Giambattista v. American Airlines Inc.
MEMORANDUM of DECISION and ORDER: It is hereby ordered that the Court (1) grants the Plaintiffs motion for leave to file an amended complaint; (2) considers the Defendants motion to dismiss as directed to the amended complaint; (3) grants the Defendants motion to dismiss all the causes of action and dismisses the amended complaint in its entirety; and (4) directs the Clerk of the Court to close this case. Ordered by Judge Arthur D. Spatt on 3/20/2014. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vs.AMERICAN AIRLINES, INC.,
3/20/2014 5:01 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
The Law Office of Steven A. Morelli, P.C.
Attorneys for the Plaintiff
1461 Franklin Avenue
Garden City, NY 11530
By: Steven A. Morelli, Esq.
Paul Bartels, Esq., Of Counsel
Morgan, Lewis & Bockius, LLP
Attorneys for the Defendant
502 Carnegie Center
Princeton, NJ 08540
By: Michelle S. Silverman, Esq.
Ashley J. Hale, Esq.
Melissa C. Rodriguez, Esq., Of Counsel
SPATT, District Judge.
On June 26, 2013, the Plaintiff Louann Giambattista (the “Plaintiff”), an employee of the
Defendant American Airlines, Inc. (the “Defendant”), commenced this action, alleging that the
Defendant discriminated against her due to a perceived mental disability and fostered a hostile
work environment on the basis of that perceived mental disability, in violation of the Americans
with Disabilities Act, 42 U.S.C. § 12111, et seq. (the “ADA”) and the New York State Human
Rights Law, N.Y. Exec. Law § 290, et seq. (the “NYSHRL”).
On November 12, 2013, the Defendant moved pursuant to Federal Rule of Civil
Procedure (“Fed. R. Civ. P.”) 12(b)(6) to dismiss the complaint for failure to state a claim upon
which relief can be granted.
On January 20, 2014, the Plaintiff cross-moved pursuant to Fed. R. Civ. P. 15(a) for leave
to file an amended complaint. In doing so, the Plaintiff did not assert new causes of action.
Rather, the Plaintiff included additional factual allegations in support of her pending causes of
action and in response to the Defendant’s arguments in opposition.
For the following reasons, (1) the Plaintiff’s motion to amend is granted and (2) and the
Defendant’s motion to dismiss is granted.
A. Factual Background
The following facts are drawn from the original complaint and construed in a light most
favorable to the Plaintiff, the non-moving party on the motion to dismiss.
The Plaintiff has worked as a flight attendant for the Defendant since 1979. She is a
member of the Association of Professional Flight Attendants (the “Union”), and her employment
with the Defendant is governed by a collective bargaining agreement (the “CBA”) between the
Union and the Defendant. Throughout her employment, the Plaintiff has consistently received
positive performance reviews.
According to the Plaintiff, in February 2012, two of her co-workers, Connie Bolt and
Dora Sterling – both flight attendants – reported to the United States Immigration and Customs
Enforcement (“ICE”) and to the Defendant that they believed that the Plaintiff had illegally
brought her pet rat on board an international flight. The Plaintiff alleges that her co-workers
filed this report because they “were under the false perception . . . that [the Plaintiff] had a
mental disability in which she was unable to be away from her pet rats for any period of time.”
(Compl. ¶13.). Further, the Plaintiff alleges that the Defendant “sanctioned, endorsed, and
adopted [the co-workers’] actions, and was apparently under the same false perception that [the
Plaintiff] had a mental disability.” (Id.).
On February 26, 2012, an ICE agent detained the Plaintiff in a Miami airport and
interrogated her about her flight history and future travel plans. The agent searched the
Plaintiff’s personal items and scanned them through an x-ray machine. The search, which lasted
about an hour, did not uncover anything suspicious.
On February 27, 2012, the Plaintiff was again searched in the Miami airport by the same
ICE agent, who informed the Plaintiff that he was working on a “direct tip” that she might
possess contraband. (Id. at ¶ 16.).
On March 1, 2012, the Plaintiff was “stalked” and followed through a terminal of the
John F. Kennedy airport by one of the Defendant’s gate agents, until two of the Defendant’s
security agents and 2 ICE agents apprehended her. The four agents, carrying un-concealed
weapons, detained and interrogated the Plaintiff for over an hour in a small room, at one point
threatening to “strip search” her. During the interrogation, the door to the room remained open
and some of the Plaintiff’s fellow flight attendants could observe the incident. At the conclusion
of the interrogation, one of the Defendant’s security agents asked the Plaintiff if she had “any
enemies” at the airline, and queried her whether anyone there wanted her to be in trouble.
The Plaintiff maintains that the March 1, 2012 interrogation severely traumatized her and
caused her to suffer symptoms of post-traumatic stress disorder, which negatively affected her
ability to perform certain job functions.
On March 2, 2012, the Plaintiff was informed by the Union that an unnamed individual
had filed a report with the Defendant, which alleged that the Plaintiff carried pet rats in her
pantyhose or underwear onto work flights.
The Plaintiff alleges that, at some point, the Defendant directed ICE to “flag” the
Plaintiff’s passport so that she would be stopped every time she passed through customs for
international flights. As a result, the Plaintiff voluntarily limited her work flights to non-customs
flights within the Defendant’s international division. On one such flight to San Juan, Puerto
Rico, the Plaintiff learned of rumors circulating among her co-workers that the Defendant had
“caught” her sneaking on pet rats on board flights (Id. at ¶ 26.).
On March 21, 2012, the Plaintiff received a copy of a written report Sterling filed with
the Union, which alleged that the Plaintiff was “hiding something” on a February 26, 2012 flight.
The report also alleged that the flight’s captain, Brad Rohdenburg, told Sterling that he observed
a bulge in the Plaintiff’s pocket. Indeed, Rohdenburg reported that he felt what he thought was a
live pet in the Plaintiff’s pocket.
The Plaintiff was also made aware of a second report, which alleged that she concealed
pet rats in her underwear and fed them pieces of bread on work flights.
On March 22, 2012, the Plaintiff asked the Union to demand that the Defendant conduct
a “31r” investigation under the CBA into the alleged harassing behavior she received from her
co-workers and the Defendant’s security representatives. The Plaintiff was informed that
representatives of the Union met with the Defendant’s Human Resources representatives to
discuss the harassment.
On March 28, 2012, ICE agents again detained and searched the Plaintiff on an
international flight. An ICE agent informed the Plaintiff that there was a “flag” on her passport
for the illegal transport of animals and that, as long as the flag remained on her passport, ICE
agents were required to search her bags and possibly her person each time she flew
The Plaintiff alleges that she subsequently developed a debilitating fear and anxiety of
being detained overseas and was unable to work on international flights, causing her lost income.
The Plaintiff insists that she repeatedly asked the Defendant to ask ICE to remove the
flag from her passport, yet her requests were denied. The Defendant asked ICE to remove the
flag only after the Plaintiff retained counsel.
On April 23, 2012, the Plaintiff spoke to a human resources representative for the
Defendant regarding an investigation into the alleged harassment and loss of salary.
On May 8, 2012, the Plaintiff met with Tashia Brown, the Defendant’s human resources
investigator, to discuss the Plaintiff’s concerns. The Plaintiff alleges that Brown informed the
Plaintiff that the Defendant would not investigate further without a “formal notification”
accusing the individuals of workplace misconduct.
The Plaintiff also alleges that, at some point, she requested a transfer to the Defendant’s
domestic operations so she could avoid international flights and the accompanying invasive
searches by ICE agents. However, for reasons unknown, the Defendant denied the Plaintiff’s
request for a transfer.
On March 31, 2012, the Plaintiff contacted the Defendant’s Employee Assistance
program (“EAP”) and requested help in coping with the symptoms caused by her post-traumatic
stress disorder. The Defendant’s EAP representative recommended that the Plaintiff seek
counseling for emotional distress, which she did. The Plaintiff continues to receive mental
B. Procedural History
As noted above, on June 26, 2013, the Plaintiff commenced this instant action, asserting
claims for discrimination and a hostile work environment due to a perceived mental disability, in
violation of the ADA and NYSHRL. On November 12, 2013, the Defendant moved pursuant to
Fed. R. Civ. P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can
On January 20, 2014, the Plaintiff cross-moved pursuant to Fed. R. Civ. P. 15(a) for leave
to file an amended complaint. In the proposed amended complaint, the Plaintiff does not assert
additional causes of action. Rather, the Plaintiff makes further factual allegations in support of
her pending causes of action. In particular, among other contentions, the Plaintiff asserts that
(1) the pilot who “groped” her was her “supervisor”; (2) following her co-workers’ reports to
ICE, several of the Plaintiff’s other peers commented that she was “crazy”; that “they would
have to take [her] away in white coats”; and expressed surprise that she was married; (3) she
asked a Union representative to file a formal grievance to protest the denied transfer, yet her
request was denied; and (4) similarly situated co-workers such as Sterling were granted transfers
on the grounds of hardship, while the Plaintiff was not granted such relief.
The Defendant opposes the Plaintiff’s cross-motion to amend the complaint as futile.
However, the Court finds that the proper inquiry is not whether the Plaintiff’s new factual
allegations are, by themselves, “futile” or state a claim for relief, but rather whether these new
factual allegations, read in conjunction with the original complaint, state a claim for relief.
Because the Defendant does not challenge the motion to amend on grounds other than futility,
the Court exercises its discretion to grant the motion to amend. Compare Kidder, Peabody & Co.,
87-cv-4936 (DLC), 1994 WL 570072, at *4 (S.D.N.Y. Oct. 13, 1994) (allowing an amendment
when “the proposed amended complaint does not add any new causes of action or new parties.
The original complaint alleged that the prospectus falsely inflated the worth of CDI stock. The
new allegations only add additional facts to the fraud claim. Thus, the proposed amended
complaint is closely related to the original claim, and is based on a similar set of operative
facts.”), with Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001)(“leave to amend
will be denied as futile only if the proposed new claim cannot withstand a 12(b)(6) motion to
dismiss for failure to state a claim”)(emphasis added).
“Technically, defendant's motion to dismiss, which was directed to the original
complaint, was mooted by the filing of the amended complaint. However, so as not to waste the
efforts of the parties, this Court considers the motion as directed to the amended complaint.”
Verzani v. Costco Wholesale Corp., 641 F. Supp. 2d 291, 297 (S.D.N.Y. 2009)(citations
omitted), aff'd, 387 F. App'x 50 (2d Cir. 2010).
A. The Standard on a Motion to Dismiss
Fed. R. Civ. P. 12(b)(6) provides for the dismissal of a complaint for a plaintiff's failure
“to state a claim upon which relief can be granted.” In order “[t]o survive a motion to dismiss
under [Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127
S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). In assessing plausibility on a motion to dismiss pursuant
to Rule 12(b)(6), the court must “assume [the] veracity” of all well-pleaded factual allegations
contained in the complaint, Iqbal, 556 U.S. at 664, and afford the plaintiff every reasonable
inference. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). However, allegations must consist of
more than mere labels, legal conclusions, or a “formulaic recitation of the elements of a cause of
action,” and bare legal conclusions are “not entitled to the assumption of truth.” Iqbal, 556 U.S.
at 681 (internal quotation marks and citations omitted).
According to Iqbal/Twombly, the complaint survives a motion to dismiss, as long as its
allegations of “factual matter, accepted as true” sufficiently “raise a right to relief above the
speculative level.” Iqbal, 556 U.S. at 678; Twombly, 550 U .S. at 555–56. At the same time, the
Complaint cannot conclusorily recite the elements of a claim. Ibid. The factual allegations are
sufficient when they allow this Court, at a minimum, to infer that a claim is plausible – an
inference which is more than possible, but less than probable – and thereby warrants proceeding
with discovery. Ibid.
B. The Claims for Discrimination Under the ADA and NYSHRL
A claim of disability discrimination under the ADA and NYSHRL is governed by the
same legal standards. Parker v. Columbia Pictures Indus., 204 F.3d 326, 332 n. 1 (2d Cir. 2000).
Thus, the Plaintiff’s ADA and NYSHRL disability discrimination claims survive or fail on the
To establish a prima facie case of discrimination under the ADA or NYSHRL, an
employee has the burden to demonstrate that: (i) the employer is covered by the statute and had
notice of her disability; (ii) she was an individual who was disabled within the meaning of the
statute; (iii) plaintiff was otherwise qualified to perform the essential functions of the job with or
without reasonable accommodation; and (iv) she was subject to an adverse employment action as
a result of her disability. See Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998).
Disability is defined to include “(A) a physical or mental impairment that substantially limits one
or more of the major life activities of such individual; (B) a record of such an impairment; or (C)
being regarded as having such an impairment.” 42 U.S.C. § 12102 (2).
Thus, even if Plaintiff is not disabled, she is still afforded the protections of the ADA if
she demonstrates that her employer perceived her to be disabled and discriminated against her on
that false belief. See Hilton v. Wright, 673 F.3d 120, 128-30 (2d Cir. 2012). It is not necessary
to show that the employer identified a major life activity that was substantially limited by the
employee's condition. Id. (“[A]n individual meets the requirement of ‘being regarded as having
such an impairment’ if the individual shows that an action . . . was taken because of an actual or
perceived impairment, whether or not that impairment limits or is believed to limit a major life
activity.”) (quoting H. R. Rep. No. 110–730, pt. 1, at 14 (2008) (emphasis added)).
In this case, the Court need not decide whether the Plaintiff states a claim that the
Defendant discriminated against the Plaintiff because of a perceived disability. Of relevance
here, the Defendant contends that the Plaintiff has failed to plead that she suffered any adverse
employment action. In response, the Plaintiff asserts that she suffered an adverse employment
action in that (1) she was questioned by ICE four times, and during one such incident, personnel
of the Defendant was present; (2) she received a “constructive suspension” as the questioning by
ICE was so intolerable that any reasonable person would have felt compelled to decline their
scheduled shifts; and (3) the Defendant declined her request to transfer from international to
An “adverse employment action” for the purpose of a discrimination claim pursuant to
the ADA is a “‘materially adverse change’ in the terms and conditions of employment.” Sanders
v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (citing Richardson v.
New York State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999)). A change in working
conditions is materially adverse if it is “more disruptive than a mere inconvenience or an
alteration of job responsibilities.” Id. (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.
2003)). “There are no ‘bright-line rules’ for determining whether an employee has suffered an
adverse employment action.” Islamic Soc'y of Fire Dep't Pers. v. City of New York, 205 F. Supp.
2d 75, 83 (E.D.N.Y. 2002) (quoting Richardson, 180 F.3d at 446). However, materially adverse
changes in working conditions include “termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices . . . unique to a particular situation.” Terry,
336 F.3d at 138 (quoting Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.
In this case, as to the questioning by ICE, there is no allegation that the Defendant had
any control over ICE’s decision to follow up on reports that the Plaintiff had carried a live
animal onto an international flight. Thus, the questioning by ICE cannot constitute an “adverse
employment action” by the Defendant.
The Court also finds that the Plaintiff’s “constructive suspension” does not qualify as an
“adverse employment action” as required by the ADA and NYSHRL for a disability
discrimination claim. Constructive discharge, or in this case, suspension, occurs in the absence
of a “discrete, identifiable act,” when an employer, “‘rather than directly discharging an
individual, intentionally creates an intolerable atmosphere that forces an employee to quit
voluntarily.’” Flaherty v. Metromail Corp., 235 F.3d 133, 138 (2d Cir. 2000) (quoting Chertkova
v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996)); see also Morris v. Schroder Cap.
Mgmt. Int'l, 481 F.3d 86, 89 (2d Cir. 2007) (holding that constructive discharge “occurs ‘when
the employer, rather than acting directly, deliberately makes an employee's working conditions
so intolerable that the employee is forced into an involuntary resignation.’”)(quoting Pena v.
Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983)). Working conditions are sufficiently
“intolerable” when they are “so difficult or unpleasant that a reasonable person in the employee's
shoes would have felt compelled to resign.” Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188
(2d Cir. 1987). “Given this high standard, an employee's mere dissatisfaction with job
assignments or criticism from a supervisor do not, in themselves, give rise to a constructive
discharge claim.” Kalp v. Kalmon Dolgin Affiliates of Long Island Inc., 11-CV-4000 (JG), 2013
WL 1232308, at *9 (E.D.N.Y. Mar. 27, 2013), appeal withdrawn (Aug. 30, 2013).
In Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir. 1993), the Second Circuit
found that an employee who was dissatisfied with his work assignments but had faced no salary
reduction and had been given bonuses or raises yearly was not constructively discharged when
he resigned. In Petrosino v. Bell Atl., 385 F.3d 210, 230-31 (2d Cir. 2004), the Second Circuit
found that where the plaintiff employee was faced with reduced promotion opportunities, but
retained her job title, pay, and seniority, her resignation did not constitute constructive discharge.
See also Pena v. Brattleboro Retreat, 702 F.2d 322, 326 (2d Cir. 1983) (finding no constructive
discharge claim where employer wanted plaintiff to continue working with no change in pay or
title but with less authority and responsibility, since plaintiff had shown “only that she strongly
disagreed with the business judgments of [her employer]”).
Similarly, here, the Plaintiff does not plausibly allege specific conduct by the Defendant
that made her working conditions “intolerable.” Cf. Timothy v. Our Lady of Mercy Med. Ctr., 03
Civ. 3556 (RCC), 2004 WL 503760, at *7 (S.D.N.Y. Mar. 12, 2004) (finding that the plaintiff
had stated a claim for constructive discharge where she had alleged that “she [has] been passed
over for positions for which she was qualified . . . been placed in inferior positions below her
skill level [,] . . . stripped of her substantive responsibilities, removed from her office, shunted to
several inadequate work locations, and that Defendants generally engaged in actions that made it
more difficult for her to work”); Coffey v. Cushman & Wakefield, Inc., 01-cv-9447 (JGK), 2002
WL 1610913, at *5 (S.D.N.Y. July 22, 2002)(finding that an allegation of constructive discharge
was, in and of itself, sufficient to survive a motion to dismiss but noting the plaintiff's specific
allegations of intolerable work conditions); Halbrook v. Reichhold Chems., Inc., 735 F. Supp.
121, 128 (S.D.N.Y. 1990) (finding that the plaintiff had stated a claim of constructive discharge
where she had alleged a “change in responsibilities, reduction in workload, humiliation and
embarrassment, and the absence of any further chance of advancement”). Accordingly, the
Court finds that the Plaintiff failed to plead a “constructive suspension” as an adverse
Finally, with respect to the Plaintiff’s rejected April 2012 request for transfer, the Court
notes that “[a] denial of a transfer may also constitute an adverse employment action, but [the
courts] require a plaintiff to proffer objective indicia of material disadvantage; subjective,
personal disappointment is not enough.” Shine v. City of New York, 12 CV 8393 (CM), 2013
WL 5231472, at *7 (S.D.N.Y. July 24, 2013), quoting Beyer v. Cnty. of Nassau, 524 F.3d 160,
164 (2d Cir. 2008) (internal quotations omitted). “Thus, in order to rise to the level of an adverse
employment action, the circumstances surrounding the transfer denial must ‘permit a reasonable
factfinder to conclude that the sought for position is materially more advantageous than the
employee's current position,’ by the presence of objective indicators such as prestige, modernity
of available technology, job security and growth, or other benefits.” Gaidasz v. Genesee Valley
Bd. of Co-op. Educ. Sys. (Boces), 791 F. Supp. 2d 332, 338 (W.D.N.Y. 2011)(quoting Beyer).
In contrast, if a transfer is “truly lateral and involves no significant changes in an employee's
conditions of employment, the fact that the employee views the transfer either positively or
negatively does not of itself render the denial or receipt of the transfer [an] adverse employment
action.” Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004)(quotation marks
and citation omitted); see also Bunis v. Runyon, 94-cv-2063 (JFK), 1997 WL 639241, at *3,
1997 U.S. Dist. LEXIS 16045 at *10 (S.D.N.Y. 1997) (the plaintiff's subjective feelings about
denial of a shift-change request was not enough to transform the denial into an actionable
adverse employment action).
Here, no facts pleaded state that the denial of reassignment was a “material disadvantage”
for the Plaintiff or anything more than a subjective disappointment. The Plaintiff has not stated
that a position for the Defendant as flight attendant on international flights was materially less
prestigious, materially less suited to her skills, or materially less conducive to career
advancement than a similar position on domestic flights. The Court need not address the
Defendant’s argument that the rejected request for transfer is governed by the CBA and any
claim arising thereunder is preempted by Railway Labor Act (“RLA”), 45 U.S.C. §§ 151-88.
In short, the Plaintiff’s amended complaint fails to plead an adverse employment action
required for an ADA and NYSHRL claim and the Court grants the Defendant’s motion to
dismiss those claims.
C. The Hostile Work Environment Claims Under the ADA and NYSHRL
The Defendant contends that the Plaintiff’s hostile work environment claims must be
dismissed because the Plaintiff fails to plead that the harassment she faced was sufficiently
severe or pervasive. A plaintiff asserting that she has been subjected to a hostile work
environment based on a covered disability must allege “that the workplace was so severely
permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of
[his or] her employment were thereby altered.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.
“[T]he Second Circuit has yet to rule on the issue of whether or not the ADA recognizes
a hostile work environment claim.” Forgione v. City of New York, 11-CV-5248 (JG), 2012 WL
4049832, at *7 n. 6 (E.D.N.Y. Sept. 13, 2012); Farina v. Branford Bd. of Educ., 458 Fed. Appx.
13, 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] . . . .”); Margherita v. FedEx
Exp., 511 Fed. Appx. 71, 73 (2d Cir. 2013) (summary order).
Assuming that a hostile work environment claim is cognizable under the ADA, 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 subjectively perceives as hostile
or abusive; and (3) creates such an environment because of the plaintiff's [disability].” Patane v.
Clark, 508 F.3d 106, 113 (2d Cir. 2007) (quoting Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir.
2001)) (internal quotation marks omitted). Whether a workplace is a hostile work environment
under the provisions of the ADA requires consideration of the totality of the circumstances.
These include “the frequency of the discriminatory conduct; its severity; whether it [was]
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interfere[d] with [the plaintiff's] work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17,
23, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)).
Considering these factors, the Court concludes that the Plaintiff fails to state a hostile
work environment claim under the ADA. The amended complaint alleges that the Plaintiff’s
coworkers made offensive quips about her perceived disability, including calling her “crazy” and
implying that she should be taken away by psychiatrists. The amended complaint further alleges
that Captain Rohdenburg groped the Plaintiff on one occasion. “However, these isolated, minor
acts or occasional episodes[, coupled with the other alleged incidents,] do not warrant relief
under a hostile environment theory.” Forgione, 2012 WL 4049, at *7 (citation and quotation
Even if the Plaintiff had alleged a hostile work environment based on her perceived
disability, the Plaintiff must allege some factual basis to impute the actions giving rise to the
hostile work environment to her employer. Howley v. Town of Stratford, 217 F.3d 141, 154 (2d
Cir. 2000)(discussing a claim under Title VII). Of importance, an employer may be presumed
responsible where the alleged harasser is the plaintiff's supervisor and the harassment culminated
in some tangible employment action. See Faragher v. City of Boca Raton, 524 U.S. 775, 807,
118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998). “Such vicarious liability is found where there is a
tangible employment action because the supervisor could not have taken such action absent his
or her agency relationship with the employer.” Orell v. UMass Mem'l Med. Ctr., Inc., 203 F.
Supp. 2d 52, 63 (D. Mass. 2002).
Here, although the amended complaint alleges that Captain Rohdenburg was the
Plaintiff’s “supervisor” at the time of the incident in question, it fails to link a tangible
employment action to his allegedly harassing behavior. For these reasons, the Plaintiff has
failed, as a matter of law, to allege a hostile work environment claim under the ADA.
The standard under the NSHRL is identical to the ADA. Schiano v. Quality Payroll Sys.,
Inc., 445 F.3d 597, 609 (2d Cir. 2006). Therefore, the Court also dismisses the Plaintiff’s
NYSHRL hostile work environment claim.
For the foregoing reasons, it is hereby ordered that the Court (1) grants the Plaintiff’s
motion for leave to file an amended complaint; (2) considers the Defendant’s motion to dismiss
as directed to the amended complaint; (3) grants the Defendant’s motion to dismiss all the causes
of action and dismisses the amended complaint in its entirety; and (4) directs the Clerk of the
Court to close this case.
Dated: Central Islip, New York
March 20, 2014
Arthur D. Spatt
ARTHUR D. SPATT
United States District Judge
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