Gibson v. New York State Office of Mental Health et al
Filing
33
AMENDED DECISION AND ORDER correcting the # 24 DECISION AND ORDER granting in part and denying in part # 12 Defendants' motion to dismiss such that the following two claims are dismissed: (1) Plaintiff's Third Claim pursuant to Title VII ; and (2) Plaintiff's Fourth Claim pursuant to the ADEA. The following two claims survive Defendants' motion to dismiss: (1) Plaintiff's Second Claim pursuant to the NYSHRL; and (2) Plaintiff's First Claim pursuant to FMLA. Signed by Chief Judge Glenn T. Suddaby on 8/13/18. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
CHRISTINE GIBSON,
Plaintiff,
v.
6:17-CV-0608
(GTS/TWD)
NEW YORK STATE OFFICE OF MENTAL
HEALTH; CENTRAL NEW YORK
PSYCHIATRIC CENTER; JOHN DOE(S);
and JANE DOE(S),
Defendants.
__________________________________________
APPEARANCES:
OF COUNSEL:
BOSMAN LAW FIRM LLC
Counsel for Plaintiff
201 West Court Street
Rome, New York 13440
A.J. BOSMAN, ESQ.
HON. BARBARA UNDERWOOD
Attorney General for the State of New York
Counsel for Defendants
615 Erie Boulevard West, Suite 102
Syracuse, New York 13204-2455
TIMOTHY P. MULVEY, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
AMENDED DECISION and ORDER1
1
In the Decision and Order of April 24, 2018, the Court found that the Eleventh
Amendment barred Plaintiff’s Second and Fourth Claims. (Dkt. No. 24 [Decision & Order,
4/24/2018].) However, after considering Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535
U.S. 613, 618-24 (2002), the Court has concluded that this finding was in error. Nonetheless, the
Court finds no reason to alter its ultimate conclusion that Plaintiff’s Fourth Claim must be
dismissed. This is because, as discussed in the Decision and Order of April 24, 2018, Plaintiff
has not alleged facts plausibly suggesting that the denial of a shift change to accommodate her
child care needs constituted an adverse action as required by her Fourth Claim. (Dkt. No. 24, at
11-14 [Decision & Order, 4/24/2018].) As a result, the Court has decided to issue this Amended
Decision and Order to correct its mistake of law and clarify the grounds upon which its findings
On April 24, 2018, in this employment civil rights action filed by Christine Gibson
(“Plaintiff”) against the New York State Office of Mental Health (“NYSOMH”), the Central
New York Psychiatric Center (“CNYPC”), and John Does(s) and Jane Doe(s) (collectively
“Defendants”) pursuant to the Family Medical Leave Act (“FMLA”), the New York State
Human Rights Law (“NYSHRL”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and
the Age Discrimination in Employment Act (“ADEA”), the Court issued a Decision and Order
granting Defendants’ motion for judgment on the pleadings with regard to three of the four
claims in Plaintiff’s Amended Complaint pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 5, 12, 24.)
Because the Court has recently become aware of grounds to sua sponte reconsider one of its
conclusions in that Decision and Order (see, infra, note 5 of this Amended Decision and Order),
the Court does so in this Amended Decision and Order.
I.
RELEVANT BACKGROUND
A.
Plaintiff’s Amended Complaint2
Generally, liberally construed, Plaintiff’s Amended Complaint asserts four causes of
related to Plaintiff’s Fourth Claim is based. Furthermore, because Defendants did not assert a
failure-to-state-a-claim argument against Plaintiff’s Second Claim (and because the Court cannot
sua sponte subject the claim of a represented plaintiff to a failure-to-state-a-claim analysis),
Defendants’ motion is denied without prejudice with regard to that claim.
2
On August 9, 2016, Plaintiff filed her original Complaint in this action in Oneida
County Supreme Court, asserting claims under the FMLA and NYSHRL. (Dkt. No. 12, Attach.
2; Dkt. No 12, Attach. 3, at ¶¶ 17-25 [Pl.’s Compl.].) On March 13, 2017, Plaintiff filed a
motion to amend her Complaint and on May 10, 2017, that motion was granted. (Dkt. No. 13,
Attach. 2, at 14-18, 41-42].) On May 22, 2017, Plaintiff filed the Amended Complaint, which
included additional claims under Title VII and the ADEA. (Dkt. No. 12, Attach. 2; Dkt. No. 2,
at ¶¶ 26-33 [Pl.’s Am. Compl.].) Pursuant to Defendants’ petition for removal of June 2, 2017,
this action was removed from the Oneida County Supreme Court to this Court on June 2, 2017.
(Dkt. No. 1.)
2
action. (Dkt. No. 2 [Pl.’s Am. Compl.].) First, Plaintiff claims that Defendants willfully denied
her request for leave to care for her daughter under the FMLA on or after February 28, 2013
(“First Claim”). (Id. at ¶¶ 17-22.)
Second, Plaintiff claims that Defendants discriminated against her in matters related to
her employment because of her gender and age in violation of the NYSHRL; specifically,
Plaintiff alleges that Defendants denied her request for a hardship accommodation in the form of
a shift change in order to allow her to care for her grandsons, of whom she became the legal
custodian in October 2015, while granting hardship accommodations for male and younger
employees (“Second Claim”). (Id. at ¶¶ 9-13, 23-25.)
Third, Plaintiff claims that Defendants discriminated against her because of her gender in
violation of Title VII when they denied her request for a hardship accommodation (Third
Claim”). (Id. at 26-30.)
Fourth, Plaintiff claims that Defendants discriminated against her because of her age in
violation of the ADEA when they denied her request for a hardship accommodation (“Fourth
Claim”). (Id. at ¶¶ 31-33.)
B.
Parties’ Briefing on Defendants’ Motion for Judgment on the Pleadings
1.
Defendants’ Memorandum of Law
Generally, Defendants move to dismiss Plaintiff’s Second, Third, and Fourth Claims for
three reasons. (Dkt. No. 12, at 1-10 [Defs.’ Mem. of Law].) First, Defendants argue that, as to
Plaintiff’s Third and Fourth Claims, Plaintiff failed to file those claims within 90 days of
receiving her right-to-sue letter from the Equal Employment Opportunity Commission
(“EEOC”). (Id. at 4-6.) Specifically, Defendants note that the letter was issued on December
3
13, 2016, but that Plaintiff did not file the Amended Complaint asserting these claims until May
22, 2017, 160 days later. (Id. at 4-5.) Defendants note that Plaintiff filed her motion for leave to
file an amended claim exactly 90 days after the right-to-sue letter was issued, but argues that the
act of seeking leave to file an amended claim is not the same as actually filing that amended
claim. (Id. at 5-6.)
Second, Defendants argue that, even if the Third and Fourth Claims are not time-barred,
Plaintiff had failed to state a claim upon which relief can be granted because she has failed to
allege facts plausibly suggesting that she has suffered an adverse employment action to support
those claims. (Id. at 6-9.) Defendants argue that the denial of a requested shift change does not
constitute an adverse employment action. (Id. at 8-9.)
Third, Defendants argue that Plaintiff’s Second Claim is barred by the doctrine of
sovereign immunity under the Eleventh Amendment because the NYOMH is a state
governmental agency and the CNYPC is a hospital operated by that government agency. (Id. at
9-10.) Defendants argue that the NYSHRL does not contain any waiver of sovereign immunity
that would make the Defendants subject to suit. (Id.)
2.
Plaintiff’s Opposition Memorandum of Law
Generally, Plaintiff asserts two arguments in opposition to Defendants’ motion.3 (Dkt.
No. 13, Attach. 3, at 7-11 [Pl.’s Opp’n Mem. of Law].) First, Plaintiff argues that her Third and
Fourth Claims were timely filed because the filing of the motion to amend the Complaint
3
Along with her opposition to Defendants’ motion, Plaintiff filed a cross-motion to
remand to state court; however, on January 17, 2018, Plaintiff filed a letter withdrawing her
cross-motion to remand. (Dkt. No. 13, Attach. 3, at 7 [Pl.’s Opp’n Mem. of Law]; Dkt. No. 23.)
The Court therefore need not, and does not, consider the merits of Plaintiff’s arguments related
to that cross-motion to remand.
4
(accompanied by her proposed Amended Complaint) tolled the statute of limitations. (Id. at 810.) Plaintiff also argues that the relation-back doctrine applies in this case because the Third
and Fourth Claims arose from the same transactions as did the claims asserted in the original
Complaint, and the new and original claims are so closely related that the original claims gave
Defendants reasonable notice of the new claims. (Id. at 9-10.)
Second, Plaintiff argues that she has alleged facts plausibly suggesting an adverse action
to support her Third and Fourth Claims, because courts have found that a shift change disrupting
an employee’s childcare might constitute an adverse action. (Id. at 10-11.) Plaintiff additionally
requests that, should the Court find that she has not alleged sufficient facts to allege an adverse
action, she be permitted an opportunity to amend her Amended Complaint. (Id. at 11.)
3.
Defendants’ Reply Memorandum of Law
Generally, Defendants assert three arguments in reply to Plaintiff’s arguments. (Dkt. No.
16, at 3-7 [Defs.’ Reply Mem. of Law].) First, Defendants re-iterate their argument that
Plaintiff’s Third and Fourth Claims are untimely. (Id. at 3-4.)
Second, Defendants argue that, although Plaintiff now alleges that the denial of her
request for a shift change disrupted her ability to care for her grandchildren, she did not allege
any particular child-care inconveniences caused by her current shift; Defendants argue that,
under the applicable law, (a) such particular inconveniences are required because the cases relied
on by Plaintiff merely stand for the point of law that a shift change could possibly rise to the
level of adverse action, and (b) Plaintiff’s subjective belief that her shift is inconvenient is not
sufficient to state an adverse action. (Id. at 5-7.) Defendants also argue that Plaintiff has not
alleged that the comparators identified in the Amended Complaint were accommodated with
shift changes due to child care needs. (Id.)
5
Third, Defendants argue that, by failing to oppose Defendants’ sovereign immunity
arguments, Plaintiff has implicitly conceded that the doctrine of sovereign immunity bars her
Second Claim. (Id. at 7.)
II.
GENERAL LEGAL STANDARDS
“The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical
to that of a Rule 12(b)(6) motion for failure to state a claim.” Patel v. Contemporary Classics of
Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (collecting cases). It has long been understood
that a dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R.
Civ. P. 12(b)(6), can be based on one or both of two grounds: (1) a challenge to the "sufficiency
of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the
claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d 204, 211 nn. 15-16 (N.D.N.Y. 2008)
(McAvoy, J.) (adopting Report-Recommendation on de novo review).
Because such dismissals are often based on the first ground, some elaboration regarding
that ground is appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp.2d at 212 n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
6
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp.2d at
212 n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp.2d at 212 n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F.
Supp.2d at 213 n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an
appellate decision holding that a complaint had stated an actionable antitrust claim under 15
U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court
“retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),
that “a complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an
actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an
actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a
pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the
7
pleading must contain at least “some factual allegation[s].” Id. at 1965. More specifically, the
“[f]actual allegations must be enough to raise a right to relief above the speculative level [to a
plausible level],” assuming (of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[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.” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 (internal quotation marks
and citations omitted). However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(citations omitted).
8
Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
any matter of which the court can take judicial notice for the factual background of the case.4
4
See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion
to dismiss for failure to state a claim to a motion for summary judgment is not necessary under
Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached
to the complaint or answer, [2] documents incorporated by reference in the complaint (and
provided by the parties), [3] documents that, although not incorporated by reference, are
“integral” to the complaint, or [4] any matter of which the court can take judicial notice for the
factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6)
“may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint. . . . Where a document is
not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .
However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.”)
[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant’s motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
9
III.
ANALYSIS
A.
Whether Plaintiff’s Third and Fourth Claims Were Timely Filed
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Plaintiff’s opposition memorandum of law. (Dkt. No. 13, at 9-10 [Pl.’s
Opp’n Mem. of Law].) To those reasons, the Court adds the following analysis.
The Court notes at the outset that it need not determine whether the filing of the motion
to amend tolled the statute of limitations because Plaintiff’s claims are timely pursuant to the
relation-back doctrine.
Rule 15(c)(1) of the Federal Rules of Civil Procedure states, in relevant part, that “[a]n
amendment to a pleading relates back to the date of the original pleading when . . . the
amendment asserts a claim . . . that arose out of the conduct, transaction, or occurrence set out–or
attempted to be set out–in the original pleading[.]” Fed. R. Civ. P. 15(c)(1)(B).5 Plaintiff’s
Second Claim pursuant to the NYSHRL (which she asserted for the first time in the original
Complaint) was based on gender and age discrimination arising from the denial of her request for
a hardship accommodation in the form of a shift change. (Dkt. No. 2, at ¶¶ 9-15, 23-25 [Pl.’s
Am. Compl.]; Dkt. No. 12, Attach. 3, at ¶¶ 9-15, 23-25 [Pl.’s Compl.].) This alleged
discriminatory denial of a hardship accommodation is also the basis for the Third Claim
(pursuant to Title VII for gender discrimination) and the Fourth Claim (pursuant to the ADEA
for age discrimination), asserted in the Amended Complaint. (Dkt. No. 2, at ¶¶ 9-15, 26-33
5
A strong argument exists that, because both the filing of the original Complaint
and the filing of the Amended Complaint occurred in state court, the New York relation-back
rule applies, rather than the federal relation-back rule. See e.g., Taylor v. Bailey Tool Mfg. Co.,
744 F.3d 944, 946 (5th Cir. 2014). However, because the Court does not discern a material
difference between these two rules under the circumstances, the Court will apply the federal rule.
10
[Pl.’s Am. Compl.].) Because Plaintiff’s Third and Fourth Claims are based on the same
“conduct, transaction, or occurrence” as her Second Claim in the original Complaint, the Court
finds that her Third and Fourth Claims relate back to August 9, 2016, the date of the original
Complaint. (Dkt. No. 12, Attach. 3 [Pl.’s Compl.].) Furthermore, although Plaintiff had not yet
been issued a right-to-sue letter from the EEOC when she filed her original Complaint, a plaintiff
may file an action before receiving her right-to-sue letter where (1) the state was not precluded
from performing its administrative duties, and (2) there has been no showing that the defendant
was prejudiced. Dillon v. West Publ’g Corp., 409 F. App’x 152, 154 (9th Cir. 2011).
Finally, because the original Complaint was filed at least 60 days after the filing of her
EEOC charge regarding her ADEA claim, and at least 180 days after the filing of her EEOC
charge regarding her Title VII claim, there existed a valid pleading to which the ADEA and Title
VII claims could relate back. Rogers v. Conmed, Inc., 09-CV-3397, 2010 WL 3056666, at *3
nn. 6-7 (D. Md. Aug. 3, 2010).
B.
Whether the Eleventh Amendment Bars Plaintiff’s Second Claim
After carefully considering the matter, the Court answers this question in the negative.
This case presents a special situation due to the fact that the suit was initially filed in state court
and voluntarily removed (by Defendants) to this Court. (Dkt. No. 1 [Notice of Removal].) The
Supreme Court has explicitly held that voluntary removal of a case to federal court by a state or
state actor constitutes a waiver of Eleventh Amendment immunity. See Lapides v. Bd. of
Regents of Univ. Sys. of Georgia, 535 U.S. 613, 618-24 (2002) (“It would seem anomalous or
inconsistent for a State both [1] to invoke federal jurisdiction, thereby contending that the
‘Judicial power of the United States’ extends to the case at hand, and [2] to claim Eleventh
Amendment immunity, thereby denying that the ‘Judicial power of the United States’ extends to
11
the case at hand. And a Constitution that permitted States to follow their litigation interests by
freely asserting both claims in the same case could generate seriously unfair results.”).
Consequently, Defendants’ act of voluntarily removing this action to this Court constituted a
waiver of immunity under the Eleventh Amendment. The Court therefore must consider the
merits of Plaintiff’s Second Claim when considering Defendants’ motion to dismiss.
C.
Whether the Amended Complaint Alleges Facts Plausibly Suggesting that
Plaintiff Suffered an Adverse Employment Action as to Her Third and
Fourth Claims
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendants’ memoranda of law. (Dkt. No. 12, Attach. 4, at 6-9 [Defs.’
Mem. of Law]; Dkt. No. 16, at 4-7 [Defs.’ Reply Mem. of Law].) To those reasons, the Court
adds the following analysis.
As Defendants correctly note, Plaintiff’s claims for discrimination under Title VII and
the ADEA require that Plaintiff suffer an adverse action at the hands of the Defendants. See
Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (indicating that, to state a prima
facie case of employment discrimination under Title VII, a plaintiff must show that [1] she
belonged to a protected class, [2] she was qualified for her position, [3] she suffered an adverse
employment action, and [4] the adverse employment action occurred under circumstances giving
rise to an inference of discriminatory intent); Galabya v. New York City Bd. of Educ., 202 F.3d
636, 639 (2d Cir. 2000) (“To prevail on an ADEA claim . . . ‘the plaintiff must first establish a
prima facie case by showing membership in a protected class, qualification for the position, an
adverse employment action, and circumstances that give at least minimal support to an inference
of discrimination.’”). “‘A plaintiff sustains an adverse employment action if he or she endures a
12
materially adverse change in the terms and conditions of employment.’” See Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (applying this standard to a Title VII
claim); Galabya, 202 F.3d at 640 (applying this standard to an ADEA claim). “‘An adverse
employment action is one which is more disruptive than a mere inconvenience or an alteration of
job responsibilities.’” Vega, 801 F.3d at 85. The Second Circuit has found examples of adverse
employment actions to 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.’” Id.
Here, Plaintiff alleges that Defendants’ failure to grant her requested shift change to
accommodate her child care needs was an adverse employment action. (Dkt. No. 2, at ¶¶ 9-15,
26-30 [Pl.’s Am. Compl.].) In support of this argument, Plaintiff cites two cases in which courts
in this circuit found that shift changes disrupting the employee’s child care routine were adverse
employment actions. (Dkt. No. 13, Attach. 3, at 10-11 [Pl.’s Opp’n Mem. of Law].) However,
those two cases are not applicable to the situation present here. Notably, the cases cited by
Plaintiff made that conclusion in situations where the employee-plaintiffs’ work schedules were
changed (causing unexpected difficulties with childcare routines or expectations), whereas, in
this case, Plaintiff is alleging that the failure to change her schedule based on changes in her
childcare needs is an adverse action. See Amador v. All Foods, Inc., 12-CV-1715, 2013 WL
1306305, at *5 (E.D.N.Y. Feb. 20, 2013) (finding that the plaintiff had sufficiently alleged an
adverse employment action based on her transfer from the day shift to the graveyard shift
immediately before she was to give birth); Forsythe v. New York City Dept. of Citywide Admin.
Servs., 733 F. Supp. 2d 392, 401 (S.D.N.Y. 2010) (finding a triable issue of fact where the
13
plaintiff alleged an adverse employment action as a result of a “shift change [that] severely
disrupted his child care routine and ability to spend time with his son”); see also Velazquez v.
City of New York, 16-CV-9606, 2017 WL 6948357, at *4 (S.D.N.Y. Dec. 13, 2017) (noting that
“[a] shift change may be sufficiently adverse where, as here, a disrupted child care routine is the
alleged outcome”). Although Plaintiff’s child care needs presumably changed somehow based
on her obtaining legal custody of her grandsons in October 2015, she has not been subjected to a
shift change. The cases cited in support of Plaintiff’s argument therefore do not suggest that this
Court should find that Plaintiff has sufficiently alleged an adverse employment action based on
Defendants’ failure to grant her a shift change.
As Defendant argues, Plaintiff’s Amended Complaint does not allege any facts plausibly
suggesting how Defendants’ refusal to grant her a shift change objectively caused a negative
effect related to child care that would rise to the level of an adverse effect on the terms,
privileges, or conditions of her employment. See Goins v. Bridgeport Hosp., 11-CV-0560, 2013
WL 1193227, at *5 (D. Conn. Mar. 25, 2013) (finding a denial of a shift change to the day shift
was not an adverse employment action because plaintiff “was not hired for day shifts; therefore,
the denial of her requests did not constitute a change in her employment”) aff’d, 555 F. App’x 70
(2d Cir. 2014); Harris v. City of New York, 03-CV-1593, 2006 WL 2034446, at *4 (E.D.N.Y.
July 17, 2006) (finding that the plaintiff failed to establish an adverse employment action based
on denials of her requests for a shift change because, although she alleged that the denial
prevented her from “meeting her needs as a single parent creating a ‘serious hardship,’” “‘such
subjective, personal disappointments do not meet the objective indicia of an adverse employment
action’”); Bunis v. Runyon, 94-CV-2063, 1997 WL 639241, at *3-4 (S.D.N.Y. Oct. 16, 1997)
14
(finding that the plaintiff had not offered any evidence to show that denial of a shift change
adversely affected the terms, privileges, duration, or condition of her employment and therefore
had not shown that the denial was an adverse employment action). Rather, Plaintiff merely
pleads that she became the legal custodian of her grandsons in October 2015 and requested a
hardship accommodation allowing her to be scheduled on the day shift “so she could care for her
family,” which was denied. (Dkt. No. 2, at ¶¶ 9-12 [Pl.’s Am. Compl.].)
Because Plaintiff’s Amended Complaint does not contain sufficient factual allegations to
plausibly allege that she has suffered an adverse employment action, she has not stated a claim
pursuant to the Title VII or ADEA upon which relief can be granted. Therefore, the Court finds
that Defendants’ motion to dismiss on this issue should be granted and Plaintiff’s Third and
Fourth Claims should be dismissed.
The Court notes that claims of employment discrimination under the NYSHRL are
analyzed under the same McDonnell Douglas framework applied to Section 1983 and Title VII
claims of employment discrimination, and “[u]nder New York law (as is true under federal law),
a plaintiff sustains an adverse employment action if he or she endures a ‘materially adverse
change’ in the terms and conditions of her employment.” Spiegel v. Schulmann, 604 F.3d 72, 80
(2d Cir. 2010); Bermudez v. City of New York, 783 F. Supp. 2d 560, 576-77 (S.D.N.Y. 2011)
(citing Richardson v. New York State Dep’t of Corr. Servs., 180 F.3d 426, 446 [1999]); see also
Fahrenkrug v. Verizon Servs. Corp., 652 F. App’x 54, 56 (2d Cir. 2016) (applying the same
elements for establishing a prima facie case of discrimination to both the Title VII and NYSHRL
claims); Powell v. Delta Airlines, 145 F. Supp. 3d 189, 198 (E.D.N.Y. 2015) (“Claims of agebased discrimination under the NYSHRL are analyzed under the same standard as discrimination
claims brought under the ADEA.”); Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 219
15
(E.D.N.Y. 2014) (dismissing discrimination claims pursuant to Title VII and the NYSHRL
where plaintiff could not show that she experienced an adverse employment action).
However, as explained above in note 1 of this Decision and Order, because Defendants
did not assert a failure-to-state-a-claim argument against Plaintiff’s Second Claim (and because
the Court cannot sua sponte subject the claim of a represented plaintiff to a failure-to-state-aclaim analysis), Plaintiff’s Second Claim survives Defendants’ motion.
D.
Whether the Above-Described Dismissals Should Be Only Without Prejudice
Although Plaintiff did not file a motion to amend,6 she did request in her opposition
memorandum of law that, if the Court finds that her Third and Fourth Claims lack necessary
specificity, she be permitted leave to amend these claims to correct their identified deficiencies.
(Dkt. No. 13, Attach. 3, at 11 [Pl.’s Opp’n Mem. of Law].)7 “While Federal Rule of Civil
6
The Second Circuit has noted that “where a plaintiff clearly has expressed a
desire to amend, a lack of a formal motion is not a sufficient ground for a district court to dismiss
without leave to amend.” Porat v. Lincoln Towers Comty. Ass’n, 464 F.3d 274, 276 (2d Cir.
2006). Of course, the Court may deny such an informal request without prejudice for failure to
submit a proposed amended complaint as required by the Court’s Local Rules of Practice.
7
Plaintiff lacks the right to amend her operative pleading “as a matter of right”
pursuant to Fed. R. Civ. P. 15(a)(1) because (1) she did not file a cross-motion to amend within
21 days of service of Defendants’ motion under Fed. R. Civ. P. 12(b), and (2) in any event, her
operative pleading was already amended in state court. See, e.g., Charla G. Aldous, P.C. v.
Lugo, 13-CV-3310, 2014 WL 3952670, at *6 (N.D. Tex. Aug. 12, 2014) (reasoning that where
“Plaintiffs had already amended once” in state court, “they could not file an amended pleading
without Defendants' written consent or leave of court”); Guthrie v. Wells Fargo Home Mortg.
NA, 13-CV-4226, 2014 WL 3749305, at *3 n.1 (N.D. Ga. July 28, 2014) (“Because Plaintiff
already amended her Complaint as a matter of right while the case was pending in the Superior
Court of Fulton County, she may not amend her complaint as a matter of right while it is pending
in this Court.”); Lee v. Wells Fargo Bank, N.A., 11-CV-1334, 2012 WL 6132510, at *1-2 (S.D.
Tex. Dec. 10, 2012) (finding that plaintiff should have sought leave of court prior to filing
amended complaint where plaintiff previously amended petition in state court); Wright v. Chase
Home Fin. LLC, 11-CV-0095, 2011 WL 2173906, at *3 (D. Ariz. June 2, 2011) (“Since plaintiff
already amended her complaint once as a matter of right in state court she must seek leave to
amend.”); Manzano v. Metlife Bank N.A., 11-CV-0651, 2011 WL 2080249, at *3 (E.D. Cal. May
16
Procedure 15(a)(2) requires district courts to freely grant leave to amend ‘when justice so
requires,’ a district court may nonetheless decline to grant such leave ‘for good reason,
including futility, bad faith, undue delay, or undue prejudice to the opposing party.’”
Grabcheski v. Am. Int’l Grp, Inc., 687 F. App’x 84, 87 (2d Cir. 2017) (quoting TechnoMarine
SA v. Giftports, Inc., 758 F.3d 493, 505 [2d Cir. 2014]). “A counseled plaintiff is not
necessarily entitled to . . . replead[] whenever he has indicated a desire to amend the
complaint”; rather, the determination involves the appraisal of several factors including whether
the plaintiff’s counsel has “made a showing that the complaint’s defects can be cured.” Porat,
464 F.3d at 276; see also F5 Capital v. Pappas, 856 F.3d 61, 89 (2d Cir. 2017) (upholding the
district court’s finding that amendment would be futile in a situation where the plaintiff
requested leave to amend in its opposition to the motion to dismiss in the event that the
complaint was found to be insufficient because the plaintiff offered no clue how the defects
identified could be cured through an amendment); Loreley Fin. (Jersey) No. 3 Ltd. v. Wells
Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015) (“Our opinion today, of course, leaves
unaltered the grounds on which denial of leave to amend has long been held proper, such as
undue delay, bad faith, dilatory motive, and futility . . . “).
Here, Plaintiff has requested leave to amend only her Third and Fourth Claims.
However, she has failed to provide any indication of how she would attempt to cure the
pleading deficiencies in these claims if granted leave to amend. As already discussed above in
Part III.B of this Decision and Order, in her opposition memorandum of law, Plaintiff merely
25, 2011) (“Because plaintiff filed her First Amended Complaint in state court prior to removal
to this court, plaintiff already amended her pleading once as a matter of course. Thus, she could
not properly file the [second amended complaint] without first obtaining leave of court.”).
17
repeated the same vague allegations as in her Amended Complaint, i.e., that she required a shift
change to accommodate her child care needs as a result of becoming custodian of her
grandsons; she did not elaborate on what those obligations entailed or what hardships she faced
as a result of her current shift. (Dkt. No. 13, Attach. 3, at 10-11 [Pl.’s Opp’n Mem. of Law].)
Moreover, the Court has been unable to find any cases from within the Second Circuit holding
that failure to grant a request for a shift change constitutes an adverse action. Under the
circumstances, the Court finds that any amendment of the Amended Complaint would be futile.
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss (Dkt. No. 12) is GRANTED in part
such that the following two claims are DISMISSED:
(1)
Plaintiff’s Third Claim pursuant to Title VII; and
(2)
Plaintiff’s Fourth Claim pursuant to the ADEA; and it is further
ORDERED that Defendants’ motion to dismiss (Dkt. No. 12) DENIED in part
without prejudice such that the following two claims SURVIVE Defendants’ motion to
dismiss:
(1)
Plaintiff’s Second Claim pursuant to the NYSHRL;8 and
(2)
Plaintiff’s First Claim pursuant to the FMLA.9
Dated: August 13, 2018
Syracuse, New York
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
8
As explained above in note 1 of this Decision and Order, Defendants did not, in
their motion, assert a failure-to-state-a-claim argument with regard to Plaintiff’s Second Claim.
As a result, the entirety of this claim survives for now.
9
The Court notes that Defendants did not seek dismissal of this claim in their
motion.
18
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