Domenech v. New York Employees' Retirement System
Filing
24
MEMORANDUM AND 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 5/9/2016. (Shamah, Adam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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AIDA DOMENECH,
MEMORANDUM AND ORDER
15-CV-2521 (ILG) (PK)
Plaintiff,
- against NEW YORK CITY EMPLOYEES’
RETIREMENT SYSTEM,
Defendant,
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GLASSER, Senior United States District Judge:
Aida Domenech (“plaintiff”) brings this suit against her employer, the New York City
Employees’ Retirement System (“defendant”), alleging retaliation and religious discrimination
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and
disability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
(“ADA”). Before the Court is the defendant’s motion to dismiss the complaint. For the reasons
given below, the defendant’s motion is GRANTED in part and DENIED in part.
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BACKGROUND*
The events leading to the commencement of this action are alleged in a ninety-oneparagraph complaint (Dkt. 1) that reads like a transcription of the plaintiff’s free-association of
the offending events, rather than the “short and plain statement” envisioned by Rule 8 of the
Federal Rules of Civil Procedure. What follows is an attempted distillation of those allegations
that would permit an understanding of the essence of this litigation and the legal issues it
presents.
Factual allegations taken from the plaintiff’s complaint are accepted as true for the purpose of deciding
this motion.
*
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The plaintiff has been employed by the defendant since 1988. See Compl., ¶ 13. She is
alleged to have been an exemplary employee whose ability was recognized by promotions and
reflected in yearly salary increases from $21,530 when she began to $74,233 in 2006. See id.,
¶¶ 14–16. In that year, the plaintiff allegedly heard her then-supervisor proclaim, “Whites have
always stopped me in traffic because I am black and they can’t accept a black person driving an
Infiniti. That is why I always look out for my people of color. Now is my chance to promote the
blacks.” Id., ¶ 18. That statement led the plaintiff to complain in February and May 2007 to the
NYC Department of Investigation (DOI) and the Agency Operations Division (AOD) that only
black Caribbean employees were promoted. See id., ¶¶ 18–19. She alleges that, as a result of her
complaints about racial discrimination, she suffered retaliation in the form of negative
evaluations and the denial of an annual bonus and salary increase. See id., ¶¶ 21–22.
The plaintiff alleges that after she continued to suffer racial discrimination and
retaliation, on May 7, 2008, she filed a charge with the New York State Division of Human
Rights (NYSDHR) accusing two named supervisors of discriminatory and retaliatory practices.
See id., ¶¶ 24–25. The filing of that charge, she claims, led to her termination, which she
appealed to the Office of Administrative Trials and Hearings. See id., ¶ 26. That office
determined that her termination was unwarranted and recommended instead a suspension
without pay for 15 days. See id., ¶¶ 26–28. That determination was adopted by the parties in a
stipulation settling the aforementioned May 7, 2008 charge. See id., ¶ 29.
When the term of her suspension ended, the plaintiff returned to work with the hope that
discrimination and retaliation were things of the past. See id., ¶ 30. Her hopes were dashed by a
litany of events alleged to be discriminatory and retaliatory, recited in mind-numbing detail in
the complaint. In brief, the plaintiff alleges that the defendant denied her requests for overtime,
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vacation, and time-off for religious observance, and involuntarily transferred her to a different
unit, in retaliation for her prior complaints. See id., ¶¶ 31–79.
The plaintiff presented these allegations to the NYSDHR. First, on October 5, 2011, the
plaintiff filed a charge with the NYSDHR and the Equal Employment Opportunity Commission
(EEOC), alleging retaliation and religious discrimination (the “2011 Charge”). Second, on
August 29, 2012, the plaintiff amended her then-pending 2011 Charge, adding new allegations of
retaliation and a claim of disability discrimination. Finding probable cause, the NYSDHR
permitted the 2011 Charge to proceed.
Third, while the 2011 Charge was still pending, in March 2013, the defendant again
denied plaintiff’s overtime request. Id., ¶ 57. She alerted the NYSDHR to that fact in June
2013—but rather than amend the 2011 Charge, she filed a new charge (“2013 Charge”). The
2013 Charge described the denial of overtime in March as a continuation of the retaliation
alleged in the 2011 Charge and asked the NYSDHR to assign it to the caseworker handling that
charge.
The tangled sequence in which the NYSDHR administered these two filings presents
issues to be addressed. To begin with, the NYSDHR considered the 2011 and the 2013 Charges
separately. It decided the 2013 Charge first, finding that pre-June-2012 claims were time-barred,
and that the charge in other respects was without probable cause. The EEOC concurred and in
2014 mailed to the plaintiff a right-to-sue-letter regarding the 2013 Charge.1 The NYSDHR then
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Although the complaint does not mention the 2013 Charge and 2014 right-to-sue letter—those
documents were presented with the defendant’s motion to dismiss, see Balog Decl., Ex. C & Ex. E, Dkts.
10-5, 10-7—the Court may consider them in deciding whether Plaintiff’s claims are timely. The plaintiff
acknowledges the documents and receipt of the 2014 Letter. See Pl.’s Mem. of Law, Dkt. 14, at 2–3. The
facts recounted here that are not alleged in the complaint are undisputed and drawn from materials of
which both parties had notice. Accordingly, the documents may properly be considered. See Lindner v.
Int’l Bus. Machines Corp., 2008 WL 2461934, at *1 n.1 (S.D.N.Y. June 18, 2008) (on a motion to
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dismissed the 2011 Charge, and the plaintiff received a second right-to-sue-letter from the EEOC
on February 15, 2015. See Compl., ¶ 7 & Ex. A.
This action was then duly commenced on April 17, 2015, asserting religiousdiscrimination and retaliation claims pursuant to Title VII and a disability-discrimination claim
pursuant to the ADA—all complained of in the 2011 Charge. On June 30, 2015, the defendant
moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
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2.1
DISCUSSION
Procedural Prerequisites
The plaintiff satisfied the statutory prerequisites (see 42 U.S.C. §§ 2000e-5(e)–(f),
12117(a)) with regard to the 2011 Charge: she exhausted administrative remedies by filing a
charge with the NYSDHR within 300 days of the alleged offending conduct, obtaining a right-tosue letter, and commencing this action within 90 days of receiving that letter. Therefore, Title
VII claims accruing between December 9, 2010 and August 29, 2012, and ADA claims accruing
between November 2, 2011 and August 29, 2012, are timely for purposes of this motion.
The complaint alleges overtime-denial-based retaliation but fails to specify the dates of
those denials—it states that “beginning in or about January 2010,” the plaintiff was “never”
allowed to work overtime (Compl., ¶ 33)—precluding a determination of the timeliness of those
claims. Each denial is a discrete act, actionable only if it occurred after December 9, 2010. Thus,
overtime-denial retaliation claims are dismissed with leave to replead the date of each denial.
The defendant’s argument that claims made in the 2011 Charge are barred because
Plaintiff did not file suit within 90 days of receiving the right-to-sue letter addressing the 2013
Charge is meritless. The 2013 Charge supplemented the claims made in the earlier-filed 2011
dismiss, “the Court may take judicial notice of EEOC filings relating to plaintiff’s claims”) (collecting
cases).
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Charge—it did not duplicate them. The NYSDHR’s inexplicable decision to consider the charges
separately and decide the 2013 Charge first does not bar the Court’s consideration of claims
asserted in the 2011 Charge. See Babcock v. Frank, 729 F. Supp. 279, 285 (S.D.N.Y. 1990); cf.
Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994).
2.2
Failure to State a Claim
As elaborated below, the defendant’s contention that the complaint fails to state a claim
under Title VII or the ADA is valid insofar as the complaint fails to state a claim for religiousand disability-discrimination, and the defendant’s motion is granted as to those claims. The
plaintiff’s retaliation claim, however, is plausible, resting on allegations that, if proven, would
permit a reasonable inference that the defendant is blameworthy. Therefore, the defendant’s
motion is denied with regard to the retaliation claim.
2.2.1 Title VII Retaliation
Title VII “forbids an employer from ‘discriminating against’ an employee because that
individual ‘opposed any practice’ made unlawful by Title VII or ‘made a charge . . . in’ a Title
VII proceeding.” Brown v. Cty. of Erie, 2013 WL 885993, at *3 (W.D.N.Y. Mar. 8, 2013)
(quoting 42 U.S.C. § 2000e-3(a)). “To establish a prima facie case of retaliation, an employee
must show that (1) she was 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 adverse action.” Lore v. City of Syracuse, 670
F.3d 127, 157 (2d Cir. 2012). However, 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)).
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There is no dispute that the filing of a NYSDHR charge alleging a Title VII violation is a
protected activity, that the defendant was aware that the plaintiff filed such a charge, and that the
plaintiff suffered materially adverse actions. The defendant challenges the causal connection
between the plaintiff’s filing and the adverse actions.
To establish a causal link, the 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)).
There is no “bright line to define the outer limits beyond which a temporal relationship is
too attenuated to establish a causal relationship between [a protected activity] and an allegedly
retaliatory action’”—the analysis is “heavily reliant upon the specific factual circumstances of
each case.” Karam v. Cty. of Rensselaer, New York, 2016 WL 51252, at *10 (N.D.N.Y. Jan. 4,
2016) (quoting Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545,
554 (2d Cir. 2001)). As the defendant points out, in many cases, the passage of 20 months
between a protected activity and adverse action would preclude an inference of retaliation. See
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Morisseau v. DLA Piper, 532 F.Supp.2d 595, 617 & n.142 (S.D.N.Y. 2008) (“While 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, the weight of authority supports
the view that ten or twelve months is too long.”) (quotation omitted) (collecting cases). But see,
e.g., Batyreva v. New York City Dep’t of Educ., 2008 WL 4344583, at *14 (S.D.N.Y. Sept. 18,
2008) (“although more than two years passed between Plaintiff's complaint to the SDHR and the
alleged discrimination during fall 2006, Plaintiff has plausibly alleged that the events are
causally connected”).
However, in this case, a review of the timeline demonstrates that temporal proximity may
support an inference of retaliation. Just nine months after Plaintiff first complained about
discrimination, in February 2009, Defendant tried to terminate her. Although the attempted
termination is not actionable (the plaintiff released that claim as part of a settlement), because it
occurred nine-months after the protected activity and was later reversed as unwarranted by an
independent decisionmaker, it is evidence of retaliatory intent. Cf. Grant v. United Fed’n of
Teachers, 2014 WL 978444, at *13 (E.D.N.Y. Mar. 12, 2014) (together, a nine-month gap and
evidence of differential treatment may raise a plausible inference of causation); see generally
Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 176–77 (2d Cir. 2005) (time-barred acts may
be offered as evidence of retaliatory motive); id. at 177 (“[R]relevant background evidence, such
as . . . earlier decisions typifying the retaliation involved, may be considered to assess liability on
the timely alleged act.”).
The subsequent ten months, during which the plaintiff was suspended (the period
between her termination and its reversal), do not preclude an inference of retaliation, as the
defendant had no opportunity to retaliate during that period. See, e.g., Cronin v. St. Lawrence,
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2009 WL 2391861, at *5 (S.D.N.Y. Aug. 5, 2009) (“the [11 month] time lag at issue here is at
least in the range of acceptable time periods, particularly if Defendant had no earlier opportunity
to retaliate against Plaintiff for engaging in protected activity”) (collecting cases). Then
immediately after the plaintiff returned from leave, in January 2010, the defendant began
denying her requests for overtime. As discussed above, the plaintiff must specify that her
requests were denied during the limitations period, which began several months later, in
December 2010. However, it may be plausibly inferred that when she returned the accusatory
filing (the protected activity) still rankled her supervisors and reignited their retaliatory
motivation. Moreover, additional allegations, if proven, would corroborate retaliatory intent: the
defendant denied plaintiff’s overtime, vacation, and unit-transfer requests while granting other
employees’ requests (see Compl., ¶¶ 31–32, 49–53); and the defendant gave pretextual and
inconsistent reasons for those decisions (see id., ¶¶ 31–33, 36–37, 45–46).
The motion to dismiss the retaliation claim, therefore, is denied.
2.2.2 Title VII Religious Discrimination
The plaintiff asserts a religious discrimination claim under Title VII, based entirely on the
allegation that her supervisor denied her request to take a day off for religious observance on
December 30, 2011. This allegation does not plausibly allege discrimination, which requires
proof that “(1) [Plaintiff] has a bona fide religious belief that conflicts with an employment
requirement; (2) [Plaintiff] informed the employer of this belief; (3) [Plaintiff] was disciplined
[or threatened with discipline] for failure to comply with the conflicting employment
requirement.” Siddiqi v. New York City Health & Hosps. Corp., 572 F. Supp. 2d 353, 369
(S.D.N.Y. 2008). The plaintiff does not allege specific facts to support any of these elements.
Accordingly, her religious discrimination claim is dismissed.
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2.2.3 ADA Failure-to-Accommodate
The plaintiff alleges that the transfer from one unit to another caused her to develop
severe anxiety. She asserts that by denying her requests to return to her previous unit, the
defendant failed to accommodate her anxiety and thereby violated the ADA. But “[j]ob-related
stress—particularly that caused by working with a particular supervisor—is not considered a
disability under the ADA.” Xinwa Chang v. MetroPlus Health Plan, 2014 WL 842635, at *6
(S.D.N.Y. Mar. 4, 2014) aff’d, 590 F. App’x 74 (2d Cir. 2015) (quoting Thompson v. Fed–
Reserve Bank of N.Y., 2004 WL 330243, at *8 (S.D.N.Y. Feb. 23, 2004)) (brackets in original).
This is particularly true where, as here, Plaintiff admits that her job performances was still
“good” despite the anxiety. See Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1062 (7th Cir.2000)
(“Standing alone, a personality conflict between an employee and a supervisor—even one that
trigger’s the employee’s depression—is not enough to establish that the employee is disabled, so
long as the employee could still perform the job under a different supervisor.”). Therefore, the
plaintiff fails to state a claim under the ADA.
CONCLUSION
The defendant’s motion to dismiss the complaint is GRANTED in part and DENIED in
part. The plaintiff’s religious-discrimination claims and ADA claims are dismissed with
prejudice. The plaintiff’s Title VII retaliation claim survives, except to the extent it is based on
the retaliatory denial of overtime. The Court cannot determine from the face of the complaint
whether overtime-based retaliation claims are timely. Those claims are dismissed with leave to
replead the date of each overtime denial within 15 days of the date of this order.
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SO ORDERED.
Dated:
Brooklyn, New York
May 9, 2016
/s/
I. Leo Glasser
Senior United States District Judge
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