Giordani v. The Legal Aid Society et al
Filing
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ORDER granting 9 motion to dismiss and granting 13 motion to dismiss, but granting plaintiff leave to amend the complaint on or before 12/31/2018, insofar as the amended complaint will assert ADEA and pendent state law claims solely against the LAS defendants. See order for details. Ordered by Judge I. Leo Glasser on 11/27/2018. (Kessler, Stanley)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ERNST GIORDANI,
Plaintiff,
MEMORANDUM AND ORDER
17-CV-5569
- against THE LEGAL AID SOCIETY, TARAMANIE
SHAKUR, AIDA RAMOS-HERRERA, ANA
CECILIO, IRWIN SHAW, TINA LUONGO,
JOYCE MURPHY, KERRY-ANN STEPHEN,
LINDA POSTELL, EDWARD MCCARTHY,
CITY OF NEW YORK,
Defendants.
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GLASSER, Senior United States District Judge:
Before the Court are separate motions by Defendant City of New York (the “City”) and
Defendants Legal Aid Society (“LAS”), Taramanie Shakur, Aida Ramos-Herrera, Ana Cecilio,
Irwin Shaw, Tina Luongo, Joyce Murphy, Kerry-Ann Stephen, Linda Postell, and Edward
McCarthy (collectively, the “LAS Defendants”) to dismiss Plaintiff’s claims. (ECF Nos. 9, 13).
For the reasons discussed below, the motions are granted, but with leave to amend.
According to the complaint, Plaintiff Ernst Giordani is employed by the Legal Aid
Society as an arraignment clerk and paralegal. (ECF No. 1 (“Compl.”) ¶ 13). He is 60 years old
and started working for the Legal Aid Society in 1975, at the age of 19. (Compl. ¶ 14). Plaintiff
claims that his employers have subjected him to harassment and abuse in an effort to terminate
him because of his age. (Compl. ¶ 20). The pleadings appear to center on a staff meeting that was
held on September 20, 2017, in which Ramos-Herrera, the Director of Administration for the
Legal Aid Society, told others that Plaintiff’s shift had been transferred because Shakur, another
coworker, reported him as a threat to her safety. (Compl. ¶¶ 20, 41-42). Although Ramos-Herrera
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said that Plaintiff was notified of Shakur’s complaint, Plaintiff claims that he was unaware of it
until it was mentioned at the meeting. (Compl. ¶ 41). Plaintiff also claims that he was not
transferred because of his behavior, but rather at his own request because he did not want to
work the night shift. (Compl. ¶ 42). Plaintiff alleges additional discriminatory conduct that
includes the following:
•
“trying to concoct a for cause reason to fire [Plaintiff] by blaming him for
an incident with a violent client who spit at plaintiff”;
•
“concocting fabricated ‘client complaints’ to set the stage for a purported
‘for cause’ firing”;
•
“conducting meetings for the purpose of publicly disparaging [Plaintiff’s]
good name and labeling him an explosive employee who was a danger to
the safety of defendant Shakur and four other undisclosed employees”;
•
“engaging in outrageous conduct during another meeting, where defendant
Stephen stood up and called plaintiff ‘brother-man’ and [told] him to stop
playing the victim because certain overtime shifts were forbidden to him,
despite his seniority”;
•
“creating a hostile work environment, whereby defendants [sic] Joyce
Murphy refused to give plaintiff an adequate workload in an effort to force
him out—giving him only four cases for an entire day”;
•
“being extremely nasty to plaintiff or ignoring him completely or generating
false reports of fabricated acts of misconduct”; and
•
“stealing belongings from plaintiff’s desk and/or tampering with objects
and files on his desk.”
(Compl. ¶ 20). The complaint states that “younger employees are treated differently than
[Plaintiff] and do not endure any such harassment.” (Compl. ¶ 20). It also asserts that Plaintiff
has been “systematically den[ied] … overtime” and that younger employees receive preference
in overtime. (Compl. ¶¶ 20, 22).
The complaint inaccurately asserts that Plaintiff, by virtue of his employment at LAS, is
an employee of the City of New York. (Compl. ¶ 18). Plaintiff avers that he will be eligible to
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retire and “receive a pension” in December 2018, and suggests that this was a factor motivating
his supervisors’ and coworkers’ efforts to have him terminated for cause. (Compl. ¶¶ 19, 28).
However, Plaintiff’s references to a “pension” may be premised on his incorrect belief that he is
a City employee.
Plaintiff sued the City and the LAS Defendants for (1) violations of 42 U.S.C. § 1983 and
the Equal Protection Clause, U.S. Const. Amdt. XIV, (2) violations of the New York State
Human Rights Law (“NYSHRL”), N.Y. Exec. L. §§ 290, et seq., (3) violations of the New York
City Human Rights Law (“NYCHRL”), Administrative Code of the City of New York, Title 8,
and (4) common law defamation. Significantly, Plaintiff did not assert a claim under the Age
Discrimination and Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq. In response to the
LAS Defendants’ motion to dismiss, Plaintiff conceded that LAS is not a state actor and that he
has no claim under § 1983. (ECF No. 23, at 2).
Plaintiff now requests leave to amend the complaint for two purposes: (i) to replace the §
1983 claim with an ADEA claim (ECF No. 23, at 2-3), and (ii) to provide additional facts “[t]o
the extent the court feels the allegations need to be more detailed,” (ECF No. 23, at 7, 10, 12).
See Fed. R. Civ. P. 15(a)(2). The LAS Defendants oppose this request on the grounds that an
amendment to the complaint would be futile. (ECF No. 26, at 2-3).
DISCUSSION
As Plaintiff concedes, the § 1983 claim was improperly brought and should be dismissed
with prejudice. The Legal Aid Society is not an agency of the City of New York, but rather a
legal service provider with whom the City contracts to represent indigent criminal defendants.
(ECF No. 12-1, at 1). See also Caroselli v. Curci, 371 Fed. Appx. 199, 201 (2d Cir. 2010)
(summary order). The primary issue is whether Plaintiff should be granted leave to amend.
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Fed. R. Civ. P. 15(a)(2) provides that, after a responsive pleading is filed, “a party may
amend its pleading only with the opposing party’s written consent or the court’s leave.” The Rule
mandates that leave to amend be given “freely … when justice so requires.” Id.; see Forman v.
Davis, 371 U.S. 178, 182 (1962) (“If the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim
on the merits”). The Court may, however, deny leave to add a proposed claim where the
amendment would be futile; that is, where the “proposed claim could not withstand a motion to
dismiss.” Lucente v. International Business Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002).
Accordingly, to determine whether the proposed amendment would be futile, the Court must
“accept all allegations in the complaint as true and draw all inferences in the non-moving party’s
favor.” LaFaro v. New York Cardiothoracic Grp. PLLC, 570 F.3d 471, 475 (2d Cir. 2009)
(quoting Miller v. Wolpoff & Abramsom, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003), cert. denied,
540 U.S. 823). However, the complaint will not “suffice if it tenders ‘naked assertion[s] devoid
of ‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)) (alterations in original).
Here, Plaintiff alleges that the LAS Defendants created a hostile work environment based
on his age. “The analysis of the hostile working environment theory of discrimination is the same
under the ADEA as it is under Title VII.” Brennan v. Metropolitan Opera Ass’n, Inc., 192 F.3d
310, 318 (2d Cir. 1999). A hostile work environment is one that is “permeated with
discriminatory intimidation, ridicule and insult that is sufficiently pervasive to alter the
conditions of the victim’s employment.” Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d 229,
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240 (2d Cir. 2007) (citations, quotations and punctuation omitted). “Minor incidents do not merit
relief. … [P]laintiff must prove that the incidents were sufficiently continuous and concerted to
be considered pervasive.” Id. at 240-241 (citations and quotations omitted). The plaintiff must
also demonstrate that he was subjected to the hostility because of his membership in a protected
class. See id. at 241. Even if a plaintiff adequately pleads that he was subjected to a hostile
environment, failure to plead facts from which it can be inferred that this treatment was because
of his age requires dismissal of the claim. See Satina v. New York City Human Resources Admin.,
2014 WL 535697, at *5 (S.D.N.Y. Oct. 21, 2014); Mabry v. Neighborhood Defender Service,
769 F.Supp.2d 381, 396 (S.D.N.Y. 2011); Fordham v. Islip Union Free School Dist., 662
F.Supp.2d 261 (E.D.N.Y. 2009).
While Plaintiff’s hostile work environment claim is largely based on a series of
unpleasant interactions with his colleagues, some of the incidents described in the complaint
appear to be more malicious. Plaintiff states that colleagues falsified reports of bad behavior
against him and stole or tampered with his supplies—allegations which the Court must accept as
true at the pleading stage. However, the complaint does not provide even the slightest detail as to
how many times or how frequently these events occurred. Plaintiff’s allegation that the abuse
was systemic “is simply too vague, because the precise frequency of such comments is of great
importance in analyzing a hostile work environment claim.” Almontaser v. New York City Dept.
of Education, 2014 WL 3110019, at *8 (E.D.N.Y. Jul. 8, 2014) (internal citations omitted). As
Plaintiff was employed at LAS for over forty years, the pleadings make it impossible to tell
whether these incidents occurred fairly recently or whether some of them happened many years
ago. In any event, with the possible exception of the September 20, 2017 meeting, Plaintiff does
not provide any “factual enhancement” that would allow the court to determine the seriousness
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of these incidents, and the complaint is devoid of any facts from which it could be inferred that
Plaintiff was targeted because of his age rather than a “personal agenda” against him. DonerHendrick v. New York Institute of Technology, 2011 WL 2652460, at *7 (S.D.N.Y. Jul. 6, 2011).
None of the comments allegedly made to Plaintiff could be construed, even remotely, as
betraying an age-based animus toward him. His bare assertion that “younger employees are
treated differently” and “do not endure such harassment” does not overcome this deficiency.
Plaintiff’s claim that younger employees have been given preference over him for
overtime might establish a separate claim under the ADEA. See Rivers v. New York City Housing
Authority, 176 F.Supp.3d 229, 252 (E.D.N.Y. 2016) (“A deprivation of the opportunity to earn
overtime can be an adverse employment action”). However, as with the hostile work
environment claim, these conclusory statements, even if accepted as true, cannot support the
inference that Plaintiff’s age was the but-for cause of the adverse action. See Braun v.
Administrators for the Professions, Inc., 2018 WL 3597504, at *6 (E.D.N.Y. Jul. 26, 2018)
(dismissing plaintiff’s disparate treatment claim based on bare allegation that defendants “had a
pattern and practice of hiring younger individuals,” where the complaint did not “provide the
name or age of a single employee who Defendants hired or let go besides [the plaintiff]”).
In sum, an amendment that does no more than substitute an ADEA claim for the § 1983
claim without furnishing additional operative facts would still require dismissal and would
therefore be futile. Nevertheless, a court should not lightly deny leave to amend where the
plaintiff’s lawsuit has possible merit, even where, as here, the plaintiff is not pro se. Therefore,
Plaintiff is granted leave to amend in order to both assert an ADEA claim against the LAS
Defendants and cure the factual deficiencies noted above.
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Because the Court is dismissing the sole federal cause of action, it declines to exercise
supplemental jurisdiction over the NYSHRL, NYCHRL and defamation claims. See 28 U.S.C. §
1367(c); see also Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7 (1988) (“[I]n the
usual case in which all federal-law claims are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness,
and comity—will point toward declining to exercise jurisdiction over the remaining state-law
claims”). However, these claims are dismissed without prejudice as to the LAS Defendants so
that they may be reasserted in the amended complaint as pendent to the ADEA claim. The state
law claims against the City are dismissed with prejudice.
CONCLUSION
For the foregoing reasons, it is ordered that:
1.
Plaintiff’s claims pursuant to 42 U.S.C. § 1983 are dismissed with prejudice;
2.
Plaintiff’s remaining claims against the City are dismissed with prejudice;
3.
Plaintiff is granted leave to amend his complaint on or before Monday,
December 31, 2018, insofar as the amended complaint will assert ADEA and pendent state law
claims solely against the LAS Defendants;
4.
Plaintiffs’ NYSHRL, NYCHRL and defamation claims against the LAS
Defendants are dismissed without prejudice, but if Plaintiff fails to amend his complaint on or
before Monday, December 31, 2018, the dismissal of these claims shall automatically become
with prejudice.
SO ORDERED.
Dated:
Brooklyn, New York
November 27, 2018
/s
I. Leo Glasser
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U.S.D.J.
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