Kelly v. North Shore-Long Island Health System

Filing 15

MEMORANDUM & ORDER granting 7 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, LIJ's motion to dismiss is GRANTED with leave to replead consistent with this Memorandum and Order. If Plaintiff wishes to replead, she must do so within thirty (30) days of the date of this Memorandum and Order. If she fails to do so, the entire action will be dismissed with prejudice. So Ordered by Judge Joanna Seybert on 6/22/2014. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
ANN MARIE KELLY,
Plaintiff,
MEMORANDUM & ORDER
13-CV-1284(JS)(WDW)

-againstNORTH SHORE-LONG ISLAND HEALTH SYSTEM,

Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Louis D. Stober, Jr., Esq.
Albina Kataeva, Esq.
Law Offices of Louis D.
Stober, Jr., LLC
350 Old Country Road, Suite 205
Garden City, NY 11530
For Defendant:

Christopher G. Gegwich, Esq.
Alexander Elliot Gallin, Esq.
Nixon Peabody LLP
50 Jericho Quadrangle
Suite 300
Jericho, NY 11753

SEYBERT, District Judge:
Plaintiff Ann Marie Kelly (“Plaintiff”) brings this
employment discrimination action against defendant North ShoreLong Island Jewish Health System (“Defendant” or “LIJ”) alleging
claims

of

discrimination,

hostile

work

environment,

and

retaliation based on disability, in violation of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the
New York State Human Rights Law (“NYSHRL”), N.Y. EXEC. LAW § 290 et
seq.

The Complaint also asserts state law claims for intentional

and negligent infliction of emotional distress.1

LIJ moves to

dismiss the ADA and state law claims for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6).

LIJ also

seeks dismissal of the NYSHRL claim for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).
For the following reasons, LIJ’s motion is GRANTED.
BACKGROUND
I.

Factual Background2
Plaintiff is a registered nurse who worked for LIJ as a

part-time “field nurse” from February 2008 until her resignation
on August 17, 2011.

(Compl. ¶¶ 15-16, 66.)

She also worked for

Nassau Health Care Corporation (“NHCC”) until her retirement from
NHCC in April 2011.

(Compl. ¶¶ 18, 26.)

On March 26, 2011, Plaintiff fell and injured her back
while on vacation in Mexico.

(Compl. ¶ 20.)

According to the

Complaint, the back injury caused Plaintiff so much pain that she
purchased morphine, which is legal to purchase and use in Mexico
without a prescription.

(Compl. ¶ 21.)

On April 4, 2011, NHCC

1

Plaintiff has voluntarily withdrawn her claims under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the
Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.;
and 42 U.S.C. §§ 1983, 1985, 1986, and 1988. (Pl.’s Opp. Br.,
Docket Entry 12, at 14 n.2.)
2

The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
2

subjected Plaintiff to a random drug test that returned a positive
result for morphine sulfate.

(Compl. ¶¶ 22, 24.)

NHCC then

reported Plaintiff to the Office of Professional Discipline (the
“OPD”).

(Compl. ¶ 25.)
Plaintiff alleges that “[a]fter receiving the positive

test

result,

[she]

wanted

to

take

all

possible

successfully continue her career as a nurse.”

steps

to

(Compl. ¶ 28.)

Thus, “[t]o address issues related to the test results and address
any potential or perceived substance abuse issues that she may
have unknowingly suffered from, [Plaintiff] entered an Employee
Assistance Program at NHCC and the Kenneth Peters Rehabilitation
Center in Syosset.”

(Compl. ¶ 29.)

Plaintiff also joined a

support group sponsored by Statewide Peer Assistance for Nurses
and “voluntarily attended Alcoholics Anonymous meetings three
times a week.” (Compl. ¶ 30.) Additionally, Plaintiff voluntarily
applied for a spot in the Professional Assistance Program (“PAP”),
a program run by the State of New York that “assists professionals
who have substance abuse problems but who have not harmed patients
or clients.”

(Compl. ¶¶ 31-32.)

In April 2011, Plaintiff informed her supervisor at LIJ,
Diane

Asquino

(“Asquino”),

that

she

had

tested

positive

for

morphine sulfate at NHCC and that “she was receiving treatment for
substance abuse issues . . . .”

(Compl. ¶¶ 27, 37.)

Plaintiff

alleges that Asquino reported this to LIJ’s Director of Nursing,
3

Barbara Maidhoff, who then relayed the information to Maria Covello
(“Covello”), an employee in LIJ’s human resources.

(Compl. ¶¶ 38-

39.)
On June 29, 2011, Covello “invited Plaintiff to a meeting
on July 1, 2011 to learn the details of the PAP program . . . .”
(Compl. ¶ 41.) Plaintiff then met with Covello and LIJ’s Associate
Executive

Director

(“Sabatino”).

of

(Compl.

Human
¶

Resources,

Robert

44.)

Plaintiff

alleges

Sabatino
that

she

“explained that she ha[d] remained sober for three months and
explained her participation in the numerous programs to help with
her recover [sic], including PAP.”

(Compl. ¶ 45.)

Covello later

called Plaintiff and informed her that she was being placed on
administrative leave and that “she could no longer see her patients
because they were reassigned.”

(Compl. ¶ 48.)

In early July 2011, OPD completed its investigation of
NHCC’s report of Plaintiff’s failed drug test and “determined that
there were no patient care concerns.”

(Compl. ¶ 49.)

Thereafter,

on July 12, 2011, Plaintiff went to LIJ to speak with Sabatino.
(Compl.

¶¶

50-51.)

She

asked

him

“what

the

length

of

her

administrative leave would be and why she was so abruptly removed
from her position.”

(Compl. ¶ 52.)

According to Plaintiff,

Sabatino stated,
in sum and substance, that he was not aware of
[Plaintiff’s] “problem” prior to their July 1,
2011 meeting but [since he became aware of
4

it], he [had to] protect the public, even
though OPD already concluded that there were
no patient care concerns and [Plaintiff] was
not a threat to the public or her patients.
(Compl. ¶ 53.)
[Plaintiff]

That same day, Sabatino “confirmed via letter that

was

assigned

to

undetermined period of time.”

administrative
(Compl. ¶ 54.)

leave

for

an

He also “stated

that if [Plaintiff] continued to make inappropriate phone calls to
Home Care Case Managers in reference to her job status, other
stricter measures would have to be put in place.”

(Compl. ¶ 54.)

On July 23, 2011, Plaintiff learned that she was accepted
into the PAP program and LIJ was notified.

(Compl. ¶¶ 57-58.)

On

August 11, 2011, Covello asked Plaintiff to meet with her and
Sabatino “to sign a Last Chance Agreement.”

(Compl. ¶ 60.)

According to the Complaint, the Last Chance Agreement “would
terminate [Plaintiff’s] employment if she did not sign it within
eight days” and required her to enroll in PAP.

(Compl. ¶¶ 61-62.)

Plaintiff also alleges that the Last Chance Agreement contained a
“full waiver and release of any and all claims that she may have
against LIJ for her July 2011 suspension . . . .”
Plaintiff

alleges

that,

because

of

the

waiver

(Compl. ¶ 63.)
and

release,

Plaintiff “felt compelled to choose between her job or upholding
her rights” and she therefore refused to sign the Last Chance
Agreement and instead involuntarily resigned.

5

(Compl. ¶¶ 65-66.)

II.

Procedural Background
On August 8, 2011, Plaintiff, proceeding pro se, dual-

filed an administrative complaint with the New York State Division
of Human Rights (“NYSDHR”) and the Equal Employment Opportunity
Commission (“EEOC”) alleging discrimination by North Shore-LIJ
Home Care Network (“LIJ Home Care”)3 based on age, gender, and
disability.

(Compl. ¶ 59; Gegwich Decl. Ex. B.)

On November 8,

2011, Plaintiff, this time represented by counsel, dual-filed a
second administrative complaint against LIJ Home Care with the
NYSDHR and the EEOC.

(Compl. ¶ 8; Gegwich Decl. Ex. E.)

Like the

initial complaint, the second complaint alleged that LIJ Home Care
discriminated against Plaintiff on the basis of age, gender, and
disability.

(Gegwich Decl. Ex. E.)

However, the second complaint

included a new allegation that LIJ Home Care retaliated against
Plaintiff for her having filed the first administrative complaint.
(Gegwich Decl. Ex. E.)
On February 3, 2012, the NYSDHR dismissed Plaintiff’s
initial complaint for lack of probable cause, (Gegwich Decl. Ex.
C), and the EEOC subsequently adopted the NYSDHR’s findings and
issued a right-to-sue letter dated March 23, 2012, (Gegwich Decl.
Ex. D).

On September 12, 2012, the NYSDHR dismissed Plaintiff’s

3

According to LIJ, LIJ Home Care is “a component of LIJ.”
(Gegwich Decl. ¶ 4.)
6

second complaint for lack of probable cause, (Gegwich Decl. Ex.
F), and the EEOC subsequently adopted the NYSDHR’s findings and
issued a right-to-sue letter dated December 12, 2012, (Gegwich
Decl. Ex. G).
Plaintiff then commenced this action on March 12, 2013.
Plaintiff

brings

claims

for

discrimination

and

hostile

work

environment based on disability or “perceived substance abuse
problems,” in violation of the ADA and the NYSHRL.

Plaintiff also

alleges that LIJ retaliated against her for filing the first
administrative complaint with the NYSDHR by forcing her “to either
be terminated or sign a last chance agreement waiving all her
rights to obtain redress for her wrongful and unlawful July 1,
2011 suspension.”

(Compl. ¶ 94.)

The Complaint also alleges

claims under New York law for intentional and negligent infliction
of emotional distress.

LIJ’s motion to dismiss these claims is

currently pending before the Court.
DISCUSSION
The

Court

will

first

address

the

applicable

legal

standards before turning to the merits of Defendant’s motion.
I.

Legal Standards
A.

Rule 12(b)(1)
“A case is properly dismissed for lack of subject matter

jurisdiction under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.”
7

Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000).

In resolving a

motion to dismiss for lack of subject matter jurisdiction, the
Court may consider affidavits and other materials beyond the
pleadings to resolve jurisdictional questions.

See Morrison v.

Nat’l Australia Bank, Ltd., 547 F.3d 167, 170 (2d Cir. 2008).
B.

Rule 12(b)(6)
In deciding a Rule 12(b)(6) motion to dismiss, the Court

applies a “plausibility standard,” which is guided by “[t]wo
working principles.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007);
accord Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir. 2009).

First,

although the Court must accept all allegations as true, this
“tenet”

is

“inapplicable

to

legal

conclusions;”

thus,

“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
556 U.S. at 678; accord Harris, 572 F.3d at 72.

Iqbal,

Second, only

complaints that state a “plausible claim for relief” can survive
a Rule 12(b)(6) motion to dismiss.

Iqbal, 556 U.S. at 679.

Determining whether a complaint does so is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.”

Id.; accord Harris, 572 F.3d at 72.

The Court is confined to “the allegations contained
within the four corners of [the] complaint.”
8

Pani v. Empire Blue

Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998).

However, this

has been interpreted broadly to include any document attached to
the complaint, any statements or documents incorporated in the
complaint by reference, any document on which the complaint heavily
relies, and anything of which judicial notice may be taken.

See

Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002)
(citations omitted); Kramer v. Time Warner Inc., 937 F.2d 767, 773
(2d Cir. 1991).
II.

Timeliness of ADA Claims
LIJ first contends that Plaintiff’s ADA claims should be

dismissed

because

limitations.

they

are

time-barred

by

the

statute

of

(LIJ’s Br. to Dismiss, Docket Entry 9, at 3-4.)

However, as discussed below, based on the record before it, the
Court cannot determine as a matter of law that Plaintiff’s ADA
claims are time-barred.
To be timely, an ADA claim must be filed in federal
district court within ninety days of the plaintiff’s receipt of a
right-to-sue letter from the EEOC.

See 42 U.S.C. § 2000e–5(f)(1)

(specifying that a Title VII action must be brought within ninety
days of the claimant’s notification of her right to sue); id. §
12117(a) (applying the Title VII limitations period to claims
brought

under

the

ADA);

see

also

Tiberio

v.

Allergy

Asthma

Immunology of Rochester, 664 F.3d 35, 37 (2d Cir. 2011).

In the

Complaint, Plaintiff alleges that this action is timely because
9

she received a right-to-sue letter from the EEOC on December 12,
2012 and then filed this action within ninety days of receipt of
such letter.

(Compl. ¶¶ 13-14.)

However, as LIJ correctly notes,

the letter Plaintiff received on December 12, 2012 relates to the
second charge that Plaintiff filed with the EEOC.
Ex. G.)

(Gegwich Decl.

As noted, Plaintiff, proceeding pro se, filed an initial

charge with the EEOC on August 8, 2011 alleging discrimination due
to disability.

She subsequently retained counsel, who then filed

the second charge on November 8, 2011, which was based on the same
facts asserted in the initial charge, but added a claim that LIJ
retaliated

against

Plaintiff

for

filing

the

initial

charge.

(Compl. ¶ 59; Gegwich Decl. Ex. E.)
LIJ

argues

that

Plaintiff’s

ADA

claim

is

untimely

because Plaintiff did not file this action within ninety days of
the right-to-sue letter for the initial charge.

In support, LIJ

submits a right-to-sue letter from the EEOC for the initial charge
that is dated March 23, 2012.

(Gegwich Decl. Ex. D.)

In response,

Plaintiff submits an affidavit and other documentary evidence
suggesting that she did not receive this right-to-sue letter until
January 7, 2013.

(See Kelly Aff. ¶ 43; Kataeva Decl. Ex. A.)

She

therefore argues that she had until April 7, 2013 to commence this
action and met this deadline by filing the Complaint on March 12,
2013.

(Pl.’s Opp. Br. at 3.)

10

There are a couple of preliminary points.
parties

have

submitted

documents

and

a

sworn

referenced in or attached to the Complaint.4

First, the

affidavit

not

Because the Court

will consider these documents in reaching its decision with respect
to the timeliness of Plaintiff’s Complaint, LIJ’s motion to dismiss
in this regard must be converted to one for summary judgment.

See

FED. R. CIV. P. 12(d) (“If, on a motion under Rule 12(b)(6) or
12(c), matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.”); see also Wall v. Tow Sports
Int’l, No. 05-CV-3045, 2006 WL 226008, at *1 (S.D.N.Y. Jan. 31,
2006).5

4

Specifically, the March 23, 2012 right-to-sue letter and
Plaintiff’s affidavit and other documentary evidence are not
attached to or referenced in the Complaint.
5

In Wall, the court converted a motion to dismiss a Title VII
claim (which has the same statute of limitations as an ADA
claim) for failure to commence within the statutory time period
because the plaintiff submitted an affidavit and documentary
evidence regarding the date he claimed to have received a rightto-sue letter from the EEOC. 2006 WL 226008, at *1. The court
noted that a “district court must ordinarily give notice to the
parties before converting a motion to dismiss to a motion for
summary judgment,” and that the defendant had notice because it
should have recognized the possibility for conversion when it
received the plaintiff’s extraneous materials. 2006 WL 226008,
at *1 n.1. Here, both parties have submitted documents outside
of the Complaint and therefore invited the Court to convert this
motion to one for summary judgment. Additionally, LIJ is not
prejudiced by this conversion because it is not precluded from
moving for summary judgment on the issue of timeliness at a
later date.
11

Second, it is well-settled that where two EEOC charges
relate to the same alleged acts, the plaintiff’s time to file a
claim in federal district court begins to run once the plaintiff
receives the first right-to-sue letter.

See, e.g., Daniel v. Long

Island Hous. P’Ship, Inc., No. 08-CV-1455, 2009 WL 702209, at *6
(E.D.N.Y. Mar. 13, 2009).

Here, there is no dispute that the two

charges pertain to the same alleged acts of discrimination with
the exception of the retaliation claim included in the second
charge.

Thus, notwithstanding the allegation in the Complaint

that Plaintiff timely commenced this action by filing within ninety
days of receiving the right-to-sue letter for second charge, if
Plaintiff received a right-to-sue letter for the initial charge
first and did not commence this action within ninety days of
receiving that letter, then this action would be time-barred with
respect to the shared allegations in the initial and subsequent
charges. The question, then, is when Plaintiff received the rightto-sue letter for the initial charge.

As discussed below, the

Court finds that this question presents an issue of fact that
prevents the Court from dismissing this action for untimeliness.
There are presumptions that “a notice provided by a
government agency was mailed on the date shown on the notice” and
that “a mailed document is received three days after its mailing.”
Id. (citing Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525-26
(2d Cir. 1996).

These initial presumptions may be rebutted,
12

however, by “sworn testimony or other admissible evidence from
which it could reasonably be inferred either that the notice was
mailed later than its typewritten date or that it took longer than
three days to reach her by mail.”

Id. (quoting Sherlock, 84 F.3d

at 526).
LIJ apparently attempts to invoke these presumptions by
pointing to the fact that the right-to-sue letter for the initial
EEOC charge is dated March 23, 2012.

However, Plaintiff has filed

a sworn affidavit that she did not receive the right-to-sue letter
until January 7, 2013.

(See Kelly Aff. ¶ 43.)

Courts have held

that a sworn affidavit alone is sufficient to rebut the presumption
regarding the date of receipt.
at *2.

See, e.g., Wall, 2006 WL 226008,

Additionally, Plaintiff has submitted documentary evidence

supporting her claim--a letter dated January 11, 2013 from her
then-attorney to the EEOC explaining that Plaintiff had received
the right-to-sue letter for the initial charge on January 7, 2013
and requesting that the EEOC reissue the letter with a current
date so as to avoid any statute of limitations issues.
Decl. Ex. A.)

If Plaintiff’s version of the facts is true, then

this action would be timely.
the

Court

(Kataeva

cannot

decide

But this is a question of fact that
on

summary

13

judgment.

See

id.

Accordingly, LIJ’s motion for summary judgment with respect to the
statute of limitations is DENIED.6
Having found an issue of fact with respect to the
timeliness of Plaintiff’s Complaint, the Court will now turn to
LIJ’s alternative argument that dismissal is appropriate because
Plaintiff has failed to state a plausible ADA claim. (LIJ’s Br. to
Dismiss at 4–15.)
III. Plaintiff’s Disability Discrimination Claim
Plaintiff alleges that LIJ discriminated against her on
the basis of disability or perceived disability.

However, as

discussed below, Plaintiff’s claim must be dismissed because she
has not plausibly pleaded that she is disabled or that LIJ regarded
her as disabled.
The ADA prohibits discrimination against a “qualified
individual with a disability because of the disability” in the
“terms, conditions, and privileges of employment.”
§ 12112(a).

42 U.S.C.

To state a claim for discrimination under the ADA, a

plaintiff must allege that: “(1) the defendant is covered by the
ADA; (2) plaintiff suffers from or is regarded as suffering from
a disability within the meaning of the ADA; (3) plaintiff was
qualified to perform the essential functions of the job, with or
without reasonable accommodation; and (4) plaintiff suffered an

6

To be clear, the Court has not converted the remainder to LIJ’s
motion into one for summary judgment.
14

adverse employment action because of [her] disability or perceived
disability.”

Capobianco v. City of N.Y., 422 F.3d 47, 56 (2d Cir.

2005).
LIJ

does

not

dispute

that

Plaintiff

has

adequately

alleged that LIJ is covered by the ADA or that Plaintiff was
qualified to perform the essential functions of the field nurse
position.

Rather, LIJ argues that dismissal is warranted because

Plaintiff has failed to adequately allege (1) that she is disabled
or that LIJ regarded her as disabled and (2) that she suffered an
adverse employment action.

Because, as discussed below, the Court

finds that Plaintiff has not plausibly pleaded that she is disabled
or was perceived as disabled, the Court does not reach the question
of whether Plaintiff has pleaded an adverse employment action.
Plaintiff

claims

that

“[t]he

Complaint

sufficiently

alleges that [Plaintiff] was perceived to be disabled/disabled
because she was a substance abuser, specifically a recovering
alcoholic.”

(Pl.’s Opp. Br. at 4.)

Under the ADA, the term

“disability” means “(A) a physical or mental impairment that
substantially limits one or more major life activities of such
individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment . . . .”
§ 12102(1).

42 U.S.C.

Alcohol addiction is an impairment under the ADA.

Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294
F.3d 35, 46 (2d Cir. 2002) (“Alcoholism . . . is an ‘impairment’
15

under

the

definitions

of

a

disability

set

forth

in

the . . . ADA . . . .”) (collecting cases); Darcy v. City of N.Y.,
No. 06-CV-2246, 2012 WL 727770, at *3 (E.D.N.Y. Mar. 6, 2012)
(“[A]lcoholism has been recognized as a disability within the
meaning of the ADA.” (citation omitted)).

To qualify as disabled

under the ADA, however, a plaintiff “must show that [she] was
actually addicted to alcohol . . . in the past--as opposed to
having been a casual user of either substance--and that this
addiction substantially limited one or more of [her] major life
activities.

Johnson v. St. Clare’s Hosp. & Health Ctr., No. 96-

CV-1425, 1998 WL 213203, at *6 (S.D.N.Y. Apr. 30, 1998) (emphasis
added) (citing Buckley v. Consolidated Edison Co. of New York, 127
F.3d 270, 273 (2d Cir. 1997)); see also Myshka v. City of New
London Fire Dept., No. 08-CV-1835, 2010 WL 965741, at *5 (D. Conn.
Mar. 15, 2010) (“Mere status as an alcoholic . . . does not
necessarily imply a ‘limitation’ under the [ADA].” (quoting Reg’l
Econ., 294 F. 3d at 47)).
Here, although the Complaint suggests that Plaintiff is
a recovering alcoholic, it does not state or plead any facts
indicating that her alleged alcoholism limited one of her major
life activities.

Thus, Plaintiff has not plausibly pleaded that

she is disabled within the meaning of the ADA.

See Johnson v.

N.Y. Presbyterian Hosp., No. 00-CV-6776, 2001 WL 829868, at *4
(S.D.N.Y. July 20, 2001) (granting motion to dismiss ADA claim
16

because plaintiff did not “allege[ ] how his alcoholism has
substantially interfered with his ability to perform any of his
major life activities”), aff’d 55 F. App’x 25 (2d Cir. 2003);
Baptista v. Hartford Bd. of Educ., No. 08-CV-1890, 2009 WL 2163133,
at *6-7 (D. Conn. July 21, 2009) (same), aff’d 427 F. App’x 39 (2d
Cir. 2011); see also McManamon v. Shinseki, No. 11-CV-7610, 2013
WL 3466863, at *9-10 (S.D.N.Y. July 10, 2013) (“[Plaintiff] has
not alleged that his status as a recovering alcoholic substantially
limits one of his major life activities, and thus has not plausibly
pled a disability under the Rehabilitation Act.”).
Plaintiff also fails to allege any facts that plausibly
suggest that LIJ perceived Plaintiff to be a recovering alcoholic.
In

her

opposition

brief,

Plaintiff

claims

the

Complaint

“specifically alleges” that Sabatino “was made aware of her problem
with alcohol” at a July 1, 2011 meeting and that Sabatino placed
Plaintiff on administrative leave “only hours later.”

(Pl.’s Opp.

Br. at 5.)

However, the Complaint is entirely devoid of any such

allegation.

Rather, the Complaint alleges that Plaintiff informed

her supervisor that she had failed a drug test at NHCC and that
she was receiving treatment for some unspecified “substance abuse
issues.”

(Compl. ¶¶ 27, 37.)

And although the Complaint alleges

that Plaintiff began attending Alcoholics Anonymous meetings and
that “LIJ was notified that [Plaintiff] was admitted into the PAP
program,” the Complaint stops short of alleging facts from which
17

it can be inferred that anyone at LIJ regarded Plaintiff as a
recovering

alcoholic.

Plaintiff

submits

an

affidavit

that

attempts to cure these pleading deficiencies but “[a] complaint
cannot be modified by a party’s affidavit or by papers filed in
response to a dispositive motion to dismiss . . . .”

Caple v.

Parman Mortg. Assocs. L.P., No. 11-CV-3268, 2012 WL 4511445, at *4
(E.D.N.Y. Oct. 1, 2012) (ellipsis in original) (quoting Brownstone
Inv. Grp., LLC v. Levey, 468 F. Supp. 2d 654, 660 (S.D.N.Y. 2007)).
Accordingly,

LIJ’s

motion

to

dismiss

Plaintiff’s

disability

discrimination claim is GRANTED.
IV.

Hostile Work Environment
Plaintiff further alleges that LIJ subjected her to a

hostile work environment on the basis of her alleged disability,
in violation of the ADA.

Although the Second Circuit has declined

to decide whether the ADA provides a basis for a hostile work
environment claim, see Farina v. Brandford Bd. of Educ., 458 F.
App’x 13, 16-17 (2d Cir. 2011) (“Even assuming, arguendo, that the
ADA provides a basis for a hostile work environment claim (an issue
this Court has not yet decided) . . . .”), district courts in this
Circuit, including this Court, have held that such claims are
cognizable and that the standards for a Title VII hostile work
environment apply, see, e.g., Forgione v. City of New York, No.
11-CV-5248, 2012 WL 4049832, at *7, n. 6 (E.D.N.Y. Sept. 13, 2012);
Hendler v. Intelecom USA, Inc., 963 F. Supp. 200, 208 (E.D.N.Y.
18

1997).

In any event, Plaintiff’s claim fails for three reasons.

First, the Court does not have jurisdiction to adjudicate the claim
because
remedies.

Plaintiff

has

failed

to

exhaust

her

administrative

Second, Plaintiff fails to state a claim because, as

the Court has already determined, Plaintiff has not alleged that
she is disabled or was perceived as disabled under the ADA, a
required element of a hostile work environment claim.
Plaintiff

has

not

pleaded

facts

that

plausibly

Third,

suggest

that

Plaintiff was subjected to a hostile work environment.
A.

Exhaustion of Administrative Remedies
Plaintiff’s EEOC charges were insufficient to exhaust

Plaintiff’s administrative remedies with respect to a hostile work
environment claim.

“In order to properly exhaust a hostile

environment claim, a plaintiff must actually allege a hostile
environment in his EEOC charge.”

Levitant v. Hilt N.Y. Waldorf

LLC, No. 10-CV-4667, 2012 WL 414515, at *7 (S.D.N.Y. Feb. 6, 2012).
The Second Circuit has held, however, that “claims that were not
asserted before the EEOC may be pursued in a subsequent federal
court action if they are reasonably related to those that were
filed with the agency.”

Deravin v. Kerik, 335 F.3d 195, 200 (2d

Cir. 2003) (emphasis added) (quoting Legnani v. Alitalia Linee
Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001)). A claim
is “‘reasonably related if the conduct complained of would fall
within the scope of the EEOC investigation which can reasonably be
19

expected to grow out of the charge that was made.’”

Id. at 200-

01 (quoting Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d Cir.
2001)).

The standard “is essentially an allowance of loose

pleading” and “is based on the recognition that EEOC charges
frequently are filled out by employees without the benefit of
counsel and that their primary purpose is to alert the EEOC to the
discrimination that a plaintiff claims [she] is suffering.”

Id.

at 201 (citation omitted).
Here, the Court does not have jurisdiction to adjudicate
Plaintiff’s hostile work environment claim because it was not
included in either of her two EEOC charges.

As LIJ aptly notes,

Plaintiff did not check the appropriate box for harassment on the
complaint form submitted for the first charge.

(Gegwich Decl. Ex.

B.) Additionally, Plaintiff retained counsel to prepare the second
EEOC charge, and even that charge fails to raise allegations that
would have alerted the EEOC that Plaintiff was claiming a hostile
work environment.

(Gegwich Decl. Ex. E.)

Because Plaintiff

“failed to make any reference to an uncomfortable atmosphere or
hostile work environment” in either of her EEOC charges, the Court
lacks jurisdiction to adjudicate such claim.

Hussey v. N.Y. State

Dept. of Law, 933 F. Supp. 2d 399, 412 (E.D.N.Y. 2013); Jenkins v.
St.

Luke’s–Roosevelt

Hosp.

Center,

No.

3682458, at *6 (S.D.N.Y. Oct. 29, 2009).

20

09-CV-0012,

2009

WL

B.

Plausibility
Even

if

Plaintiff

had

exhausted

her

administrative

remedies, however, Plaintiff’s hostile work environment claim
still must be dismissed because she fails to state a plausible
claim under the ADA. To state a claim for hostile work environment
under the ADA, a plaintiff must allege “‘that the workplace was so
severely permeated with discriminatory intimidation, ridicule, and
insult that the terms and conditions of . . . her employment were
thereby altered.’”

Giambattista v. Am. Airlines, Inc., --- F.

Supp. 2d ----, 2014 WL 1116894, at *7 (E.D.N.Y. Mar. 20, 2014)
(quoting

Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)).

A plaintiff “‘must plead facts that would tend to show that the
complained of conduct: (1) is objectively severe or pervasive—that
is, . . . creates an environment that a reasonable person would
find hostile or abusive; (2) creates an environment that the
plaintiff
(3)

subjectively

creates

such

[disability].’”

an

perceives

as

environment

hostile

because

of

or
the

abusive;

and

plaintiff’s

Id. at *8 (quoting Patane v. Clark, 508 F.3d 106,

113 (2d Cir. 2007)).
First, since the Court has determined that Plaintiff has
not alleged that she is a qualified person with a disability or
perceived

disability

under

the

ADA,

Plaintiff’s

hostile

work

environment claim based on her alleged disability must also be
dismissed.

Caruso v. Camilleri, No. 04-CV-167A, 2008 WL 170321,
21

at *28 (W.D.N.Y. Jan. 15, 2008) (“[A]s the court has determined
that Plaintiff has not established that he is a qualified person
with

a

disability

under

the

ADA,

Plaintiff’s

hostile

work

environment claim based on his alleged disability must also fail.”
(citations omitted)).
Second,

even

if

Plaintiff

had

properly

alleged

disability, the Complaint does not come close to alleging that LIJ
was

so

severely

permeated

with

discriminatory

intimidation,

ridicule, and insult that the terms and conditions of Plaintiff’s
employment were thereby altered.

Plaintiff bases her hostile work

environment claim on three incidents that occurred between July 1,
2011

and

August

11,

2011.

(See

Pl.’s

Opp.

Br.

at

10-11.)

Specifically, Plaintiff alleges that Sabatino (1) called her a
“threat to the public”; (2) placed her on administrative leave for
an indefinite period of time; and (3) sent her “accusatory and
threatening letters warning her that if she contacted her case
managers regarding her employment status, that further action
against would be taken . . . .”

(See Pl.’s Opp. Br. at 10.)

However, “isolated, minor acts or occasional episodes do not
warrant relief under a hostile environment theory.”

Forgione,

2012 WL 4049832, at *7 (citation omitted); see Trachtenberg v.
Dept. of Educ. of City of N.Y., 937 F. Supp. 2d 460, 473 (S.D.N.Y.
2013)

(dismissing

plaintiff’s

hostile

allegations

work
regarding
22

environment
an

claim

“unimaginable

because
work

environment,”

which

included

receiving

letters

from

school

principal containing “scurrilous charges,” fell “well short of the
sort of conduct that courts have found sufficiently pervasive to
alter

the

conditions

of

the

victim’s

employment”

(internal

quotation marks and citation omitted)); Ashok v. Barnhart, 289 F.
Supp. 2d 305, 312 (E.D.N.Y. 2003) (“[I]mproper reprimands for
alleged violations of firm policy are insufficient to establish a
hostile work environment.”); Ardigo v. J. Christopher Capital,
LLC, No. 12-CV-3627, 2013 WL 1195117, at *4 (S.D.N.Y. Mar. 25,
2013) (dismissing claim based on offensive statements made on three
occasions).

Accordingly, Plaintiff’s hostile work environment

claim is DISMISSED.
V.

Retaliation Claim
Plaintiff also alleges that LIJ retaliated against her

“for her complaints of unequal treatment and discrimination on the
basis of disability/perceived disability,” in violation of the
ADA.

(Compl. ¶ 91.)

As discussed below, Plaintiff has failed to

state a retaliation claim.
To state a plausible claim for retaliation under the
ADA, a plaintiff must allege that: “(1) [she] engaged in an
activity protected by the ADA; (2) the employer was aware of this
activity; (3) the employer took an adverse employment action
against [her]; and (4) a causal connection exists between the

23

alleged adverse action and the protected activity.”

Treglia v.

Town of Manilus, 313 F.3d 713, 719 (2d Cir. 2002).
Here, the alleged protected activity is Plaintiff’s
August

8,

2011

complaint

with

the

NYSDHR

and

the

alleged

retaliatory act is LIJ’s decision to offer Plaintiff the “Last
Chance Agreement” on August 11, 2011.

However, Plaintiff does not

allege that LIJ was aware of Plaintiff’s complaint with the NYSDHR
before it offered the Last Chance Agreement.

Therefore, Plaintiff

fails to state a plausible retaliation claim and this claim is
DISMISSED.

See Jordan v. Forfeiture Support Assocs., 928 F. Supp.

2d 588, 609 (E.D.N.Y. 2013) (dismissing retaliation claim because,
inter alia “the Complaint did not allege that defendant was aware
of that protected activity or considered that protected activity
in” committing alleged retaliatory act); Chang v. City of N.Y.
Dept. for the Aging, No. 11-CV-7062, 2012 WL 1188427, at *7
(S.D.N.Y. Apr. 10, 2012) (same), report and recommendation adopted
by 2012 WL 2156800 (S.D.N.Y. June 14, 2012); Wilson v. Reuben H.
Donnelley Corp., No. 98-CV-1750, 1998 WL 770555, at *4 (S.D.N.Y.
Nov. 2, 1998) (“The mere fact that plaintiff had earlier filed an
EEOC complaint is not enough to support a contention that the
subsequent conduct of defendants was a result of the earlier
complaint.”).

24

VI.

NYSHRL Claim
Relying on the election of remedies doctrine, LIJ argues

that Plaintiff’s NYSHRL claim must be dismissed for lack of subject
matter

jurisdiction

because

complaints with the NYSDHR.

Plaintiff

filed

administrative

(LIJ’s Br. to Dismiss at 22-23.)

The

Court agrees with LIJ.
The NYSHRL states:
Any person claiming to be aggrieved by an
unlawful discriminatory practice shall have a
cause of action in any court of appropriate
jurisdiction . . . unless such person had
filed a complaint hereunder or with any local
commission on human rights . . . provided
that, where the division has dismissed such
complaint on the grounds of administrative
convenience, on the grounds of untimeliness,
or on the grounds that the election of
remedies is annulled, such person shall
maintain all rights to bring suit as if no
complaint had been filed with the division.
N.Y. EXEC. LAW § 297(9).

Thus, absent one of the three exceptions

above, § 297(9) “divests courts of jurisdiction over human rights
claims which have been presented to the DHR.’”

Jeter v. N.Y. City

Dept. of Educ., 549 F. Supp. 2d 295, 302 (E.D.N.Y. 2008) (quoting
Hamilton v. Niagara Frontier Transp. Auth., No. 00–CV–0300, 2007
WL 2241794, at *11 (W.D.N.Y. July 31, 2007); see also York v.
Assoc. of the Bar of the City of N.Y., 286 F.3d 122, 127 (2d Cir.
2002); Moodie v. Fed. Reserve Bank of N.Y., 58 F.3d 879, 884 (2d
Cir. 1995) (“[A] state law depriving its courts of jurisdiction

25

over a state law claim also operates to divest a federal court of
jurisdiction to decide the claim.”)).
Plaintiff argues that § 297(9) does not divest this Court
of jurisdiction over her NYSHRL claim because “[u]pon filing her
initial complaint with the NYSDHR, pro se, plaintiff did not allege
violations of the New York State Human Rights Law.”
Br. at 12.)

(Pl.’s Opp.

This argument is perplexing, however, since the first

page of both administrative complaints Plaintiff filed with the
NYSDHR state, “I, Ann Marie Kelly, . . . charge [LIJ Home Care]
with an unlawful discriminatory practice relating to employment in
violation of Article 15 of the Executive Law of the State of New
York (Human Rights Law) . . . .”

(Gegwich Decl. Exs. B, E.)

Contrary to Plaintiff’s assertion, it is clear that Plaintiff
presented her NYSHRL claim to the NYSDHR, which subsequently issued
“No

Probable

complaints.

Cause”

determinations

(Gegwich Decl. Exs. C, F.)

for

both

administrative

Accordingly, Plaintiff’s

decision to file these administrative complaints divests this
Court of subject matter jurisdiction over the NYSHRL claim and
this claim is DISMISSED.

See Sicular v. N.Y. City Dept. of

Homeless Servs., No 09-CV-0981, 2010 WL 423013, at *28 (S.D.N.Y.
Feb. 4, 2010) (“[W]hen the administrative forum makes a final
determination and issues a ‘No Probable Cause’ determination,
plaintiff’s NYSHRL . . . claims are barred from being relitigated
in

a

subsequent

civil

action

in
26

federal

court.”

(citations

omitted)), report and recommendation adopted by 2010 WL 2179962
(S.D.N.Y. May 28, 2010), aff’d 455 F. App’x 129 (2d Cir. 2012).
VII. Intentional and Negligent Infliction of Emotional Distress
Plaintiff

also

alleges

claims

for

intentional

and

negligent infliction of emotional distress under New York law.
Intentional infliction of emotional distress has four
elements: “(i) extreme and outrageous conduct; (ii) intent to
cause, or disregard of a substantial probability of causing, severe
emotional distress; (iii) a causal connection between the conduct
and injury; and (iv) severe emotional distress.”

Howell v. N.Y.

Post Co., 81 N.Y.2d 115, 121–22, 612 N.E.2d 699, 596 N.Y.S.2d 350
(1993) (explaining that liability is found “only where the conduct
has been so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community”).
The Complaint is entirely devoid of any facts alleging these
elements and “New York courts do not, as a rule, extend the tort
of intentional infliction of emotional distress to employment
discrimination cases . . . .”

Virola v. XO Commc’n, No. 05-CV-

5056, 2008 WL 1766601, at *21 (E.D.N.Y. Apr. 15, 2008); see also
Wilson v. Am. Broad. Co., No. 08-CV-1333, 2009 WL 8743559, at *8
(S.D.N.Y. Mar. 31, 2009) (“In the rare instances where a court has
found a complaint sufficient to state a claim for intentional
infliction of emotional distress in the employment context, the
27

claims have tended to accompany allegations of sex discrimination
or battery.”).

Accordingly, Plaintiff’s intentional infliction of

emotional distress claim is DISMISSED.
Finally, Plaintiff’s negligent infliction of emotional
distress claim “is precluded by New York Workers’ Compensation
Law, which provides the exclusive remedy for negligence claims
against an employer.”

Dansler-Hill v. Rochester Inst. of Tech.,

764 F. Supp. 2d 577, 585 (W.D.N.Y. 2011) (citing N.Y. Workers’
Comp. Law §§ 11, 29(6)). Accordingly, this claim too is DISMISSED.
VIII. Leave to Replead
The Second Circuit has stated that “[w]hen a motion to
dismiss is granted, the usual practice is to grant leave to amend
the complaint.”

Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d

Cir. 1999); see also FED. R. CIV. P. 15(a)(2) (“The court should
freely

give

leave

[to

amend]

when

justice

so

requires.”).

“However, a district court has the discretion to deny leave to
amend where there is no indication from a liberal reading of the
complaint that a valid claim might be stated.” Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010).
Here, the Court finds that Plaintiff should be given one
final

opportunity

to

plead

her

retaliation claims under the ADA.

disability

discrimination

and

However, since amendment of

Plaintiff’s hostile work environment, NYSHRL, and infliction of

28

emotional

distress

claims

would

be

futile,

these

claims

are

DISMISSED WITH PREJUDICE and Plaintiff may not replead them.
CONCLUSION
For the foregoing reasons, LIJ’s motion to dismiss is
GRANTED with leave to replead consistent with this Memorandum and
Order.

If Plaintiff wishes to replead, she must do so within

thirty (30) days of the date of this Memorandum and Order.

If she

fails to do so, the entire action will be dismissed with prejudice.

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

June
22 , 2014
Central Islip, NY

29