Szuszkiewicz v. J.P. Morgan Chase Bank
Filing
20
MEMORANDUM AND ORDER: Defendant's motion to dismiss 13 is GRANTED in part and DENIED in part. Plaintiff's hostile work environment claim is dismissed and his ADA claim is referred to Magistrate Judge Scanlon for further proceedings. Ordered by Judge Sandra L. Townes on 3/31/14. (Frullo, Veronica)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------x
MARK SZUSZKIEWICZ,
MEMORANDUM AND ORDER
Plaintiff,
12-cv-3793 (SLT) (VMS)
-againstJPMORGAN CHASE BANK,
Defendant.
-----------------------------------------------------------x
TOWNES, United States District Judge,
Plaintiff Mark Szuszkiewicz brings this employment discrimination suit against his
former employer J.P. Morgan Securities LLC (hereinafter “J.P. Morgan”), successor to Chase
Investment Services Corp., incorrectly named in the complaint as JPMorgan Chase Bank. He
claims that he was subjected to a hostile work environment and termination on account of his
mental disability in violation of the Americans with Disabilities Act. J.P. Morgan now moves to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following
reasons, the motion is granted in part and denied in part.
LEGAL STANDARD
Under the now well-established Twombly standard, a complaint should be dismissed only
if it does not contain enough allegations of fact to state a claim for relief that is “plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Igbal, 556 U.S. 662, 678
(2009). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555 (alteration, citations, and internal
quotation marks omitted). While Federal Rule of Civil Procedure 8 “marks a notable and
generous departure from the hyper-technical, code-pleading regime of a prior era, ... it does not
unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”
Igbal, 556 U.S. at 678-79.
The Supreme Court has clarified that Twombly sets out a two-pronged approach for
district courts considering motions to dismiss under Rule 12(b)(6). Iqbal, 556 U.S. at 678-79
(2009). District courts should first “identify[ ] pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth,” and second, if a complaint contains
“well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Id. at 679.
The Court is generally limited to the “facts stated in the complaint or documents attached
to the complaint as exhibits or incorporated by reference.” Nechis v. Oxford Health Plans, Inc.,
421 F.3d 96, 100 (2d Cir. 2005). It may also consider “matters of which judicial notice may be
taken, or ... documents either in plaintiff[’]s[] possession or of which plaintiff[] had knowledge
and relied on in bringing suit,” Brass v. Am. Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.
1993) (citation omitted), such as the EEOC charge of discrimination and subsequent decision.
See Morris v. David Lerner Associates, 680 F. Supp. 2d 430, 435-36 (E.D.N.Y. 2010)
(considering EEOC charge of discrimination and right to sue letter as public documents and
documents relied on in drafting the complaint).1
1
The Charge of Discrimination filed with the EEOC which is attached as Exhibit 9 to the
March 18, 2013 Affidavit of Frederic Lieberman submitted in support of Defendant’s Motion to
Dismiss. It is incorporated in the complaint, which attaches the Dismissal and Notice of Right to
Sue issued by the EEOC, bearing charge no. 520-2011-03387, and it is also a public record of
which the Court takes judicial notice.
2
Plaintiff’s complaint consists of the Eastern District of New York Pro Se Office’s five
page form complaint for employment discrimination appended to which is a right to sue letter
from the EEOC and an eight page single-spaced narrative, most of which details events and
recollections that are irrelevant to the claims before this Court. As plaintiff proceeds pro se this
Court construes his complaint liberally.2
BACKGROUND
For purposes of this motion, the Court accepts as true, the following facts alleged in
Plaintiff’s Complaint:
1. Employment as a Financial Advisor
Plaintiff began working at J.P. Morgan on January 15, 2008. (Compl. at 5.) He received
training in selling annuities on several occassions from J.P. Morgan and its affiliates, including
in a Manhattan branch and at a training program in Columbus, Ohio. (Compl. at 5.) He then
went to work at several branches in Brooklyn selling annuities. He was initially assigned to the
Park Slope West and Carroll Gardens Branches and, in July 2008, he was assigned to a third
branch in Dumbo. (Compl. at 5-6.)
Plaintiff believed he was very good at his job and that he was going to be one of the “top
Bankers … [and] go to Vegas.” (Compl. at 7.) For example, on one occasion, plaintiff was not
aware that an appointment had been added to his calendar. When he arrived for work that
2
It is well established that “submissions of a pro se litigant must be construed liberally”
and “it [i]s the obligation of the district court … to interpret [a pro se plaintiff’s] complaint to
raise the strongest arguments that they suggest” because “[i]mplicit in the right of selfrepresentation is an obligation on the part of the court to make reasonable allowances to protect
pro se litigants from inadvertent forfeiture of important rights because of their lack of legal
training.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-76 (2d Cir. 2006) (internal
citations and punctuation omitted). “At the same time, [the district court] cannot read into pro se
submissions claims that are not ‘consistent’ with the pro se litigant’s allegations” nor does pro se
status “exempt a party from compliance with relevant rules of procedural and substantive law.”
Id. at 477 (internal citations and punctuation omitted).
3
morning at the Carroll Gardens branch, the branch manager and a coworker threatened to cancel
his appointment, but because plaintiff “can sell in [his] sleep,” he went ahead with the meeting
and successfully sold a $712,000 Genworth annuity to a difficult client. (Compl. at 6.)
2. Relationship with “Nory”
At some point, plaintiff received training at a Dumbo J.P. Morgan branch, where plaintiff
“had the unfortunate pleasure of meeting [“Nory”] who [sic] [he] later thought of as love at first
sight … [and who] taught him [a] technique at [C]hase for [selling] annuities.” (Compl. at 6.)
Nory was an employee of Genworth Annuities, one of J.P. Morgan’s vendors.
Plaintiff’s $712,000 sale of Genworth annuities “caught the attention of Nory,” who gave
plaintiff her phone number and scheduled an appointment to meet with him. (Compl. at 7.)
They met on several occasions and Nory spoke with him in a “flirtatious[]” manner. (Id.)
Plaintiff wrote “embarrassing poetry” about Nory. (Id.) He “liked Nory because she impressed
[him] with her intelligence and beauty” but he “kept everything professional” with her “until [he]
lost [his] mind.” (Compl. at 8). In July 2008, when plaintiff’s mental health problems started,
he and Nory met for lunch. After lunch, Nory kissed plaintiff on the cheek in front of his
coworkers. Plaintiff believed he had fallen in love with Nory. (Compl. at 11.) After this, his
coworkers began accusing him of promoting Genworth annuities over other annuities because he
had a crush on Nory. (Id.)
3. Hostile Work Environment
Plaintiff alleges that he was subject to a hostile work environment because his coworkers
accused him of alcoholism and questioned his scruples. “For some reason during the entire
timeframe I was there everyone … thought I was an alcoholic and a degenerate. … I had my
manager Edmund sniff me constantly when I walked into the branch in the morning and if he
4
smelled alcohol he would say ‘Why are you drinking so early’?[] I’m not drinking so early it
was from last night and I would have to repeatedly explain this to him along with my other
coworkers ….” (Compl. at 8.) When he went to lunch, he “would come back at 2pm or
whatever time and be sniffed.” (Id.) His coworkers also accused him of visiting prostitutes in
Atlantic City. (Id.) Plaintiff’s coworkers persisted until plaintiff “broke down crying in July
2008 and was saying I don’t [visit] prostitutes, I don’t drink all the time….” (Id.) Around that
time, his coworkers “question[ed his] morals” and accused him of selling certain annuities
because of his crush on Nory. (Id.) It was this hostility at work which plaintiff alleges caused or
contributed to his mental illness. (Opp’n at 2.)3
4. Mental Illness
Plaintiff developed a mental illness while working at J.P. Morgan. (Compl. at 8.) At
some point in July 2008, he made a sale but when he went to his computer to input the sale, he
could not focus, and “[i]t took over an hour [to do] what used to take 5 minutes….” (Compl. at
9.) The following day, he was unable to “focus or think straight.” (Id.) He believed that
“everyone was speaking in codewords … about [him]” and that his coworkers were telling Nory
that he was a “degenerate gambling alcoholic who has sex with prostitutes.” (Id.)
Over the next few days, he did not go to work. He repeatedly told his employer that he
needed some time off. He could not “sleep for days and began writing poetry which started out
as a love poem for Nory … and then evolved to [plaintiff] having a savior complex and
[believing that he] needed to write an inspiring poem to save the world.” (Id.)
During this
3
Where consistent with the complaint, facts are also drawn from plaintiff’s opposition to
defendant’s motion to dismiss (“Opp’n”). See Chukwueze v. NYCERS, 891 F. Supp. 2d 443, 448
(S.D.N.Y. 2012) (“[B]ecause a pro se plaintiff’s allegations must be construed liberally it is
appropriate for a court to consider factual allegations made in a pro se plaintiff’s opposition
memorandum, as long as the allegations are consistent with the complaint.”).
5
leave, at some point during July or August 2008, Plaintiff scheduled an appointment with a client
for Saturday, September 6, 2008, because he “hoped by then [he] could be ready to work again
[in a month]” and also because he found the digits six and nine to have “degenerate significance”
and to be “comical.” (Id.) Around that time, he also sent text messages to his colleagues.
Plaintiff disconnected his phone because the ringing “drove [him] nuts” and spent several days
locked in his home in a paranoid state.
At some point in July or August, 2008, plaintiff decided that he was healthy enough to
return to work, but when he arrived, he could not remember how to log into his computer and
“had so many different thoughts about what [he] was doing and none of them made any logical
sense.” (Compl. at 10.) Plaintiff’s boss followed plaintiff out and fired him. Plaintiff “told him
that [he] hit his head playing basketball and [he couldn’t] think straight and if [plaintiff is]
disabled then he can’t fire [him].” (Id.) Plaintiff filled out paperwork to take a leave of absence.
Plaintiff was admitted to Coney Island Hospital overnight where he was prescribed medication,
but he never took it and his mental health “progressively got worse.” (Id.)
Plaintiff notified his supervisor when he was released from the hospital and informed him
that he had a prescription for medication. (Id.) Plaintiff remained in contact with three
supervisors “informing them of [his] acts, rehabilitation, and recovery.” (Opp’n at 2.)
5. Arrest
In early September 2008, plaintiff started to call Nory periodically. (Compl. at 10.) She
stopped picking up the phone, so he decided that she had been killed because plaintiff included
her in his poetry. (Id). He continued calling her. The police arrested him and an Order of
Protection was entered forbidding him from contacting Nory. (Compl. at 11.) In defiance of the
order, plaintiff texted Nory and tried to explain himself. (Id.) He also mentioned that he knew
6
her address, which she interpreted as a threat. Plaintiff was arrested again, placed on medication,
and incarcerated for 5 months. (Id.)
6. Long Term Disability Leave and Termination
During his incarceration, plaintiff kept in touch with his supervisor, Seth. (Id.) He told
Seth that his arrest arose out of his contact with Nory, and kept in touch with succeeding
supervisors Garth and Vincent throughout his rehabilitation. (Opp’n at 4). When he was
released, J.P. Morgan invited him to return to work, however plaintiff explained that he was
required to enroll in an alcohol rehabilitation program and needed therapy. (Compl. at 11.)
After over a year on leave, plaintiff’s therapist provided a letter that plaintiff could return to
work in January 2011. (Compl. at 12.) Plaintiff filled out rehire paperwork and disclosed his
criminal record. J.P. Morgan asked plaintiff to wait to start until there was a position for him.
(Id.)
Rather than allow Plaintiff to return to work, on June 6, 2011, J.P. Morgan terminated his
employment. (Compl. at 3, 12.) J.P. Morgan cited the fact that plaintiff had violated the
company’s harassment policy when he harassed Nory as the reason for his termination. (Id.)
7. EEOC Complaint and the Instant Lawsuit
Plaintiff filed a charge with the Equal Employment Opportunity Commission regarding
defendant’s alleged discriminatory conduct on October 5, 2011, which stated:
I am a male with a qualifying disability. I worked for [J.P. Morgan] from January 15,
2008 until my discharge on June 7, 2011. I have performed my duties satisfactorily. I
believe that I was discriminated against by my employer based on my disability.
Specifically, on June 7, 2011 I was discharged because my employer found out that I had
civil charges in 2008 for harassing an affiliate employee and therefore violating company
conduct policy. At the time of this incident my disability was the cause for my actions. I
was terminated while I was on sick leave for my disability. (Docket No. 15-2.)
7
Plaintiff received a Dismissal and Notice of Right to Sue letter on April 30, 2012. (Compl. at
14.) He commenced this action on July 27, 2012, seeking $69,000,000.00. (Compl. at 12).
Plaintiff seeks that amount because he alleges he is “degenerate so … should use a degenerate
number.” (Id.)
Plaintiff contends that the reason given for his termination was mere pretext because
“they knew when [he] went to jail [that he had harassed Nory] and [J.P. Morgan] claimed they
wanted [him] back the whole time [he] was on disability….” (Id.) It was not until he was to
return from long-term disability leave that his employer terminated him because “[t]hey were
scared of his mental disability and the liability it might cause them.” (Id.)
Plaintiff also contends that he was subject to a hostile work environment at J.P. Morgan,
on account of his mental disability in that J.P. Morgan “caused the disability by the hostile work
environment of [his] coworkers.” (Id.)
8. Defendant’s Motion to Dismiss4
Defendant moves to dismiss plaintiff’s complaint on the grounds that (1) plaintiff’s
hostile work environment claim is time barred because it accrued more than 300 days before
plaintiff’s EEOC complaint was filed and does not “fall within the coverage of the October 2011
charge of discrimination” and (2) plaintiff has failed to state a claim for discriminatory
termination. Defendant also contends that the complaint should be dismissed because plaintiff’s
complaint conclusively demonstrates that he was terminated because he violated Defendant’s
non-harassment policy.
4
Defendant has submitted documentary evidence in support of its motion to dismiss and
given pro se plaintiff notice, pursuant to Eastern District of New York Local Civil Rule 12.1,
that this Court is permitted, under Rule 12(d) of the Federal Rules of Civil Procedure, to convert
the motion to a summary judgment motion. Summary judgment is premature at this time.
Accordingly, the Court declines to consider evidence outside the four corners of the pleadings,
unless incorporated into the complaint.
8
DISCUSSION
As set forth below, the Court finds that plaintiff’s hostile work environment claim is not
adequately exhausted and finds that plaintiff’s discriminatory termination claim is adequately
pled.
A. Hostile Work Environment Claim
1. Exhaustion of Hostile Work Environment Claim
“Exhaustion of administrative remedies through the EEOC is an essential element of the
[ADA’s] statutory scheme[] and, as such, a precondition to bringing [an ADA claim] in federal
court.” Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (per
curiam). In New York, which has both state and local fair employment agencies, an individual
who initially files a grievance with the state or local agency must file a charge with the EEOC
within 300 days “after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e–
5(e)(1). Failure to file an administrative charge with the EEOC within the 300 days extinguishes
the claim and prohibits recovery. Butts v. New York Dep’t of Hous. Preservation & Dev., 990
F.2d 1397, 1401 (2d Cir. 1993). “Each incident of discrimination and each retaliatory adverse
employment decision constitutes a separate actionable ‘unlawful employment practice,’” and
“each discriminatory act starts a new clock for filing charges alleging that act.” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
Here, plaintiff’s hostile work environment claim arises out of his tenure at three of
defendant’s Brooklyn locations between January and July 2008. He filed his grievance with the
EEOC more than 300 days later, on October 5, 2011, asserting that his employment was
terminated on June 7, 2011, on account of his disability. Thus, any claim arising out of
9
discriminatory acts that took place more than 300 days before he filed his EEOC complaint
(December 9, 2010) is extinguished unless an exception to the exhaustion requirement applies.
i. Continuing Violation Exception
Plaintiff alleges that his hostile work environment claim was brought to the EEOC within
300 days of the final discriminatory act– his termination. The “continuing violation” doctrine
extends the 300 day filing period in cases alleging a hostile work environment because “[h]ostile
work environment claims are different in kind from discrete acts. Their very nature involves
repeated conduct. The ‘unlawful employment practice’ therefore cannot be said to occur on any
particular day. It occurs over a series of days or perhaps years.” Morgan, 536 U.S. at 115.
Where the doctrine applies, the court may consider “the entire time period of the hostile
environment,” even though “some of the component acts … fall outside the statutory time
period[, p]rovided that an act contributing to the claim occur[red] within the filing period” Id. at
117. It is essential that at least one act that is “part of the same actionable hostile work
environment practice … falls within the statutory time period.” Id. at 120.
However, not all discriminatory acts are part of the continuing violation. Discrete
incidents of discrimination that are unrelated to the hostile work environment, “such as
termination, failure to promote, denial of transfer, or refusal to hire” cannot be part of a
continuing violation and cannot supply the hook to bring an otherwise untimely hostile work
environment claim into the 300 day time period. Id. at 114. Thus, the question before the court
is whether the discriminatory termination complained of in plaintiff’s EEOC complaint is a
component of his hostile work environment claim or constitutes a discrete act of discrimination.
In Morgan, 536 U.S. at 101, the Supreme Court illustrated the exact question before the court
with two 401 day scenarios:
10
“(1) Acts on days 1–400 create a hostile work environment. The employee files the
charge on day 401. Can the employee recover for that part of the hostile work
environment that occurred in the first 100 days?
(2) Acts contribute to a hostile environment on days 1–100 and on day 401, but there are
no acts between days 101–400. Can the act occurring on day 401 pull the other acts in for
the purposes of liability?”
The Court explained that “all other things being equal, there is little difference between the two
scenarios as a hostile environment constitutes one ‘unlawful employment practice’ and it does
not matter whether nothing occurred within the intervening 301 days so long as each act is part
of the whole.” Id. However, “if an act on day 401 had no relation to the acts between days 1–
100, or for some other reason, such as certain intervening action by the employer, was no longer
part of the same hostile environment claim, then the employee cannot recover for the previous
acts, at least not by reference to the day 401 act.” Id.
The question here is whether plaintiff’s termination is an incident that, coupled with
incidents that took place between January and July 2008, gave rise to a single actionable hostile
work environment claim. It is not, and thus the continuing violation doctrine has no application.
Plaintiff’s discriminatory termination claim is based on a discrete act, his termination, as
opposed to the cumulative effect of many small hostile acts. See Rodriquez v. Cnty. of Nassau,
933 F. Supp. 2d 458, 462 (E.D.N.Y. 2013) (“[T]ermination is a discrete act.”). Moreover, even
if termination could be part of a hostile work environment, the fact that nearly three years
elapsed between the incidents of harassment, during which time three successive supervisors
oversaw plaintiff’s position, belies plaintiff’s continuing violation argument. Morgan, 536 U.S.
at 120 (considering whether incidents involved the same type of employment actions, occurred
relatively frequently, and were perpetrated by the same managers in determining whether they
were part of the same actionable hostile environment claim); Benson v. N. Shore-Long Island
11
Jewish Health Sys., 482 F. Supp. 2d 320, 330 (E.D.N.Y. 2007) (“Acts occurring outside the
limitations period that are significantly far apart from each other are ‘fatal’ to a continuing
violation argument.”)
Here, plaintiff’s discriminatory termination claim is a discrete discriminatory act and
cannot be used as a hook to bring his hostile work environment claim within the 300 day period
to file a charge with the EEOC. Morgan, 536 U.S. at 114. Therefore, his hostile work
environment claim was extinguished by his failure to timely bring an EEOC charge. 5
5
Depending on the surrounding facts, if a plaintiff’s mental impairment prevented him
from meeting the filing deadline for an EEOC charge, that deadline, which is not jurisdictional,
may be equitably tolled in certain “rare and exceptional circumstances.” Zerilli-Edelglass v.
New York City Transit Auth., 333 F.3d 74, 80-81 (2d Cir. 2003) (Equitable tolling is available
when a plaintiff is “prevented in some extraordinary way from exercising his rights,” although he
“acted with reasonable diligence during the time period []he seeks to have tolled.); see generally
Boos v. Runyon, 201 F.3d 178, 184 (2d Cir. 2000) (“[T]he question of whether a person is
sufficiently mentally disabled to justify tolling of a limitation period is, under the law of this
Circuit, highly case-specific.”). Although plaintiff’s complaint does not allege that his mental
impairment prevented him from filing a timely charge, it does state that from September 2008
through mid-2009 he had only “occasional moments of sanity” until he “progressively got
better” upon taking medication at Bellevue Hospital and that following his release from Riker’s
Island in 2009, plaintiff still needed therapy and alcohol treatment until January 2011. (Compl.
at 11.) The Court need not reach the issue of whether plaintiff should be given an opportunity to
establish the exacting requirements for equitable tolling because, as explained supra in Section
A.1.ii, plaintiff’s hostile work environment claim is otherwise barred by his failure to raise it in
his 2011 EEOC charge. The Second Circuit has repeatedly admonished that questions of mental
capacity should not be resolved on a motion to dismiss, and if plaintiff’s hostile work
environment claim did not fail for other reasons, plaintiff would be “entitled to an opportunity to
adduce evidence supporting his equitable tolling claim.” Mandarino v. Mandarino, 180 F.
App’x 258, 261 (2d Cir. 2006) (summary order) (“Where, as here, the facts are disputed, the best
practice is to analyze a question of mental incapacity in the context of summary judgment.”);
Stella v. Potter, 297 F. App’x 43, 46 (2d Cir. 2008) (summary order) (reversing dismissal
pursuant to Rule 12(c) because the district court should have accepted plaintiff’s allegation that
his mental illness, depression, prevented him from timely notifying an EEO counselor.); Brown
v. Parkchester S. Condos., 287 F.3d 58, 60–61 (2d Cir. 2002) (vacating district court’s dismissal,
finding “an evidentiary hearing” necessary in order “to determine to what extent, if any,
[plaintiff]’s condition did in fact inhibit his understanding or otherwise impair his ability to
comply, such that equitable tolling would be in order”); see also Pietri v. N.Y.S. Office of Court
Admin., 936 F. Supp. 2d 120, 136-37 (E.D.N.Y. 2013) (Equitable tolling “is an issue best
analyzed in the context of summary judgment.”).
12
ii. Hostile Work Environment Claim and Continuing Violation Theory Absent
from EEOC Charge
Plaintiff’s hostile work environment claim fails for another reason – he did not assert the
claim or his continuing violation theory before the EEOC. See Fitzgerald v. Henderson, 251
F.3d 345, 360 (2d Cir. 2001) (A “plaintiff may not rely on a continuing violation theory of
timeliness unless []he has asserted that theory in the administrative proceedings.”); Miller v.
Int’l Tel. & Tel. Corp., 755 F.2d 20, 25 (2d Cir. 1985) (“[A] continuing violation [must be]
clearly asserted both in the EEOC filing and in the complaint.”).
A district court may not hear pre-charge claims that were not included in the charge filed
with the EEOC unless the claims are “reasonably related” to claims asserted before the EEOC.
Ximines v. George Wingate High Sch., 516 F.3d 156, 158 (2d Cir. 2008). A claim is “reasonably
related” if the new claim “would fall within the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge that was made.” Id. at 159 (citations omitted).
In making this determination, this Court considers the factual allegations made in the EEOC
charge and determines whether those allegations gave the EEOC “adequate notice to investigate
discrimination on both bases.” Id. at 158 (citations omitted). This flexibility is based on the
recognition that charges before the EEOC are held to a “loose pleading” standard because they
are “filled out by employees without the benefit of counsel” in order “to alert the EEOC to the
discrimination.” Id. (citations omitted).
Here, plaintiff’s EEOC complaint made no mention of his hostile work environment
claim, but merely stated that “on June 7, 2011 I was discharged because my employer found out
that I had civil charges in 2008 for harassing an affiliate employee and therefore violating
company conduct policy. At the time of this incident my disability was the cause for my actions.
I was terminated while I was on sick leave for my disability.” (Docket No. 15-2.) This charge
13
would not prompt the EEOC to investigate the climate in plaintiff’s workplace in 2008. At best,
the charge alleges that plaintiff was subjected to discriminatory termination in 2011 and the
grounds supplied by J.P. Morgan for terminating his employment were pretext. A reasonable
EEOC investigator might have spoken with the company’s Human Resources department or
plaintiff’s supervisors about the circumstances surrounding his termination. However, plaintiff’s
relationship with his coworkers in 2008 is remote in time, involved different supervisors, and
was unrelated to either the 2008 “civil charges … for harassing an affiliate employee” or his
termination, and therefore would not fall within the scope of a reasonable EEOC investigation.
By not asserting his hostile work environment claim or the continuing violation theory as a
means of extending the 300–day limitations period in the EEOC charge, plaintiff denied the
agency an opportunity to investigate the company’s 2008 conduct.
For these reasons, the portion of defendant’s motion to dismiss concerning plaintiff’s
hostile work environment claim is granted.
2. Leave to Replead
Plaintiff is denied leave to replead his hostile work environment claim because it is
absent from his EEOC charge and not reasonably related to his termination. Thus, any attempt to
replead that claim would be futile. See Zavalidroga v. Cote, 395 F. App’x 737, 741 (2d Cir.
2010) (summary order) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (“Although
a district court generally should not dismiss a pro se complaint without granting the plaintiff
leave to amend, dismissal is appropriate if leave to amend would be futile.”).
14
B. Discriminatory Termination Claim
1. Sufficiency of Pleadings
To survive a Rule 12(b)(6) motion, a plaintiff alleging employment discrimination need
not plead a prima facie case of discrimination, but must only “give the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 512 (2002) (citation omitted). “[A]t a minimum, employment discrimination
claims must meet the [plausibility] standard of pleading set forth in Twombly and Iqbal, even if
pleading a prima facie case is not required.” Hedges v. Town of Madison, 456 F. App’x 22, 23
(2d Cir. 2012) (summary order).
Although the prima facie elements of a discriminatory termination claim need not be
established, they do “provide an outline of what is necessary to render a plaintiff’s employment
discrimination claim … plausible.” Pietri, 936 F. Supp. 2d at 138-39 (internal citation and
punctuation omitted). “Courts therefore consider these elements in determining whether there is
sufficient factual matter in the complaint which, if true, gives Defendant a fair notice of
Plaintiff’s claim and the grounds on which it rests.” Id. at 139 (citation and internal punctuation
omitted).
Title I of the ADA provides that “no covered entity shall discriminate against a qualified
individual with a disability because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a). The prima facie elements of a discrimination claim under the ADA are
“(a) that [the] employer is subject to the ADA; (b) that [plaintiff] is disabled within the meaning
of the ADA or perceived to be so by his employer; (c) that he was otherwise qualified to perform
15
the essential functions of the job …; and (d) that he suffered an adverse employment action
because of his disability.” Brady v. Wal–Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008)
(citing Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 2004)). To satisfy the last element,
the causal relationship between the disability and the adverse employment decision need not be
direct, and a plaintiff may establish that the decision was motivated by his disability by
demonstrating that “the disability caused conduct that, in turn, motivated” the employer’s
decision. Sedor v. Frank, 42 F.3d 741, 746 (2d Cir. 1994); see also Greene v. New York, No. 95
civ. 6580 (DAB), 1998 WL 264838, *5 (S.D.N.Y. May 22, 1998).
Plaintiff alleges that he was fired on account of conduct that was caused by his disability,
namely that he “was discharged because [his] employer found out that [he] had civil charges in
2008 for harassing an affiliate employee and therefore violating company conduct policy. At the
time of this incident [his] disability was the cause for [his] actions.” (Docket No. 15-2.). He also
alleges that his supervisors perceived him as disabled and “were scared of [his] mental disability
and the liability it might cause them.” (Compl. at 12.). J.P. Morgan does not dispute that
plaintiff has sufficiently pled that he was terminated from a job he was otherwise qualified to
perform on account of his mental illness or conduct caused by his mental illness.
2. Burden Shifting Analysis
J.P. Morgan disputes that it terminated plaintiff on the basis of his disability. (Memo at
10.) Rather, J.P. Morgan asserts, it terminated plaintiff because he violated J.P. Morgan’s nonharassment policy. (Id. at 11-12). Plaintiff, in turn, points to the fact that defendant did not
terminate him immediately upon learning of his violation of the workplace non-harassment
policy. He argues that J.P. Morgan was aware of this conduct for at least two years prior to his
16
discharge and waited until plaintiff requested to return to work to discharge him. These
arguments by the partoes are premature.
Under McDonnell Douglas v. Green, 411 U.S. 792 (1973), which applies to claims
alleging discriminatory termination under the ADA, the plaintiff has the “initial burden of
presenting a prima facie case” which creates “a rebuttable presumption of the existence of the
ultimate fact at issue: … the employer’s intent to discriminate against the plaintiff.” United
States v. City of New York, 717 F.3d 72, 83 (2d Cir. 2013) (construing McDonnell Douglas, 411
U.S. at 802-04). Once plaintiff establishes a prima facie case, the burden shifts to the defendant
to “articulat[e] a legitimate, non-discriminatory reason for the employment action,” at which
point “the presumption of discrimination arising with the establishment of the prima facie case
drops from the picture,” and the burden shifts back to the plaintiff to “come forward with
evidence that the defendant’s proffered, non-discriminatory reason is a mere pretext for actual
discrimination.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).
However, the burden-shifting framework laid out in McDonnell Douglas is not applicable
on a motion to dismiss. See Swierkiewicz, 534 U.S. at 511 (“This Court has never indicated that
the requirements for establishing a prima facie case under McDonnell Douglas also apply to the
pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss.”); Amron v.
Morgan Stanley Inv. Advisors, Inc., 464 F.3d 338, 343 (2d Cir. 2006) (McDonnell Douglas
standard inappropriate in 12(b)(6) context); Lax v. 29 Woodmere Blvd. Owners, Inc., 812 F.
Supp. 2d 228, 236 (E.D.N.Y. 2011) (The “burden-shifting analysis is not applied at the motion to
dismiss stage”); Pietri, 936 F. Supp. 2d at 140 (same). The Supreme Court, in Swierkiewicz,
emphasized that a prima facie case is an evidentiary standard, and “should not be transposed into
a rigid pleading standard for discrimination cases.” Swierkiewicz, 534 U.S. at 512.
17
At this juncture in the litigation, it is sufficient that plaintiff has pled a prima facie case.
He need not establish that case nor rebut defendant’s proffered non-discriminatory reason for his
termination. Plaintiff’s complaint, liberally construed, pleads enough facts to “give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
Swierkiewicz, 534 U.S. at 512 (citation omitted). Plaintiff should have an opportunity to engage
in discovery to “unearth[] relevant facts and evidence” to prove J.P. Morgan’s motives. Id.
In sum, it would be premature for this Court to consider defendant’s proffered nondiscriminatory basis for discharging plaintiff or plaintiff’s evidence of pretext before the parties
have the benefit of discovery. Accordingly, this branch of defendant’s motion to dismiss is
denied.
CONCLUSION
For the reasons set forth above, Defendant’s motion to dismiss is GRANTED in part and
DENIED in part. Plaintiff’s hostile work environment claim is dismissed and his ADA claim is
referred to Magistrate Judge Scanlon for further proceedings.
SO ORDERED.
__________S/___________
SANDRA L. TOWNES
United States District Judge
Brooklyn, New York
Dated: March 31, 2014
18
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?