Stamm v. New York City Transit Authority et al
Filing
165
MEMORANDUM AND ORDER. Defendants' motions with respect to Title II of the ADA are denied in their entirety. Defendants' motion to dismiss the retaliation claim set forth in Count Seven of Plaintiff's Second Amended Complaint is gran ted. In accordance with Section IV of this Court's Individual Motion Practices & Rules, see https://www.nyed.uscourts.gov/pub/rules/SLT-MLR.pdf, the parties shall contact the Court within thirty (30) days of the date of this Memorandum and Order to request a date for a pre-trial scheduling conference. Ordered by Judge Sandra L. Townes on 1/18/2013. (Siegfried, Evan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ESTELLE STAMM,
Plaintiff,
MEMORANDUM AND ORDER
-againstNEW YORK CITY TRANSIT AUTHORITY (TA),
and MANHATTAN AND BRONX SURFACE
TRANSIT OPERATING AUTHORITY (MABSTOA),
04-CV-2163 (SLT) (JMA)
Defendants.
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TOWNES, United States District Judge:
In late 2004, plaintiff Estelle Stamm ("Plaintiff') commenced this action pursuant to Title
II of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12131, et seq., Section 504
of the Rehabilitation Act of 1973,29 U.S.C. § 794, and New York State and New York City
laws, alleging that the New York City Transit Authority ("NYCTA") and the Manhattan and
Bron" Surface Transit Operating Authority ("MaBSTOA") (collectively, "Defendants") have
failed to ensure that their vehicles and facilities are accessible to her and other persons with
disabilities who utilize service animals. Defendants subsequently moved for summary judgment
pursuant to Fed. R. Civ. P. 56, arguing, inter alia, that Plaintiff(!) is not disabled, (2) is not
entitled to use a "service animal," (3) is seeking to bring dogs which do not qualifY as "service
animals" onto Defendants' vehicles; (4) has not made out a Title II claim and (5) carmot make
out a claim for intentional infliction of emotional distress.
In a Memorandum and Order dated March 30, 2011 (the "Prior M&O"), this Court denied
Defendants' motion, e}(cept in two respects. First, the Court granted summary judgment with
respect to that portion of the eleventh cause of action which alleged intentional infliction of
emotional distress. Second, the Court reserved decision with respect to that portion of
Defendants' motion which argued that Plaintiff's Title II claim for compensatory damages must
fail because Plaintiff neither alleged nor established intentional discrimination on the part of the
NYCTA. The Court directed the parties to submit supplemental briefing "on the question of
what showing Plaintiff must make in order to collect money damages under Title II of the ADA
and whether Plaintiff can make that showing upon the evidence adduced." Stamm v. New York
City Transit Auth., No. 04-CV-2163 (SLT)(JMA), 2011 WL 1315935, at *34 (E.D.N.Y. Mar. 30,
2011). In addition, the Court invited Defendants to expand upon certain arguments relating to
Plaintiff's retaliation claim and to the question of whether some of Plaintiff's ADA,
Rehabilitation Act, and state and local claims are time-barred. !d.
I. Money Damages under Title II
The parties have now submitted supplemental briefing. With respect to the question of
what showing Plaintiff must make in order to collect money damages under Title II of the ADA,
Defendants concede that the NYCTA is not an arm of the State ofNew York and that Plaintiff
need only show "deliberate indifference," rather than "personal animosity or ill will," in order to
establish intentional discrimination and recover compensatory damages from Defendants under
Title II. Defendants' Supplemental Memorandum of Law in Support of their Motion for
Summary Judgment ("Defendants' Memo") at 6-7. However, Defendants argue (1) that Plaintiff
has not adduced evidence of "deliberate indifference," and (2) that compensatory damages should
not include damages for emotional distress.
A. Deliberate lndijference
Defendants' first argument relies largely on Loejjler v. Staten Island Univ. Hosp., 582
F.3d 268 (2d Cir. 2009), a case brought under the Rehabilitation Act and New York law by a
deaf woman on behalf of her deceased, deaf husband, Robert, alleging that hospital in which her
2
husband had heart surgery repeatedly failed to provide a sign language interpreter. In that case,
the Second Circuit held that monetary damages were available under the Rehabilitation Act "only
upon a showing of an intentional violation" of the Act, and that "[t]he standard for intentional
violations is 'deliberate indifference to the strong likelihood [of] a violation."' !d. at 275
(emphasis and brackets in original). The Second Circuit noted that it had yet to define
"deliberate indifference" in the context of the Rehabilitation Act, but proceeded to discuss
definitions which had been used in other contexts.
First, the Second Circuit found it "at least instructive" to consider the "requirements of
deliberate indifference" in the context of "sexual harassment claims under Title IX of the
Education Amendments of 1972, as amended, 20 U.S.C. §§1681 et seq." Loejjler, 582 F.3d at
275-76. The Court of Appeals noted that, in Gebser v. Lago Vista Jndep. Sch. Dist., 524 U.S.
274 (1998), the Supreme Court held that deliberate indifference under Title IX requires "an
official who at a minimum has authority to address the alleged discrimination and to institute
corrective measures on the recipient's behalf[,] has actual knowledge of discrimination in the
recipient's programs and fails adequately to respond." Loejjler, 582 F.3d at 276 (quoting Gebser,
524 U.S. at 290). The Second Circuit also noted that, in another context, it had "said that
deliberate indifference must be a 'deliberate choice .[.. ] rather than negligence or bureaucratic
inaction."' Id. (quoting Reynolds v. Giuliani, 506 F.3d 183, 193 (2d Cir. 2007)) (bracketed
material added).
After reviewing the evidence adduced by the plaintiffs in Loejjler, the Second Circuit
held that the district court had erred in concluding "no reasonable jury could find that the
Hospital acted with deliberate indifference." Id The Second Circuit noted that there was
evidence that the Loeffiers made "at least four separate attempts to secure an interpreter in the
3
days and weeks" prior to Robert's surgery, "continual requests" for an interpreter in the two
weeks following the surgery, and "several requests for a TTY device"- all of which were
"unheeded." !d. The Second Circuit further noted that the deaf couple's minor son, Bobby, who
had been brought into the Recovery Room to interpret for his father just after the surgery,
testified that the surgeon, Dr. Sithian, had "laughed off' Bobby's requests for an interpreter. !d.
The Second Circuit concluded:
[A] reasonable jury could conclude that persons at the Hospital had
actual knowledge of discrimination against the Loefflers, had
authority to correct the discrimination, and failed to respond
adequately. The Hospital may have had a general policy of
providing interpreters, but Antoinette Henderson [a patient
representative at the Hospital] was unaware of any practice of
scheduling an interpreter in advance, and her conduct may amount
to indifference in the face of knowledge of Robert's need for an
interpreter. Perhaps most indicative, there is evidence that Dr.
Sithian - arguably a policymaker - dismissed Bobby's demand for
an interpreter, "just kind oflaughed it off, and played it as a joke."
This evidence, taken together, would allow a jury to find deliberate
indifference.
There are certainly facts in the record that might lead a reasonable
jury to conclude that the Hospital was not deliberately indifferent.
As the district court explained, the Hospital did have a policy in
place to provide interpreters, and Antoinette Henderson ... made
some efforts on the afternoon of October 27, 1995 to find an
interpreter, and the law does not require her to have succeeded. But
the testimony of the Loefflers and other family members, together
with the obvious shortcomings in the policy and the Hospital's
conduct, as well as the alleged apathetic response of Dr. Sithian,
notwithstanding his authority to correct the discrimination, could
lead a reasonable jury to conclude that the Hospital was
deliberately indifferent; and its indifference to the Loefflers' rights
may have been so pervasive as to amount to a choice.
!d. at 276-77 (bracketed material and elipses added).
In arguing that Plaintiff has not adduced evidence of deliberate indifference in this case,
Defendants read Loeffler too narrowly. According to Defendants:
4
[T]he Second Circuit appears to have adopted the principle that
such "deliberate indifference must be a deliberate choice ... rather
than negligence or bureaucratic inaction." !d., 582 F.3d at 276
(internal quotation marks omitted). Thus, for instance, the lack of
success in a policymaker's attempt to provide adequate services for
a disabled person is not, per se, evidence of deliberate indifference.
!d., at 277 (that hospital had "a policy in place to provide
interpreters, and [a policymaker] made some efforts [albeit
unsuccessful ones] ... to find an interpreter" would suggest the
hospital "was not deliberately indifferent" because "the law does
not require [the policymaker] to have succeeded [in providing
appropriate services, in this case the services of an interpreter, to
deal with a hearing-impaired patient]). In contrast, evidence that a
hospital policymaker was aware of the request for needed services
for a disabled person but treated the request for such services "as a
joke" or with an "apathetic response ... notwithstanding his
authority to correct the discrimination," would be evidence of
deliberate indifference on the part of the hospital. !d.
Defendants' Memo at 6-7. Defendants argue that because Plaintiff was never actually denied a
ride on NYCTA vehicles and because NYCTA policymakers never "treated Ms. Stamm's alleged
problems with ... bus operators and subway conductors ... 'as a joke' or in an 'apathetic' way,"
Plaintiff has not made out "deliberate indifference." !d. at 7-8.
In reading Loeffler as focusing on whether a defendant treated a plaintiff's complaints "as
a joke" or in an "apathetic" way, Defendants advocate for a "deliberate indifference" standard
that resembles the "discriminatory animus or ill will" standard applicable to Title II cases
involving State defendants. In fact, the Loeffler Court applied the Gebser requirements in
reaching its conclusion. Under Gebser, deliberate indifference requires "an official who at a
minimum has authority to address the alleged discrimination and to institute corrective measures
on the recipient's behalf[,] has actual knowledge of discrimination in the recipient's programs
and fails adequately to respond." Loeffler, 582 F.3d at 276 (quoting Gebser, 524 U.S. at 290).
The decision in Loeffler tracks the language of Gebser, holding that Staten Island University
5
Hospital was not entitled to summary judgment because a reasonable jury could conclude "that
persons at the Hospital had actual knowledge of discrimination against the Loeffiers, had
authority to correct the discrimination, and failed to respond adequately." !d.
Applying the Gebser requirements to this case, this Court concludes that a reasonable jury
could find the evidence adduced by Plaintiff sufficient to establish deliberate indifference. As
detailed in the Prior M&O, Defendants suspended the policy of requiring identification for
service animals in early 1999, after the NYCTA's President received a letter from the Office of
Civil Rights opining that the policy was "not consistent with the intention ofthe ADA Statute or
the DOT ADA implementing regulations and the guidance provided by the Department of
Justice." Stamm, 2011 WL 1315935, at *7. Defendants subsequently made efforts to inform
their employees of the policy changes through, inter alia, various manuals and pamphlets. See
id. at *7-*9. However, those efforts were not entirely effective, as evidenced by the fact that
even veteran bus drivers and highly placed personnel, such as Harry Caddell, a General
Superintendent in charge of bus drivers, and Carl Bonsignore, a Superintendent of
Transportation, could not recall having been informed of the policy changes. !d. at *9.
Plaintiff maintains that, as a result of the failure to adequately communicate the change in
policy, she was involved in numerous incidents in which Defendants' employees were either
ignorant of the change in policy or confused about which policy to apply. Several high-ranking
NYCTA officials were well aware of the incidents, since Plaintiff complained to Millard Seay, a
Senior Vice President in the Department of Buses; Steve Nacco, then the head of Defendants'
Bus Customer Service Division; personnel at the Bus Command Center ("Console") and others
on a regular basis. There is nothing to suggest that these officials treated Plaintiffs complaints
"as a joke" or were in any way "apathetic." However, construing this evidence in a light most
6
favorable to Plaintiff, a jury could reasonably conclude that at least one NYCTA official with
authority to address the alleged discrimination and to institute corrective measures on Plaintiffs
behalf had actual knowledge of ongoing discrimination against Plaintiff but failed to respond
adequately. Accordingly, a reasonable jury could find the evidence adduced by Plaintiff
sufficient to establish deliberate indifference. See Gebser, 524 U.S. at 290; Loeffler, 582 F.3d at
276. Defendants' motion for summary judgment on Plaintiffs Title II claim is, therefore, denied.
B. Emotional Distress
Defendants' second argument is that, even if Plaintiff can recover compensatory damages
for violations of Title II, the compensatory damages should not include damages for emotional
distress. Defendants do not cite to any Second Circuit caselaw that directly supports this
proposition. Rather, Defendants' argument is based on the rationale set forth in Barnes v.
Gorman, 536 U.S. 181 (2002), a case which addressed the availability of punitive damages in
private suits brought under the ADA and the Rehabilitation Act.
Barnes involved an action pursuant to Title II of the ADA and section 504 of the
Rehabilitation Act in which a jury awarded the paraplegic plaintiff over $1 million in
compensatory damages and $1.2 million in punitive damages. The district court vacated the
punitive damage award, holding that such damages were unavailable under Title II and §504.
The Eighth Circuit reversed. Principally relying on Franklin v. Gwinnett County Pub. Schs., 503
U.S. 60, 70-71 (1992), which stated the "general rule" that "absent clear direction to the contrary
by Congress, the federal courts have the power to award any appropriate relief in a cognizable
cause of action brought pursuant to a federal statute," the Eighth Circuit reasoned that punitive
damages were appropriate "because they are 'an integral part of the common law tradition and
the judicial arsenal,"' and because "Congress did nothing to disturb this tradition in enacting or
7
amending the relevant statutes." Barnes, 536 U.S. at 184 (quoting Gorman v. Easley, 257 F.3d
738, 747 (8'h Cir. 2001)).
The Supreme Court granted certiorari and reversed, holding that punitive damages were
unavailable in a private action pursuant to Title II and the Rehabilitation Act. Writing for a sixjudge majority, Justice Scalia noted that Congress had made the remedies for violations of Title
II of the ADA and §504 of the Rehabilitation Act "coextensive with the remedies available in a
private cause of action brought under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d
et seq., which prohibits racial discrimination in federally funded programs and activities."
Barnes, 536 U.S. at 185. Title VI "invokes Congress's power under the Spending Clause," and
the Supreme Court has "repeatedly characterized" such Spending-Clause legislation as "much in
the nature of a contract," under which recipients of federal funds agree to comply with federally
imposed conditions. !d. at 185-86 (emphasis in original). Justice Scalia applied that contract
analogy in determining the scope of the damages available under Title II and §504, reasoning:
[A] remedy is "appropriate relief' ... only if the funding recipient
is on notice that, by accepting federal funding, it exposes itself to
liability of that nature. A funding recipient is generally on notice
that it is subject not only to those remedies explicitly provided in
the relevant legislation, but also to those remedies traditionally
available in suits for breach of contract. But punitive damages,
unlike compensatory damages and injunction, are generally not
available for breach of contract, see 3 E. Farnsworth, Contracts
§ 12.8, pp. 192-201 (2d ed.l998); Restatement (Second) of
Contracts §355; 1 T. Sedgwick, Measure of Damages §370 (8th ed.
1891).
!d. at 187-88 (emphasis in original). Noting the potentially "disastrous" impact punitive damages
might have on funding recipients and expressing doubts as to whether the recipients "would even
have accepted the funding if punitive damages liability was a required condition," the Barnes
8
majority held that punitive damages were unavailable under Title VI, Title II of the ADA or the
Rehabilitation Act. !d. at 188 (emphasis in original).
In arguing that Plaintiff should not be entitled to collect damages for emotional distress
under Title II, Defendants urge this Court to extend the Barnes reasoning beyond punitive
damages. Citing to treatises for the proposition that damages for "emotional distress," "mental
suffering" and "pain and suffering" are generally unavailable in breach of contract actions,
Defendants argue that "the considerations that the Supreme Court relied on in Barnes- using a
'breach of contract' model rather than, e.g., a 'tort' model to address the kinds of relief that may
be awarded under the ADA's Title II and the [Rehabilitation Act]'s §504- would make
'emotional distress' damages unavailable as relief to a prevailing private plaintiff under the
ADA's Title II and the [Rehabilitation Act]'s §504." Defendants' Memo at 3-4. Defendants cite
to two district court opinions- both authored by Judge James 0. Browning of the District of
New Mexico- which have adopted this analysis. !d. at 4. However, Defendants concede that
other courts, including the Eleventh Circuit, have expressly rejected their argument, holding that
damages for emotional distress are available for intentional violations of the Rehabilitation Act.
!d. (citing Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1198-1204 (II th Cir. 2007).
In describing this conflict, Defendants do not cite to any Second Circuit cases. However,
in her responsive papers, Plaintiff notes that the Second Circuit has expressly upheld at least one
district court judgment awarding non-economic damages under Title II. See Plaintiff's
Supplemental Memorandum of Law in Opposition to Defendants' Motion for Summary
Judgment ("Plaintiff's Memo") at 2, n.l. In Tsombanidis v. City of West Haven, 180 F. Supp. 2d
262 (D.Conn. 2001), the owner and residents of a group home for recovering alcoholics and drug
addicts brought an action against the City of West Haven and others, alleging that the defendants'
9
application and enforcement of the City's zoning, building, and property maintenance codes and
the State Fire Safety Code discriminated against persons with a disability or handicap in violation
of the Fair Housing Act and Title II. After a bench trial, the district court held that the City had
"acted with 'deliberate indifference' to the rights of plaintiffs under the ADA because oftheir
status as disabled persons and that the City [was]liable for monetary damages as a result of this
intentional discrimination." 180 F. Supp. 2d at 295. The district court further found that "there
was sufficient evidence presented at trial concerning emotional distress suffered by Tsombanidis
for the Court to hold that these injuries were proximately caused by the discriminatory conduct of
the City," and that Tsombanidis was entitled to recover compensatory damages for this emotional
pain and suffering. !d. Although the district court's judgment was subsequently reversed in part,
the Second Circuit expressly "affirm[ed] the district court's award of compensatory damages ...
in its entirety ...." Tsombanidis v. West Haven Fire Dept., 352 FJd 565, 580-81 (2d Cir. 2003)
(brackets added).
In their reply papers, Defendants argue that Tsombanidis should not be viewed as
controlling. Defendants state, in pertinent part:
[T]he Second Circuit's ... decision gives no reasoning for its
affirmance of the district court's award of compensatory damages,
let alone even a hint of any consideration of the impact of Barnes
in this area. There is thus no "binding precedent" from the Second
Circuit as to the effect of Barnes and its contractual-analogy
analysis on the availability of"emotional distress" damages under
the ADA's Title II or the (Rehabilitation Act].
Defendants' Reply Supplemental Memorandum of Law in Support of their Motion for Summary
Judgment ("Defendants' Reply") at 2 (brackets added). Defendants assert that this Court is "free
to make its own determination as to whether the Barnes contract analogy developed by the
Supreme Court (in an opinion that also rejected the tort analogy) to analyze the availability of
10
certain money damages under the ADA's Title II and the [Rehabilitation Act] calls for excluding
those kinds of damages that are not available for breach of contract claims, and thus calls for exeluding 'emotional distress' damages for Ms. Stamm." !d. (emphasis in original, brackets added).
To the extent that Defendants are contending that Tsombanidis is inconsistent with
Barnes, this Court rejects that argument. Although five justices joined Justice Scalia's majority
opinion in Barnes, two of those justices- Souter and O'Connor- made clear that their ruling
was limited to the punitive damages context. In a concurring opinion in which Justice O'Connor
joined, Justice Souter wrote:
I join the Court's opinion because I agree that analogy to the
common law of contract is appropriate in this instance, with the
conclusion that punitive damages are not available under the
statute. Punitive damages, as the Court points out, may range in
orders of "indeterminate magnitude," ... untethered to
compensable harm, and would thus pose a concern that recipients
of federal funding could not reasonably have anticipated. I realize,
however, and read the Court's opinion as acknowledging, that the
contract-law analogy may fail to give such helpfully clear answers
to other questions that may be raised by actions for private
recovery under Spending Clause legislation, such as the proper
measure of compensatory damages.
Barnes, 536 U.S. at 190-91. Three other justices filed a separate concurring opinion, rejecting
the contract analogy altogether and relying instead on Newport v. Fact Concerts, Inc., 453 U.S.
247 (1981), which held that, absent clear congressional intent to the contrary, municipalities are
not subject to punitive damages. !d. at 191-93. Accordingly, this Court does not read Barnes as
mandating, or even advocating, use of the contract-analogy approach in determining the
permissible scope of compensatory damages.
Since Tsombanidis is not inconsistent with Barnes, and since there was no need for the
Second Circuit to consider "the impact of Barnes" on claims for emotional distress arising from
II
Title II violations, this Court views Tsombanidis as controlling. Even if it were not, this Court is
persuaded by the thorough analysis of the Eleventh Circuit in Sheely. This Court is unpersuaded
by the reasoning of New Mexico District Judge Browning, which- as Judge Browning himself
concedes- has been criticized by commentators. See Bell v. Bd of Educ. ofAlbuquerque Pub.
Schs., 652 F. Supp. 2d 1211, 1212-13 (D.N.M. 2008) (acknowledging criticism in J. Lave, M.
Sklar, and A. van der Zee, A Right Without a Remedy: An Analysis of the Decisions by the
District Court and Eleventh Circuit in Sheeley v. MRI Radiology Network, P.A., and the
Implication for Disabled Americans' Ability to Receive Emotional Damages Under the
Rehabilitation Act and the Americans With Disabilities Act, 4 Seton Hall Circuit Rev. I (2007)).
Accordingly, this Court holds that damages for emotional distress are available under Title II.
II. The Timeliness of Plaintiffs Title II and Rehabilitation Act Claims
In their supplemental brief, Defendants also argue (I) that Plaintiffs Title II and
Rehabilitation Act claims are time-barred to the extent that they arise from incidents that
occurred prior to May 21, 200 I, and (2) that Plaintiffs retaliation claim, arising from the
NYCTA's refusal to permit her access to an empty articulated bus, is untimely. In the first of
these two arguments, Defendants assert that claims under Title II and the Rehabilitation Act are
subject to a three-year statute of limitations and, accordingly, that Plaintiff cannot recover for
violations of those statutes that occurred more than three years prior to the commencement of this
action in May 2004. Plaintiff does not dispute that a three-year statute of limitations is
applicable, but argues that the "continuing violation" doctrine is applicable to this case.
Preliminarily, this Court notes that Congress did not establish a statute oflimitations for
Title II or Rehabilitation Act claims. See Keitt v. City ofNew York,- F. Supp. 2d -,No. 09
Civ. 8508 (GBD)(DF), 2011 WL 4526147, at *26 (S.D.N.Y. Sept. 29, 2011). In the absence of a
12
Congressionally established time limitation for a federal cause of action, "the settled practice [is]
to adopt a local time limitation as federal law if it [is] not inconsistent with federal law or policy
to do so." Jones v. R.R. Donne/ley & Sons Co., 541 U.S. 369, 377-78 (2004) (internal quotations
and citation omitted; bracketed material added). Accordingly, Plaintiffs Title II and
Rehabilitation Act claims are both governed by the three-year statute of limitations applicable to
New York personal injury actions. Keitt, 2011 WL 4526147, at *26-*27.
"F ederallaw governs the question of when a federal claim accrues notwithstanding that a
state statute of limitations is to be used." Morse v. Univ. ofVt., 973 F.2d 122, 125 (2d Cir.
1992). "Under federal law, a claim accrues when the plaintiff "knows or has reason to know" of
the injury that is the basis of the action." Jd. (citing cases). "The continuing violation doctrine is
an 'exception to the normal knew-or-should-have-known accrual date."' Shomo v. City ofNew
York, 579 F.3d 176, 181 (2d Cir. 2009) (quoting Harris v. City of New York, 186 F.3d 243, 248
(2d Cir. 1999)). In cases alleging a continuing violation, "the commencement ofthe statute of
limitations period may be delayed until the last discriminatory act in furtherance of [the
continuing violation]." Fitzgeraldv. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (bracketed
material added).
"[C]ourts in the Second Circuit have viewed continuing violation arguments with
disfavor." Bernstein v. The MONY Group, Inc., 228 F. Supp. 2d 415, 418 (S.D.N.Y. 2002).
"[T]he continuing violation exception is usually associated with a discriminatory policy, rather
than with individual instances of discrimination, and ... acts so 'isolated in time ... from each
other ... [or] from the timely allegations[] as to break the asserted continuum of discrimination'
will not suffice." Fitzgeraldv. Henderson, 251 F.3d at 359 (quoting Quinn v. Green Tree Credit
Corp., !59 F.3d 759, 766 (2d Cir. 1998)) (brackets and elipses added in Fitzgerald). However,
13
"a continuing violation may be found 'where specific and related instances of discrimination are
permitted by the employer to continue unremedied for so long as to amount to a discriminatory
policy or practice."' !d. (quoting Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994)).'
"Where a continuing violation can be shown, the plaintiff is entitled to bring suit challenging all
conduct that was a part of that violation, even conduct that occurred outside the limitations
period." Cornwell, 23 F.3d at 704.
In this case, Plaintiff has adduced evidence which, if credited by a jury, might establish a
continuing violation ofthe sort described in Cornwell: i.e., specific and related instances of
discrimination that were permitted to continue unremedied for so long as to amount to a
discriminatory policy or practice. As discussed above, see pp. 6-7, ante, Plaintiffs Title II claim
rests on allegations of numerous specific and related discriminatory incidents which allegedly
occurred in contravention of the NYCTA's official written policy. Plaintiff claims that the
NYCTA failed to effect adequate remedies, with the result that these incidents continued to occur
repeatedly and regularly. According to Plaintiff, the failure of the NYCTA policymakers to stop
the discriminatory practices is evidence of deliberate indifference on the part of those
policymakers, and that "deliberate indifference to the strong likelihood [of] a violation"
establishes the intentional violation of Title II. See Loejjler v. Staten Island Univ. Hasp., 582
F.3d at 275.
1
Both Fitzgerald and Cornwell preceded the Supreme Court's decision in Nat 'I R.R.
Passenger Corp. v. Morgan, 536 U.S. 101 (2002), which limited the scope of the continuing
violation doctrine. However, courts in this Circuit continue to cite to Cornwell and progeny for
this proposition, finding that Morgan abrogated Cornwell on other grounds. See, e.g., Gallo v.
Glen Cove City Sch. Dist., No. 08-CV-3582 (JFB)(WDW), 2009 WL 1161818, at *5 (E.D.N.Y.
Apr 29, 2009); McPhee v. New York City Health & Hasps. Corp., No. 07 Civ. 1053 (PKC)
(DCF), 2008 WL 3930089, at *4 (S.D.N.Y. Aug 25, 2008); see also Hongyan Lu v. Chase Inv.
Servs. Corp., 412 Fed.Appx. 413, 416-17 (2d Cir. 2011) (summary order).
14
In light of this evidence of a continuing violation, Plaintiff can bring suit for all conduct
that was part of this violation. See Cornwell, 23 F.3d at 704. Accordingly, Plaintiffs action is
not limited only to those incidents which occurred since May 21, 2001- three years prior to the
commencement of this action. Defendants' motion to dismiss the pre-May 2001 incidents as
time-barred is, therefore, denied.
III. The Timeliness of Plaintiff's Retaliation Claim
In contrast, Defendant's motion to dismiss Count Seven of the Second Amended
Complaint, which alleges that Defendants retaliated against Plaintiff by refusing to permit her
private access to an empty articulated bus, is granted. The statute of limitations for filing a
retaliation claim under the ADA is three years. See Harris v. S. Huntington Sch. Dist., No. 06CV-3879 (DGT), 2009 WL 875538, at *9 (E.D.N.Y. Mar. 30, 2009). For statute oflimitations
purposes, the clock begins to run when the retaliatory action occurs. !d. According to a July 19,
2004, e-mail attached as Exhibit EE to the Affidavit of Bruce J. Turkle, Esq., in Opposition to
Defendants' Motion for Summary Judgment (the "Turkle Affidavit"), the allegedly retaliatory
action occurred on July 19,2004, when Defendants informed Plaintiff that they were denying her
request for access to an articulated bus. However, Plaintiff did not amend her pleadings to add
this retaliation claim until January 23, 2008- more than three and one-half years later.
In opposition to Defendants' argument, Plaintiff advances three responses. First, Plaintiff
argues that the July 19, 2004, e-mail contains inadmissible hearsay, which cannot serve to
establish when Plaintiff received notice that her request for an articulated bus was denied.
Second, Plaintiff argues that the allegedly retaliatory conduct relates back to the original
pleading. Third, Plaintiff asserts that the articulated bus incident is a part of a continuing pattern
of retaliatory activity.
15
To resolve the hearsay issue raised in Plaintiffs first argument, this Court must first place
the July 19, 2004, e-mail in context. This e-mail was the last of a series of e-mail exchanges
between Defendants' employees regarding how to respond to Plaintiffs request for access to an
empty articulated bus. The e-mail exchanges began on Tuesday, July 13, 2004, the day after
Plaintiff communicated her request during a telephone conversation with one Michael Levy.
Turkle Aff., Ex. EE, at D00639. After several e-mails between employees, the request was
denied by one Christopher Lake, a Department of Buses employee who informed Levy in a July
16, 2004, e-mail, "This is not something that we have ever done before and we cannot take on
this additional responsibility." !d. at D00010. After an e-mail exchange between Lake and Levy
regarding who should contact Plaintiff with this determination, Levy informed his colleagues:
I left a message for Ms. Stamm at 9:30AM today 7-19-04,
informing her that the Department of Buses could not provide the
training she requested. I referred her to DOB Customer Relations
if she had further questions.
!d.
In their reply papers, Defendants do not deny that the July 19, 2004, e-mail is hearsay.
Defendants maintain, however, that this and the other e-mails are "obviously ... records
maintained by NYCTA in the ordinary course of business." Defendants' Reply at 6. While
Defendants may not have provided sufficient evidence to establish that these e-mails were
records "kept in the course of regularly conducted activity" and made as part of "the regular
practice of that activity," see Fed. R. Evid. 803(6)(8) and (C), this Court finds that the July 19,
2004, e-mail is admissible under Fed. R. Civ. P. 807. Since Levy was attempting to be precise
and knew his co-workers would rely on his statements, there are circumstantial guarantees of
trustworthiness equivalent to those underlying the business records exception. Moreover, this
16
evidence is more probative on the material issue of when Levy notified Plaintiff of the denial
than any other evidence that Defendants were able to obtain. Accordingly, admitting this
evidence would "best serve the purposes of [the Federal Rules of Evidence] and the interests of
justice." Fed. R. Evid. 807(a)(4).
Plaintiffs second argument asserts that the retaliation claim alleged in Count Seven of
the Second Amended Complaint relates back to conduct alleged in the original complaint. Rule
15(c) of the Federal Rules of Civil Procedure provides, in relevant part, that "[a]n amendment to
a pleading relates back to the date of the original pleading when ... the amendment asserts a
claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to
be set out - in the original pleading .... " Rule 15(c)'s rationale is "that a party who has been
notified of litigation concerning a particular occurrence has been given all the notice that statutes
oflimitations were intended to provide." Rubin v. Valicenti Advisory Services, Inc., 471 F. Supp.
2d 329, 337 (W.D.N.Y. 2007) (citing Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 159
n. 3 (1984)). However, the retaliation claim set forth in Count Seven of the Second Amended
Complaint arises from an incident which occurred after the original and first amended complaints
were drafted, and nothing in those prior pleadings provided Defendants with notice of the
retaliation claim at issue. Accordingly, the retaliation claim does not relate back to the prior
pleadings.
In her third argument, Plaintiff again invokes the continuing violation doctrine, asserting
that "the 'articulated bus' issue is part of a continuing pattern of retaliatory acts," some of which
"occurred within three years of the filing of the Second Amended Complaint." Plaintiffs Memo
at 19. However, the "articulated bus" incident and the two subsequent acts of alleged retaliation
identified by Plaintiff- namely, failures to comply adequately with a Freedom of Information
17
Law request made in 2005 and a refusal to provide Plaintiff with a list of stations accessible only
by High Entrance/Exit Turnstiles in 2006- are discrete acts, related only by Plaintiffs claim that
they are retaliatory. Discrete acts "which fall outside the limitations period, cannot be brought
within it, even when undertaken pursuant to a general policy that results in other discrete acts
occurring within the limitations period." Chin v. Port Authority of New York & New Jersey, 685
F.3d 135, !57 (2d Cir. 2012). Accordingly, the retaliation claim alleged in Count Seven of the
Second Amended Complaint is dismissed as time-barred. 2
CONCLUSION
For the reasons set forth above, Defendants' motions with respect to Title II of the ADA
are denied in their entirety. Defendants' motion to dismiss the retaliation claim set forth in
Count Seven of Plaintiff's Second Amended Complaint is granted. In accordance with Section
IV of this Court's Individual Motion Practices & Rules, see https://www.nyed.uscourts.gov/
pub/rules/SLT-MLR.pdf, the parties shall contact the Court within thirty (30) days of the date of
this Memorandum and Order to request a date for a pre-trial scheduling conference.
SO ORDERED.
s/ SLT
SANDRA L. TOWNES
United States District Judge
Dated: January 18,2013
Brooklyn, New York
'In light of this conclusion, there is no need to address Defendants' argument that the
retaliation claim should be dismissed for lack of evidence.
18
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