Young v. Lord & Taylor, LLC et al

Filing 22

MEMORANDUM AND ORDER granting 18 Motion to Dismiss for Failure to State a Claim. For the reasons stated herein, Defendants' motion to dismiss Plaintiffs complaint is granted in its entirety. The Clerk of the Court is directed to close the case. (Ordered by Judge Leonard D. Wexler on 3/21/2013.) c/Judgment Clerk (Fagan, Linda)

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FILED

IN CLERK'S OFFICE
U.S. DISTRICT COURT E.O.N.Y.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

MAR 212013

LONG ISLAND OFFICE

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LISA YOUNG,

Plaintiff,
-against-

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MEMORANDUM AND ORDER

cv 12-2108
(Wexler, J.)

LORD & TAYLOR, LLC, NRDC EQUITY
PARTNERS, NICOLE CINTORINO, DEBBIE
SAVAGE, JEFF MILLER, RONNIE SCHALL,
JANINE GRUEN, LEAH FERRARA, KRISTA
DOWNER, and KYRA GRILL,
Defendants.

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APPEARANCES:

Kristina S. Heuser, P.C.
By: Kristina S. Heuser, Esq.
Post office Box 672
Locust Valley, NY 11560
Attorneys for Plaintiff
Jackson Lewis LLP
By:
Roger H. Briton, Esq.
Adam G. Guttell, Esq.
58 South Service Road, Suite 410
Melville, NY 11747
Attorney for Defendants Lord & Taylor
LLC, Hudson's Bay Company
(incorrectly sued as NRDC Equity
Partners), Nicole Cintorian, Krita Downer,
J anine Gruen, and Kyra Grill
WE)(LER, District Judge:
Plaintiff Lisa Young ("Young" or "Plaintiff') brings this action claiming violations of the
Americans with Disabilities Act ("ADA"), the Age Discrimination in Employment Act
("ADEA''), Title VII of the Civil Rights Act of 1964 ("Title VII"), and 42 U.S.C §§ 1981, 1985

and 1986. Defendants Lord & Taylor LLC, ("Lord & Taylor"), NRDC Equity Partners\ Nicole
Cintorino, Krista Downer, Janine Gruen, and Kyra Grill (collectively, the "Defendants")2 move
to dismiss Plaintiff's complaint pursuant to Federal Rules of Civil Procedure ("Fed.R.Civ.P."),
Rule 12(b)(l) for lack of subject matter jurisdiction and under Rule 12(b)(6) for failure to state a
claim. For the reasons that follow, Defendants' motion is granted in its entirety.
BACKGROUND
According to Plaintiffs complaint, she is a 77 year old black-Hispanic woman originating
from Puerto Rico who suffers from carpel tunnel syndrome, inflammatory arthropathy and
tenosynoritis, and who worked at Lord & Taylor for 15 years. Complaint ("Cmplt."), ~ 5. When
Young first developed her symptoms nine years ago, she was moved to the watch department and
worked there until January 2009, when she was assigned to the dress department. Cmplt., ~ 1920. Ms. Young claims that because of her disability, she had difficulty carrying the dresses,
cleaning the dressing room, and performing other tasks as required. Cmplt., ~ 23-34. When she
explained to her manager Nicole Cintorino that she had difficulty carrying the dresses, etc., she
was told, according to her -- facetiously -- to carry one dress at a time. Another time it was
recommended she use a pole, and on yet another occasion, she was asked instead to put sensors
on clothing, all of which she says were very difficult for her and worsened her symptoms.
Cmplt., ~ 23-34.

1

The defense counsel claims this party should correctly be named Hudson's Bay
Company.
2

According to the court docket, other defendants, Debbie Savage, Jeff Miller, Robbie
Schall and Leah Ferrara, have not been served with the complaint and have not appeared in this
action.
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Thereafter, Plaintiff was told various complaints were lodged against her, including from
customers (which Plaintiff found hard to believe), and she was warned that if another complaint
was received, she would be fired. Cmplt., ~ 40-46. A subsequent complaint did come in from
another manager, and Plaintiff was terminated on March 5, 2009. Cmplt., ~ 47-55.
On March 16,2009, Plaintiff filed a complaint with the New York State Division of
Human Rights ("NYSDHR") alleging unlawful discrimination because of her disability (the
"NYSDHR Complaint"). On September 30, 2010, NYSDHS issued a Determination and Order
After Investigation (the "Order") finding that there was no probable cause that Plaintiff suffered
discrimination due to disability in violation ofNew York Jaw. 3 The Order further noted that any
potential claim under the ADA had to be pursued within 15 days with the U.S. Equal
Employment Opportunity Commission ("EEOC"). Plaintiff sought such a review. On October
20,2010, the EEOC issued a Right to Sue Jetter ("EEOC Jetter"), adopting the findings of the
NYSDHR, and informing Plaintiff that any federal lawsuit had to be filed within ninety (90) days
of receipt of the notice. See EEOC Jetter, attached to complaint. Plaintiff filed this lawsuit on
April30, 2012.
DISCUSSION

I.

Legal Principles
A.

Standards on Motion to Dismiss

Defendants move under Rule 12(b)(I) for Jack of subject matter jurisdiction, and Rule

3

In support of their motion to dismiss, Defendants submitted Plaintiff's NYSDHR
Complaint and the Order. See Affirmation of Roger H. Briton, ("Briton Aff. "), Exs. B and C.
Since they are referenced in the complaint, it is appropriate to review them under a Rule 12(b)(6)
motion. See Hayden v. County. ofNassau, 180 F.3d 42,54 (2d Cir.1999).
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12(b)(1) for failure to state a claim. When evaluating a motion to dismiss under Rule 12(b)(l)
for Jack of subject matter jurisdiction, while the Court must accept as true all allegations in the
complaint, it may refer to evidence outside the pleadings to resolve disputed issues of
jurisdiction. Antares Aircraft. L.P. v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir.
1991) (citations omitted); Woodcock v. Montefiore Med. Ctr., 48 F.Supp.2d 231 (E.D.N.Y.
1999).
In considering a motion to dismiss made pursuant to Rule 12(b)(6), the court must accept
the factual allegations in the complaints as true, and draw all reasonable inferences in favor of
plaintiffs. Bold Electric. Inc. v. City ofNew York, 53 F.3d 465,469 (2d Cir. 1995). In Bell
Atlantic Com. v. Twombly, 550 U.S. 544 (2007), the Supreme Court articulated the requirement
that plaintiff plead enough facts "to state a claim for relief that is plausible on its face."
Twombly, 550 U.S. at 570; see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009).
Although heightened factual pleading is not the new standard, Twombley holds that a "formulaic
recitation of cause of action's elements will not do. Factual allegations must be enough to raise a
right to relief above the speculative level." Id. at 1959. Further, a pleading that does nothing
more than recite bare legal conclusions is insufficient to "unlock the doors of discovery." Iqbal,
129 S. Ct. at 1950.
II.

Disposition of the Present Motion
A.

Plaintiff's ADA Claim

Plaintiff's Right to Sue letter from the EEOC, dated September 30,2010, advised
Plaintiff that she had ninety (90) days to file a lawsuit if she chose to do so. See 42 U.S.C. §§
12117(a) (adopting Title VII limitations period for the ADA, 42 U.S.C. § 2000e-5(f) (requiring
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that action must be brought within ninety days of notification of right to sue). This action was
filed on April 12, 2012, well after that ninety (90) day time period.
As this Court has previously noted, "[t]he ninety day time period is not a jurisdictional
requirement for commencement of an action in the district court. Instead, the time limit is in the
nature of a statute of limitations which may be tolled in certain situations." Richards v. North
Shore Long Island, 2011 WL 6102055, *3 (E.D.N.Y. 2011), citing Zipes v. Trans World
Airlines. Inc., 455 U.S. 385, 398, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Johnson v. AI Tech
Specialties Steel Corn., 731 F.2d 143, 146 (2d Cir.l989).
Plaintiff acknowledges that her complaint was filed late, but argues it should be excused
because an employee in Plaintiffs counsel's office, "Anne," claimed to have filed the complaint,
even when repeatedly asked, but in fact had not. When Plaintiff's counsel checked the court
docket several months later and discovered the complaint had not been filed, she filed it the next
day. Plaintiff argues that these "extraordinary circumstances" permit the court to apply the
doctrine of equitable tolling, arguing that the delayed filing was not the fault of Plaintiff herself,
and Defendants have not suffered in any way by the late filing.
The Second Circuit has stated that "equitable tolling is only appropriate 'in [ ) rare and
exceptional circumstance[s),' in which a party is 'prevented in some extraordinary way from
exercising his rights."' Zerilli-Edelglass v. New York City Transit Authority, 333 F.3d 74, 80-81
(2d Cir. 2003), quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) and Johnson v. Nyack
Hosp., 86 F.3d 8, 12 (2d Cir.l996).
Equitable tolling is generally considered appropriate "where the plaintiff actively pursued
judicial remedies but filed a defective pleading during the specified time period, where plaintiff
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was unaware of his or her cause of action due to the misleading conduct of the defendant, or
where a plaintiffs medical condition or mental impairment prevented her from proceeding in a
timely fashion. Zerilli-Edelglass, 333 F.3d at 80 (citations omitted). "When determining
whether equitable tolling is applicable, a district court must consider whether the person seeking
application of the equitable tolling doctrine (I) has 'acted with reasonable diligence during the
time period she seeks to have tolled,' and (2) has proved that the circumstances are so
extraordinary that the doctrine should apply. Id., at 80-81, quoting Chapman v. ChoiceCare Long
Island Term Disability Plan, 288 F.3d 506, 512 (2d Cir. 2002).
The circumstances of this case are not sufficiently "extraordinary" to warrant equitable
tolling. As correctly stated in the affirmation of Plaintiffs counsel, the complaint had to be filed
on or about January 20, 2011. See Affirmation of Kristina S. Heuser, '1[7. Plaintiffs counsel
states that she was repeatedly assured by her employee "Anne" that it had been filed. Finally, in
late April2012, approximately 15 months after the complaint was due to be filed and finally
curious she had not heard anything, Plaintiffs counsel checked the court docket and discovered
the filing had never taken place. Anne was not available for an explanation, and Plaintiffs
counsel does not detail when Anne stopped working for her. Plaintiff and her counsel's theory
that Anne "purposefully sabotaged" Plaintiffs case is unpersuasive, and does not excuse Plaintiff
or her counsel from being more diligent in ensuring the complaint was filed after so much time
had passed. The court finds that the equitable tolling doctrine does not apply. See Irwin v.

Department of Veterans Affairs, 498 U.S. 89, 96, Ill S.Ct. 453, 112 L.Ed.2d 435 (1990)
(equitable tolling was not proper where plaintiffs attorney was out of the country when EEOC
notice arrived and does not "extend to at best a garden variety claim is excusable neglect"); South
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v. Saab Cars USA. Inc., 28 F.3d 9, 12 (2d Cir. 1994) (lack of due diligence on the part of
plaintiff's attorney is insufficient to justify application of an equitable toll); Johnson v. St.
Barnabas Nursing Home, 588 F.Supp.2d 465, 469 (S.D.N.Y. 2008), aff'd on other grounds, 368
Fed.Appx. 246 (2d Cir. 2010) (90-day filing period not tolled because attorney allegedly
misplaced right to sue letter). The case law cited by Plaintiff is not persuasive.< Therefore,
Defendants' motion to dismiss Plaintiff's ADA claim is hereby dismissed.
B.

Plaintiff's ADEA and TITLE VII claims

Defendants argue that Plaintiff's claims under the ADEA and Title VII must be dismissed
for being untimely for the reasons discussed above. Defendants also argue that because they are
not reasonably related to Plaintiff's disability claim and since Plaintiff did not file an
administrative charge on these claims, her administrative remedies have not been exhausted and
the claims must be dismissed.
Plaintiff argues that when completing her NYSDHR complaint, she was guided by those
employees as to what to claim, and that in any event, the age and racial and national origin
discriminations she claims occurred in violation of the ADEA and Title VII are reasonably
related to her ADA disability claim.
It is well-settled in the Second Circuit that a plaintiff may bring an employment
4

Plaintiff cites Baldayaque v. U.S., 338 F.3d 145 (2d Cir. 2003). In that case, the
petitioner did not file a habeas petition following his criminal conviction because his attorney
advised him incorrectly on a number of things, including that it was too late to file a habeas
petition. The Second Circuit did not toll the time; instead, it found the circumstances might be
extraordinary enough to warrant equitable tolling, and remanded for a determination on whether
the petitioner was reasonably diligent in protecting his rights and whether the attorney's acts
prevented petitioner from filing a timely petition, thus entitling a pro se late filing of the habeas
petition. That is not this case.
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discrimination action under Title VII or the ADEA only after filing a timely charge with the
EEOC or with "a State or local agency with authority to grant or seek relief from such practice."
42 U.S.C. § 2000e-5(e) (Title VII); see 29 U.S.C. §§ 626(d), 633(b) (ADEA). Holtz v.
Rockefeller & Co .. Inc., 258 F.3d 62, 82-83 (2d Cir. 2001). Exhaustion of remedies is a
precondition to suit, rather than a jurisdictional requirement. Francis v. City ofNew York, 235
F.3d 763, 768 (2d Cir.2000). A plaintiff typically may raise in a district court complaint 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 at 83, citing Butts v. City of
New York Dep't ofHous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by
statute on other grounds as noted in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d.
Cir.1998) (Title VII) and Malarkey v. Texaco. Inc., 983 F.2d 1204, 1208 (2d Cir.1993) (ADEA).
There are three situations where claims not alleged in the EEOC are "reasonably related"
to that charge: (1) where the conduct complained of would fall within the "scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of discrimination"; (2)
a claim "alleging retaliation by an employer against an employee for filing an EEOC charge";
and (3) where the "plaintiff alleges further incidents of discrimination carried out in precisely the
same manner alleged in the EEOC charge." Butts, 990 F .2d at 1402-1403.
The first type is the only reasoning applicable here. The Second Circuit has recognized
that "(a] claim is considered reasonably related if the conduct complained of would fall within
the scope of the EEOC investigation which can reasonably be expected to grow out of the charge
that was made." Williams v. New York City Housing Authority. 458 F.3d 67, 70 (2d Cir. 2006),
quoting Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d Cir.2001) (internal quotations
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..
omitted). "In determining whether claims are reasonably related, the focus should be 'on the
factual allegations made in the [EEOC] charge itself, describing the discriminatory conduct about
which a plaintiff is grieving."' Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir.2003) (quoting
Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 637 (9th Cir.2002)). The central question
is whether the complaint filed with the EEOC gave that agency "adequate notice to investigate
discrimination on both bases." Williams, 458 F.3d at 70 (citations omitted).
Plaintiff's NYSDHR Complaint clearly alleges only disability discrimination. See Briton
Aff., Ex B. She cites only "disability" as the "Basis" for her complaint despite ample opportunity
to check other bases. In the "Description of Discrimination," she explains only her disability, her
difficulty in peforming her job, and the worsening of her symptoms as a result. J.d. There is
nothing in her NYSDHR Complaint that alleges age, race, ethnicity or national origin
discrimination, and therefore no reason that those claims of discrimination would be investigated.
As a result, those claims under the ADEA and Title VII are not reasonably related to Plaintiff's
EEOC charge of disability, and are barred for failure to exhaust administrative remedies. See
Hanrahan v. Riverhead Nursing Home. Inc., 593 F.Supp.2d 487, 491 (E.D.N. Y. 2009), rev'd on
other grounds, 592 F.3d 367 (2d Cir. 2010) (claims of gender and age discrimination are not
related to claims of disability discrimination).

c:

42 u.s.c. §1981

Plaintiffs fifth cause of action alleges that Defendants violated 42 U.S.C. § 1981 by
terminating Plaintiffs employment based on her race, ethnicity, and/or national origin.
Defendants argue that Plaintiff's complaint fails to sufficiently state this cause of action.
To establish a claim under§ 1981, a plaintiff must allege facts in support of the following
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elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the
basis of race by the defendant; and (3) the discrimination concerned one or more of the activities
enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.).
Mian v. Donaldson. Lufkin & Jenrette Securities Com., 7 F.3d 1085, 1087 (2d Cir. 1993)
(citations omitted).
As noted above, in Bell Atlantic Com. v. Twombly, 550 U.S. 544 (2007) the Supreme
Court stated that a plaintiff must plead enough facts "to state a claim for relief that is plausible on
its face." Twombly, 550 U.S. at 570; see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50
(2009). Thus, "formulaic recitation of cause of action's elements will not do. Factual allegations
must be enough to raise a right to relief above the speculative level." Id. at 1959. Further, a
pleading that does nothing more than recite bare legal conclusions is insufficient to "unlock the
doors of discovery." Iqbal, 129 S. Ct. at 1950.
Plaintiffs complaint states that she is a 77 year old black-Hispanic woman originating
from Puerto Rico, and then outlines in detail the nature of her disability, how her job
responsibilities affected her symptoms, what happened when she raised it with her manager and
how she was treated. Cmplt., ~ 16-59. There are no additional factual allegations about age, race
or national origin; just merely the conclusory allegation that she was terminated on the basis of
her age, race and/or national origin in asserting this claim under 42 U.S. C. § 1981. Cmplt.,

~

72.

In opposition to Defendants' motion, Plaintiff submitted an affidavit stating that the atmosphere
changed when a new parent company took over, and that "I cannot say for certain whether I was
targeted because I was older ... , because my skin was darker, because of my accent, because I am
from Puerto Rico, or some combination of all these characteristics. I think I should be allowed
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the opportunity... to get to the bottom of this once and for all." Affidavit of Lisa Young, ~ 7.
Plaintiff further attests that she thinks she was discriminated because she did "not fit in with
them" and that they wanted to make room for "someone more like them." Id.
These conclusory allegations that do not contain facts do not substantiate a claim under
42 U.S.C. § 1981. See Zavalidroga v. Cote, 740 (2d Cir. 2010), cert. denied, 131 S.Ct. 2448
(2011), citing Mian v. Donaldson. Lufkin & Jenrette Sec. Com .• 7 F.3d 1085, 1087-88 (2d
Cir.1993) (plaintiffs wholly conclusory claims without sufficient facts fails to state a claim
under§ 1981); Masjid Al-Tawheed. Inc. v. Town of Putney, 336 Fed.Appx. 60,61-62 (2d Cir.
2009). As a result, this claim is dismissed. 5
D.

42 U.S.C. §§1985 & 1986 claims

To substantiate her claim under 42 U.S.C. § 1985, Plaintiffs complaint alleges that
"Defendants conspired together. .. to discriminate against plaintiff and unlawfully deprive her of
her civil and constitutional rights." Cmplt., ~ 74. Further, the complaint alleges a violation of 42
U.S.C. § 1986, stating that "[n]one of the [D]efendants, in spite of knowing about plaintiffs civil
rights being violated .. .intervened on plaintiff's behalf to prevent plaintiff from being maltreated
in violation of the laws of the United States." Cmplt., ~ 76.
The applicable statute of limitations period governing § 1985 actions is three years from
5

In her memorandum in opposition to Defendants' motion, but without making a motion,
Plaintiff requests leave to amend her claim on this claim pursuant to Fed. Rules. Civ. Pro., Rule
15(a)(2). Nor has Plaintiff submitted a proposed amended pleading. In light of Plaintiff's
inability in her affidavit to attest to any facts to support this claim in opposition to this motion,
the Court finds that Plaintiffs request for leave to amend the complaint is futile, and is therefore
denied. See Milanese v. Rust-Oleum Com., 244 F.3d 104, 110 (2d Cir. 2001) (a cross-motion
for leave to file an amended complaint made in response to a motion to dismiss is denied as futile
if the proposed new claim cannot withstand a 12(b)(6) motion to dismiss) (citations omitted); see
also Goldberg v. Cablevision Systems Corn., 193 F.Supp.2d 588, 598 (E.D.N.Y. 2002).
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the time the claim accrued. Pressley v. City ofNew York, 2013 WL 145747, *8 (E.D.N.Y.
2013), quoting Paige v. Police Dept. of Schenectady. 264 F.3d 197, 199 n. 2 (2d Cir.2001)
("(t]he statute of limitations for actions brought pursuant to§§ 1983 and 1985 is three years.").
A claim under 42 U.S.C. § 1986 must be commenced within one year. 42 U.S.C. § 1986;
Vazquez v. Littles, 2006 WL 3359072, *2 (E.D.N.Y. 2006). Under federal law, the claim
accrues when the plaintiff knows or has reason to know of the harm or injury that is the basis of
his action. Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994), abrogated in part on other
grounds, Nat'! R.R. Passenger Com. v. Morgan, 536 U.S. 101, I 14 (2002).
Plaintiff's claim accrued on the day she was terminated, which was on March 5, 2009.
This complaint was filed on April30, 2012, more than three years later. For the reasons
discussed above, the doctrine of equitable tolling does not apply, and therefore Plaintiff's claims
under 42 U.S.C. § 1985 and 1986 are hereby dismissed as untimely. 6
CONCLUSION
For the reasons stated herein, Defendants' motion to dismiss Plaintiffs complaint is
granted in its entirety. The Clerk of the Court is directed to close the case.
SO ORDERED.

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,L.-f-/~
(_____./"' LEONARb D. WEXLER
UNITED STATES DISTRICT JUDGE
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Dated: Central Islip, New York
March2/2013
6

In her opposition papers, Plaintiff did not respond to Defendants' argument that these
claims are untimely.
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