Adejare v. St. Charles Hospital & Rehabilitation Center et al

Filing 24

ORDER granting 15 Motion to Dismiss for Failure to State a Claim. For the reasons set forth in the attached Memorandum and Order, defendants' motion to dismiss is granted. Plaintiff's claims are dismissed with prejudice. The clerk of the Court is directed to close this case. Ordered by Judge Denis R. Hurley on 6/13/2017. (Kaley, Regina)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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OLUWABUNMI ADEJARE,
Plaintiff,

MEMORANDUM AND ORDER
16 CV 805 (DRH) (ARL)

- against ST. CHARLES HOSPITAL & REHABILITATION
CENTER, MAUREEN MORRIS, and NANCY
LADIKA,
Defendants.
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APPEARANCES:
LAW OFFICE OF OSITA OKOCHA, P.C.
Attorney for Plaintiff
88-14 Sutphin Blvd., 2nd Flr.
Jamaica, NY 11435
By:
Osita Emmanuel Okocha, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON, LLP
Attorneys for Defendant
30 Rockefeller
New York, NY 10112
By:
Kevin James Smith, Esq.

HURLEY, Senior District Judge:
Plaintiff Oluwabunmi Adejare (“plaintiff” or “Adejare”) brings this action asserting that
defendants St. Charles Hospital & Rehabilitation Center (“St. Charles”), Maureen Morris
(“Morris”), and Nancy Ladika (“Ladika”), (collectively “defendants”) committed “unlawful
employment practices on the basis of race, sex, national origin, hostile work environment,
retaliation and disability,” (Compl. ¶ 1), pursuant to Title VII of the Civil Rights Act of 1967, 42
U.S.C. § 2000e et seq. (“Title VII”), 42 U.S.C. § 1981, the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12182 et seq., the Rehabilitation Act, 29 U.S.C. § 794, and the New York
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State Human Rights Law (“NYHRL”), Executive Law § 296 (Compl. ¶¶ 1-2). Presently before
the Court is defendants’ motion to dismiss these claims pursuant to Federal Rule of Civil
Procedure (“Rule”) 12(b)(6) for failure to state a claim upon which relief may be granted. For
the reasons set forth below, defendants’ motion is granted.
BACKGROUND
The following facts are taken from plaintiff’s Complaint.
Plaintiff is a female African American of Nigerian nationality formerly employed by St.
Charles. At all relevant times, Maureen Morris was the Director of Human Resources at St.
Charles and Nancy Ladika was the “Night Supervisor,” though the Complaint does not contain
any further description of her supervisory function. The Complaint also does not provide any
further description of plaintiff’s employment. For example, it does not state the type of job
plaintiff held and for how long she held it.
Plaintiff alleges that she was injured at her job, but that defendants “made no disability
accommodation.” (Compl. ¶ 12.) The Complaint does not provide any details about what type
of injury plaintiff sustained or the type of accommodation she sought. Plaintiff claims that she
was “shocked and horrified by the way Defendants treated her and as a result [she] suffered
emotional distress.” (Id. ¶ 13.) According to the Complaint, defendants terminated plaintiff’s
employment on or about July 25, 2014. 1
DISCUSSION
I.

Standard of Review for Motion to Dismiss
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Generally, in deciding a motion to dismiss pursuant to Rule 12(b)(6), the court may
only consider facts stated in the complaint or “[d]ocuments that are attached to the complaint or
incorporated in it by reference.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). Thus, to
the extent plaintiff includes minimal additional facts in her “Declaration in Opposition to
[Defendants’] Motion to Dismiss,” the Court has not considered those facts in determining this
motion.
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In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court
should “draw all reasonable inferences in Plaintiff['s] favor, assume all well-pleaded factual
allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.”
Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks
omitted). The plausibility standard is guided by two principles. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); accord Harris v. Mills, 572
F.3d 66, 71–72 (2d Cir. 2009). First, the principle that a court must accept all allegations as true
is inapplicable to legal conclusions. Thus, “threadbare recitals of the elements of a cause of
action supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Although “legal conclusions can provide the framework of a complaint, they must be supported
by factual allegations.” Id. at 679. A plaintiff must provide facts sufficient to allow each named
defendant to have a fair understanding of what the plaintiff is complaining about and to know
whether there is a legal basis for recovery. See Twombly, 550 U.S. at 555. Second, only
complaints that state a “plausible claim for relief” can survive a motion to dismiss. Iqbal, 556
U.S. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
The plausibility standard is not akin to a ‘probability requirement,’ but asks for more than a sheer
possibility that defendant acted unlawfully. Where a complaint pleads facts that are “merely
consistent with” a defendant's liability, it ‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.’ ” Id. at 678 (quoting Twombly, 550 U.S. at 556–57)
(internal citations omitted); see In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007).
Determining whether a complaint plausibly states a claim for relief is “a context specific task

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that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal,
556 U.S. at 679; accord Harris, 572 F.3d at 72.
II.

Plaintiff’s Title VII, ADA, § 1981, Rehabilitation Act, and NYHRL Claims
Title VII prohibits an employer from discriminating against an employee on the basis of

race, color, religion, sex, or national origin. Title VII discrimination claims are analyzed under
the burden-shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S.
792 (1973). Under McDonnell Douglas and its progeny, a plaintiff must first establish a prima
facie case of discrimination by showing that: (1) he belonged to a protected class, (2) was
qualified for the position he held or sought, and (3) suffered an adverse employment action (4)
under circumstances giving rise to an inference of discriminatory intent. Terry v. Ashcroft, 336
F.3d 128, 137-38 (2d Cir. 2003). If the plaintiff establishes a prima facie case, the burden then
shifts to the employer to "articulate some legitimate, nondiscriminatory reason for [the adverse
act]." Leibowitz v. Cornell Univ., 584 F.3d 487, 499 (2d Cir. 2009) (internal quotation marks
and citation omitted). Should the employer satisfy its burden, the McDonnell Douglas
framework and its presumptions and burdens disappear, leaving the sole remaining issue of
"discrimination vel non." See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000).
However, at the motion to dismiss stage, “a plaintiff is not required to plead a prima facie
case under McDonnell Douglas, at least as the test was originally formulated.” Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015). Rather, “a plaintiff need
only give plausible support to a minimal inference of discriminatory motivation.” Id. (internal
quotation marks and citations omitted). However, a plaintiff “must at a minimum assert
nonconclusory factual matter sufficient to nudge its claims across the line from conceivable to
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plausible to proceed.” EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014)
(alterations and internal quotation marks omitted).
Here, plaintiff fails to provide facts setting forth a plausible claim of discrimination.
Specifically, she does not allege the type of job she did or any facts suggesting that she was
qualified for her employment. Additionally, she sets forth no facts that give rise to an inference
that she was discriminated against because of her sex, race, or national origin. Rather, the
Complaint is made up of conclusory allegations that plaintiff was discriminated against. Such
allegations are not sufficient to withstand a motion to dismiss. EEOC, 768 F.3d at 254. As a
result, her Title VII discrimination claim is dismissed. Moreover, her discrimination claims
pursuant to § 1981, the ADA, the Rehabilitation Act, and NYHRL, Executive Law § 296 are
also dismissed as those claims are analyzed under the same standards as Title VII claims. 2
Conge v. Sikorsky Aircraft Corp., 2007 WL 4365676, at *5 (D. Conn. Dec. 11, 2007) (ADA
and Rehabilitation Act discrimination claims are analyzed under McDonnell Douglas
framework); Karam v. Cty. of Rensselaer, New York, 2016 WL 51252, at *14 (N.D.N.Y. Jan. 4,
2016) (applying Title VII standards to NYHRL and § 1981 claims).
Similarly, plaintiff’s retaliation claims must fail. At the motion to dismiss stage of a Title
VII retaliation claim, “the allegations in the complaint need only give plausible support to the
reduced prima facie requirements that rise under McDonnell Douglas in the initial phase of a
Title VII litigation.” Littlejohn v. City of New York, 795 F.3d 297, 318 (2d Cir. 2015). That is,
a plaintiff must plead facts plausibly supporting that (1) he or she was engaged in protected

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42 U.S.C. § 1981 prohibits race discrimination in the making and enforcement of
contracts, the ADA prohibits employment discrimination based on disability, the Rehabilitation
Act prohibits programs receiving federal funding from discriminating against an individual on
the basis of a disability, and finally, § 296 of the NYHRL prohibits discrimination on the basis
of, inter alia, race, color, national origin, and disability.
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activity; (2) the employer was aware of that activity; (3) the employee suffered a materially
adverse action; and (4) there was a causal connection between the protected activity and the
adverse action. See Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d
10, 14 (2d Cir. 2013).
Here, plaintiff has not alleged sufficient facts setting forth that defendants terminated her
employment on the basis of her participation in a protected activity. Protected activity includes
any “action taken to protest or oppose statutorily prohibited discrimination.” Cruz v. Coach
Stores, Inc., 202 F.3d 650, 566 (2d Cir. 2000). Plaintiff’s Complaint does not state that
plaintiff participated in any such opposition or protests and that plaintiff’s termination was a
result of such activity. Therefore, her Title VII retaliation claim is dismissed. Similarly, to the
extent plaintiff also asserts retaliation claims under the ADA, NYHRL, §1981, and the
Rehabilitation Act, those claims are all dismissed. Karam, 2016 WL 51252 at *13 (“Claims of
retaliation under the ADA, NYHRL, 42 U.S.C. § 1981, and the Rehabilitation Act are analyzed
under the same standard as Title VII claims.”)
Plaintiff’s hostile work environment claims are also dismissed. “In order to support a
claim that a defendant violated Title VII by creating a hostile work environment . . . a plaintiff
must plead facts tending to show that the complained of conduct . . . creates such an
environment because of the [plaintiff’s] . . . protected characteristic.” Moore v. City of New
York, 2017 WL 35450, at *22 (S.D.N.Y. Jan. 3, 2017 (internal quotation marks and citation
omitted). Here, the Complaint contains no facts about the plaintiff’s work environment. As a
result, her hostile work environment claims are dismissed. See id. (analyzing Title VII, ADA,
Rehabilitation Act, § 1981, and NYHRL claims under this same standard).
II.

Plaintiff’s Tort Claims
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Plaintiff alleges that defendants committed intentional infliction of emotional distress. In
order to assert such a claim under New York law, a plaintiff must show: “(1) extreme and
outrageous conduct, measured by the reasonable bounds of decency tolerated by society; (2)
intent to cause or disregard of a substantial probability of causing severe emotional distress; (3)
a causal connection between the conduct and the injury; and (4) severe emotional distress.”
Margrabe v. Sexter & Warmflash, P.C., 353 F. App’x 547, 550 (2d Cir. 2009) (quoting Conboy
v. AT&T Corp., 241 F.3d 242 , 258 (2d Cir. 2001)) (internal quotation marks omitted). “The
conduct at issue must transcend the bounds of decency and be regarded as atrocious and utterly
intolerable in a civilized community.” Id. (internal quotation marks and citation omitted). Here,
plaintiff has not alleged any facts regarding the defendants’ conduct other than that they did not
provide her an accommodation and that they terminated her. These facts alone are insufficient
to plausibly support that defendants’ conduct was atrocious and utterly intolerable. Therefore,
her emotional distress claim is dismissed. Gioa v. Forbes Media LLC, 2011 WL 4549607, at
*12 (S.D.N.Y. Sept. 30, 2011) (“[C]ourts within this circuit have generally found allegations of
discrimination, wrongful termination . . . insufficient to satisfy the rigorous standard for extreme
and outrageous conduct.”) (collecting cases).
Moreover, defendants argue that plaintiff’s claims of negligence and negligent retention
of an unfit employee should be dismissed. Plaintiff does not respond to defendants’ argument let
alone mention these claims at all in her submission. Moreover, it is not clear what, if any, facts
from the Complaint would support these claims. As a result, these claims are dismissed.
III.

Plaintiff’s Request for Leave to Amend
In the last paragraph of her Memorandum in Opposition, plaintiff requests leave to

amend the Complaint stating that she “intends to amend the pleadings to add more causes of
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action for FMLA Claims” and NYHRL retaliation claims. ( Pl.’s Mem. in Opp’n at 7-8.)
Plaintiff, however, does not explain why any amendment is warranted. Moreover, to the extent
the plaintiff’s Complaint could be interpreted as containing an NYHRL retaliation claim, as
discussed above, that claim is dismissed, and plaintiff has not provided any new facts that she
seeks to plead in support of that claim or an FMLA claim. As a result, plaintiff’s request to
amend is denied. See In re Coty Inc. Secs. Litig., 2016 WL 1271065, at *11 (S.D.N.Y. Mar. 29,
2016) (“[T]he Second Circuit has consistently stated that district courts may deny leave to
amend when plaintiffs request such leave in a cursory sentence on the last page of an opposition
to a motion to dismiss, without any justification or an accompanying suggested amended
pleading.”) (citing Food Holdings Ltd. v. Bank of Am. Corp., 423 F. App’x 73, 76 (2d Cir. 2011)
(affirming district court’s denial of leave to amend where plaintiffs requested leave to amend
“on the final page of their brief in opposition to defendants’ motion to dismiss, in boilerplate
language and without any explanation as to why leave to amend was warranted”)).
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss is granted. Plaintiff’s claims
are dismissed with prejudice. The clerk of the Court is directed to close this case.
SO ORDERED.
Dated: Central Islip, New York
June 13, 2017
/s/
_
Denis R. Hurley
Unites States District Judge

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