Zavala v. Cornell University
Filing
30
MEMORANDUM-DECISION and ORDERED, that Defendants Motion (Dkt. No. 23) for judgment on the pleadings is DENIED; and it is further ORDERED, that Defendants Letter Motion (Dkt. No. 25) requesting that the Court grant the Motion for judgment on the pleadings is DENIED as moot. Signed by Senior Judge Lawrence E. Kahn on March 21, 2014. ***A copy of this order was served upon the pro se plaintiff by regular US mail. (sas) Modified on 3/21/2014 (sas). (Main Document 30 replaced on 3/21/2014) (sas, ).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JOSE A. ZAVALA,
Plaintiff,
-against-
5:11-CV-1403 (LEK/DEP)
CORNELL UNIVERSITY,
Defendant.
MEMORANDUM-DECISION and ORDER
I.
INTRODUCTION
Before the Court is Defendant Cornell University’s (“Defendant”) second Motion for
judgment on the pleadings. Dkt. Nos. 23 (“Motion”); 23-1 (“Memorandum”). For the following
reasons, the Motion is denied.
II.
BACKGROUND1
Defendant employed Plaintiff Jose A. Zavala (“Plaintiff”) as a network technician,
specifically as a member of the Backbone team. See Dkt. No. 18 (“Amended Complaint”) ¶ 11.
Plaintiff suffered from type 1 diabetes mellitus with complications during the entirety of the relevant
period. Id. ¶ 5. In October 2009, Plaintiff sought treatment for swelling of his right foot and was
diagnosed with early-stage kidney failure. See id. at 15. Plaintiff then asked his supervisor Jeremy
Butler (“Butler”) for a reduction in duties requiring walking, to which Butler responded by
assigning Plaintiff to tasks that required more walking. Id. ¶ 20(a); Id. at 23-25 (“EEOC
Application”).
1
On a Rule 12(c) motion the Court accepts a plaintiff’s factual allegations as true, and
resolves all factual inferences in plaintiff’s favor. See In re Thelen, 736 F.3d 213, 218 (2d Cir.
2013). Thus, the allegations in the Amended Complaint form the sole basis for this section.
At a February 2010 meeting to discuss Plaintiff’s yearly performance evaluation, Butler told
Plaintiff that he had been downgraded because he had missed time for medical appointments, which
slowed the progress of the team. Id. ¶ 20(b). Plaintiff refused to sign his performance evaluation;
Director of Operations Sasja Huijts (“Huijts”) threatened Plaintiff and demanded that he do so. Id. ¶
20(c)-(d). Plaintiff applied for and took a three-week leave to address his and his wife’s respective
health conditions. Id. ¶ 20(e).
When Plaintiff returned to work, Huijts placed Plaintiff on restrictive duty, assigned Plaintiff
to a customer service position, and failed to return Plaintiff’s tools and regular company vehicle. Id.
¶ 20(f). Huijts also told Plaintiff to apply for permanent disability. Id. ¶ 20(g). In order to return to
his previous position, Plaintiff gave Huijts a fit-for-duty letter from a nurse practitioner, which
Huijts rejected. Id. ¶ 20(h). Plaintiff requested and received a meeting with human resources
manager Mittman (“Mittman”), who both ignored Plaintiff’s grievances and failed to keep the
content of the meeting confidential as required by Defendant’s employment policies. Id. ¶¶ 20(i),
20(l). After presenting his supervisors with another letter signed by his doctor, Plaintiff returned to
work, but broke his foot on June 6, 2010. Id. ¶¶ 20(j), 20(m). Plaintiff requested a light-duty
accommodation, but Defendant refused. Id. ¶ 20(m).
Plaintiff went on short-term disability until October 2010. Id. ¶ 20(n). When Plaintiff
returned to work, Huijts reassigned Plaintiff from the Backbone team to another group, took away
his tools and truck, and warned Plaintiff not to challenge the reassignment with human resources.
Id. Huijts claimed that she reassigned Plaintiff because he was under a temporary no-ladders
restriction, but both the Backbone team and Plaintiff’s newly assigned team use ladders. Id.
Plaintiff’s new position involves substantially less complex, fulfilling, and prestigious work than the
2
Backbone team. Id. Additionally, unlike the Backbone team, which receives substantial overtime,
Plaintiff’s new team receives “little if any overtime.” Id. Plaintiff again met with Mittman, who
instructed Plaintiff to speak with another human resources representative if he believed his transfer
was discriminatory. Id. ¶ 20(p). Plaintiff did so, and the representative offered to return Plaintiff to
his position on the Backbone team under Huijts’s and Butler’s supervision; Plaintiff refused. Id. ¶
20(q).
In April 2011, Plaintiff again received a negative job evaluation. Id. ¶ 19(b). The evaluation
cited missing tools and poor morning time management. Id. However, the tools were not actually
missing, and Plaintiff’s poor morning time management was due to Defendant taking away
Plaintiff’s vehicle, causing him to rely on other technicians for transportation to job sites. Id. On
August 19, 2011, Plaintiff filed a complaint with the Equal Employment Opportunity Commission
(“EEOC”) and New York State Division of Human Rights (“DHR”). Am. Compl. at pages 23-25.
Plaintiff commenced this action by filing a Complaint bringing claims under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. Dkt. No. 1 (“Complaint”). Defendant
filed an Answer and a Motion for judgment on the pleadings. Dkt. Nos. 9; 14. The Court granted
Defendants’ first Motion, but in light of Plaintiff’s pro se status, allowed him the opportunity to
amend his Complaint. Dkt. No. 17 (“Order”).
Plaintiff then filed the Amended Complaint.2 Defendant answered the Amended Complaint,
and filed the second Motion. Dkt. No. 21 (“Answer”); Mot. Plaintiff responded, and Defendant
replied. Dkt. Nos. 27 (“Response”); 28 (“Reply”).
2
In both his Complaint and Amended Complaint, Plaintiff declined to assert New York
State Human Rights Law claims analogous to his ADA claims.
3
III.
LEGAL STANDARD
To survive a Rule 12 motion to dismiss, 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, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also FED. R.
CIV. P. 12(b)(6). A court must accept as true the factual allegations contained in a complaint and
draw all inferences in a plaintiff’s favor. See Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d
Cir. 2006). A motion brought under Rule 12(c) is decided under the same standard a 12(b)(6)
motion, except that it is brought after the close of the pleadings, implicating the pleadings as a
whole. See 5 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE
§ 1367 (3d ed. 2013). The 12(c) motion attempts to resolve claims solely on issues of law and
Plaintiff’s alleged facts. See In re Thelen, 736 F.3d 213, 218 (2d Cir. 2013).
IV.
DISCUSSION
Plaintiff asserts claims under the Americans with Disabilities Act.3 Defendants argue that:
(1) Plaintiff’s claims are time-barred because he filed his EEOC claim more than 180 days after the
3
Defendants have only addressed the Amended Complaint’s disparate treatment claim. See
generally Mem. In light of Plaintiff’s pro se status, the Court has a duty to read his pleadings
liberally. Estelle v. Gamble, 429 U.S. 97, 106 (1976). In addition to claims for discriminatory
treatment and hostile work environment, the Court finds that the Amended Complaint also fairly
raises claims for failure to provide reasonable accommodation and retaliation. See Graves v. Finch
Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006) (stating prima facie standard for failure to
reasonably accommodate claim: (1) “plaintiff is a person with a disability under the meaning of the
ADA; (2) an employer covered by the statute had notice of his disability; (3) with reasonable
accommodation, plaintiff could perform essential functions of the job at issue; and (4) the employer
refused to make such accommodations”); Ragusa v. Malvern Union Free Sch. Dist., 381 F. App’x
85, 89 (2d Cir. 2010) (stating prima facie standard for retaliation claim: “(1) [plaintiff] engaged in
ADA-protected activity (2) of which defendants were aware, (3) she was subjected to an adverse
employment action, and (4) a causal connection existed between the adverse employment action and
her protected activity”) (citing Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002)); Am.
Compl. ¶ 7 (alleging that Plaintiff’s request for accommodation resulted in his reassignment).
4
alleged conduct; and (2) Plaintiff has not alleged an “adverse employment action.” Mem. at 6-18.
A. Disparate Treatment ADA Claim
To establish a prima facie case of disparate treatment under the ADA, a plaintiff must show
that: (1) her employer is subject to the ADA; (2) she was disabled within the meaning of the ADA;
(3) she was otherwise qualified to perform essential functions of his job, with or without reasonable
accommodation; and (4) she suffered adverse employment action because of his disability. See
Giordano v. City of N.Y., 274 F.3d 740, 747 (2d Cir. 2001). Defendants do not challenge that
Plaintiff’s pleadings satisfy the first three factors; rather, they argue that Plaintiff has not alleged an
“adverse employment action.”
An adverse employment action is a “materially adverse change in the terms, privileges,
duration and conditions of employment.” Treglia, 313 F.3d at 720. Adverse employment actions
may include “a 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.” Patrolmen’s Benevolent Ass’n v. City of New
York, 310 F.3d 43, 51 (2d Cir. 2002) (alteration in original and quotation marks omitted).
Defendant claims that the only potential adverse employment action is Plaintiff’s reassignment to a
different team and that, because Plaintiff refused the offer to return Plaintiff to the Backbone team,
the reassignment cannot constitute an adverse action. See Mem. at 13-18.
1. Reassignment
A “reassignment with significantly different responsibilities” is actionable under the ADA.
See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). However, such reassignment must
be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Sanders v.
5
N.Y. City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004). “Because there are no bright-line
rules, courts must pore over each case to determine whether the challenged employment action
reaches the level of ‘adverse.’” Wanamaker v. Colombia Rope Co., 108 F.3d 462, 466 (2d Cir.
1997). Plaintiff states that, whereas the Backbone team works on hundreds of network lines at a
time and does complex work, his new team does only less complex and rewarding single-line work.
Plaintiff also alleges lost overtime pay as a result of the transfer.
The Amended Complaint’s allegations of economic harm and a material change in
responsibilities suffice to establish an adverse action. See, e.g., Ramazzotti v. El Al Israel Airlines,
No. 91 Civ. 6543, 1994 WL 132275, at *3 (S.D.N.Y. Apr. 14, 1994) (holding that reassignment
resulting in loss of overtime and responsibility was sufficient to constitute adverse action). That
Plaintiff declined an offer to return to the Backbone team does not alter the fact that, at least for
some time, he was reassigned without the right to return to his former position.4 At this stage of the
litigation, Plaintiff has alleged sufficient facts to state a claim for discriminatory treatment based on
the reassignment.
2. Negative Performance Evaluations and Fit-to-Work Letter
“As a matter of law, an unsatisfactory performance evaluation alone does not amount to an
adverse employment action because such evaluation does not constitute a material change in
employment.” Davis v. N.Y.C. Dep’t of Educ., No. 10-CV-3812, 2012 WL 139255, at *6
(E.D.N.Y. Jan. 18, 2012) (internal quotations marks omitted). Only where a “negative performance
evaluation results in an adverse change in work conditions [may] it be considered an adverse
4
The Court need not determine at this stage whether Defendant’s offer to return Plaintiff to
his former position bars him from recovering damages arising after the offer.
6
employment action.” Id. However, warnings and evaluations can constitute adverse actions if they
lead to more substantial employment actions that are adverse. See Tepperwien v. Entergy Nuclear
Operations, Inc., 663 F.3d 556, 559-70 (2d Cir. 2011) (finding that an employee counseling was not
actionable because it did not place the employee in a progressive disciplinary process); Krishnapillai
v. Donahoe, No. 09-CV-1022, 2013 WL 5423724, at *11 (E.D.N.Y. Sept. 26, 2013) (“Courts in this
district have found that reprimands, threats of disciplinary action and excessive scrutiny do not
constitute adverse employment actions in the absence of other negative results such as a decrease in
pay or being placed on probation.”). It is reasonable to infer that Plaintiff’s transfer resulted from
criticism that Plaintiff received in the performance evaluation. Therefore, a claim that the
performance evaluation was an adverse action may proceed.
Defendant’s refusal of Plaintiff’s right-to-work letter from the nurse practitioner after his
first disability leave, which is separate from the reassignment after his second leave discussed supra,
also caused material detriment to Plaintiff’s employment. Plaintiff was forced to continue working
in a low-level customer service job despite being able to return to the Backbone team. Plaintiff’s
loss of overtime pay and reassignment to less fulfilling work during the time between the refused
and accepted right to work letters renders the refusal of the letter an adverse action.
B. Hostile Work Environment Claim
ADA hostile work environment claims are evaluated under the same standard as a Title VII
hostile work environment claim.5 See Monterroso v. Sullivan & Cromwell, LLP, 591 F. Supp. 2d
5
Although the Second Circuit has declined to decide whether the ADA provides any basis
for a hostile work environment claim, Farina v. Branford Bd. of Educ., 458 Fed. Appx. 13, 16-17
(2d Cir. 2011), trial courts have interpreted the Circuit’s authorization of analogous New York State
Human Rights Law (“NYSHRL”) claims as tacit consent, see, e.g., Tse v. N.Y. Univ., No. 10 Civ.
7207, 2013 WL 5288848, at *13 & n. 13 (S.D.N.Y. Sept. 19, 2013) (citing Pucino v. Verizon
7
567, 584 (S.D.N.Y. 2008). A hostile work environment claim requires that the workplace be
“permeated with discriminatory intimidation, ridicule, and insult that is sufficiently pervasive to
alter the conditions of the victim’s employment.” Kassner v. 2nd Avenue Delicatessen, Inc., 496
F.3d 229, 240 (2d Cir. 2007). The claim contains “objective and subjective elements: the
misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive
work environment, and the victim must also subjectively perceive that environment to be abusive.”
Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). Plaintiff subjectively perceived the backbone
team environment to be abusive; he states that he declined transfer back to the more lucrative and
stimulating work of the backbone team because he feared working under Huijts and Butler. Resp.
¶ 5.
The objective inquiry demands examination of “the totality of the circumstances, including:
‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with’ the
[employee’s work] performance.” Hayut v. State Univ. of N.Y., 352 F.3d 733, 745 (2d Cir. 2003)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). “As a general rule, incidents must be
more than ‘episodic; they must be sufficiently continuous and concerted in order to be deemed
pervasive.’” Alfano, 294 F.3d at 374 (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.
1997)). “A plaintiff must also demonstrate that she was subjected to the hostility because of her
[disability].” Brennan v. Metro. Opera Ass’n, Inc., 192 F.3d 310, 318 (2d Cir. 1999).
The Complaint states facts sufficient to proceed on a hostile work environment claim;
Plaintiff has alleged that actions taken by Huijts and Butler, including their threats regarding
Wireless Commc’ns, Inc., 618 F.3d 112, 117 n.2 (2d Cir. 2010)). The Court adopts this approach.
8
Plaintiff’s use of internal human resources mechanisms, unreasonably interfered with Plaintiff’s job
performance. With knowledge of Plaintiff’s mobility limitations, Defendant took away Plaintiff’s
vehicle, forcing him to arrange rides with other team members to and from work sites. When
Plaintiff requested accommodation to work on less walking-intensive jobs, Butler responded by
assigning Plaintiff to tasks that required more walking. Huijts attempted to force Plaintiff to pursue
permanent disability. These alleged incidents of harassment are “‘of such quality or quantity that a
reasonable employee would find the conditions of her employment altered for the worse.’”
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000) (emphasis omitted)
(quoting Torres v. Pisano, 116 F.3d 625, 632 (2d Cir. 1997)).
C. Limitations Period
1. Discrete Instances of Disparate Treatment
“As a predicate to filing suit under [the ADA], a private plaintiff must first file a timely
charge with the EEOC.” Riddle v. Citigroup, 449 Fed. Appx. 66, 69 (2d Cir. 2009). Normally, “a
plaintiff may not assert claims based on events that took place more than 300 [or 180] days before
the submission of an administrative charge of discrimination to the EEOC or other local
employment discrimination agency.” Lomako v. N.Y. Inst. of Tech., No. 09 Civ. 6066, 2010 WL
1915041, at *4 (S.D.N.Y. May 12, 2010). If a plaintiff first files a complaint with a qualifying state
agency, or when the EEOC files the complaint with that agency on the plaintiff’s behalf, she may
recover for events occurring up to 300 days prior to filing. See Tewksbury v. Ottaway Newspapers,
192 F.3d 322, 325, 327-28 (2d Cir. 2006) (citing Mohasco Corp. v. Silver, 447 U.S. 807, 816
(1980)). The actions of Plaintiff and the EEOC availed Plaintiff of the 300 day filing period.
Plaintiff signed and filed a complaint with the EEOC on August 19, 2011. Am. Compl. at 23-25.
9
The EEOC received the complaint, and forwarded it to the DHR. Id. The DHR is a qualifying state
agency.6 Therefore, Plaintiff may bring claims premised on events occurring on or after October 23,
2010—300 days before August 19, 2011.
Plaintiff further asserts that, because he submitted another, earlier complaint to the EEOC
and attached the certified mail return receipt to his Response, he may file claims arising from events
before October 23, 2010. See Am. Compl. ¶ 19(c). The receipt indicates that a parcel addressed to
the EEOC was postmarked on July 14, 2011, and received the next day. See Resp. at 5. A
statement in a complaint that the plaintiff filed an application with the EEOC is enough to survive a
motion to dismiss. See, e.g., Ercole v. LaHood, No. 07-CV-2049, 2011 WL 1205137, at *2 n.1
(E.D.N.Y. Mar. 29, 2011). Not only did Plaintiff state that he filed the earlier application in the
Complaint, but he also attached the return receipt to his Response. A certified mail return receipt
may be dispositive proof that a party filed an administrative complaint. See Universal City Studios,
LLLP v. Peters, 402 F.3d 1238, 1241 (D.C. Cir. 2005) (accepting a return receipt as proof that a
copyright claim was filed). Plaintiff has done enough at this stage to show that he submitted a
complaint to the EEOC on July 14, 2011, and therefore may assert claims arising on or after
September 17, 2010.7
6
The EEOC website lists the DHR as a designated Fair Employment Practices Agency and
states that charges filed with the both the DHR and EEOC “raise claims under state and local laws
prohibiting employment discrimination as well as the federal laws enforced by the EEOC.”
http://www.eeoc.gov/field/newyork/fepa.cfm.
7
Defendant also argues that the Complaint exceeded the scope of the facts included in his
EEOC complaint. Mem. at 15-18. “A district court only has jurisdiction to hear claims that either
are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is
‘reasonably related’ to that alleged in the EEOC charge.” Butts v. N.Y. Dep’t of Hous. Preservation
& Dev., 990 F.2d 1397, 1402 (2d Cir. 1993). However, this defense is unavailing at this stage;
Plaintiff states that he attached the same time line of events included in the Amended Complaint to
10
2. Continuing Violation
Plaintiff argues that he may bring claims regarding his right-to-work letter and performance
evaluations under the continuing violation doctrine, even though they arose before the 300 day filing
deadline.8 See Resp. at 10. In deciding whether putative discrimination qualifies as a continuing
violation, courts consider three factors: (1) whether the incidents of discrimination are similar in
kind; (2) whether the incidents are recurring or isolated in nature; and (3) whether the effect of the
discrimination is permanent in nature, and thus should trigger an individual to assert his rights. See
Berry v. Bd. of Supervisors of La. State Univ., 715 F.2d 971, 981-82 (11th Cir. 1983).9 This list of
factors is not exhaustive and “requires a fact-specific inquiry by a trial judge which cannot be easily
reduced to a formula.” Id. at 982. Plaintiff has sufficiently pled a continuing violation.10
As to the first factor, all of the incidents occurred due to decisions made by Huijts and Butler
that were close in time to Plaintiff’s heightened medical difficulties, including the 2009 performance
evaluation, the refusal of the fit-to-work letter, the apparent threats regarding leave and disability,
the EEOC complaint. Am. Compl. at 14-21.
8
A hostile work environment claim is actionable in its entirety as long as it continued into
the 300 day filing period. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)
(allowing events beyond the filing window to be claimed because the alleged discrimination “is
composed of a series of separate acts that collectively constitute one unlawful employment
practice”).
9
Although not controlling precedent in the Second Circuit, several district courts within the
Circuit have adopted the Berry analysis as the most complete framework for analyzing a continuing
violation claim. See Petrosky v. N.Y. State Dep’t of Motor Vehicles, 72 F. Supp. 2d 39, 49-50
(N.D.N.Y. 1999).
10
The same evidence often suffices to establish both a continuing violation disparatetreatment claim and a hostile work environment claim. See Cornwell v. Robinson, 23 F.3d 694, 704
(2d Cir. 1994) (affirming finding of continuing violation that was “supported by the same evidence
that established her hostile-environment claim”).
11
and negative consequences for following company policy and speaking with human resources.
Second, the discriminatory actions were recurring. The Court must examine whether the
putative discrimination occurred as a series of isolated events, or as a “continuum of
discrimination.” Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998). Defendant
asserts that the discriminatory actions alleged in the Complaint are too infrequent to support this
conclusion, identifying the allegedly discriminatory events as “two discriminatory performance
reviews (issued a year apart) and assignment to a different team in between these reviews.” Mot. at
9. However, Defendant omits several alleged instances of discrimination, including: the decisions
to assign Plaintiff to walking-intensive tasks and to take away Plaintiff’s vehicle, threats for
speaking with human resources, and pressure to apply for permanent disability. Furthermore, the
relative frequency of the discrimination was greater in light of Plaintiff’s multiple medical leaves .
The pleadings therefore state enough facts to satisfy the second Berry factor. The third factor is also
satisfied: other than Plaintiff’s involuntary transfer—which occurred within the statutory filing
period—none of the other instances of alleged discrimination carried the requisite permanence to for
Plaintiff to have concluded that he should file a claim under the ADA. Viewing the totality of the
circumstances, the Court finds that Plaintiff has sufficiently pled a continuing violation.
V.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendant’s Motion (Dkt. No. 23) for judgment on the pleadings is
DENIED; and it is further
ORDERED, that Defendant’s Letter Motion (Dkt. No. 25) requesting that the Court grant
the Motion for judgment on the pleadings is DENIED as moot;
12
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED:
March 21, 2014
Albany, New York
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