Thrane v. Metropolitan Transportation Authority
MEMORANDUM and ORDER: Defendants motions 33 and 39 are denied. Defendants are instructed to pay $1000 to plaintiffs counsel within 30 days of this order. Ordered by Judge Frederic Block on 2/12/2018. (Innelli, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
AUTHORITY and MTA BUS
For the Plaintiff
WALKER G. HARMAN, JR.
OWEN HUNTTING LAIRD
220 Fifth Avenue
New York, NY 10001
For the Defendants
PAIGE ANN EVANS
VALERIE K FERRIER
THOMAS JOHN DEAS
130 Livingston Street
Brooklyn, NY 11201
BLOCK, Senior District Judge:
On March 17, 2017, defendants Metropolitan Transportation Authority (“MTA”)
and MTA Bus Company filed a motion, pursuant to Federal Rule of Civil Procedure
12(b)(6), to dismiss plaintiff Brian Thrane’s First Amended Complaint (“FAC”)
alleging disability discrimination and retaliation under the Americans with Disabilities
Act (“ADA”), discrimination under the Age Discrimination in Employment Act of 1967
(“ADEA”),1 and discrimination and retaliation under New York City Human Rights
While plaintiff neglected to formally enumerate a claim for the ADEA
violation, he frequently alleges it throughout the rest of the FAC. Therefore, the
Defendants separately filed objections pursuant to Federal Rule of Civil
Procedure 72(a) to an award of sanctions imposed by Magistrate Judge Bloom based on
defendants’ failure to participate at an agreed-upon settlement conference in good faith.
Both motions are denied. The sanction is increased to $1000.
The alleged facts are as follows: Plaintiff worked for defendants as a bus driver
until he suffered a medical incident on April 16, 2016, feeling dizziness and numbness
in his right leg. He was eventually cleared by doctors to return to work; however,
defendants, citing his injury, refused to allow him to resume his duties, instead offering
him a janitorial position with less responsibility and fewer opportunities for
supplemental pay. Defendants also pressured their internal doctor, Dr. Weiss, to reverse
an initial diagnosis allowing plaintiff to return to work.
Plaintiff filed a charge with the Equal Employment Opportunity Commission
(“EEOC”) and sought arbitration through his union’s grievance procedure. The
arbitrator ordered defendants to give plaintiff a more thorough medical examination
Court deems the FAC amended to include this claim. See Kroshnyi v. U.S. Pack
Courier Servs., Inc., 771 F.3d 93, 109 (2d Cir. 2014) (“Federal Rules provide that
courts ‘should freely give leave [to amend] when justice so requires.’”) (quoting
Fed. R. Civ. P. 15(a)(2)); Kenny v. Nasssau Univ. Med. Ctr., 2016 WL 1056999, at
*3 (E.D.N.Y. 2016) (district court, sua sponte, deemed complaint amended to
include new allegations); Yick Man Mui v. United States, 2011 WL 2650673, at *2
(E.D.N.Y. 2011) (district court deemed petition amended to include new claim).
within 30 days; defendants refused, allegedly in retaliation for the EEOC claim. After
his EEOC complaint and arbitration failed to resolve the matter, plaintiff brought the
present lawsuit on December 30, 2015; the arbitration and this lawsuit appear to be
Plaintiff Has Adequately Stated His Claims.
Under Fed. R. Civ. P. 12(b)(6), a party may move to dismiss a cause of action that
“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To
survive a motion to dismiss, the complaint must plead “enough facts to state a claim to
relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007), and “allow the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Rule 8(a)(2) requires only “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[W]hile a discrimination
complaint need not allege facts establishing each element of a prima facie case of
discrimination to survive a motion to dismiss, it must at a minimum assert
nonconclusory factual matter sufficient to nudge [its] claims . . . across the line from
conceivable to plausible to proceed.” E.E.O.C. v. Port Auth., 768 F.3d 247, 254 (2d Cir.
Plaintiff timely brought the EEOC action, and the EEOC issued a Right-toSue letter dated October 6, 2015. The Department of Justice also issued a Right-toSue letter on November 6, 2015.This action was properly brought within ninety
days of these letters.
2014) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002); Iqbal, 556 U.S. at
680) (citation omitted).
Plaintiff has met this low bar. He has alleged that defendants refused to let him
return to work, despite receiving medical clearance, and did so based on his medical
condition and age. He alleges that defendants’ doctor told him “that she could do
whatever she wanted with his file because he was ‘getting up there’ in age,” FAC ¶19;
that a different doctor of defendants eventually cleared him to return to work, FAC ¶21;
but defendants still refused to let him work, FAC ¶26; that defendants pressured the new
doctor to change his diagnosis, FAC ¶29; that defendants treat other employees over the
age of fifty in the same manner, FAC ¶35; and that defendants refused to schedule a
medical examination ordered by an arbitrator as part of a concerted effort to prevent him
from returning to his position as bus driver based on his disability and age, FAC ¶¶3942. These allegations are sufficient to “nudge” his discrimination claims from
conceivable to plausible.
Plaintiff also effectively alleged a retaliation claim. He alleged that, after he
brought his EEOC claim, defendants refused to reinstate him despite a clean bill of
health in retaliation for bringing the claim, keeping him stuck in the janitorial position,
and that defendants’ refusal to follow the arbitrator’s decision was motivated by a desire
to punish him for filing his EEOC claim. FAC ¶¶67-68; 73-75.
Defendants provide medical and pay records to counter plaintiff’s allegations.
This factual dispute is premature at the motion to dismiss stage. See Friedl v. City of
New York, 210 F.3d 79, 83 (2d Cir. 2000) (holding “a district court errs when it
‘consider[s] affidavits and exhibits submitted by’ defendants, or relies on factual
allegations contained in legal briefs or memoranda in ruling on a 12(b)(6) motion to
dismiss.”) (quoting Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir. 1991)).3
At any rate, plaintiff disputes that these documents comprise the entire medical
record, as well as their relevance and meaning. Therefore, even if the Court were to
consider them, the new documents only raise a dispute of fact.4 See Nicosia v.
Amazon.com, Inc., 834 F.3d 220, 231 (2d Cir. 2016) (“If . . . there is a dispute as to the
relevance, authenticity, or accuracy of the documents relied upon [by the defendant in a
motion to dismiss], the district court may not dismiss the complaint with those materials
In their reply, defendants belatedly sought to convert the motion to dismiss
into one for summary judgment. “The law in this Circuit is clear that arguments
raised for the first time in reply briefs need not be considered.” Mayer v.
Neurological Surgery, P.C., 2016 WL 347329, at *4 (E.D.N.Y. Jan. 28, 2016)
(citing EDP Med. Computer Sys., Inc. v. United States, 480 F.3d 621, 625 n.1 (2d
Cir. 2007)). Regardless, the Court sees no purpose in converting the motion,
especially since doing so requires the Court to “afford all parties the opportunity to
present supporting material.” Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir.
2000). This opportunity was precluded by defendants’ failure to raise the issue
until their reply.
The same holds for defendants’ factual attack on plaintiff’s alleged
emotional distress damages.
Defendants also dispute that plaintiff’s change in job title constituted an adverse
action. However, this demotion to a position with lesser responsibility, lower pay, and
fewer benefits (such as availability for overtime pay) is such an action. See Feingold v.
New York, 366 F.3d 138, 152 (2d Cir. 2004) (“Examples of materially adverse
employment actions include ‘. . . a demotion evidenced by a decrease in wage or salary,
a less distinguished title, a material loss of benefits, significantly diminished
responsibilities, or other indices . . . unique to a particular situation.’”).
Therefore, plaintiff has met his Rule 8(a)(2) pleading burden.
The Arbitration Award Does Not Preclude Plaintiff’s Claims.
According to defendants’ briefing, since the lawsuit commenced, plaintiff won
his union arbitration proceeding and was reinstated with back pay. Though defendants’
argument is presented as a somewhat abstract “public policy” argument, the gist appears
to be that the back pay award precludes this lawsuit. This argument fails.
Discrimination claims are substantively distinct from the type of contract dispute
claims typically resolved by collective bargaining arbitration. See Alexander v.
Gardner-Denver Co., 415 U.S. 36, 59-60 (1974) (holding “the federal policy favoring
arbitration of labor disputes and the federal policy against discriminatory employment
practices can best be accommodated by permitting an employee to pursue fully both his
remedy under the grievance-arbitration clause of a collective-bargaining agreement and
his cause of action under Title VII.”5); Wright v. Universal Maritime Serv. Corp., 525
U.S. 70, 79 (1998) (holding agreement to arbitrate did not waive federal claim under the
ADA because “[t]he cause of action [plaintiff] asserts arises not out of contract, but out
of the ADA, and is distinct from any right conferred by the collective-bargaining
agreement.”). Indeed, the primary Second Circuit case cited by defendants, Collins v.
New York City Transit Auth., 305 F.3d 113 (2d Cir. 2002), follows the Gardner-Denver
reasoning. 305 F.3d at 119 (“In sum, a negative arbitration decision rendered under a
CBA does not preclude a [discrimination] action by a discharged employee.”).
The arbitration proceeding addressed plaintiff’s rights under the collective
bargaining agreement but did not address his allegations of discrimination or retaliation
under federal law. This distinction between contractual and statutory rights is precisely
the distinction elucidated by the Supreme Court in Gardner-Denver and Wright. Nor
have defendants alleged that plaintiff has clearly and unmistakably agreed to arbitrate
discrimination claims. See 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 274 (2009)
(holding “collective-bargaining agreement that clearly and unmistakably requires union
members to arbitrate ADEA claims is enforceable as a matter of federal law.”).
Therefore, the arbitration proceeding does not preclude plaintiff’s claims.
Magistrate Judge Bloom Did Not Err in Imposing Sanctions On Defendants.
While Gardner-Denver was a Title VII case, the Supreme Court has
“followed the holding in Gardner-Denver in deciding the effect of CBA arbitration
upon employees claims under other statutes” including the ADA and ADEA.
Wright, 525 U.S. at 75-76.
On February 28, 2017, the parties appeared in court for an agreed-upon settlement
conference. Magistrate Judge Lois Bloom had ordered both parties to send someone
with full settlement authority. Defendants instead sent Deputy General Counsel Thomas
J. Deas with strict instructions from General Counsel Paige Ann Evans not to budge
from the initial offer. The magistrate judge gave defendants’ counsel one hour to contact
someone with the necessary settlement authority. No one was available. As a result, the
settlement conference was fruitless.
A court may impose sanctions under Federal Rule of Civil Procedure 16(f)(1) if a
party or attorney either “(B) is substantially unprepared to participate—or does not
participate in good faith—in the conference; or (C) fails to obey a scheduling or other
pretrial order.” Magistrate Judge Bloom issued an Order to Show Cause why defendants
should not be sanctioned for their failure to participate in the settlement conference in
good faith.6 Defendants offered no valid excuse and were sanctioned on March 6, 2017
for the amount of $250.7
Several courts, including ones in the Second Circuit, have held that failure
to send a representative with proper settlement authority can constitute a lack of
good faith. See Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 596-97 (8th Cir.
2011); In re A. T. Reynolds & Sons, Inc., 452 B.R. 374, 384 (S.D.N.Y. 2011).
While the magistrate judge sanctioned defendants for failure to participate
in good faith under Rule 16(f)(1)(B), the sanctions were also justified under Rule
16(f)(1)(C) because defendants violated the magistrate judge’s order. See, e.g.,
Negron v. Woodhull Hosp., 173 F. App’x 77, 79 (2d Cir. 2006) (holding failure to
send a person with settlement authority to mediation was sanctionable because it
violated the court’s order to do so).
Defendants now further waste the time and resources of the Court and the
plaintiff on a baseless objection to this decision. Defendants inexplicably argue that it
was plaintiff who refused to negotiate in good faith because, in their view, plaintiff did
not have sufficient evidence supporting his claims. This is beside the point. Plaintiff
appeared at the conference with the requested settlement authority. Defendants did not.
Perhaps plaintiff would have been coaxed from his position during the course of good
faith settlement discussions; he was denied that opportunity by their gamesmanship.
Defendants’ motion for reconsideration admits as much. The motion, written by
Deas, asserts, “I was . . . directed [by Evans] not to pay anything more than what was
offered.” Def.’s Mot. for Reconsideration at 3. That Evans “directed” Deas limiting
what he could offer in settlement contradicts his claim that he had full authority to settle.
In fact, he did not have any such authority, beyond defendants’ pre-conference offer.8
The Magistrate Judge’s Imposed Sanction Was Insufficient.
Plaintiff’s counsel, in his letter brief opposing defendants’ motion for
reconsideration, argues that the sanctions should be higher because the attorney’s fees
for the failed conference exceeded $250, and he spent additional time and money
responding to the frivolous motion for reconsideration.
The Court agrees. The sanction is increased to $1000, payable to plaintiff’s
At oral argument, Deas was given an additional opportunity to explain his
actions. He chose instead to complain again that plaintiff’s counsel failed to prove
his case during a pre-conference phone call. This did nothing to explain the
defendants failure to participate in the conference in good faith.
counsel. See, e.g., Negron v. Woodhull Hosp., 173 F. App’x 77, 79 (2d Cir. 2006)
(holding district court “properly required the [sanctioned party] pay the expenses
incurred in preparing for the mediation” because of sanctioned party’s failure to bring a
principal party with settlement authority).
Defendants’ motions are denied. Defendants are instructed to pay $1000 to
plaintiff’s counsel within 30 days of this order.
/S/ Frederic Block_____________
Senior United States District Judge
Brooklyn, New York
February 12, 2018
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