the basis of the submissions without oral argument. II. BACKGROUND The following factual allegations are taken from Consiglio’s amended complaint, Dkt. No. 34, and are assumed true for the purpose of resolving defendants’ motion for judgment on the pleadings. Consiglio was born with a birth defect that left her without any fingers on her left hand. Am. Compl. 8. In January of 2005, DCS hired plaintiff to work as an Office Assistant at the New York State Office of Mental Health (“OMH”). Id. 15. In early 2018, plaintiff applied for a Direct Support Assistant position with DCS and OPWDD. Id. 17. As plaintiff explains, this position would be a promotion to a higher paygrade. Id. On March 1, 2018, Consiglio passed the required Civil Service exam for the position and was placed on the “eligible list.” Am. Compl. 18. Shortly thereafter, DCS and OPWDD scheduled plaintiff for an in-person interview with two interviewers. Id. 19. Plaintiff excelled in the interview. Id. 20. Before leaving, plaintiff told both of her interviewers about her birth defect and “inquired if her disability would impact her candidacy for the position.” Id. 21. According to plaintiff, DCS and OPWDD “unambiguously affirmed” that her disability would not impact the hiring decision. See id. 22. On April 16, 2018, Medical Director Ciulla and Dr. Panduranga administered to Consiglio a physical exam called a “Body Transport Test.” Am. Compl. 24. As plaintiff explains, this exam is part of a pre-employment screening process used by DCS and OPWDD to determine whether an employee can perform the essential duties of the Direct Support Assistant position. Id. 23. Medical Director Ciulla and Dr. Panduranga told plaintiff that she passed the test. Id. 25. However, shortly after Consiglio left the testing facility, she received a call from Medical Director Ciulla and Dr. Panduranga informing her that she needed to “re-take” the physical exam. Am. Compl. 27. Plaintiff returned to the facility, where Medical Director Ciulla and Dr. Panduranga told plaintiff the re-examination was necessary because she had “not disclosed that she did not have fingers on her left hand.” Id. 28. Medical Director Ciulla and Dr. Panduranga humiliated plaintiff by demanding that she lift her sleeve and chiding her for failing to tell them about the birth defect of her left hand. Id.
29-30. Even though she had already passed the physical exam, Medical Director Ciulla and Dr. Panduranga insisted that Consiglio re-take the Body Transport Test. Am. Compl. 31. This time around, the doctors instructed plaintiff to pick up items using only her “fingers” on “both hands.” Id. 32. Notably, plaintiff alleges that she was not instructed to take these actions the first time she took the exam. Id. 33. Medical Director Ciulla and Dr. Panduranga then told plaintiff she had failed the exam. Id. 35. On April 20, 2018, DCS and OPWDD sent Consiglio a letter stating that she was not qualified for the Direct Support Assistant position because she had failed the Body Transport Test. Am. Compl. 36. On September 4, 2018, Consiglio filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission. Am. Compl. 3. Plaintiff received her right-to-sue letter on March 4, 2019. Id. This action followed. III. LEGAL STANDARD2 “After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings.” FED. R. CIV. P. 12(c). The standard for granting a Rule 12(c) motion is identical to that of a 12(b)(6) motion to dismiss. See, e.g., Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). “To survive a Rule 12(b)(6) motion to dismiss, the factual allegations must be enough to raise a right to relief above the speculative level.” Ginsburg v. City of Ithaca, 839 F. Supp. 2d 537, 540 (N.D.N.Y. 2012) (cleaned up). “Dismissal is appropriate only where plaintiff has failed to provide some basis for the allegations that support the elements of his claims.” Id. “When ruling on a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in the non-movant’s favor.” United States v. Bedi, 318 F. Supp. 3d 561, 564-65 (citation omitted). “In making this determination, a court generally confines itself to the ‘facts stated on the face of the complaint,…documents appended to the complaint or incorporated in the complaint by reference, and…matters of which judicial notice may be taken.’” Id. (quoting Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016)). IV. DISCUSSION As an initial matter, Consiglio has withdrawn her Fifth and Sixth Causes of Action, both of which arose under the NYHRL. Pl.’s Opp’n, Dkt. No. 51 at 6.3 As defendant correctly explained in their moving papers, New York State (and consequently its agencies) have not consented to be sued in federal court under the NYHRL. See, e.g., Baez v. New York, 629 F. App’x 116, 118 (2d Cir. 2015) (summary order) (affirming dismissal of NYHRL claims against State and one of its agencies on sovereign immunity grounds). And because individual liability under the NYHRL is predicated on the liability of the employer and requires a showing that the defendant possessed the power to do more than just carry out personnel decisions made by others, these claims would fail against Medical Director Ciulla and Dr. Panduranga as well. Defs.’ Mem., Dkt. No. 47-16 at 17-18. Accordingly, plaintiff’s NYHRL claims will be dismissed. B. The ADA Consiglio’s First Cause of Action alleges that defendants violated the ADA in three distinct ways. First, plaintiff alleges defendants violated Title I by discriminating against her in hiring and advancement to the Direct Support Assistant position. Am. Compl.
