Dechbery v. New York City Fire Department
ORDER granting 23 Defendant's Motion to Dismiss. For reasons set forth in the Memorandum and Order, plaintiff's Title VII, ADA, and NYCHRL discrimination, retaliation, and hostile work environment claims that pre-date August 21, 2012 ar e dismissed with prejudice as time-barred or because they were included in the Settlement Agreement dated July 13, 2012 in plaintiff's prior federal lawsuit, and the remaining claims of discrimination on the basis of sex and age, retaliation, ho stile work environment, and due process are dismissed without prejudice for failure to state a claim. The court grants plaintiff fourteen (14) days to amend her complaint with respect to her Title VII discrimination, ADA discrimination, retaliation, and hostile work environment claim in a manner consistent with this decision. See Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citing Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)) (A pro se complaint "should not [be ] dismiss[ed] without [the Court] granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated."). Plaintiff may not replead claims that are barred by her prior July 13, 2 012 settlement of her prior federal action and/or the statute of limitations prior to August 21, 2012. Plaintiff is advised that an amended complaint does not simply add to the first complaint. Once an amended complaint is filed, it completely repl aces the original. Therefore, it is important that plaintiff include in the amended complaint all the necessary information that was contained in the original complaint, except that she should not include claims pre-dating August 21, 2012, as those claims are barred by her Settlement Agreement, General Release, and the 300 day filing rule. Moreover, plaintiff shall not include her termination without due process claims as that claim fails as a matter of law. The amended complaint must be capt ioned as an "Amended Complaint," and bear the same docket number as this Order. Because the court has provided plaintiff ample opportunity to prosecute her claims, failure to comply with the courts order will result in dismissal of plainti ff's entire action with prejudice. The Clerk of the Court is respectfully directed to serve of a copy of this Order on plaintiff and note service on the docket by August 18, 2015. Ordered by Judge Kiyo A. Matsumoto on 8/14/2015. (Tsay, Stephanie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
NEW YORK CITY FIRE DEPARTMENT,
MATSUMOTO, United States District Judge:
Plaintiff Eileen Dechberry (“plaintiff”) commenced
this action, pro se, on April 2, 2014, against defendant, the
New York City Fire Department (“FDNY” or “defendant”) pursuant
to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. §§ 2000e, et seq., the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101, et seq., and the New York City
Human Rights Law
Plaintiff alleges employment discrimination on
the basis of gender and disability, and that her employment was
terminated without due process.
Specifically, plaintiff alleges
that she was suffered discrimination, retaliation, and a hostile
work environment due to her gender and disability.
(ECF No. 1,
Complaint (“Compl.”) ¶¶ 4-7.)
Pending before this court is defendant’s unopposed
motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure (“Rule”) 12(b)(6).1
reasons set forth herein, the court grants defendant FDNY’s
motion to dismiss the Complaint.
The following facts are drawn primarily from the
plaintiff’s Complaint, which the court must assume to be true
for the purpose of considering defendants’ Motion to Dismiss
pursuant to Federal Rules of Civil Procedure (“Rule”) 12(b)(6).
(See generally Compl.)
Additionally, where indicated, the
Complaint’s factual allegations are supplemented by facts and
information drawn from documents external to the Complaint,
which plaintiff explicitly relies upon in her Complaint or that
are within the purview of judicial notice.
documents have been provided to the court as attachments the
Complaint and to the defendants’ motion to dismiss.
(ECF No. 1,
Complaint; 23, Defendant’s Motion to Dismiss, Defendant’s
Memorandum of Law in Support of its Motion to Dismiss (“Def.
Mem.”), and Declaration of David Mou in Support of Defendant’s
Motion to Dismiss (“Mou Decl.”).)
As set forth, infra, at pp. 13-14, plaintiff was aware that she was required
to file an opposition to defendant’s motion to dismiss and failure to do so
would result in the court deeming defendant’s motion unopposed.
“Generally, consideration of a motion to dismiss under
Rule 12(b)(6) is limited to consideration of the Complaint
Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).
“A complaint is deemed to include any written instrument
attached to it as an exhibit, materials incorporated in it by
reference, and documents that, although not incorporated by
reference, are ‘integral’ to the complaint.”
Nat’l Grid, No. CV 14-3800, 2015 WL 136030, at *3 (E.D.N.Y. Jan.
8, 2015) (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir.
2004)) (deeming prior Agreement and General Release entered into
by plaintiff to be incorporated into the complaint by reference,
particularly because it was “integral to [plaintiff’s] ability
to pursue his cause of action”).
Moreover, “affirmative defenses, including the
enforcement of a general release, are properly considered by a
court as part of a motion to dismiss under Rule 12(b)(6).”
USA Corp. v. Marinello, No. 13-CV-4591, 2013 WL 6704885, at *3
(S.D.N.Y. Dec. 19, 2013) (citing Tromp v. City of New York, 465
F. App’x 50, 51–52 (2d Cir. 2012)) (dismissing claims pre-dating
the general release).
Furthermore, “matters judicially noticed
by the District Court are not considered matters outside the
Gilbert v. N. Am. Airlines, No. 12-CV-523, 2014 WL
1271057, at *1 (E.D.N.Y. Mar. 26, 2014) (quoting Staehr v.
Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 426 (2d Cir.
A “court may take judicial notice of a document filed
in another court – not for the truth of the matter asserted in
the other litigation, but rather to establish the fact of such
litigation and related filings.”
Int’l Star Class Yacht Racing
Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir.
1998); see Staehr, 547 F.3d at 426 (“[I]t is proper to
take judicial notice of the fact that press coverage, prior
lawsuits, or regulatory filings contained certain information,
without regard to the truth of their contents.”); Reisner v.
Stoller, 51 F. Supp. 2d 430, 440 (S.D.N.Y. 1999) (“The court may
. . . take judicial notice of matters of public record, such as
pleadings and court orders from prior litigation between the
A district court may also “take judicial notice of
admissions in pleadings and other documents in the public record
filed by a party in other judicial proceedings that contradict
the party’s factual assertions in a subsequent action.”
v. Wachovia Sec., LLC, 966 F. Supp. 2d 106, 119 (E.D.N.Y. 2013)
(citing Harris v. New York State Department of Health, 202
F. Supp. 2d 143, 173 n.13 (S.D.N.Y. 2002)).
Plaintiff was a former Emergency Medical Technician
(“EMT”) with the Emergency Medical Services (“EMS”) of the FDNY
from March 10, 2006 until September 3, 2013, with an “exemplary
performance” and “tardiness” record.
(Compl. at 11.)2
Plaintiff alleges that, beginning in 2011, the FDNY
“intentionally and willfully discriminated against [her] in
[her] employment based upon [her] gender, created a hostile
working environment and retaliated against [her] because [she]
engaged in a protected activity of complaining to the EEO [sic]”
and filing her 2011 lawsuit.
Plaintiff also claims disability
(Compl. at 7, 15.)
Plaintiff alleges that she
made “numerous complaints, both to her supervisors as well as
the internal office of the Equal Employment Opportunity” within
the FDNY, regarding “disrespectful treatment, retaliation and
harassment which has created . . . a hostile work environment.”
(Compl. at 11.)
Plaintiff claims that “[t]he conduct of her
immediate supervisors, Lt. Lori Mazzeo and Lt. Irene Kruten . .
. is severe and pervasive, creating a hostile work environment
that a reasonable person would consider intimidating, abusive
(Compl. at 11.)
She also contends that “[e]ven
though [defendants] were aware of [her] complaints and the
existence of a hostile work environment, no actions were taken .
. . in an effort to correct the discriminatory conduct.”
(Compl. at 15.)
Plaintiff cites the following events in support
of her claims.
The court’s citations to plaintiff’s Complaint and EEOC charge reference the
page numbers automatically generated by the court’s electronic filing system.
Allegations Pre-Dating the General Release
On or about March 7, 2011, plaintiff returned to work
and was informed she would need to be cleared by a doctor to be
re-certified for CPR, a requirement of her EMT position at the
(Compl. at 11.)
Plaintiff asserts that she was required
to undergo rigorous testing for six hours to obtain her
recertification, and that she complained to her supervisor,
Lieutenant Chan, regarding the “abnormally rigorous” testing and
plaintiff’s physical impairments.
instructed plaintiff to obtain a medical diagnosis and doctor’s
Plaintiff was subsequently treated by a physician and
diagnosed with “upper extremity pain tendonitis, requiring rest,
icing, and anti-inflammatory medication.”
(Compl. at 11.)
Despite having provided a doctor’s note, plaintiff was
required to perform the CPR test again the following day.
Although she complained of “jolting pains” in her shoulders,
wrists and arms, plaintiff was instructed that she would “have
to finish the procedure or else will not be able to return to
work” and would “have to keep coming back until [she] pass[ed].”
(Compl. at 12.)
Plaintiff alleges that as a result of this
“rigorous testing,” she could not feel her fingers or palm,
could not move her shoulders, and had no sensation in her right
hand, while her left hand was “completely black and blue.”
Plaintiff alleges that she was hospitalized the
following morning and notified her union representative about
the events and her injuries.
(Compl. at 12.)
She was diagnosed
with severe tendonitis, injuries to her left arm, and severe
swelling, requiring a cast up to her shoulder on her left hand.
(Compl. at 17.)
Moreover, while she was waiting to fill out
Line of Duty Injury (“LODI”) papers, plaintiff alleges that she
overheard an employee “yell[ ] to Chief Swithers” that plaintiff
is “small, she can’t do it [CPR]”
(Compl. at 17 (correction in
Plaintiff further alleges that she was “rushed to
the emergency room” a few nights later.
Plaintiff alleges that she was ultimately denied LODI
status by her superior, Chief Swithers, “for no legitimate
reason, despite [her] serious and overt hand injuries.”
She indicates that she continued her efforts to be
approved for LODI, and was ultimately told by a compensation
representative that she was “not eligible for LODI because of a
minor technical error namely because the LODI package that the
academy filled out stated that the injury occurred on March 3rd,
whereas the date of injury on the witnesses’ statements and
[plaintiff’s] statement was March 2nd.”
(Compl. at 17.)
Although she appealed to Chief Swithers that this was only a
“technical error that could have been quickly and easily fixed,”
Chief Swithers “refused to allow LODI benefits and denied
Plaintiff alleges that “[t]he significant
increase in severity of [her] injury would not have occurred but
for Chief Swither’s decision to deny the LODI benefits and deny
and delay my surgery.”
Moreover, plaintiff had an “MRI
for which she was forced to pay out of pocket as [her] LODI had
still not been approved.”
On or about October 12, 2011, plaintiff complained to
the FDNY EEO3 about Captain Knight’s discrimination and
(Compl. at 16.)
Plaintiff alleges that Captain
Knight instructed a coworker not to assist plaintiff, who was
sick in the locker rooms, however, plaintiff fails to provide a
timeframe for this event.
Plaintiff alleges that at this
time, she had requested assistance from a coworker to help her
to the bathroom, but that Captain Knight interfered, instructing
the coworker not to assist plaintiff, as plaintiff was “refusing
patient care, all of which was false.”
allegedly followed plaintiff into the bathroom and stood outside
the stall “harassing [plaintiff].”
ultimately taken into an ambulance due to a “hypertensive
crisis,” and alleges that “while coworkers were helping [her]
get inside the ambulance, Knight came into the ambulance with
[her] and harassed [her] even more, to the point where coworker
Plaintiff references complaints that she made to the “EEO,” which the court
understands is the Equal Employment Opportunity Office of the FDNY, and not
the Equal Employment Opportunity Commission of the United States.
[sic] had to tell Knight to get off the ambulance as she was
interfering with patient care.”
On November 16, 2011, plaintiff complained to the FDNY
EEO that her schedule had not been accommodated when Captain
Knight refused to alter her work shift.
(Compl. at 16.)
Plaintiff alleges that “she was forced to continue working from
8:00 a.m. until 4:00 p.m., causing [her] to miss many work days
and time due to [her] medical appointments.”
alleges that “due to Knight’s denial of accommodation for [her],
[her] relationship with [her] friend/coworker Tanya Agostino
when Ms. Agostino began fighting with plaintiff
who had complained that Ms. Agostino’s shift change had been
granted, thereby resulting in an “even more hostile work
(Compl. at 13.)
Plaintiff indicates that “for an
entire week [she] was subject to hostility at work.”
Plaintiff contends that the fact that on or about
December 7, 2011, Captain Knight granted her coworker Tanya
Agostino’s request for a shift change to 7:00 a.m. to 3:00 p.m.
“shows that such accommodations were easily available, yet
[plaintiff] was singled out when [plaintiff] was denied the
(Compl. at 13, 16.)
On or about December 8,
2011, plaintiff notified her union representative, John Roddy,
about the “disparate treatment.”
(Compl. at 16.)
plaintiff and Mr. Roddy questioned Captain Knight regarding her
denial of plaintiff’s request, Captain Knight responded that
“‘she is the Captain’ and can therefore grant/deny any request
at her discretion.”
On or about December 9, 2011,
plaintiff was also granted a shift change to 7:00 a.m. to 3:00
(Compl. at 13.)
On or about December 27, 2011, plaintiff suffered an
injury from an accident that occurred in the FDNY “training
room” or “lounge.”
(Compl. at 13.)
On or about December 28,
2011, plaintiff was told that she was denied LODI benefits.
She alleges that she was denied a “LODI package” and
worker’s compensation because the injury occurred in a “lounge,”
and that the “paperwork that FDNY personnel filled out
erroneously contained the word ‘lounge,’ barr[ing] [her] from
recovery of worker’s compensation.”
On or about June 19, 2012, plaintiff complained to the
FDNY EEO regarding her Captain’s discrimination and Samuel’s
abandonment at her accident in December 2011.
(Compl. at 14.)
Specifically, plaintiff claims that Samuel “intentionally
abandoned [her] at the scene of the accident and retaliated as
such by not assisting [her]” when she fell.
(Compl. at 16.)
Events Post-Dating the General Release
Plaintiff alleges that she has suffered “even more
hostility and retaliation” since her July 2012 settlement.
(Compl. at 11.)
Plaintiff contends that she was not granted
LODI benefits until the day prior to her surgery in January
(Compl. at 14.)
Plaintiff asserts that the “repeated
denial of such necessary accommodation for over a year caused
[her] hand injuries to become more and more severe, as surgeries
would not have been required had [she] been granted LODI
(Compl. at 14, 17.)
Plaintiff further alleges that
the “denial of LODI status was part of an ongoing retaliation by
[FDNY] stemming from her 2011 lawsuit.”
(Compl. at 14.)
March 20, 2013, plaintiff underwent a second surgery.
She indicates that her medical records “reveal that
[she is] totally disabled, cannot drive and cannot take public
Plaintiff claims that, despite two surgeries within
approximately two months, the FDNY required her to see their
doctors at the Bureau of Health Services (“BHS”) in Brooklyn,
New York, (Id.), and that she was “constantly harassed by FDNY
Bureau of Health Services.”
claims that “on multiple times, [she] pleaded to have [her]
appearance at FDNY Bureau of Health Service adjourned from April
24 and April 26,” due to her inability to obtain transportation
and appear at the hearing.
(Compl. at 15.)
alleges that she “had called Lt. Guzman 6 times on April 26,
2013 to inform him of [her] inability to appear at the Bureau of
Health Services on that date.”
The FDNY, however, denied
her requests for an adjournment, terminated her LODI status, and
issued a “Violation Letter” the following day, based on her
failure to appear before the BHS.
In addition, plaintiff
claims that the FDNY also removed her from the payroll, and that
“Lt. Guzman recommended termination of [her] LODI status” and
“threatened to discipline [her] based on his false allegation of
[her] being rude and profane while making requests for
adjournment of [her] medical appearance.”
III. Procedural History
The Instant Action
Plaintiff filed her pro se Complaint in this action on
April 2, 2014.
(ECF No. 1, Complaint.)
On August 5, 2014, the
parties appeared before the court on a telephonic pre-motion
conference to discuss and establish a briefing schedule for
defendant’s proposed motion to dismiss.
Aug. 5, 2014.)
(Minute Entry, dated
On September 4, 2014, the court adjourned the
briefing schedule pending plaintiff’s motion to reopen her 2011
lawsuit before Judge Weinstein and vacate the settlement.
(Order, dated Sept. 4, 2014.)
On September 22, 2014, the
defendant provided the court with a joint status update,
indicating that Judge Weinstein had denied plaintiff’s
application to reopen her case and set aside the settlement,
finding that there was no basis to do so established at the
(ECF. No 19, Status Report, dated Sept.
The briefing schedule was adjourned again pending
plaintiff’s motion for reconsideration before Judge Weinstein.
On October 23, 2014, the defendant again provided a status
report to the court advising that Judge Weinstein had denied
plaintiff’s motion to reconsider, and proposing a revised
briefing schedule, which the court so-ordered on October 27,
(ECF No. 21, Status Report, dated Oct. 23, 2014; Order
dated Oct. 27, 2014.)
A copy of the court’s order was served
upon plaintiff at her address on record the same day.
On January 20, 2015, defendant filed its motion to
dismiss, indicating that defendant had not received any
opposition from plaintiff, or any indication of intent to serve
an opposition by the court-ordered date.
(ECF No. 24,
Defendant’s Letter dated Jan. 20, 2015.)
Upon order by the
court, plaintiff provided a status update requesting an
extension of time to respond to defendant’s motion to dismiss
because she intended to obtain legal representation.
26, Plaintiff’s Letter dated March 20, 2015.)
The court granted
plaintiff’s an extension for her opposition to defendant’s
motion and ordered plaintiff to file a status update by April
Because plaintiff failed to provide a status update
by April 30, 2015, the court ordered plaintiff to serve a
response to defendant’s motion to dismiss by May 29, 2015, and
warned plaintiff that failure to do so would result in the
forfeiture of her opportunity to respond to defendant’s motion.
(Order dated May 5, 2015.)
On June 1, 2015, the court deemed
defendant’s motion unopposed and fully briefed, due to
plaintiff’s failure to respond.
(Order dated June 1, 2015.)
Plaintiff’s Prior Lawsuit and Settlement Agreement
On June 8, 2011, plaintiff, represented by counsel,
commenced an action against the City of New York, Lt. Irene
Kruitken, Lt. Lori Mazzeo, Lt. “John” Cameron, and Lt. “John”
Dechberry v. City of New York, 11-CV-2767 (E.D.N.Y.,
June 8, 2011) (“prior federal action”).
The matter was settled
through mediation, and a Settlement Agreement was executed on
July 13, 2012 followed by a General Release of all claims,
executed on July 18, 2012.
(Mou Decl. Exs. 3-4.)
of dismissal with prejudice was ordered by the Honorable Jack B.
Weinstein on July 18, 2012, thereby closing the case.
Decl. Ex. 5.)
On August 24, 2014, the court received a letter from
plaintiff indicating that her attorney, Linda M. Cronin, had
“settled the case without [her] knowledge,” “forged [her] name
if there is a signature,” and that she had not signed “anything
releasing [her] case out of federal court.”
(Mou Decl. Ex. 6.,
Letter from plaintiff to Judge Weinstein, dated August 24, 2014
Plaintiff also claimed that Ms. Cronin had “filed an
EEOC without [her] knowledge or permission.”
(Id. at 2.)
Weinstein held an evidentiary hearing on September 8, 2013
regarding plaintiff’s request to reopen the case and vacate the
(Status Report, dated Sept. 22, 2014, at 1.)
September 16, 2014, Judge Weinstein denied plaintiff’s
application, finding that “there was no basis to reopen the case
or set aside the settlement.”
Sept. 11, 2014.)
(Mou Decl. Ex. 7, Order dated
Judge Weinstein denied plaintiff’s motion for
reconsideration on September 23, 2014, finding that “[n]o
adequate reason to reconsider has been provided.”
Ex. 8, Order dated Sept. 23, 2014.)
Plaintiff has not, as of
this date, filed an appeal.
Plaintiff’s Charges to the Equal Employment
Opportunity Commission (EEOC)
Plaintiff attaches to her complaint a charge of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”), which was dated and signed by plaintiff on June 11,
2013 and received by the EEOC on June 17, 2013.4
(Compl. at 9.)
The EEOC charge alleges that the New York City Fire Department
Plaintiff disputes that she filed this June 2013 EEOC charge, and contends
that her former counsel, Ms. Cronin, “filed this charge without [her]
knowledge or consent” and that plaintiff only learned about it “when [she]
was mailed the right to sue letter from EEOC [sic] in January 2014.” (Mou
Decl. Ex. 5, Plaintiff’s Letter dated July 27, 2014.) Defendant argues that,
even accepting plaintiff’s assertions as true, her claims must be dismissed
for failure to comply with the requirement that a Charge of Discrimination be
filed with the EEOC before an action may be commenced in federal court.
(Def. Mem. at 8.) Plaintiff, however, contradicts her position by relying on
the statements in the June 17, 2013 EEOC charge attached to her complaint,
and therefore the court will not reach a finding as to whether or not the
EEOC charge was filed with or without plaintiff’s consent and/or knowledge or
whether plaintiff complied with the administrative claim exhaustion
discriminated against plaintiff on account of gender, retaliated
against her, and created a hostile working environment during
the course of plaintiff’s employment as an Emergency Medical
Service Technician from 2006 through 2013.
(Compl. at 6.)
Plaintiff’s allegations contained in the EEOC charge are
described in full in the factual background discussed supra.
On January 8, 2014, the EEOC dismissed plaintiff’s
complaint and issued a right to sue letter.
(Compl. at 6-7.)
Specifically, the EEOC found that based on its investigation and
evaluation of the material documents and records received, the
Commission could not conclude that plaintiff was subject to any
adverse employment action motivated by discriminatory animus.
Plaintiff’s Pending State Court Action
On February 19, 2014, plaintiff, represented by
counsel, filed an Article 78 Petition in New York State Supreme
Court, County of New York (“Article 78 action”), challenging the
FDNY and City of New York’s September 3, 2013 Action and
Determination pursuant to New York Civil Service Law (“CSL”)
§ 71, which effectively terminated plaintiff’s employment with
(Mou Decl. Ex. 9.)
In her Article 78 action,
Civil Service Law § 71 governs the reinstatement of employment after
separation for disability and provides that an employer may “medically
separate an employee,” when that employee’s leave of absence exceeds on year.
C.S.L. § 71.
plaintiff seeks an Order and Judgment setting aside the
September 3, 2013 Action and Determination, on the basis that
the FDNY and City “failed to perform a duty enjoined upon it by
law,” and that their “determination was made in violation of
(Mou Decl. Ex. 9, Art. 78 Pet. ¶ 3.)
Specifically, plaintiff alleges that the City and FDNY failed to
provide proper notice of their determination of termination by
sending the notice of termination to an invalid and outdated
mailing address, instead of the address known to the FDNY.
¶¶ 30, 34.)
In a status letter dated August 12, 2015, the
defendant advised the court that plaintiff’s Article 78
proceeding remains pending in New York State Supreme Court, and
that oral argument regarding the defendant’s motion to dismiss
is scheduled for September 10, 2015.
(ECF No. 30, Defendant’s
Letter dated August 12, 2015.)
Defendant moves to dismiss the Complaint on the
following grounds: (1) plaintiff’s claims that occurred prior to
July 13, 2012 are barred by plaintiff’s Settlement Agreement and
General Release executed on July 13, 2012 in her prior action
before Judge Weinstein; (2) plaintiff’s due process claim should
be dismissed on abstention grounds because plaintiff has
initiated a parallel proceeding in New York State Court, or
alternatively, because plaintiff has an adequate state remedy
for her due process claim in the form of an Article 78
proceeding; (3) plaintiff’s claims which occurred prior to
August 21, 2012 are barred by the 300 day statute of limitations
imposed by Title VII and the ADA; (4) accepting as true
plaintiff’s claim that she did not file an EEOC charge,
plaintiff has failed to meet the mandatory condition precedent
of filing an EEOC charge before bringing a Title VII or ADA
cause of action in federal court; and (5) plaintiff fails to
state a claim upon which relief may be granted.
(Def. Mem. at
Claims Accrued Prior to July 13, 2012 Are Barred by
Plaintiff’s Settlement Agreement and General Release in the
Prior Federal Action
“It is well established that settlement agreements are
contracts and must therefore be construed according to general
principles of contract law.”
Tromp, 465 F. App’x at 51
(quoting Collins v. Harrison–Bode, 303 F.3d 429, 433 (2d Cir.
“Where the language of [a] release is clear, effect
must be given to the intent of the parties as indicated by the
Id. (quoting Shklovskiy v. Khan, 273
A.D.2d 371, 709 N.Y.S.2d 208, 209 (2d Dep’t 2000)) (internal
“Under New York law, a release that is
clear and unambiguous on its face and which is knowingly and
voluntarily entered into will be enforced.”
Pampillonia v. RJR
Nabisco, Inc., 138 F.3d 459, 463 (2d Cir. 1998) (affirming
dismissal where release that was unambiguous, and was knowingly
and voluntarily entered into, barred plaintiff from bringing
Courts in this Circuit have consistently barred claims
where a plaintiff enters into a settlement, executes a general
release, and then brings an additional lawsuit alleging similar
claims that could have been alleged in the prior settled action.
See Tromp, 465 F. App’x at 52 (affirming dismissal of claims as
barred by general release where claims could have been alleged
in prior action); Castro v. City of New York, No. 11-CV-5379,
2012 WL 5289490, at *3 (E.D.N.Y. June 26, 2012) report and
recommendation adopted, 2012 WL 5289517 (E.D.N.Y. Oct. 22, 2012)
(dismissing claims as barred by a general release where
plaintiff had ample opportunity to include later claims in prior
action, as events that formed basis of later claims occurred
several months before settlement was reached); Lewis v. City of
New York, No. 10-CV-3266, 2011 WL 3273939, at *2 (E.D.N.Y. July
Indeed, “[w]ords of general release are clearly
operative not only as to all controversies and causes of action
between the releasor and releasees which had, by that time,
actually ripened into litigation, but to all such issues which
might then have been adjudicated as a result of pre-existent
Tromp, 465 F. App’x at 52 (citing A.A. Truck
Renting Corp. v. Navistar, Inc., 81 A.D.3d 674 (2d Dep’t 2011))
Thus, “when general language is used in
the releasing document, the release is to be construed most
strongly against the releasor.”
Castro, 2012 WL 5289490, at *3
(citing Tromp, 465 F. App’x at 52 (internal citations omitted)).
Defendant argues that plaintiff’s claims which accrued
prior to July 13, 2012 must be dismissed as barred by the prior
federal action, specifically plaintiff’s Settlement Agreement
and General Release, dated July 13, 2012, and by Judge
Weinstein’s “so ordered Stipulation of Dismissal, dated July 18,
2013, which are attached to the Declaration of David Mou as
Exhibits 2 and 4.
(Declaration of David Mou in Support of
Defendant’s Motion to Dismiss (“Mou Decl.”) Exs. 2, 4.)
On June 8, 2011, plaintiff filed an action assigned to
Judge Jack B. Weinstein in this district against the City of New
York and other individuals at the FDNY for discrimination on the
basis of gender, retaliation, harassment, and a hostile work
environment arising out of her employment at the FDNY.
Plaintiff’s claims were subsequently dismissed with prejudice on
July 18, 2012, upon the execution of a Stipulation of Dismissal
based on the parties’ settlement in the amount of $32,000.00.
In return for the settlement payment, plaintiff executed a
Settlement Agreement, signed by plaintiff’s former counsel, Ms.
Cronin, on July 13, 2012, and a General Release, signed by
plaintiff and notarized on the same date.
The General Release provides that:
consideration of the subsequent payment . .
. does for herself . . . release and forever
discharge the City of New York, the Fire
Department of the City of New York, and all
representative and agents of the City of New
York, past and present . . . of and from all
manner of action and actions, cause and
causes of action, suits . . . claims and
demands, in law or in equity, which against
the RELEASEES, the RELEASOR . . . ever had,
now have or hereafter can, shall or may have
for, upon or by reason of any matter, cause
or thing whatsoever from the beginning of
the world to the day of the date of this
GENERAL RELEASE, including but not limited
to the acts or omissions complained of in
(Mou Decl. Ex. 3.)
The Settlement Agreement provides
substantially identical terms.
(Mou Decl. Ex. 2.)
The language of the General Release and Settlement
Agreement is plain and unambiguous, as well as broad in scope.
The General Release bars plaintiff from bringing any future
claims or causes of action against the City of New York and the
FDNY that plaintiff as “Releasor” “ever had, now have or
hereafter can, shall or may have” “from the beginning of the
The Settlement Agreement and General Release exclude any state law tort
claims concerning an alleged trip and fall incident that plaintiff suffered
on December 27, 2011. These state tort claims are not alleged in the federal
action before this court.
world to the day of the date of this GENERAL RELEASE.”
Decl. Ex. 3.)
This release includes claims arising out of
separate, “pre-existent” events that could have been, but were
not, raised in the prior action.
In the instant action, plaintiff brings claims that
arise from events which occurred prior to the General Release
and Settlement Agreement and could have been raised in the prior
federal action before Judge Weinstein.
Indeed, many of the
events that transpired in this action upon which plaintiff bases
her claims, occurred prior to the filing of the first action in
As provided by the agreements, and consistent with Second
Circuit caselaw, plaintiff’s claims need not have actually been
alleged in the prior action.
(Mou Decl. Exs. 2-3 (barring
claims that plaintiff “ever had, now have or hereafter can,
shall or may have” “from the beginning of the world to the day
of the date of this GENERAL RELEASE.”)
In Tromp, the Second
Circuit affirmed the dismissal of claims against the City of New
York as barred by a General Release which released the City from
“any and all claims which were or could have been alleged by
[plaintiff] in the aforementioned action,” despite the fact that
the claims were not actually alleged in the settled action.
Tromp, 465 F. App’x at 52.
The court reasoned that, although
the second “incident involved a different arrest, it was similar
in nature to the arrest that was the subject of [the prior
settled action],” thus, because the allegations “could have been
alleged,” they were barred by the General Release.
plaintiff’s claims in the instant action are not only similar in
nature to the gender discrimination, harassment, hostile work
environment, and retaliation claims in the prior settled action,
but also could have been alleged.
claims pre-dating July 13, 2012 must be and are dismissed as
barred by the Settlement Agreement and General Release in the
prior federal action before Judge Weinstein.
Finally, although plaintiff now alleges that “the
settlement in July 2012 . . . was cohorst [sic],” (Compl. ¶ 8),
and that she “never signed a settlement or release,” the court
finds no grounds to deem the Settlement Agreement or General
Release invalid as coerced, or otherwise improperly obtained as
plaintiff asserts. (See ECF No. 12, Plaintiff’s Letter dated
July 27, 2014.)
Indeed, plaintiff appeared before Judge
Weinstein on her application to re-open her case before him and
set aside the settlement, asserting as she does again here, that
she had not agreed to the terms of the settlement nor did she
sign the Settlement Agreement or General Release.
evidentiary hearing on the issue of whether plaintiff knowingly
and voluntarily entered into the Settlement Agreement and
Release, Judge Weinstein found that there was “no basis to
reopen the case or to set aside the settlement.”
(Mou Decl. Ex.
7, Dechberry v. City of New York, No. 11-CV-2767, Order dated
Sept. 11, 2014.)
Judge Weinstein subsequently found no adequate
reason to reconsider plaintiff’s application.
(Mou Decl. Ex. 9,
Dechberry v. City of New York, No. 11-CV-2767, Order Denying
The court has no basis to disturb Judge
Accordingly, plaintiff’s claims that arise from events
pre-dating the execution of the Settlement Agreement and General
Release – July 13, 2012 – and that could have been brought in
the first action are barred and are hereby dismissed.
Claims That Accrued Prior to August 21, 2012 are Time
Barred by Statute of Limitations
A plaintiff who wishes to pursue a federal employment
discrimination suit under either Title VII or the ADA must file
a charge with the EEOC within 300 days of the alleged unlawful
employment practice or challenged discriminatory act.
§ 2000e-5(e)(1) (Title VII); 42 U.S.C. § 12117(a) (ADA)
(applying the powers, remedies and procedures set forth under
Title VII to charges of discrimination brought under the ADA);
see also Cherry v. City of New York, 381 F. App’x 57, 58 (2d
Cir. 2010) (affirming dismissal of Title VII and ADA claims as
untimely where plaintiff failed to file EEOC charge within 300
days of discriminatory conduct); Edwards v. Elmhurst Hosp. Ctr.,
No. 11-CV-5348, 2013 WL 839554, at *3 (E.D.N.Y. Feb. 4, 2013)
report and recommendation adopted, 2013 WL 831162 (E.D.N.Y. Mar.
6, 2013) (dismissing claims under Title VII and the ADA as timebarred due to plaintiff’s failure to file his EEOC charge within
300 days of the alleged acts of discrimination).
alleging a hostile work environment claim, however, will not be
time-barred so long as all acts which constitute the claim are
part of the same unlawful employment practice and at least one
act falls within the time period.
Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 122 (2002); McGullam v. Cedar Graphics,
Inc., 609 F.3d 70, 75 (2d Cir. 2010) (citing Morgan, 536 U.S. at
105) (“[C]onsideration of the entire scope of a hostile work
environment claim, including behavior alleged outside the
statutory time period, is permissible for the purposes of
assessing liability, so long as an act contributing to that
hostile environment takes place within the statutory time
Although plaintiff is pro se, and thus entitled to a
more lenient construction of her claims by the court, a motion
to dismiss must be granted for any claims based on allegedly
discriminatory acts or events occurring prior to 300 days from
the filing of a charge of discrimination with the EEOC.
381 F. App’x at 58; Edwards v. Elmhurst Hosp. Ctr., 2013 WL
839554, at *4 report and recommendation adopted, 2013 WL 831162
(E.D.N.Y. Mar. 6, 2013).
The EEOC received plaintiff’s EEOC Charge of
Discrimination on June 17, 2013.
(Compl. at 9.)
plaintiff’s claims with respect to retaliation, harassment,
retaliation, and disparate treatment which rely on discrete
events that occurred prior to August 21, 2012, or 300 days prior
to June 17, 2013, are dismissed as untimely.
With respect to plaintiff’s hostile work environment
claims, although such claims are not time-barred if “at least
one act falls within the time period,” Morgan, 536 U.S. at 122,
plaintiff fails to set forth any allegations of a hostile work
environment post-dating August 21, 2012.
Indeed, the only
specific facts alleged with respect to plaintiff’s hostile work
environment claim stem from events that occurred prior to August
21, 2012, namely the disparate treatment with regard to
plaintiff’s request for a shift change.
(Compl. at 13.)
Moreover, as discussed further in Section III.E.,
although plaintiff alleges that she has suffered “even more
hostility and retaliation” since her July 2012 settlement and
that “[t]he conduct of [her] immediate supervisors . . . is
severe and pervasive, creating a hostile work environment,”
plaintiff does no more than make conclusory allegations.
Without allegations of specific conduct, the court is unable to
determine whether any of defendant’s alleged violations based on
hostile work environment occurred after August 21, 2012.
Buckley v. New York, 959 F. Supp. 2d 282, 300 (E.D.N.Y. 2013)
(dismissing hostile work environment claims because plaintiff
failed to make specific allegations or examples of hostile work
environment actions and only plead conclusory allegations).
Accordingly, the court dismisses all of plaintiff’s
Title VII and ADA claims that rely on discrete conduct or events
that occurred prior to August 21, 2012.
III. Plaintiff’s Remaining Claims
Plaintiff’s remaining claims largely pertain to
plaintiff’s allegations regarding the delay in awarding her LODI
status and benefits, the termination of her LODI status and
benefits in 2013, and her termination of employment in 2013,
which plaintiff alleges were due to discrimination and
retaliation on the basis of her gender and disability.7
Plaintiff also alleges defendants engaged in a pattern of
conduct that created a hostile work environment.
With respect to LODI benefits, plaintiff also alleges that she was denied
LODI status and benefits on two occasions – March 2011 and December 2011,
based on technicalities or improper paperwork, which she alleges was done in
retaliation of her 2011 lawsuit and various complaints to the EEOC and EEO.
Because these denials occurred prior to the July 13, 2012 General Release and
August 21, 2012 statute of limitations date, claims premised on these events
are time-barred or barred by the release in the prior federal action.
plaintiff claims in her Complaint that she was “terminat[ed]
without due process.”8
(Compl. ¶ 4.)
Defendant moves to dismiss the remaining claims on two
First, defendants assert that the Complaint fails to
state a cognizable claim with respect to the discrimination,
retaliation, and hostile work environment claims under Title VII
and the ADA.
Moreover, defendants argue that the district court
should abstain from making a determination on plaintiff’s due
process claim because plaintiff has commenced a pending Article
78 proceeding in New York State Supreme Court that raises
substantially the same claims, and that the Article 78
proceeding provides an adequate remedy at law.
For the reasons
set forth below, plaintiff’s remaining claims that post-date the
General Release and that are not time barred are dismissed.
Legal Standard for Motion to Dismiss
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.”
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
As a general rule, the
court is required to accept as true all of the allegations
contained in the complaint.
See Iqbal, 556 U.S. at 678; Kassner
Plaintiff alleges in her EEOC charge that FDNY removed her from payroll in
April 2013, but fails to indicate in the EEOC charge or in her complaint when
she was officially terminated from the FDNY or on what grounds.
v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir.
When assessing the sufficiency of a complaint,
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements . . . are not entitled
to the assumption of truth.”
Iqbal, 556 U.S. at 678–79
(citation omitted); see also Twombly, 550 U.S. at 555 (stating
that the Court is “not bound to accept as true a legal
conclusion couched as a factual allegation”).
conclusions can provide the framework of a complaint, they must
be supported by factual allegations,” which state a claim for
Iqbal, 556 U.S. at 679.
A complaint that “tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement’”
will not suffice.
Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 557).
A complaint alleging employment discrimination need
not establish a prima facie case to survive a motion to dismiss.
The claims, however, must be facially plausible and must give
fair notice to the defendants of the basis for the claim.
Romaine v. New York City Coll. of Tech. of the City Univ. of New
York, No. 10-CV-431, 2012 WL 1980371, at *2 (E.D.N.Y. June 1,
2012) (citing Barbosa v. Continuum Health Partners, Inc., 716 F.
Supp. 2d 210, 215 (S.D.N.Y. 2010)).
“Facial plausibility” is
achieved when the “the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
U.S. at 678 (citing Twombly, 550 U.S. at 556).
elements of a prima facie discrimination claim are relevant to
the determination of whether a complaint provides a defendant
with fair notice and contains sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
on its face.
Romaine, 2012 WL 1980371, at *2.
The court is mindful that in reviewing any submissions
by a pro se litigant, any “document filed pro se is ‘to be
liberally construed,’ and . . . must be held to less stringent
standards than formal pleadings drafted by lawyers.”
v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)).
Adverse Employment Actions
The court will first address whether plaintiff was
subject to an adverse employment action, because plaintiff’s
complaint alleging Title VII discrimination, ADA discrimination,
and retaliation fails to allege that the plaintiff suffered
discriminatory disparate treatment based on her protective
status, a failure to accommodate her disability, or a specific
adverse employment action regarding her retaliation claim.
Accordingly, the complaint must be dismissed for failure to
state a claim.
Almontaser v. New York City Dep’t of Educ., No.
13-CV-5621, 2014 WL 3110019, at *3 (E.D.N.Y. July 8, 2014)
(citing Malcolm v. Honeoye Falls Lima Cent. Sch. Dist., 483 F.
App’x 660, 662 (2d Cir. 2012)).
A plaintiff suffers an adverse employment action when
she experiences a “materially adverse change in the terms and
conditions of employment.”
La Grande v. DeCrescente Distrib.
Co., 370 F. App’x 206, 211 (2d Cir. 2010); Williams v. R.H.
Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004).
employment action” is one which is “‘more disruptive than a mere
inconvenience or an alteration of job responsibilities.’”
Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004) (citing
Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d
Indeed, “[e]veryday workplace grievances,
disappointments, and setbacks do not constitute adverse
employment actions within the meaning of Title VII.
370 F. App’x at 211.
Examples of materially adverse employment
actions may include “‘termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished
title, a material loss of benefits, significantly diminished
material responsibilities, or other indices . . . unique to a
Burlington Northern & Santa Fe Railroad Co. v. White
expanded the definition of “materially adverse employment
action” for purposes of Title VII retaliation claims to require
that a plaintiff show only “that a reasonable employee would
have found the challenged action materially adverse, which in
this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.”
Burlington Northern & Santa Fe Railroad Co. v. White, 548 U.S.
53, 68 (2006).
Plaintiff alleges the following “adverse employment
actions” in her Complaint: (1) her LODI status and benefits were
delayed until her surgery in January 2013; (2) after she was
eventually granted LODI status, it was terminated in
approximately April 2013 upon her failure to appear at two BHS
hearings; and (3) she was taken off her payroll.
Courts in this circuit have found that a delay in the
administrative processing of benefits does not generally
constitute an adverse employment action.
See, e.g., Malcolm v.
Honeoye Falls Lima Cent. Sch. Dist., 483 F. App’x 660, 662 (2d
Cir. 2012) (“Any alleged delays attributable to [defendant] in
processing [plaintiff’s] COBRA benefits were immaterial because
such delays would not deter a reasonable worker in the
plaintiff’s position from exercising [her] legal rights.”);
Joseph v. Leavitt, 465 F.3d 87, 92 (2d Cir. 2006) (delay of four
months before plaintiff’s employment was reinstated was not so
unreasonable as to constitute an adverse employment action);
Castro v. City of New York, 24 F. Supp. 3d 250, 263 (E.D.N.Y.
2014) (noting that delay in compensation, where such a delay is
merely an inconvenience, is insufficient to constitute an
adverse employment action); Carter v. Potter, No. 06-CV-3854,
2008 WL 1848639, at *4 (E.D.N.Y. Apr. 23, 2008) (finding that
delay of “several months” in processing worker’s compensation
did not rise to the level of an “adverse employment action”);
Williams v. New York City Hous. Auth., No. 03-CV-7764, 2008 WL
2695139, at *3 (S.D.N.Y. June 29, 2008) aff’d, 361 F. App’x 220
(2d Cir. 2010) (“A delay in processing paperwork that does not
materially change the terms and conditions of a plaintiff’s
employment is not an adverse employment action.”); Evans v. City
of New York, 2003 WL 22339468, *10-11 (S.D.N.Y. Oct. 9, 2003)
(eleven-month delay in processing salary increase is not an
adverse employment action); Badrinauth v. Touro College, No. 97CV-3554, 1999 WL 1288956, at *6 (E.D.N.Y. Nov. 4, 1999) (“A
[four month] delay in the receipt of a paycheck is not an
adverse employment action.”).
However, when a delay is of such length that it rises
to “more than a mere inconvenience,” it may constitute an
adverse employment action.
Miller v. N.Y. City Health & Hosp.
Corp., No. 00-CV-140, 2005 WL 2022016, at *6 (S.D.N.Y. Aug. 22,
2005) (noting that a four-year delay in processing might qualify
as an adverse employment action, despite finding that delay did
not constitute adverse employment action because plaintiff’s own
errors contributed to delayed payment); Carter v. Potter, No.
06-CV-3854, 2008 WL 1848639, at *4 (E.D.N.Y. Apr. 23, 2008)
(noting that delay of over a year due to defendant’s challenges
to worker’s compensation may rise to level of adverse employment
action, but ultimately dismissing claim because plaintiff failed
to produce evidence that defendant challenged his compensation
in bad faith).
Plaintiff alleges that the award of her LODI status
and benefits was delayed more than a year.
(Compl. at 14.)
asserts that the “repeated denial of such necessary
accommodation for over a year caused [her] hand injuries to
become more and more severe, as surgeries would not have been
required had [she] been granted LODI status.”
(Compl. at 14.)
Although the delay of more than a year may rise to “more than a
mere inconvenience,” plaintiff does not allege any negative
impact on her employment or that the delay materially changed
the terms and conditions of her employment.
Joseph, 465 F.3d at
92 (finding that administrative leave did not alter terms and
conditions of plaintiff’s employment sufficient to qualify as
adverse employment action); Gentile v. Potter, 509 F. Supp. 2d
221, 240 n.10 (E.D.N.Y. 2007) (delay of injury compensation
claims did not constitute an adverse employment action).
In the context of a retaliation claim, however,
plaintiff has made a plausible showing that the delay in her
receipt of benefits could dissuade a reasonable worker from
making or supporting a charge of discrimination.
City of New York, No. 10-CV-4719, 2012 WL 580522, at *9
(E.D.N.Y. Feb. 22, 2012) (delay in medical leave benefits was
sufficient to plead adverse employment action in retaliation
claim where plaintiff alleged that disruption in benefits caused
him “significant” financial injury and a material loss which
could have dissuaded a reasonable worker from making a charge of
Although plaintiff does not make any factual
allegations with regard to the impact, if any, that the delay in
her LODI status had on the terms of her employment, she has
suffered a “material loss” by her allegedly exacerbated physical
injuries, which have resulted in her inability to continue
Thus, it is plausible that such a delay in benefits,
which prevented plaintiff from seeking prompt medical attention,
could potentially dissuade a reasonable worker from making a
charge of discrimination.
The termination of plaintiff’s LODI status and
benefits occurred in approximately April 2013, after she failed
to appear at two BHS appearances and after she received a Notice
(Compl. at 15.)
The termination of benefits
qualifies as an adverse employment action where termination
results in an injury or harm.
Beyer v. Cnty. of Nassau, 524
F.3d 160, 163 (2d Cir. 2008); Messer v. Bd. of Educ. of City of
New York, No. 01-CV-6129, 2007 WL 136027, at *13 (E.D.N.Y. Jan.
16, 2007) (finding termination of health benefits did not
constitute an adverse employment action because benefits were
reinstated and applied retroactively).
Here, because there is
no indication that the LODI benefits were reinstated, the
termination of benefits as alleged constitutes an adverse
Finally, “there is no question . . . that [employment]
termination is an adverse employment action.”
N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006).
Sista v. CDC Ixis
alleges that she was taken off payroll in April 2013 and
“terminated without due process.”9
Accordingly, plaintiff has
Defendant argues that plaintiff’s September 2013 termination pursuant to New
York Civil Service Law § 71 cannot constitute an adverse employment action as
a matter of law. Defendant is correct that, courts in the Second Circuit
have found that no presumption of discrimination arises when an employer
makes a termination decision pursuant to the New York Civil Service law.
Morris v. Town of Islip, No. 12-CV-2984, 2014 WL 4700227, at *15 (E.D.N.Y.
Sept. 22, 2014) (termination pursuant to C.S.L. § 71 “is a legitimate, nondiscriminatory basis for the termination”); Meyer v. William Floyd Union Free
Sch. Dist., No. 07-CV-2524, 2008 WL 4415271, at *6 (E.D.N.Y. Sept. 24, 2008)
(dismissing wrongful termination claims under Title VII and ADA where
termination was pursuant to C.S.L. § 71); Bresloff–Hernandez v. Horn, No. 05–
CV–0384, 2007 WL 2789500, at *6 (S.D.N.Y. Sept. 21, 2007) (“No presumption of
discrimination arises when an employer makes a decision explicitly provided
for by the Civil Service Law.”); Hatter v. Fulton, No. 92-CV-6065, 1997 WL
411623, at *7 (S.D.N.Y. July 21, 1997), aff’d sub nom., *207 Hatter v. New
York City Hous. Auth., 165 F.3d 14 (2d Cir. 1998) (finding termination
pursuant to § 71 to be a valid, non-discriminatory reason for termination).
However, plaintiff only alleges in her Complaint that she was removed from
the payroll in April 2013 and that she was terminated without due process.
There is no allegation that plaintiff was terminated pursuant to C.S.L. § 71
in the pleadings; rather, this information is sourced from documents outside
of the record, namely, plaintiff’s Article 78 proceeding in New York State
plausibly pleaded an adverse employment action to the extent
plaintiff alleges termination of her employment in her claims.
Title VII Discrimination Claim
Under Title VII, an employer or potential employer may
not “discriminate against any individual . . . because of such
individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e–2(a)(1).
To establish a prima facie case for
sex discrimination under Title VII, plaintiff must show that (1)
she is a member of a protected class, (2) she was qualified for
the position, (3) she suffered an adverse employment action, and
(4) such adverse employment action occurred under circumstances
giving rise to an inference of discrimination.
City of New York, No. 14-1395-CV, 2015 WL 4604250, at *4 (2d
Cir. Aug. 3, 2015); Leibowitz v. Cornell Univ., 584 F.3d 487,
498 (2d Cir. 2009); Figueroa v. RSquared NY, Inc., No. 14-CV4390, 2015 WL 897117, at *2 (E.D.N.Y. Mar. 3, 2015).
need only present “some minimal evidence suggesting that the
employer acted with discriminatory motivation.”
14-CV-1395, 2015 WL 4604250, at *4 (2d Cir. Aug. 3, 2015).
Court. Although the court may take judicial notice of such documents outside
the record, such as public records in other court proceedings, “it may do so
on a motion to dismiss only to establish the existence of the opinion, not
for the truth of the facts asserted in the opinion.” Global Network
Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006). As
such, although the court may consider that plaintiff has commenced an action
in New York State Supreme Court, it may not consider information stemming
from those pleadings that plaintiff was terminated in September 2013 pursuant
to C.S.L. § 71.
“[A] discrimination complaint need not allege facts
establishing each element of a prima facie case of
discrimination to survive a motion to dismiss,” but it must
nevertheless comply with the plausibility standard set forth in
Twombly and Iqbal.
Chung v. City Univ. of New York, No. 14-
3611-CV, 2015 WL 1428192, at *1 (2d Cir. Mar. 31, 2015) (citing
E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d
Cir. 2014)) (internal citations omitted); see Williams v. New
York City Hous. Auth., 458 F.3d 67, 71 (2d Cir. 2006).
Title VII discrimination claims which fail plausibly to allege
that the plaintiff suffered an adverse employment action are
subject to dismissal.
Chung, 2015 WL 1428192, at *2-3; Raeburn
v. Dep’t of Hous. Pres. & Dev. of the City of New York, No. 10CV-4818, 2015 WL 4016743, at *11 (E.D.N.Y. June 24, 2015).
Applying that standard here, plaintiff’s Title VII
discrimination claim fails as a matter of law.
alleges that because of her sex, defendant delayed the approval
of plaintiff’s LODI status and benefits, terminated her LODI
status and benefits, and terminated her employment at FDNY.
Plaintiff has met the first three requirements of the prima
facie case required under Title VII – she is a member of a
protected class, she is qualified for the job, which the court
will assume for the purpose of this opinion, and that she
suffered an adverse employment action with respect to her
termination from the FDNY.
Absent from plaintiff’s Complaint,
however, are factual allegations that permit the court to draw a
plausible inference that plaintiff’s sex was the basis for any
alleged adverse employment actions.
Iqbal, 556 U.S. at 678.
Although plaintiff is not required to allege
specifically every element of a prima facie case of
discrimination, she is still required to “plead any facts that
would create an inference that any adverse action taken by . . .
defendant was based upon [her] gender.”
Patane v. Clark, 508
F.3d 106, 112 (2d Cir. 2007) (quoting Leibovitz v. N.Y. City
Transit Auth., 252 F.3d 179, 189 (2d Cir. 2001) (“The sine qua
non of a gender-based discriminatory action claim under Title
VII is that the discrimination must be because of sex.”);
Algarin v. City of New York, No. 12-CV-1264, 2012 WL 4814988, at
*2 (S.D.N.Y. Oct. 10, 2012) (internal quotation marks and
citation omitted) (dismissing discrimination claim where
complaint was “silent as to any discriminatory purpose or
motivation directed toward the Plaintiff.”).
Plaintiff may not
rely on the simple fact that she is female and part of a
protected class to raise a triable case of sex discrimination
for the defendant’s delay and denial of LODI benefits and
plaintiff’s subsequent termination from the FDNY.
Castro v. City of New York, No. 05-CV-593, 2009 WL 2223037, at
*8 (S.D.N.Y. July 22, 2009) (“Although [plaintiff] is
indisputably Hispanic, he cannot simply join this fact to the
defendants’ denial of a job and leverage these two circumstances
into a triable case of discrimination based on his Hispanic
heritage.”); Martin v. MTA Bridges & Tunnels, 610 F. Supp. 2d
238, 250 (S.D.N.Y. 2009) (“[A] plaintiff must do more than state
that she is a member of a protected class who suffered an
adverse employment action.”).
Even liberally construed, the Complaint asserts only
conclusions and labels with respect to defendant’s alleged sex
discrimination and provides no further factual matter that would
render plaintiff’s Title VII claim plausible.
appears that plaintiff merely checked the box for gender
discrimination on her pro se form Complaint and made conclusory
allegations in her EEOC charge that she suffered “gender
discrimination, retaliation, and hostile work environment
(Compl. at 11, 15.)
Thus, the court finds
that plaintiff has failed to set forth any facts allowing the
court to plausibly infer that any employment actions, adverse or
otherwise, were motivated by her gender.
plaintiff’s claim for Title VII discrimination on the basis of
sex is dismissed for failure to state a plausible claim for
which relief may be granted.
ADA Disability Discrimination Claim
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.”
U.S.C. § 12112(a).
A prima facie case of discrimination
pursuant to the ADA requires a showing that: (1) her employer is
subject to the ADA; (2) she was disabled within the meaning of
the ADA; (3) she was otherwise qualified to perform the
essential functions of the job, with or without reasonable
accommodation; and (4) she suffered an adverse employment action
because of her disability.
Brady v. Wal–Mart Stores, Inc., 531
F.3d 127, 134 (2d Cir. 2008); Vale v. Great Neck Water Pollution
Control Dist., No. 14-CV-4229, 2015 WL 248603, at *4 (E.D.N.Y.
Jan. 20, 2015).
Similar to a Title VII claim, these prima facie
elements for a disability claim merely “provide an outline of
what is necessary to render a plaintiff’s employment
discrimination claims [on the basis of disability] for relief
Vlad-Berindan v. MTA New York City Transit, No. 14-
CV-675, 2014 WL 6982929, at *10 (S.D.N.Y. Dec. 10, 2014)
(internal citation omitted).
A plaintiff alleging employment
discrimination pursuant to the ADA “is not required to set forth
specific facts that establish each and every element of a prima
facie case of discrimination.”
Bakeer v. Nippon Cargo Airlines,
Co., No. 09–CV–3374, 2011 WL 3625103, at *22 (E.D.N.Y. July 25,
2011), adopted by 2011 WL 3625083 (E.D.N.Y. Aug. 12, 2011);
Davis v. NYC Dep’t of Educ., No. 10-CV-3812, 2012 WL 139255, at
*4 (E.D.N.Y. Jan. 18, 2012); see also Swierkiewicz v. Sorema,
N.A., 534 U.S. 506, 515 (2002).
Applying the elements and pleading standards here,
plaintiff’s complaint also fails to state a plausible ADA
First, with regard to whether she is
“disabled within the meaning of the ADA,” plaintiff only makes
conclusory allegations that “medical records from [her] own
doctors reveal that [she is] totally disabled, cannot drive and
cannot take public transportation” leaving the court to surmise
a disability based on her description of the March 2011 or
December 2011 workplace injuries, her diagnosis of “upper
extremity tendonitis,” and the multiple hand surgeries she
(Compl. at 11, 14.)
The ADA Amendment Act of 2008
(“ADAAA”) defines “disability” as: (A) a physical or mental
impairment that substantially limits one or more major life
activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.
42 U.S.C. § 12102(1).
Indeed, plaintiff does not allege any facts for the
court to determine whether she is disabled within the meaning of
Although plaintiff arguably identifies her alleged
disability as “severe tendonitis” and other unspecified injuries
to her upper extremities, she does not explain what “major life
activity” is “substantially limited.”
Capobianco, 422 F.3d at
Without any factual specificity as to the alleged
disability claimed and the major life activities affected, the
Complaint fails to plead that plaintiff was disabled.
v. Research Found. of State Univ. of New York, No. 10-CV-3612,
2010 WL 3173832, at *2 (E.D.N.Y. Aug. 11, 2010); see Emmons v.
City Univ. of New York, No. 09–CV–537, 2010 WL 2246413, *7–8
(E.D.N.Y. June 2, 2010) (plaintiff failed to plead disability
because complaint did not properly “allege any substantial
The fact that plaintiff cannot drive or use public
transportation does not render her disabled, as courts in the
Second Circuit have found that driving and commuting to work are
not a major life activities.
See, e.g., Dorgan v. Suffolk Cnty.
Cmty. Coll., No. 12-CV-0330, 2014 WL 3858395, at *6 n.12
(E.D.N.Y. Aug. 4, 2014) (noting that driving does not constitute
a major life activity as contemplated by the ADA); Stamm v. New
York City Transit Auth., No. 04-CV-2163, 2011 WL 1315935, at *17
(E.D.N.Y. Mar. 30, 2011) (finding that travel and commuting are
not major life activities); White v. Sears, Roebuck & Co., No.
07-CV-4286, 2009 WL 1140434, at *7 (E.D.N.Y. Apr. 27, 2009)
(“[D]riving is not a ‘major life activity’ as contemplated by
the ADA”); Darcy v. Lippman, No. 03-CV-6898, 2008 WL 629999, at
*15 (S.D.N.Y. Mar. 10, 2008) (commuting to work is not a major
life activity); see also Montesano v. Principi, 47 F. App’x 608,
609 (2d Cir. 2002) (finding that the “ability to commute long
distances to work on a daily basis is not one of the major life
activities within the definition of the Rehabilitation Act.”)
(internal quotation marks and citation omitted).
Plaintiff also has not alleged any facts that she has
a record of a disability or that she was regarded as having a
disability within the meaning of the ADA.
To the extent
plaintiff relies on the fact that she received LODI benefits or
worker’s compensation, these records do not establish the
existence of a disability under the ADA.
Schapiro v. New York
City Dep’t of Health, 25 F. App’x 57, 61 (2d Cir. 2001) (noting
that although worker’s compensation findings may constitute a
record of impairment, they do not establish that the impairment
created a substantial limitation to qualify as a disability
under the ADA); Verdi v. Potter, No. 08-CV-2687, 2010 WL 502959,
at *6 (E.D.N.Y. Feb. 9, 2010) (dismissing ADA claim finding that
worker’s compensation decision was not sufficient to constitute
a record of disability).
Moreover, even assuming that plaintiff could meet the
first prong of “disabled under the meaning of the law,”
plaintiff does not allege any facts to establish whether she is
“otherwise qualified to perform the essential functions of the
job, with or without reasonable accommodation.”
248603, at *4.
Vale, 2015 WL
“Essential functions” are defined under EEOC
regulations to mean the “‘fundamental’ duties to be performed in
the position in question, but not functions that are merely
Shannon v. New York City Transit Auth., 332 F.3d
95, 100 (2d Cir. 2003) (citing 29 C.F.R. § 1630.2(n)(1) (1996))
(internal citation omitted); Hernandez v. Int’l Shoppes, LLC,
No. 13-CV-6615, 2015 WL 1858997, at *24 (E.D.N.Y. Apr. 23, 2015)
(“Essential functions are defined under EEOC regulations to mean
the fundamental duties to be performed in the position in
question, but not functions that are merely marginal.”).
Other than alleging that she had never failed a CPR
exam, and that she had 12 years of experience, plaintiff has not
set forth any factual allegations regarding her current fitness
to perform her job or whether she has requested and was denied a
In any event, even if defendant had
failed to provide a reasonable accommodation, such failure would
not be an automatic basis of recovery.
See Hernandez, 2015 WL
1858997, at *29 (noting that defendant’s alleged failure to
engage in process to provide reasonable accommodation is not a
basis for recovery where accommodation would eliminate
plaintiff’s essential functions).
Indeed, the facts alleged
demonstrate that plaintiff was not otherwise qualified to
perform the essential functions of her job, as she alleges she
was “totally disabled,” that she was unable to complete the CPR
testing required to return to work, and that she was unable to
drive or take transportation to travel to work.
consistently ruled that an employee cannot be considered
otherwise qualified when she is unable to report to work at the
time required, because she is not able to perform the essential
functions of her job.”
Lewis v. New York City Police Dep’t, 908
F. Supp. 2d 313, 327 (E.D.N.Y. 2012), aff’d sub nom. Lewis v.
NYC Police Dep’t, 537 F. App’x 11 (2d Cir. Nov. 1, 2013)
(internal quotation marks and citation omitted); see also
Rinaldi v. Quality King Distributors, Inc., 29 F. Supp. 3d 218,
227 (E.D.N.Y. 2014) (dismissing ADA claim where plaintiff could
not demonstrate that she could perform an “essential function”
of her employment, namely “showing up for work”); Dorgan v.
Suffolk Cnty. Cmty. Coll., No. 12-CV-0330, 2014 WL 3858395, at
*7 (E.D.N.Y. Aug. 4, 2014) (dismissing ADA claim where
plaintiff’s failure to report to work in three years
demonstrated that she was unable to perform the essential
functions of her job under the ADA).
Indeed, courts have
specifically noted that “[t]he ADA does not require employers to
tolerate chronic absenteeism even when attendance problems are
caused by an employee’s disability.”
Lewis, 908 F. Supp. 2d
313, 327 (quoting Mescall v. Marra, 49 F. Supp. 2d 365, 374 n.
18 (S.D.N.Y. 1999)); Castellano v. City of New York, 946 F.
Supp. 249, 253 (S.D.N.Y. 1996) (“[A]an individual who is totally
disabled — that is, unable to perform the essential job
functions even with reasonable accommodation — is not entitled
to relief under [the ADA]”).
Thus, plaintiff does not plausibly
allege facts to meet the third prong that she is “otherwise
qualified to perform the essential functions of the job.”
Furthermore, as with her Title VII claim, plaintiff
fails to allege any facts to plausibly suggest that any
employment actions – adverse or otherwise – were based on her
Heckman v. Town of Hempstead, 568 F. App’x
41, 45 (2d Cir. 2014) (affirming dismissal where plaintiff’s
allegations did not suggest a plausible inference that any of
the defendants intentionally discriminated against him on the
basis of his disability).
Accordingly, plaintiff’s claim for
discrimination on the basis of her alleged disability is
dismissed for failure to state a plausible claim for which
relief may be granted.
To make out a prima facie case of retaliation, a
plaintiff must demonstrate that “(1) she engaged in protected
activity; (2) the employer was aware of that activity; (3) the
employee suffered a materially adverse action; and (4) there was
a causal connection between the protected activity and that
Kelly v. Howard I. Shapiro & Assocs.
Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (citing
Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012));
Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir.
Plaintiff alleges that defendant’s alleged acts
discussed previously in this opinion in relation to her
discrimination claims, along with a number of other incidents,
were done in retaliation of her 2011 lawsuit and complaints to
the EEOC and FDNY EEO, assuming for purposes of this motion that
she made such complaints.
Specifically, plaintiff alleges that
the delay of LODI status until January 2013 was “part of an
ongoing retaliation by [FDNY] stemming from [her] 2011 lawsuit”
and that termination of her LODI benefits in December 2011, and
ultimately termination of her employment in April 2013, were
actions also taken in retaliation of her 2011 federal lawsuit,
her complaints to the FDNY EEO about her supervisors in June
2012, and her charges to the EEOC, filed in connection to her
(Compl. at 11.)
Moreover, plaintiff alleges
Although defendant argues that “plaintiff’s only mention of retaliatory
conduct predates the unknown and alleged unconsented filing of plaintiff’s
EEOC Charge of Discrimination on or about June 13, 2013,” (Def. Mem. at 20),
that she has suffered “even more hostility and retaliation”
since her July 2012 settlement.
Plaintiff’s engagement in a federal lawsuit and her
complaints to the EEOC and FDNY EEO constitute a “protected
activity,” however, plaintiff’s retaliation claim fares no
better than her other ADA claims: the Complaint is bereft of
factual allegations that give rise to a reasonable inference
that the FDNY retaliated against plaintiff for engaging in a
Assuming that plaintiff is able to plausibly allege an
adverse employment action, plaintiff fails to plead sufficient
factual allegations to establish a plausible causal nexus
between the adverse employment actions and her protected
See Anderson v. Davis Polk & Wardwell LLP, 850 F.
Supp. 2d 392, 413 (S.D.N.Y. 2012) (dismissing retaliation claims
where there was “nothing to connect [plaintiff’s] complaint . .
and the self-described retaliatory actions aside from the
fact that plaintiff groups these actions underneath the heading
of ‘retaliation’ in his [pleadings]”).
Causation may be shown:
the court understands plaintiff to be referencing the EEOC charge filed in
connection with her 2011 lawsuit, and not the instant action, as these
allegations of retaliation were made in her June 17, 2013 EEOC Charge. To
the extent any retaliatory conduct occurred after the charge, it was not
alleged in the Complaint. Thus, no retaliatory animus may be inferred from
plaintiff’s June 17, 2013 EEOC charge, which post-dates any adverse
employment actions alleged. See Pinero v. Long Island State Veterans Home,
375 F. Supp. 2d 162, 168 (E.D.N.Y. 2005) (“There can be no inference of
retaliatory animus where the adverse employment action occurred prior to the
“(1) indirectly, by showing that the protected activity was
followed closely by discriminatory treatment, or through other
circumstantial evidence such as disparate treatment of fellow
employees who engaged in similar conduct; or (2) directly,
through evidence of retaliatory animus directed against the
plaintiff by the defendant.”
Gordon v. N.Y. City Bd. of Educ.,
232 F.3d 111, 117 (2d Cir. 2000); Freeman v. Dep’t of Envtl.
Prot., No. 10-CV-1555, 2013 WL 817221, at *10 (E.D.N.Y. Feb. 5,
2013) report and recommendation adopted, 2013 WL 801684
(E.D.N.Y. Mar. 5, 2013).
Here, plaintiff offers only speculation connecting the
protected activity with the retaliatory acts and only makes
conclusory allegations that the “denial of benefits and
insurance was retaliatory, due to [her] prior complaints to the
EEO” and that “denial of LODI status was part of an ongoing
retaliation by [defendants] stemming from [her] 2011 lawsuit.”
(Compl. at 14.)
Simply pleading that an adverse employment
action occurred later in time than plaintiff’s protected
activity is insufficient to survive a motion to dismiss.
Edwards v. Elmhurst Hosp. Ctr., No. 11-CV-5348, 2013 WL 839554,
at *6 (E.D.N.Y. Feb. 4, 2013) report and recommendation adopted,
2013 WL 831162 (E.D.N.Y. Mar. 6, 2013) (dismissing retaliation
claim where plaintiff “fail[ed] to include any allegations
whatsoever to infer a causal nexus between his complaints of
discrimination and the alleged adverse action”); Mandavia v.
Columbia Univ., No. 12-CV-2188, 2012 WL 6186828, at *13
Dec. 12, 2012) (granting motion to dismiss where
plaintiff did not allege any specific facts that could give rise
to a plausible inference that defendant’s motive was
retaliatory, and only suggesting that the court should infer
retaliatory motive because defendant’s adverse action occurred
later in time than his EEOC complaint).
Moreover, the temporal connection is too attenuated to
Although the Second Circuit “has not drawn
a bright line to define the outer limits beyond which a temporal
relationship is too attenuated to establish a causal
relationship,” Gorman–Bakos, 252 F.3d at 554, district courts
within the Second Circuit “have consistently held that a passage
of more than two months between the protected activity and the
adverse employment action does not allow for an inference of
Beaumont v. Cablevision Sys. Corp., No. 10-CV-3585,
2012 WL 1158802, at *6 (E.D.N.Y. Apr. 9, 2012) (citing Garrett
v. Garden City Hotel, Inc., No. 05–CV–0962, 2007 WL 1174891, at
*21 (E.D.N.Y. Apr. 19, 2007)) (collecting cases); see Tuccio
Dev., Inc. v. Miller, 423 F. App’x 26 (2d Cir. 2011) (finding
two-month gap between protected activity and alleged adverse
action was too distant to support retaliatory motive where no
additional evidence was introduced); Murray v. Town of N.
Hempstead, 853 F. Supp. 2d 247, 273 (E.D.N.Y. 2012) (finding
three-month gap too attenuated where no other facts were
Here, plaintiff engaged in the first “protected
activity” – the filing of her EEOC charges and prior federal
lawsuit - on June 8, 2011.
Plaintiff alleges that the
retaliatory conduct – namely her delay of LODI benefits and
Samuel’s intentional abandonment when she fell – occurred in
December 2011, approximately six months after the 2011 complaint
(Compl. at 14-15.)
In addition to being too
temporally attenuated to infer a causal connection, these claims
are barred by the General Release and Statute of Limitations, as
they occurred prior to August 21, 2012.
Plaintiff further alleges that she engaged in
protected activity when she complained to the FDNY EEO on June
19, 2012, regarding “Captain Knight’s discrimination” and
Plaintiff alleges that
her LODI benefits were not granted until the day before her
surgery in January 2013, and that the “repeated denial” and
year-long delay in her receipt of benefits was done in
retaliation for her filing the 2011 federal lawsuit.
First, with respect to the delay in awarding LODI status,
the delay began in December 2011 when plaintiff initially
Plaintiff’s termination occurred in April 2013, and is even more temporally
attenuated from the 2011 protected activity.
applied for LODI status and benefits, and any retaliatory delay
claimed prior to plaintiff’s July 13, 2012 Settlement Agreement
and General Release is barred.
Moreover, even absent the bar,
the “protected activity” regarding plaintiff’s June 19, 2012 EEO
FDNY complaint regarding Captain Knight occurred after the
alleged adverse employment action began in December 2011 and no
retaliatory animus may be inferred.
Pinero v. Long Island State
Veterans Home, 375 F. Supp. 2d 162, 168 (E.D.N.Y. 2005) (“There
can be no inference of retaliatory animus where the adverse
employment action occurred prior to the protected activity.”).
Second, plaintiff alleges that her LODI benefits were
terminated and she was removed from the payroll in April 2013,
approximately 10 months after her complaints to the FDNY EEO,
and nearly two years after her 2011 federal lawsuit.
Thus, in this case, without additional evidence to
support causation, the nearly yearlong gap between the two
events far exceeds the normal span of time from which causality
may be inferred.
Tuccio Dev., Inc. v. Miller, 423 F. App’x 26
(2d Cir. 2011) (finding two-month gap between protected activity
and alleged adverse action was too distant to support
retaliatory motive where no additional evidence was introduced);
Hunt, 2012 WL 7658364, at *7 (finding one-year gap too
attenuated to support inference of causation); Murray, 853 F.
Supp. 2d at 273 (finding three-month gap too attenuated where no
other facts were alleged).
Thus, because plaintiff alleges no facts to suggest a
plausible causal nexus between her protected activity and the
alleged adverse employment actions, plaintiff’s retaliation
claims are dismissed for failure to state a claim upon which
relief may be granted.
Hostile Work Environment Claims
To state a claim for a hostile work environment in
violation of Title VII, a plaintiff must plead facts that would
tend to show that the complained of conduct: (1) “is objectively
severe or pervasive — that is, . . . creates an environment that
a reasonable person would find hostile or abusive”; (2) creates
an environment “that the plaintiff subjectively perceives as
hostile or abusive”; and (3) “creates such an environment
because of the plaintiff’s sex [or disability].”
The courts notes that the Second Circuit has not yet decided whether the
ADA provides a basis for a hostile work environment claim. Robinson v.
Dibble, No. 13-CV -976, 2015 WL 3372190, at *2 n2 (2d Cir. May 26,
2015)(noting that the Second Circuit has not yet decided whether a hostile
work environment claim is cognizable under the ADA); Margherita v. FedEx
Exp., 511 F. App’x 71, 73 (2d Cir. 2013) (summary order) (same); WesleyDickson v. Warwick Valley Cent. Sch. Dist., 586 F. App’x 739, 745 n.2 (2d
Cir. 2014); Thomas v. New York City Dep’t of Educ., 938 F. Supp. 2d 334, 358
(E.D.N.Y. 2013). Many district courts, however, have assumed without
deciding that a claim for hostile work environment can be brought under the
ADA and analyzed the claim using standards borrowed from Title VII caselaw.
See, e.g., Castro, 24 F. Supp. 3d at 271; Fossesigurani v. City of Bridgeport
Fire Dep’t, No. 11–CV–752, 2012 WL 4512772, at *7 (D. Conn. Oct. 1, 2012);
Lupe v. Shinseki, No. 10–CV–198, 2012 WL 3685954, at *20 (N.D.N.Y. Aug. 24,
2012). In any event, because plaintiff has brought her claims under both
Title VII and the ADA, the hostile work environment claim may proceed and the
court will analyze the claim under Title VII standards.
F.3d 106, 113; see Hussey v. New York State Dep’t of Law/Office
of Atty. Gen., 933 F. Supp. 2d 399, 412 (E.D.N.Y. 2013) (citing
Harris v. Forklift Systems, Inc., 510 U.S. 17, 17 (1993)) (Title
VII hostile work environment claims arise “when the workplace is
permeated with discriminatory behavior that is sufficiently
severe or pervasive to create a discriminatory hostile or
abusive working environment.”).
Plaintiff’s complaint need not
establish a prima facie case of hostile work environment at this
stage but “only enough facts to state a claim to relief that is
plausible on its face.”
Twombly, 550 U.S. at 570.
Conduct permeating a workplace that qualifies as a
hostile work environment lies between that which is merely
offensive and conduct or behavior which causes a tangible
Harris, 510 U.S. at 21; Joseph v. HDMJ
Rest., Inc., 970 F. Supp. 2d 131, 145 (E.D.N.Y. 2013).
misconduct must be severe or pervasive enough to create an
objectively hostile or abusive work environment, and the victim
must also subjectively perceive that environment to be abusive.”
Terry, 336 F.3d at 148 (quoting Alfano v. Costello, 294 F.3d 365
(2d Cir. 2002).
Factors to consider include “the frequency of
the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.”
Terry, 336 F.3d at 148 (quotation
The Second Circuit has also noted, however,
that “[w]hile the standard for establishing a hostile work
environment is high, . . . . [t]he environment need not be
‘unendurable’ or ‘intolerable.’”
Id. (quoting Whidbee v.
Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir.
Moreover, although a hostile work environment generally
consists of conduct that is “more than episodic” and “continuous
and concerted,” “a single act can create a hostile work
environment if it in fact works a transformation of the
Feingold v. New York, 366 F.3d 138, 150
(2d Cir. 2004) (internal quotations marks and citations
The Complaint does not allege facts to suggest that
defendant or any its employees subjected plaintiff to an
environment that a reasonable person would find hostile or
Indeed, the only specific instance of conduct alleged
Defendant also argues in its motion to dismiss that “[p]laintiff cannot
allege a hostile work environment when plaintiff was no longer working in any
FDNY facilities or responding to calls on behalf of FDNY.” (Def. Mem. at
22.) Indeed, plaintiff may not allege violations during a period in which
she was not employed by or working for defendant. See Meyer v. New York
Office of Mental Health, No. 12-CV-6202, 2014 WL 1767818, at *6 (E.D.N.Y. May
2, 2014) (dismissing hostile work environment claim where plaintiff alleged
“continuing violation” because plaintiff had been terminated prior to the
period alleged.); Gillman v. Inner City Broad. Corp., No. 08-CV-8909, 2011 WL
181732, at *1 (S.D.N.Y. Jan. 18, 2011) (dismissing hostile work environment
claim where there was no dispute that the alleged incidents occurred while
plaintiff was on leave and did not take place in the “workplace”);
Akinfaderin v. W.P. Carey & Co. LLC, No. 11-CV-3184, 2011 WL 6961403, at *4
(S.D.N.Y. Dec. 28, 2011) on reconsideration in part, No. 11-CV-3184 LBS, 2012
WL 432647 (S.D.N.Y. Feb. 10, 2012) (dismissing state hostile work environment
to create a hostile work environment relates to an incident in
which plaintiff alleges her “relationship with [her]
friend/coworker . . . deteriorated, as the later began fighting
with me for complaining . . . which in turn created an even more
hostile work environment.”
(Compl. at 13.)
alleges that “several coworkers stopped talking [to her].”
Such instances of coworker discord do not rise to the
level of a hostile work environment.
Indeed, “Title VII does
not establish a ‘general civility code’ for the American
workplace,” La Grande, 370 F. App’x at 210 (quoting Petrosino v.
Bell Atl., 385 F.3d 210, 223 (2d Cir. 2004)), and “not every
unpleasant matter short of discharge or demotion constitutes an
adverse action under Title VII.”
Gentile, 509 F. Supp. 2d at
239 (citing Delgado v. Triborough Bridge and Tunnel Auth., 485
F.Supp.2d 453, 461 (S.D.N.Y. 2007)); see also Burlington, 126
S.Ct. at 2415 (“[N]ormal petty slights, minor annoyances, and
simple lack of good manners will not create such deterrence.”)
(internal citations and quotations omitted)).
Other than conflicts with her colleagues, plaintiff
does not specify instances of defendant’s conduct that allegedly
created a hostile work environment based on her sex or
claim where plaintiff never returned to workplace after going on medical
leave). Accordingly, in the amended complaint, plaintiff must indicate which
periods she was still working for defendant, and at which point she was on
medical leave or LODI status and employed, but not working for defendant, and
when she was ultimately terminated by defendant.
Instead, plaintiff only alleges in a conclusory
manner that defendants “engaged in “hostile work environment
discrimination” and that she suffered “disrespectful treatment,
retaliation and harassment which has created . . . a hostile
work environment” and that the conduct of her supervisors “is
severe and pervasive, creating a hostile work environment that a
reasonable person would consider intimidating, abusive and
(Compl. at 11, 15.)
Besides generally stating that
her mistreatment was “severe and pervasive,” plaintiff does not
specify or describe the defendant’s conduct, the level of
severity, pervasiveness, or frequency of the alleged harassment
or disrespectful treatment, nor does she allege that any
mistreatment was on account of her gender or disability.
does plaintiff allege or set forth any facts that defendant’s
acts or conduct “affected the terms and conditions of his
employment” — an essential element of a hostile work environment
Vance, 133 S. Ct. 2434, 2441 (2013) (“[P]laintiff must
show that the work environment was so pervaded by discrimination
that the terms and conditions of employment were altered.”);
Almontaser v. New York City Dep’t of Educ., No. 13-CV-5621, 2014
WL 3110019, at *8 (E.D.N.Y. July 8, 2014).
Further, even construing all of the allegations as
true and drawing inferences liberally and in favor of the pro se
plaintiff, there is no factual basis upon which to conclude that
any of defendant’s actions were taken because of plaintiff’s
gender or disability.
See Kelly, 716 F.3d at 14 (quoting
Alfano, 294 F.3d at 374) (“[I]t is axiomatic that in order to
establish a sex-based hostile work environment under Title VII,
a plaintiff must demonstrate that the conduct occurred because
of her sex.”); Lucio v. New York City Dep’t of Educ., 575 F.
App’x 3, 5 (2d Cir. 2014) (affirming dismissal of hostile work
environment claim where complaint pleaded no facts “that would
allow a court to draw a reasonable inference that Lucio was
subjected to any mistreatment or adverse action because of her
race”); Castro, 24 F. Supp. 3d at 271 (dismissing hostile work
environment claims where there was no basis upon which to
conclude that the delay in compensation and the assignment of
physical tasks occurred because plaintiff was disabled).
Accordingly, plaintiff’s hostile work environment claims are
dismissed for failure to plausibly state a claim upon which
relief may be granted.14
Plaintiffs’ Due Process Claims
Plaintiff alleges in her Complaint that she was
“terminated without due process.”
(Compl. ¶ 4.)
Defendant also argues that plaintiff’s hostile work environment claim must
be dismissed because plaintiff was on LODI status beginning in 2011, which
“means that plaintiff was being paid but was not appearing to work as an EMT
for FDNY.” (Def. Mem. at 22.) It is unclear from the pleadings whether
plaintiff was continuing to work or was present at the FDNY facilities a
sufficient amount of time to suffer a hostile work environment. Thus the
court will not reach the merits of defendant’s argument on this issue.
liberally construes plaintiff’s Complaint to allege a due
process claim pursuant to 42 U.S.C. § 1983 (“Section 1983”).
order to state a valid claim under 42 U.S.C. § 1983, a plaintiff
must allege (1) that the challenged conduct was “committed by a
person acting under color of state law,” and (2) that such
conduct “deprived [the plaintiff] of rights, privileges, or
immunities secured by the Constitution or laws of the United
Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010)
(quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994));
see Filarsky v. Delia, -- U.S. --, 132 S.Ct. 1657, 1661 (2012).
Section 1983 “does not create a federal right or benefit; it
simply provides a mechanism for enforcing a right or benefit
Morris–Hayes v. Bd. of Educ. of Chester
Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir. 2005) (citing
Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
Plaintiff alleges that she was terminated without due
(Compl. ¶ 4.)
Where a plaintiff alleges violations of
procedural due process “the deprivation by state action of a
constitutionally protected interest in ‘life, liberty, or
property’ is not in itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without
due process of law.”
Reed v. Medford Fire Dep’t, Inc., 806 F.
Supp. 2d 594, 609 (E.D.N.Y. 2011) (citing Zinermon v. Burch, 494
U.S. 113, 125 (1990) (emphasis in original)).
plead a violation of procedural due process, a plaintiff must
plausibly allege that he was deprived of property without
constitutionally adequate pre- or post-deprivation process.”
J.S. v. T’Kach, 714 F.3d 99, 105 (2d Cir. 2013) (citing Ahlers
v. Rabinowitz, 684 F.3d 53, 62 (2d Cir. 2012)).
must ‘first identify a property right, second show that the
[government] has deprived him of that right, and third show that
the deprivation was effected without due process.’”
(quoting Local 342 v. Town Bd. of Huntington, 31 F.3d 1191, 1194
(2d Cir. 1994)) (second alteration in original).
Assuming that plaintiff has a property right in her
continued employment, see Ciambriello v. Cnty. of Nassau, 292
F.3d 307, 313 (2d Cir. 2002), she has not alleged that she was
deprived of that right without due process.
indicating on the form complaint that she was “terminated
without due process,” plaintiff has alleged no facts regarding
when she was terminated, how, and what process she was due but
Indeed, plaintiff’s due process claim fails to
provide “fair notice of what the plaintiff’s claim is and the
grounds upon which it rests[.]”
Jenkins v. St. Luke’s-Roosevelt
Hosp. Ctr., No. 09-CV-12, 2009 WL 3682458, at *9 (S.D.N.Y. Oct.
Moreover, “procedural due process is satisfied if the
government provides notice and a limited opportunity to be heard
prior to termination, so long as a full adversarial hearing is
Munafo v. Metro. Transp. Auth., 285 F.3d
201, 212 (2d Cir. 2002).
Indeed, as the Second Circuit has
recognized, “[t]his court has held on numerous occasions that
where, as here, a party sues the state and its officials and
employees for the arbitrary and random deprivation of a property
or liberty interest, an Article 78 proceeding is a perfectly
adequate postdeprivation remedy.”
Grillo v. New York City
Transit Auth., 291 F.3d 231, 234 (2d Cir. 2002) (internal
quotations and citation omitted); O’Leary v. Town of Huntington,
No. 11-CV-3754, 2012 WL 3842567, at *12 (E.D.N.Y. Sept. 5, 2012)
(finding that procedure under Article 78 was “more than
adequate” remedy with respect to plaintiff’s claim that he was
wrongfully terminated without due process); Rother v. NYS Dep’t
of Corr. & Cmty. Supervision, 970 F. Supp. 2d 78, 99 (N.D.N.Y.
2013) (dismissing due process claim where Article 78 proceeding
was available to plaintiff challenging her constructive
discharge); Monroe v. Schenectady Cnty., 1 F. Supp. 2d 168, 172
(N.D.N.Y. 1997), aff’d 152 F.3d 919 (2d Cir. 1998) (“It is wellestablished in this Circuit that a N.Y.C.P.L.R. Article 78
proceeding provides an adequate post-deprivation remedy where a
plaintiff alleges he was coerced into surrendering an
employment-based property or liberty interest.”).
Thus, because New York law affords plaintiff a full
adversarial hearing via an Article 78 proceeding in New York
State Supreme Court to dispute her termination – and indeed,
plaintiff has already filed such an action – plaintiff cannot
show she has been deprived of due process.
See Tessler v.
Paterson, 768 F. Supp. 2d 661, 671 (S.D.N.Y. 2011) (dismissing
plaintiff’s procedural due process claim where Article 78
proceeding was available to contest termination of employment
and noting that “[p]laintiff must avail himself of these
procedures before alleging a violation of procedural due process
before [a federal] Court.”); Jackson v. Roslyn Bd. of Educ., 652
F. Supp. 2d 332, 345 (E.D.N.Y. 2009) (“The Second Circuit has
held that an Article 78 proceeding under New York law affords
sufficient post-deprivation constitutional process where predeprivation process is impracticable.”) (citations omitted);
Jackson v. Roslyn Bd. of Educ., 652 F. Supp. 2d 332, 343
(E.D.N.Y. 2009) (citing Hodel v. Va. Surface Mining &
Reclamation Ass’n, 452 U.S. 264, 299 (1981)).
Plaintiff fails to state a due process claim with
respect to her termination, and in any event, the due process
claim fails as a matter of law.
O’Leary, 2012 WL 3842567, at
*13 (finding that because Article 78 was available to plaintiff
to challenge his termination, due process claims could not be
asserted as a matter of law).
Accordingly, plaintiff’s due
process claim is dismissed.
Plaintiff’s New York City Human Rights Law Claims
Plaintiff also purports to bring her claims under the
New York City Human Rights Law (“NYCHRL”), though she does not
specify which claims she brings under the City law.
NYCHRL claims are no longer construed to be coextensive
with their federal counterparts, and must be analyzed and
considered separately from the federal claims.
Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 108–09 (2d
Cir. 2013) (considering NYCHRL claims separately from Title VII
claims in reversing summary judgment); Dillon v. Ned Mgmt.,
Inc., No. 13-CV-2622, 2015 WL 427921, at *7 (E.D.N.Y. Feb. 2,
However, “at a minimum, employment discrimination claims
[under the NYCHRL] must meet the standard of pleading set forth
in Twombly and Iqbal.”
Fattoruso v. Hilton Grand Vacations Co.,
LLC, 873 F. Supp. 2d 569, 576 (S.D.N.Y. 2012) aff’d, 525 F.
App’x 26 (2d Cir. 2013) (citing Goodman v. Port Auth. of New
York & New Jersey, 850 F. Supp. 2d 363, 386 (S.D.N.Y. 2012)).
Indeed, like Title VII and the ADA, the “NYCHRL is not a general
civility code . . . and a defendant is not liable if the
plaintiff fails to prove the conduct is caused at least in part
by discriminatory or retaliatory motives, or if the defendant
proves the conduct was nothing more than ‘petty slights or
Mihalik, 715 F.3d at 113 (citing
Williams v. New York City Hous. Auth., 61 A.D.3d 62, 77-80, 872
N.Y.S.2d 27, 39-41 (2009)).
As discussed infra, plaintiff has
failed to allege plausible claims under each of her federal
claims, and does not allege a plausible discriminatory or
retaliatory motive based on gender or disability in any of her
Thus, because plaintiff is not able to plead a
plausible discriminatory or retaliatory motive, her NYCHRL
claims must be dismissed for failure to state a plausible claim
upon which relief may be granted.
For reasons set forth herein, plaintiff’s Title VII,
ADA, and NYCHRL discrimination, retaliation, and hostile work
environment claims that pre-date August 21, 2012 are dismissed
with prejudice as time-barred or because they were included in
the Settlement Agreement dated July 13, 2012 in plaintiff’s
prior federal lawsuit, and the remaining claims of
discrimination on the basis of sex and age, retaliation, hostile
work environment, and due process are dismissed without
prejudice for failure to state a claim.
The court grants plaintiff fourteen (14) days to amend
her complaint with respect to her Title VII discrimination, ADA
discrimination, retaliation, and hostile work environment claim
in a manner consistent with this decision.
See Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citing Branum v.
Clark, 927 F.2d 698, 705 (2d Cir. 1991)) (A pro se complaint
“should not [be] dismiss[ed] without [the Court] granting leave
to amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated.”).
may not replead claims that are barred by her prior July 13,
2012 settlement of her prior federal action and/or the statute
of limitations prior to August 21, 2012.
Because the court has
provided plaintiff ample opportunity to prosecute her claims,
failure to comply with the court’s order will result in
dismissal of plaintiff’s entire action with prejudice.
Plaintiff is advised that an amended complaint does
not simply add to the first complaint.
Once an amended
complaint is filed, it completely replaces the original.
Therefore, it is important that plaintiff include in the amended
complaint all the necessary information that was contained in
the original complaint, except that she should not include
claims pre-dating August 21, 2012, as those claims are barred by
her Settlement Agreement, General Release, and the 300 day
Moreover, plaintiff shall not include her
termination without due process claims as that claim fails as a
matter of law.
The amended complaint must be captioned as an
“Amended Complaint,” and bear the same docket number as this
The Clerk of the Court is respectfully directed to serve
of a copy of this Order on plaintiff and note service on the
docket by August 18, 2015.
KIYO A. MATSUMOTO
United States District Judge
Dated: Brooklyn, New York
August 14, 2015
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