Ferraro v. Sealift Inc et al

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATIONS: Accordingly, IT IS HEREBY ORDERED that defendant's motion to dismiss is granted and the complaint is dismissed with leave to amend in accordance with the R&R and this Order. Plaintiff shall submit an amended complaint within 45 days of the date of this Order. The failure to do so will result in dismissal of the case with prejudice.The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of any appeal.Ordered by Judge Joseph F. Bianco on 9/10/2018. (Bollbach, Jean)cm by chambers

FILED
U.S. DISTRICT COURT E D N Y

, _ IN CLERK'S OFFICE
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

*

SEP 10 2018 *

X

RICHARD FERRARO,

LONG ISLAND OFFICE
Plaintiff,
ORDER

17-CV-5022(JFB)
(ARL)

-againstSEALIFT,INC.,
Defendant.
X

JOSEPH F. BIANCO,District Judge:

Pro se plaintiff Richard Ferraro commenced this action against defendant Sealift, Inc. for
wrongful termination and failure to accommodate under the Americans with Disabilities Act of

1990("ADA"),42 U.S.C. §§ 12112-12117.' (ECF No. 1.)^ On November 13, 2017, defendant
moved to dismiss the complaint as time-barred and for failure to state a claim. (ECF No. 14.) The
Court referred the motion to Magistrate Judge Lindsay for a report and recommendation on April
25,2018. (ECF No. 17.)

On July 25, 2018, Magistrate Judge Lindsay issued a Report and Recommendation

("R&R") recommending that the Court grant defendant's motion to dismiss, and grant plaintiff
leave to amend. (ECF No. 18.) With respect to timeliness, Magistrate Judge Lindsay concluded

that the ADA's requirement that a plaintiff must file a federal complaint within 90 days of

receiving a Right to Sue letter from the Equal Employment Opportunity Commission ("EEOC")
was not a ground for dismissal ofthe complaint, (R&R at 5-6.) As to whether plaintiff had stated

a claim for relief. Magistrate Judge Lindsay concluded that the complaint failed to allege any

' Sealift, Inc. employees John Raggio, David Ramphal, and Lili Hughes were also originally named as individual
defendants. By Order dated September 8, 2017, the Court dismissed the claims against them because the ADA does
not provide for individual liability. (ECF No. 8.)

^ Plaintiff submitted a corrected complaint on August 31,2017(ECF No. 6), before service was effected on
defendant. The Court treats the corrected complaint as the operative complaint in this matter.

potential accommodation that would have permitted plaintiff to continue to work, as required to
state a failure to accommodate claim. (R&R at 7.) However, because plaintiffs opposition to

defendant's motion to dismiss indicated that he sought and was denied an accommodation.
Magistrate Judge Lindsay recommended that the Court grant plaintiffleave to amend the complaint
to include the allegations set forth in his opposition. {Id.) Magistrate Judge Lindsay further
recommended that plaintiff be instructed to also include allegations regarding his ability to perform
the essential functions of his job and the connection between his disability and termination from
employment. (R&R 7-8.) For the reasons explained below, the Court adopts the R&R and
provides some additional analysis.
L

Standard of Review

A district judge may accept, reject, or modify, in whole or in part, the findings and
recommendations of the Magistrate Judge. See DeLuca v. Lord, 858 F. Supp. 1330, 1345
(S.D.N.Y. 1994); Walker v. Hood,679 F. Supp. 372, 374(S.D.N.Y. 1988). As to those portions
of a report to which no "specific written objections" are made, the Court may accept the findings

contained therein, as long as the factual and legal bases supporting the findings are not clearly
erroneous. See Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 149(1985); Greene v. WCI
Holdings Corp.,956 F. Supp.509,513(S.D.N.Y. 1997). When"a party submits a timely objection

to a report and recommendation, the district judge will review the parts of the report and
recommendation to which the party objected under a de novo standard of review." Jeffries v.

Verizon, lO-CV-2686(JFB)
(AKT),2012 WL 4344188, at *1 (E.D.N.Y. Sept. 21, 2012); see also
28 U.S.C. § 636(b)(1)(C)("A judge of the court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection is

made."); Fed. R. Civ. P. 72(b)(3)("The district judge must determine de novo any part of the

magistrate judge's disposition that has been properly objected to. The district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions."),
II. Objections to the R&R

Plaintiff filed a submission in response to the R&R on August 6, 2018. (ECF No. 20.)

Rather than assert specific objections to Magistrate Judge Lindsay's recommendations, plaintiffs
submission further details the alleged discrimination and failure to accommodate.
Defendant submitted objections to the R&R on August 8, 2018. (ECF No. 21.) As

explained below, defendant objects to Magistrate Judge Lindsay's (1) recommendation that the
complaint should not be dismissed for failure to file the complaint within 90 days of receiving a
Right to Sue letter;(2)failure to recommend dismissal of any claims that were not raised with the
EEOC within 300 days oftheir occurrence;(3)failure to recommend dismissal ofplaintiffs failure
to accommodate claim based on the fact that plaintiff did not raise that claim with the EEOC;and
(4)conclusion that plaintiff should be granted leave to amend the complaint.
III. Analysis

Having reviewed the full record and the applicable law, and having reviewed the R&R de
novo, the Court adopts the R&R,and provides some additional analysis.
A. 90 Day Requirement
As noted above. Magistrate Judge Lindsay concluded that the ADA's requirement that a

plaintiff must file a federal complaint within 90 days of receiving a Right to Sue letter from the

EEOC was not a ground for dismissing plaintiffs complaint. (R&R at 5-6.) In reaching this
conclusion. Magistrate Judge Lindsay correctly noted that "courts typically presume that the
EEOC mailed the right-to-sue letter on the date reflected on the letter and that the claimant received

the letter three days after its mailing." (R&R at 6.) Magistrate Judge Lindsay found that plaintiff
had overcome that presumption by stating the following in his sworn opposition to defendant's
motion to dismiss: "Since the notice was dated May 22, 2017 it was not received until May 27,

2017. There is a difference between 90 days from DATE of notice as opposed to 90 days from
RECEIPT of notice." (ECF No. 15 at 1.) In its objections to the R&R,defendant contends that

plaintiffs statement is "not a definitive assertion by plaintiff that he received the Right to Sue
letter on May 27, 2017" and, therefore, "plaintiff failed to rebut the presumption that a document
is received three days after its mailing." (ECF No. 21 at 2.) The Court disagrees.

As repeatedly stated by the Second Circuit, a plaintiff need only present "sworn
testimony... fi*om which it could reasonably be inferred.. . that [a Right to Sue letter] took
longer than three days to reach her by mail" in order to overcome the presumption. E.g.,Sherlock
V. Montefore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996)(emphasis added); see also Comrie v.
Bronx Lebanon Hosp., 133 F,3d 906 (2d Cir. 1998)("[Ujnder appropriate circumstances, this
presumption may be rebutted by admissible evidence, such as an affidavit by the claimant stating
the actual date of receipt (or lack thereof)."). District courts in the Second Circuit routinely
conclude that even a conclusory sworn statement from a plaintiff stating that a Right to Sue letter
arrived more than three days after it was dated, or never arrived at all, is sufficient to rebut the
presumption. Kg., Tsanganea v. City Univ. ofNew York, No.06 CIV.15366 DAB JCF,2008 WL
4054426, at *6(S.D.N.Y. Aug. 28,2008), adopted by 2008 WL 4548857(S.D.N.Y. Oct. 8,2008)
(collecting cases).
Here, it can be reasonably inferred from plaintiffs sworn opposition that he received the

Right to Sue letter more than three days after it was dated. Although the statement could be more
"definitive," as defendant asserts, defendant does not cite any cases (and the Court is aware of

none) requiring anything more than a sworn statement from which it can be reasonably inferred
that a plaintiff received the Right to Sue letter on a later date, and the Court does not believe more
is required at this stage. Given plaintiffs pro se status, and the corresponding mandate to liberally
construe his submissions, the Court finds plaintiffs statement is sufficient at this stage in the

proceeding. Because plaintiff filed the complaint on August 24, 2017, within 90 days of May 27,

2017,the Court concludes that the claims survive the motion to dismiss on this ground.^
B. 300 Day Requirement

Defendant also objects to Magistrate Judge Lindsay's failure to recommend that those
claims not raised with the EEOC within 300 days of their occurrence should be dismissed. "[A]

plaintiffraising a failure to accommodate claim must file a charge with the EEOC within 300 days
'after the alleged unlawful employment practice occurred.'" Gomez v. New York City Police
Dep% 191 F. Supp. 3d 293, 301 (S.D.N.Y. 2016)(quoting 42 U.S.C. § 2000e-5(e)(l); 42 U.S.C.
§ 12117(a)). Generally, "[e]ach discrete discriminatory act starts a new clock for filing charges
alleging that act." Stuevecke v. New York Hosp. Med. Ctr. ofQueens,No. Ol-CV-326(FB)(RLM),
2003 WL 22019073, at *3(E.D.N.Y. Aug. 26, 2003)(quoting Nat'l Railroad Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002)). Defendant argued for the first time in its reply in further
support of its motion to dismiss that those claims not raised with the EEOC within 300 days of
their occurrence should be dismissed. The R&R did not explicitly address this argument, and

defendant now objects to Magistrate Judge Lindsay's failure to recommend dismissal ofany claims
that were not raised with the EEOC within 300 days of their occurrence.

As an initial matter, the Court notes that this argument should not have been raised for the

first time in defendant's reply brief. E.g., United States v. Yousef 327 F.3d 56,115(2d Cir. 2003)

^ Defendant can obviously raise this issue again after discovery is complete (including deposing plaintiff on the date
the Right to Sue letter was received).

(citing United States v. Greer, 285 F.3d 158, 170 n.3 (2d Cir. 2002); and Thomas v. Roach^ 165
F.3d 137,146(2d Cir. 1999)). Moreover, because defendant first raised the argument in its reply
brief, and because the R&R is silent as to this issue, plaintiff has not been given any opportunity

to respond. This Court cannot conclusively determine from the current allegations whether any of
the alleged failures to accommodate occurred within 300 days of plaintiff filing his EEOC charge.
Accordingly, plaintiff is instructed to include specific allegations regarding the timing of the
alleged failures to accommodate in any amended complaint. Defendant may raise this issue again
in response to any amended complaint.
C. Exhaustion

Defendant also objects to Magistrate Judge Lindsay's failure to recommend dismissal of

plaintiffs failure to accommodate claim based on the fact that plaintiff did not raise that claim
with the EEOC. Again,defendant raised this argument for the first time in its reply briefin further
support of its motion to dismiss, which is procedurally impermissible. E.g., Yousef, 327 F.3d at
115. In any event, the Court has reviewed it and concludes that the argument is meritless.
Generally, to bring a discrimination claim in federal district court, a plaintiff must first

exhaust her administrative remedies by "filing a timely charge with the EEOC or with 'a State or
local agency with authority to grant or seek relief from such practice.'" Holtz v. Rockefeller &

Co.,258 F.3d 62,82-83(2d Cir. 2001)(quoting 42 U.S.C. § 2000e-5(e)). However,"'claims that
were not asserted before the EEOC [or an appropriate State or local agency] may be pursued in a
subsequent federal court action if they are reasonably related to those that were filed with the

agency.'" Jute v. Hamilton SundstrandCorp.,420 F.3d 166, 177(2d Cir. 2005)(quoting Legnani
V. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (per curiam)).

"Reasonably related conduct is that'which would fall within the scope ofthe EEOC investigation

which can reasonably be expected to grow out of the charge that was made.'" Id. (quoting
Fitzgerald v. Henderson^ 251 F,3d 345, 358 (2d Cir. 2001)); see also Mathirampuzha v. Potter,
548 F.3d 70,77(2d Cir.2008)(stating claim is reasonably related where "administrative complaint

can be fairly read to encompass the claims ultimately pleaded in a civil action or to have placed
the employer on notice that such claims might be raised"). In determining whether a claim is
"reasonably related" to the EEOC charge,"the focus should be on the factual allegations made in
the[EEOC]charge itself and on whether those allegations "gave the[EEOC]'adequate notice to
investigate'" the claims asserted in court. Williams v. N.Y. City Hous. Auth.,^S% F.3d 67, 70(2d
Cir. 2006)(quoting Deravin v. Kerik, 335 F.3d 195, 201-02(2d Cir. 2003)).

Here,the factual allegations made in plaintiffs EEOC charge gave defendant ample notice
to investigate the claims he asserts now. In fact, where the form federal complaint asks for the
factual allegations supporting plaintiffs claims, he simply incorporates the attached EEOC charge.
(ECF No. 6 at 6.) Accordingly, and contrary to defendant's assertions, plaintiffs claims do not
raise a new theory based on newly presented factual allegations. To the extent defendant argues
that the claim should be dismissed because plaintiff did not assert a failure to accommodate cause
of action in his EEOC charge, that argument is also without merit. "[W]hen a claim is simply a
newly articulated cause of action that grows directly out of the factual allegations of the EEOC
charge,the claim can be brought in district court." Bowen-Hooks v. City ofNew York, 13 F. Supp.
3d 179, 204 n.l3(E.D.N.Y. 2014)

Agosta v. Suffolk Cty., 981 F.Supp.2d 167, 173, 2013

WL 5960752, at *5 (E.D.N.Y. Nov. 8, 2013)). Accordingly, the Court declines to dismiss the
failure to accommodate claim as unexhausted.'^

** To the extent that plaintiffs submission after the issuance of the R&R could be construed as objections, the Court
agrees with the R&R's analysis (under de novo review) regarding the complaint's failure to allege (1) that plaintiff
could perform the essential ftinctions ofthe job;(2)a potential accommodation that would have permitted plaintiff to
continue to work; and (3) a connection between his termination and his disability, all of which are necessary to

D. Leave to Amend

Despite defendant's objection to the contrary, the Court will grant plaintiff an opportunity
to amend the complaint. The Second Circuit has repeatedly "held that district courts generally
should not dismiss a pro se complaint without granting the plaintiff at least one opportunity to
amend." DeBoe v. Du Bois, 503 F. App'x 85, 87(2d Cir. 2012)(citing Cuoco v. Moritsugu, 222

F.3d 99,112(2d Cir. 2000)). Here, plaintiff has not had the opportunity to amend his complaint

in response to the arguments raised by defendant in support ofdismissal,and the analysis provided
in the R&R and herein, and he may be able to address the pleading defects in his initial complaint

(as indicated in his submission in response to the R&R). Thus, and particularly in light of

plaintiffs pro se status, the Court in its discretion will grant him leave to amend the complaint.
Accordingly, IT IS HEREBY ORDERED that defendant's motion to dismiss is granted
and the complaint is dismissed with leave to amend in accordance with the R&R and this Order.
Plaintiff shall submit an amended complaint within 45 days ofthe date ofthis Order. The failure
to do so will result in dismissal of the case with prejudice.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith, and,therefore, informa pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

l\

//

Dated: September 10, 2018
Central Islip, New York

flofieph F. Bianco
United States District Judge

plausibly state his claims. However, as discussed below, plaintiffs submission attempts to provide additional
information regarding the denial ofan accommodation, and the Court grants leave to re-plead.
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