Pediford-Aziz v. City of New York et al
ORDER granting in part and denying in part 10 Motion to Dismiss for Failure to State a Claim. Ordered by Judge I. Leo Glasser on 3/17/2016. (Shamah, Adam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against -
MEMORANDUM AND ORDER
15-CV-1371 (ILG) (MDG)
CITY OF NEW YORK, ET AL.,
GLASSER, Senior United States District Judge:
Nyahali Pediford-Aziz (“Plaintiff”), alleging unlawful retaliation, brings suit under the
Americans with Disabilities Act, 42 U.S.C. § 12203 (ADA), and the New York State Human
Rights Law, N.Y. Exec. Law § 296 (NYSHRL), against five defendants: the City of New York,
the NYC Department of Education (DOE), the Office of Safety and Youth Development, Andy
Mina, and Mark Rampersant (“Defendants”).1 Before the Court is Defendants’ motion to
dismiss. For the reasons given below, the motion is GRANTED in part and DENIED in part.
Plaintiff was employed as a school security guard by the DOE’s Office of Safety and
Youth Development. See Am. Compl., Dkt. 8, ¶¶ 6, 9. In August 2011 she brought an ADA and
Title VII suit against the DOE, which she settled in August 2013. Id., ¶¶ 17–19. On the day of
the settlement, Plaintiff was arrested for an unrelated incident. Id., ¶ 20. As a result, Plaintiff’s
Plaintiff concedes that the City of New York cannot be held liable for the acts of the DOE or the Office
of Safety and Youth Development (see Fierro v. City of New York, 2013 WL 4535465, at *2 (S.D.N.Y.
Apr. 22, 2013)), and that the ADA does not provide for individual liability (see Spiegel v. Schulmann, 604
F.3d 72, 79-80 (2d Cir. 2010)). See Pl. Mem. of Law, Dkt. 13, at 5–6. Accordingly, all claims against the
City, and the ADA claims against Mina and Rampersant, are dismissed.
designation as a special patrolman—a condition of her employment conferred by the NYPD—
was suspended,2 and Plaintiff was required to take unpaid leave. Id., ¶¶ 21, 30.
In January 2014, charges stemming from Plaintiff’s arrest were dismissed. Id., ¶¶ 20, 22.
Accordingly, in April 2014, the NYPD restored her designation as a special patrolman. Id., ¶ 25.
The DOE did not permit her to return to work, however, until four months later, in August 2014.
Id., ¶ 22.
Plaintiff alleges that Defendants prolonged her suspension in retaliation for her 2011
lawsuit, citing “excuses” that she was given for the four-month delay. Id., ¶ 23. First, two
supervisors named in her prior lawsuit, Andy Mina and Mark Rampersant, blamed the delay on a
“glitch in the system.” Id., ¶ 25. Later, Plaintiff was told “to resubmit her GED certificate” and
“update her CPR credentials,” even though those credentials had not expired. Id., ¶ 26. Finally,
Rampersant said “that Plaintiff was out of work because he was unable to place Plaintiff on
night-caps.” Id., ¶ 28. When Plaintiff explained that “she was never associated with night-caps”
(id.), Rampersant switched gears, falsely claiming that she “was not cleared by the Office of
Personnel Investigation,” id., ¶ 29. Plaintiff alleges that other employees that were arrested and
cleared were reinstated without delay. Id., ¶ 36.
One month after Plaintiff was restored by the NYPD, in May 2014, she brought a charge
before the Equal Employment Opportunity Commission (EEOC). See Murrell 2d. Decl., Ex. A,
Dkt. 14-1. The EEOC dismissed Plaintiff’s charge, issuing a right-to-sue-letter dated December
18, 2014. See id. On March 17, 2015, Plaintiff commenced this lawsuit. See Compl., Dkt. 1.
A few months later, on June 26, 2015, Plaintiff was fired. She then amended the
complaint, adding allegations of retaliatory discharge under the ADA. See Am. Compl., ¶¶ 37–
Under local regulations, when a special patrolman is arrested, her designation as such must immediately
be “canceled, suspended, or revoked.” 38 Rules of New York City § 13-02.
41. Specifically, Plaintiff alleges that she applied in December 2014 for medical leave under the
Family Medical Leave Act (FMLA). Id., ¶¶ 38–39. She alleges, on information and belief, that
her request for leave was approved through August 1, 2015 (id., ¶¶ 37, 39), and that while she
was on approved leave, she was terminated. Id., ¶ 41.
Defendants maintain that Plaintiff abandoned her position. Id., ¶ 40. They contend that
Plaintiff’s medical leave was approved through February 2015, not August, citing the DOE letter
approving leave. See Murrell Decl., Ex. D, Dkt. 10-3. Plaintiff does not dispute that she did not
return to work after February. See Am. Compl., ¶ 37. Rather, she claims that she requested an
extension, citing a letter dated July 9, 2015—two weeks after her termination—in which the
DOE denied her request for an extension because she was “no longer an active employee.” 3 Pl.’s
Ex. A, Dkt. 13-1; see Pl. Mem. of Law, Dkt. 13, at 11. Defendants have filed a copy of her
termination letter, which states that after the approved leave ended, Plaintiff failed to report to
work, request additional leave, or respond to inquiries. See Murrell Decl., Ex. C, Dkt. 10-4. The
letter states that after months of unauthorized absence, Plaintiff missed two disciplinary hearings.
Id. Thus, the DOE, concluding that Plaintiff abandoned her position, terminated her. Id.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is plausible “when the plaintiff pleads factual content that allows the Court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
Plaintiff has submitted a photograph of part of the first page of an undated, barely legible document that
she purports is a request for an extension. See Pl.’s Ex. B, Dkt. 13-2. Neither the letter, the Amended
Complaint, nor any other document states the date on which Plaintiff requested the extension.
U.S. at 678. While detailed factual allegations are not necessary, the pleading must include more
than legal conclusions, “a formulaic recitation of the elements of a cause of action,” and “naked
assertions.” Id. (quotations and citations omitted). The court must credit all non-conclusory
allegations and draw all reasonable inferences in the plaintiff’s favor. Matson v. Bd. of Educ. of
the City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011).
Exhaustion of Administrative Remedies
Defendants argue that Plaintiff’s claims are barred for failure to exhaust administrative
remedies. Under the ADA, before filing a claim in federal court, a plaintiff must exhaust
administrative remedies by filing a charge with the EEOC. See 42 U.S.C. §§ 2000e-5(e)–(f),
12117(a); Harris v. City of New York, 186 F.3d 243, 247–48 (2d Cir. 1999). The plaintiff may
assert in federal court “only those claims that either were included in or are ‘reasonably related
to’ the allegations contained in her EEOC charge.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62,
83 (2d Cir. 2001). “Reasonably related” claims include: (1) claims which “would fall within the
scope of the EEOC investigation which can reasonably be expected to grow out of the charge”;
(2) claims “alleging retaliation by an employer against an employee for filing an EEOC charge”;
and (3) claims alleging “further incidents of discrimination carried out in precisely the same
manner alleged in the EEOC charge.” Butts v. City of N.Y. Dep’t of Hous. Pres. and Dev., 990
F.2d 1397, 1402–1403 (2d Cir. 1993) (quotations omitted).
Plaintiff exhausted the claim that Defendants prolonged her suspension in retaliation for
her prior lawsuit. While her EEOC charge was loosely pleaded, the EEOC accepted it, issuing a
right-to-sue letter. See Murrell 2d. Decl., Ex. A, Dkt. 14-1; see generally Simpson v. City of New
York Dep't of Hous. Pres. & Dev., 2009 WL 996388, at *5 (S.D.N.Y. Apr. 13, 2009) (quotations
and ellipses omitted) (“The required content for a charge is minimal and a charge is sufficient
when the EEOC receives a writing from the person making the charge that names the employer
and generally describes the allegedly discriminatory [or retaliatory] acts.”).
Defendant’s counterarguments are meritless. First, Defendant notes that although the
Amended Complaint asserts a retaliation claim under the ADA, the EEOC’s Notice of Charge
characterizes Plaintiff’s retaliation claim as arising under Title VII. The 2011 lawsuit for which
Defendants are alleged to have retaliated, however, was brought under Title VII and the ADA.4
Accordingly, in the present lawsuit, Plaintiff could have asserted retaliation claims under the
ADA, Title VII, or both; she elected to proceed under the ADA. It is of no consequence that the
EEOC gratuitously cited Title VII in its Notice of Charge, for “it is the substance of the charge
and not its label that controls.” Alonzo v. Chase Manhattan Bank, 25 F. Supp. 2d 455, 458
(S.D.N.Y. 1998); see Goetz v. Samuel Aaron, Inc., 1998 WL 372427, at *5 (E.D.N.Y. May 18,
1998) (although EEOC charge and notice cited the ADA and Title VII, Plaintiff could assert a
claim under the Age Discrimination in Employment Act because in substance the charge alleged
age discrimination); cf. Tsai v. Rockefeller Univ., 137 F. Supp. 2d 276, 284 (S.D.N.Y. 2001)
(“Nor does the fact that plaintiff omitted to check the appropriate boxes on her EEOC charge
necessitate dismissal of her  claim.”). By alleging in her EEOC charge that despite being
“cleared by [the NYPD],” she was “still out of work due to retaliation” for her prior federal
lawsuit (Murrell 2d. Decl., Ex. A, Dkt. 14-1), Plaintiff exhausted her ADA retaliation claim.
Second, Defendant argues that because Plaintiff did not file a second EEOC charge after
her termination, her retaliatory discharge claim is unexhausted. But “[i]t is well-settled that
allegations of retaliation made after an administrative complaint has been filed are ‘reasonably
related’ to the administrative complaint.” Rinsler v. Sony Pictures Entm’t, Inc., 2003 WL
Pediford-Aziz v. The New York City Department of Education, No. 11-CV-3917 (MKB) (LB).
22015434, at *8 (S.D.N.Y. Aug. 25, 2003) (citing Butts v. City of N.Y. Dep't of Hous. Pres. and
Dev., 990 F.2d 1397, 1402 (2d Cir. 1993)) (holding that a claim of retaliation based on
termination which occurred after the filing of EEOC charge was reasonably related to the
discrimination claims asserted in the EEOC charge). As here, courts “have allowed retaliation
claims not alleged in the administrative charge to proceed in situations where the retaliation
occurred after the filing of the administrative charge or lawsuit.” Zawacki v. Realogy Corp., 628
F. Supp. 2d 274, 284 (D. Conn. 2009). Under these circumstances, requiring Plaintiff to file a
second EEOC charge would senselessly waste administrative and judicial resources. Therefore,
there is no procedural bar to Plaintiff’s retaliatory discharge claim.
Merits of Plaintiff’s Retaliation Claims
Turning to the substance of the motion to dismiss for failure to state a claim, the Court
finds that although Plaintiff has not plausibly alleged that her termination was motivated by
retaliation, she has stated a retaliation claim based on the prolonged suspension.
The ADA forbids an employer from discriminating “against any individual because such
individual has opposed any act or practice made unlawful by this chapter or because such
individual made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). “In order to establish a prima
facie case of retaliation, [an employee] must show that: (1) he engaged in an activity protected
by the ADA; (2) the employer was aware of this activity; (3) the employer took adverse
employment action against him; and (4) a causal connection exists between the alleged adverse
action and the protected activity.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).
To survive a motion to dismiss, an employee “need not specifically plead every element;” she
must allege just enough factual matter to “render [the] retaliation claims plausible.” Reid v.
Ingerman Smith LLP, 876 F. Supp. 2d 176, 187 (E.D.N.Y. 2012) (citing Williams v. N.Y. City
Hous. Auth., 458 F.3d 67, 71–72 (2d Cir. 2006)); see Pahuja v. Am. Univ. of Antigua, 2012 WL
6592116, at *9 (S.D.N.Y. Dec. 18, 2012). The same standards govern Plaintiff’s state law
claims. See Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006); Magnotti v.
Crossroads Healthcare Mgmt., LLC, 2015 WL 5173528, at *8 (E.D.N.Y. Sept. 3, 2015).
Defendants argue that Plaintiff has failed to plead a causal connection between Plaintiff’s
protected activities and the adverse employment actions—i.e., the prolonged suspension and
discharge. To establish a causal link, a plaintiff must prove “that retaliation was a ‘but-for’ cause
of the adverse action.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013)
(quoting Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2526 (2013)). Causation may
be proven with direct evidence of retaliatory animus, or with circumstantial evidence, including,
for example, close temporal proximity between the protected activity and adverse action
(Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001)), proof that the complaining employee was
“treated differently than other employees who did not engage in a protected activity” (Conklin v.
Cty. of Suffolk, 859 F. Supp. 2d 415, 433 (E.D.N.Y. 2012); Grant v. United Fed’n of Teachers,
2014 WL 978444, at *13 (E.D.N.Y. Mar. 12, 2014)), or proof of “weaknesses, implausibilities,
inconsistencies, or contradictions in the employer’s proffered legitimate, nonretaliatory reasons
for its action” (Collazo v. Cty. of Suffolk, 2016 WL 660856, at *17 (E.D.N.Y. Feb. 17, 2016)
(quoting Zann, 737 F.3d at 846); see also Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001)).
Plaintiff has sufficiently alleged that after she was cleared by the NYPD, Defendants
delayed her return in retaliation for her prior lawsuit. First, Defendants allegedly proffered a
series of shifting and arguably pretextual reasons for the delay. It is plausible, for example, that
the four-month delay was not caused by a mere system “glitch.” Indeed, Rampersant gave a
different, more troubling, reason for the delay: a plan to transfer Plaintiff to nightshifts. After
Plaintiff objected—an involuntary transfer to nightshifts, under certain circumstances, may
qualify as a materially adverse action—Rampersant backtracked, blaming the delay on the Office
of Personnel Investigation. But that office had already cleared her return. From these
“implausibilities, inconsistencies, [and] contradictions in” the proffered reasons for the delay,
one “could conclude that the explanations were a pretext” for retaliation. Zann, 737 F.3d at 846.
Second, the temporal proximity between the protected activity and delayed return is close
enough to infer retaliation. Plaintiff was engaged in protected activity until she settled her prior
lawsuit in August 2013. See Grant, 2014 WL 978444, at *13 (citing Infantolino v. Joint Indus.
Bd. of Elec. Indus., 582 F. Supp. 2d 351, 359 (E.D.N.Y. 2008)) (“under the ADA, protected
activity includes not only the filing but also the prosecution of a retaliation lawsuit”). The
adverse action began eight months later, in April 2014, after Plaintiff was restored by the NYPD
but prevented from returning to work. During the intervening months, however, Plaintiff was
suspended, and thus Defendants had no opportunity to retaliate. Given these circumstances, and
in light of the inconsistent reasons that were given for the delay, the eight-month gap may
support an inference of retaliation. See, e.g., Cronin v. St. Lawrence, 2009 WL 2391861, at *5
(S.D.N.Y. Aug. 5, 2009) (an eleven-month gap is acceptable if the defendant “had no earlier
opportunity to retaliate”) (collecting cases); cf. Grant, 2014 WL 978444, at *13 (together, a ninemonth gap and evidence of differential treatment may raise a plausible inference of causation).
In contrast, any link between the protected activities and Plaintiff’s termination is belied by
her own submissions, which bolster Defendants’ legitimate reason for the termination: Plaintiff’s
lengthy unauthorized absence. Above all, Plaintiff’s allegation that her request for a leave of
absence “was approved” is entitled to no credit because it is “based on [unspecified] information
and belief.” Id., ¶ 39. “Though a plaintiff may plead facts alleged upon information and belief
where the facts are peculiarly within the possession and control of the defendant or where the
belief is based on factual information that makes the inference of culpability plausible, such
allegations must be accompanied by a statement of the facts upon which the belief is founded.”
Navarra v. Marlborough Gallery, Inc., 820 F. Supp. 2d 477, 485 (S.D.N.Y. 2011) (quotations
and citations omitted). Plaintiff offers no information to support her belief that her request was
approved. Indeed, if it were approved, it is inconceivable that Plaintiff would lack personal
knowledge of that fact. Thus, even without the extrinsic documents filed in connection with the
motion to dismiss, Plaintiff’s claim that Defendants falsely accused her of taking unauthorized
leave as pretext for retaliation is implausible. The extrinsic documents, moreover, clearly refute
Plaintiff’s claim. As detailed above, they show that after her approved leave ended, Plaintiff
failed to return, and that on some unspecified date, she requested an extension that was not
approved.5 Indeed, Plaintiff all but concedes in her opposition papers that her request was not
approved, and thus, that her absence after February 2014 was unauthorized. See Pl. Mem. of
Law, Dkt. 13, at 11. Her claim of retaliatory discharge is therefore implausible.
The documents are properly considered. Cf., e.g., Betancourt v. City of New York, 2007 WL 2948345, at
*2 (S.D.N.Y. Oct. 9, 2007) (considering the plaintiff’s termination letter in motion to dismiss); Davis v.
Columbia Univ., 2010 WL 2143665, at *2 (S.D.N.Y. May 26, 2010) (same); see generally Cortec Indus.,
Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Where plaintiff has actual notice of all the
information in the movant’s papers and has relied upon these documents in framing the complaint the
necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.”). Indeed,
were the Court to convert the motion to one for summary judgment, it would decide it on the present
submissions, given that the extrinsic documents were in the both parties’ possession, and the parties have
had a full opportunity to respond. In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985) (“The
essential inquiry is whether the [parties] should reasonably have recognized the possibility that the motion
might be converted . . . or [were] taken by surprise and deprived of a reasonable opportunity to meet facts
outside the pleadings.”); see also, e.g., Washington v. Securitas Sec. Servs. USA, Inc., 2014 WL 2882854,
at *1 (W.D.N.Y. June 25, 2014) (“treat[ing] Defendants’ motion to dismiss as a motion for summary
judgment” but “find[ing] the motion can be resolved on the documents already submitted”).
Defendants’ motion is GRANTED in part and DENIED in part. All claims against
the City of New York, ADA claims against Mina and Rampersant, and Plaintiff’s
retaliatory discharge claim are dismissed. Plaintiff’s federal and state retaliation claims
survive to the extent they are based on the prolonged suspension.
Brooklyn, New York
March 17, 2016
I. Leo Glasser
Senior United States District Judge
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