Shalhout v. CVS, Inc.
Filing
20
ORDER granting in part Defendant's 12 Motion to Dismiss. See Attached Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 10/31/2011. (Fernandez, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ADIL A. SHALHOUT,
PLAINTIFF,
v.
CVS, INC.,
DEFENDANT.
:
:
: CIVIL ACTION NO. 3:11cv552(VLB)
:
: OCTOBER 31, 2011
:
:
:
MEMORANDUM OF DECISION GRANTING IN PART DEFENDANT’s [DKT. #12]
MOTION TO DISMISS
The Plaintiff, Adil A. Shalhout (“Shalhout”), proceeding pro se, brings this
action against Defendant German Dobson CVS, L.L.C1 (“CVS”) alleging violations
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”);
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; the
American with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12111 et seq.; and the
Rehabilitation Act of 1973 (the “Rehabilitation Act”), 29 U.S.C. §§701 et seq.
Defendant has moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss Plaintiff’s
Title VII, ADEA and ADA claims as untimely. Defendant also moves to dismiss
Plaintiff’s Rehabilitation Act claim based on Plaintiff’s failure to plead facts
sufficient to state a plausible claim under the Rehabilitation Act. For the
foregoing reasons, Defendants’ motion to dismiss is granted in part.
Factual Allegations
The following facts are taken from Plaintiff’s complaint. Plaintiff alleges he
was terminated from his position as a pharmacist with CVS due to “an allegation
1
Defendant has indicated that Plaintiff improperly named CVS, Inc. as Defendant.
1
of gross misconduct (sexual harassment) and subjected to retaliation by CVS
Pharmacy employees.” [Dkt. #1, Complaint at ¶7]. Plaintiff alleges that he was
terminated after his performance review of several pharmacy technicians “who
retaliated due to their dissatisfaction with their performance ratings.” [Id.]. He
also alleges that the technicians conspired with his supervisor and district
manager who were seeking reasons for terminating him based on his recent
hospitalization, his recent visit to his parents’ homeland, his age and his hearing
disability. [Id.].
Legal Standard
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
‘short and plain statement of the claim showing that the pleader is entitled to
relief.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While Rule 8 does not
require detailed factual allegations, “[a] pleading that offers ‘labels and
conclusions’ or ‘formulaic recitation of the elements of a cause of action will not
do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Id. (internal quotations omitted). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (internal citations omitted).
2
In considering a motion to dismiss for failure to state a claim, the Court
should follow a “two-pronged approach” to evaluate the sufficiency of the
complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 129
S.Ct. at 1949-50). “At the second step, a court should determine whether the
‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an
entitlement to relief.’” Id. (quoting Iqbal, 129 S.Ct. at 1950). “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, 129 S.Ct. at 1949
(internal quotation marks omitted).
Analysis of Time Barred Claims
To bring claims under Title VII, the ADA, or the ADEA in federal court, a
plaintiff must first exhaust his administrative remedies by the “timely filing of a
discrimination charge with the EEOC and the filing of a complaint in the district
court within ninety days of receipt of the right-to-sue letter from the EEOC.” Vega
v. Federal Exp. Corp., No.09CIV.07637, 2011 WL 4494751, at *5 (S.D.N.Y. Sept. 29,
2011) (emphasis in the original).
Title VII, the ADEA and the ADA require a
claimant to file a discrimination charge with the Equal Employment Opportunity
Commission or equivalent state agency within 300 days of alleged act of
discrimination. ADEA, § 7(d)(2), 29 U.S.C.A. § 626(d)(2); Title VII, § 706(e), 42
U.S.C.A. § 2000e-5(e); ADA, 42 U.S.C.A. § 12117(a). In his complaint, Plaintiff
indicates that the alleged discrimination occurred between October 1, 2008 and
3
November 19, 2008. Plaintiff filed his EEOC complaint on November 19, 2010,
which was 224 days past the 300 day statute of limitations. Plaintiff’s Dismissal
and Notice of Rights issued by the EEOC and attached to Plaintiff’s complaint
notified Plaintiff that the EEOC lacked jurisdiction to investigate his complaints
because his claims were not timely filed within the 300 day statute of limitations.
[Dkt. #1].
Since Plaintiff did not timely file his discrimination complaint with the
EEOC, he failed to exhaust his administrative remedies and therefore the Court
must dismiss his Title VII, ADA, and ADEA claims as timed-barred due to a failure
to exhaust administrative remedies. See also Quarless v. Bronx Lebanon Hosp.
Center, 75 Fed. Appx. 846, 847-848 (2d Cir. 2003) (Dismissal of employee’s Title
VII was warranted as time-barred, where the alleged discriminatory conduct
occurred more than 300 days before employee filed his discrimination complaint
with the EEOC); Hewitt v. New York City Dept. of Health and Mental Hygiene,
No.09-CV-05705, 2010 WL 5071996, at *5 (E.D.N.Y. Dec. 7, 2010) (“Federal courts
must dismiss federal claims which were not preceded by the filing of a timely
EEOC charge”) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109
(2002)).
Analysis of Rehabilitation Act Claim
Defendant argues that Plaintiff has not alleged facts sufficient to state a
prima facie claim under the Rehabilitation Act. “To establish a prima facie case
of discriminatory termination in violation of the Rehabilitation Act of 1973, a
4
plaintiff must show (1) that the plaintiff is handicapped within the meaning of the
Act; (2) that the plaintiff is otherwise qualified to perform the job; (3) that the
plaintiff was discharged because of his or her handicap; and (4) that the employer
is a recipient of federal financial assistance.” Kinsella v. Rumsfeld, 320 F.3d 309,
313 (2d Cir. 2003).
Further, the standards under the Rehabilitation Act in
employment discrimination cases are the same as the standards under the ADA.
Loeffler v. Staten Island University Hosp., 582 F.3d 268, 286 (2d Cir. 2009).
Defendant argues that Plaintiff has failed to allege that CVS is a recipient of
federal financial assistance and therefore subject to the Rehabilitation Act.
Defendant further argues that Plaintiff has simply checked off a claim on a form
complaint and has not otherwise referenced the Rehabilitation Act and therefore
has only plead a threadbare recital of the elements of a cause of action supported
by mere conclusory statements. See [Dkt. #13, Def. Mem. at 5].
In response, Plaintiff asserts in his opposition to Defendant’s motion to
dismiss that CVS receives federal funds through Medicaid and Medicare
payments. While Defendant is correct that “a complaint cannot be cured by a
memorandum of law in opposition to a motion to dismiss,” the Court must
construe a pro se complaint liberally. Ludtke v. U.S., 84 F.Supp.2d 194, 302 n.3
(D. Conn. 1999); Haines v. Kerner, 404 U.S. 519, 520-21 (1972). “In other words,
trial courts hold pro se complaints to a less exacting standard than they apply to
complaints drafted by attorneys.” Haines, 404 U.S. at 520-21. Since a pro se
plaintiff “[is] entitled to a liberal construction of their pleadings, [his or her
complaint] should be read to raise the strongest arguments that they suggest.”
5
Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). “However, a court should
not hesitate to dismiss a pro se complaint if it fails altogether to satisfy the
pleading standard.” Henry v. Davis, No.10Civ.7575, 2011 WL 3295986, at *2 n.5
(S.D.N.Y. Aug. 1, 2011) (citations omitted).
Here, Plaintiff has conclusory stated that he has a hearing disability and
that he was in part terminated from his position as a pharmacist at CVS as a
result of his disability. Since Plaintiff has pled no other facts other than a bare
recital of the elements of disability discrimination, he has failed altogether to
satisfy the pleading standard under Iqbal. For example, Plaintiff has not alleged
that the individuals who terminated him were even aware of his hearing disability.
Therefore, the Court dismisses Plaintiff’s Rehabilitation Act claim for failure to
plead facts sufficient to state a plausible claim. However, the Court will permit
Plaintiff to file an amended complaint with respect to his Rehabilitation Act claim
within fourteen (14) days of this Decision alleging (i) that CVS receives federal
funds through receipt of Medicare and Medicaid payments and (ii) containing
specific allegations of fact showing that CVS discharged Plaintiff because of his
disability.
Conclusion
Based upon the above reasoning, the Defendant’s [Dkt. #12] motion to
dismiss is GRANTED IN PART. Plaintiff’s Title VII, ADA, and ADEA claims are
hereby dismissed and Plaintiff is directed to file an amended complaint with
respect to his Rehabilitation Act claim within fourteen (14) days of this Decision.
6
IT IS SO ORDERED.
_______/s/__________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: October 31, 2011
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?