Gibson v. New York State Office of Mental Health et al
Filing
39
DECISION AND ORDER granting # 35 Defendants' Motion to Dismiss such that Plaintiff's second claim pursuant to NYSHRL is DISMISSED; and denying # 37 Plaintiff's Motion to Remand to State Court. This case is referred back to Magistrate Judge Dancks to determine what, if any, discovery needs to be completed and for the re-setting of pretrial scheduling deadlines. Signed by Chief Judge Glenn T. Suddaby on 3/12/19. (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. LETITIA JAMES
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
DECISION and ORDER
Currently before the Court, in this employment discrimination 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 Doe(s) and Jane Doe(s)
(collectively “Defendants”), are the following two motions: (1) Defendants’ motion to dismiss
Plaintiff’s second claim in her Amended Complaint, alleging that Defendants discriminated
against her in matters related to employment in violation of the New York State Human Rights
Law (“NYSHRL”); and (2) Plaintiff’s cross-motion to remand this action to state court. (Dkt.
Nos. 35, 37.) For the reasons set forth below, Defendants’ motion to dismiss is granted, and
Plaintiff’s cross-motion for remand is denied.
I.
RELEVANT BACKGROUND
A.
Plaintiff’s Amended Complaint1
Generally, in her Amended Complaint, Plaintiff alleges that she worked as a Security
Hospital Treatment Assailant (“SHTA”) for NYSOMH and CNYPC, and was discriminated
against because of her gender and age. (Dkt. No. 2 [Pl.’s Am. Compl.].) Following the Court’s
Decision and Order of April 24, 2018, and its Amended Decision and Order of August 13, 2018,
two claims remain in this action: (1) Plaintiff’s claim that Defendants willfully denied her
request for leave to care for her daughter under the Family Medical Leave Act (“FMLA”) on or
after February 28, 2013 (id. at ¶¶ 17-22); and (2) Plaintiff’s claim that Defendants discriminated
against her in matters related to her employment because of her gender and age in violation of
the NYSHRL (specifically, 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 younger male
employees, including other SHTAs) (id. at ¶¶ 9-13, 23-25).
1
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. 35, Attach.
2; Dkt. No 35, Attach. 3, at ¶¶ 17-25 [Pl.’s Compl.].) With approval of the state court, Plaintiff
filed an Amended Complaint on May 22, 2017, which included additional claims under Title VII
and the ADEA. (Dkt. No. 35, 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
B.
Parties’ Briefing on Defendants’ Motion for Judgment on the Pleadings
1.
Defendants’ Memorandum of Law
Generally, Defendants argue that Plaintiff’s second claim fails to state a claim upon
which relief can be granted, because she has failed to allege facts plausibly suggesting that she
suffered an adverse employment action. (Dkt. No. 35, Attach. 4, at 3-7 [Defs.’ Mem. of Law].)
More specifically, Defendants argue that the denial of a requested shift change does not
constitute an adverse employment action under governing law. (Id. at 8-9.) They argue that
claims under the NYSHRL are analyzed under the same framework as federal discrimination
claims raised pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Age
Discrimination in Employment Act (“ADEA”), and that the Court has already dismissed
Plaintiff’s Title VII and ADEA claims in this action, for failure to state a claim. (Id. at 3-4.)
2.
Plaintiff’s Opposition Memorandum of Law
Generally, in her opposition to this motion, Plaintiff argues that she has alleged facts
plausibly suggesting an adverse action by Defendants, in support of her second claim. (Dkt. No.
37, Attach. 2, at 7-10 [Pl.’s Opp. Mem. of Law].) She argues that courts have found that a shift
change disrupting an employee’s childcare might constitute an adverse action. (Id. at 10-11.)
She further argues that her second claim thus satisfies the pleading requirements at this early
stage of the litigation. (Id. at 7-8.) Plaintiff alternatively requests that, should the Court find that
she has not alleged sufficient facts to allege an adverse action, she be permitted an opportunity to
further amend her Amended Complaint. (Id. at 10-12.)
3
3.
Defendants’ Reply Memorandum of Law
Generally, Defendants assert three arguments in reply to Plaintiff’s arguments. (Dkt. No.
38, at 3-5 [Defs.’ Reply Mem. of Law].) First, Defendants argue that Plaintiff’s reliance on
cases in which an employer changed an employee’s work schedule, and thereby interfered with
existing childcare or other responsibilities, is misplaced. (Id. at 3-4.) They argue that in this
case, Plaintiff is alleging that only Defendants’ failure to change her schedule is an adverse
action.
Second, Defendants argue that Plaintiff’s second claim does not allege facts plausibly
suggesting that Defendants’ refusal to grant her request for a shift change objectively caused a
negative effect that would rise to the level of an adverse action. (Id. at 4.)
Third, Defendants reiterate their argument that the legal standard for an adverse action is
the same under New York State law as it is under relevant federal law (such as Title VII and the
ADEA), and assert that they have found no New York State court decisions holding that denial
of a shift change request rises to the level of an adverse employment action under New York
State law. (Id. at 3-4.)
B.
Parties’ Briefing on Plaintiff’s Cross-Motion for Remand to State Court
1.
Plaintiff’s Memorandum of Law
In her opposition memorandum of law, Plaintiff also submitted a cross-motion to remand
this action to New York State Supreme Court. (Dkt. No. 37, Attach. 2, at 3-7 [Pl.’s Opp. Mem.
of Law].) Generally, in support of her cross-motion, Plaintiff relies upon the doctrine that a
federal court should refrain from exercising supplemental jurisdiction over state law claims when
it has already dismissed the claims over which it had original jurisdiction. (Id. at 5-7.)
4
2.
Defendants’ Opposition Memorandum of Law
Generally, in their opposition to this cross-motion, Defendants argue that this Court still
has original jurisdiction over Plaintiff’s first claim, which alleges a violation of a federal statute,
the FMLA. (Dkt. No. 38, at 4-5 [Defs. Reply Mem. of Law].) Therefore, Defendants argue,
there is no reason for this Court to decline to exercise supplemental jurisdiction over Plaintiff’s
state law claim, and Plaintiff’s motion for remand to state court should be denied. (Id.)
II.
GENERAL LEGAL STANDARDS2
A.
Motion to Remand to State Court
After a case has been removed from state court, a district court has a “continuing
obligation to satisfy [itself] that federal jurisdiction over the matter before [it] is proper.” Shantz
v. Union-Endicott Central School Dist., 18-CV-1315, 2019 WL 330510, at *4 (N.D.N.Y. Jan.
25, 2019) (quoting Filsaime v. Ashcroft, 393 F.3d 315, 317 [2d Cir. 2004]). This obligation
exists because “[f]ederal courts . . . are courts of limited jurisdiction. Even where the parties are
satisfied to present their dispute to the federal courts, the parties cannot confer subject matter
jurisdiction where the Constitution and Congress have not.” Wynn v. AC Rochester, 273 F.3d
153, 157 (2d Cir. 2001). “The absence of such jurisdiction is non-waivable,” and a court cannot
decide a case not “properly within [its] subject matter jurisdiction.” Wynn, 273 F.3d at 157. “If
at any time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
2
Because Plaintiff’s cross-motion to remand raises a jurisdictional question, the
Court will address it first, in both its recitation of the legal standards and its analysis of the
parties’ arguments.
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B.
Motion to Dismiss for Failure to State a Claim
“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.
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).
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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
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.
7
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).
III.
ANALYSIS
A.
Whether Remand to State Court Is Necessary or Appropriate
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendants’ reply memorandum of law. (Dkt. No. 38, at 3-5 [Defs.’ Reply
8
Mem. of Law].) To those reasons, the Court adds the following analysis.
Plaintiff’s first claim is that Defendants interfered with the exercise of the statutory rights
afforded to her by the FMLA. (Dkt. No. 2, at ¶¶ 17-22) [Pl.’s Am. Compl.].) Defendants have
not moved to dismiss this claim, and it remains pending in this action. (Dkt. No. 33, at 18
[Amended Decision and Order filed August 13, 2018].) Because this first claim is federal, the
Court has supplemental jurisdiction over Plaintiff’s second claim. 28 U.S.C. § 1331; 28 U.S.C. §
1367(a); see also Lepore v. New York Hotel Trades Council, Emp. Benefit Funds, 05 Civ. 6165,
2005 WL 3030839, at *6 (S.D.N.Y. Nov. 10, 2005) (denying defendants’ motion to dismiss
NYSHRL claims for lack of subject-matter jurisdiction, where complaint included an FMLA
claim). Even if the Court lacked federal question jurisdiction over Plaintiff’s first claim, the
Court would retain, and exercise, the discretion to exercise supplemental jurisdiction over
Plaintiff’s second claim, under the circumstances. Accordingly, there is no reason for the Court
to remand this action back to New York State Supreme Court.
B.
Whether the Amended Complaint Alleges Facts Plausibly Suggesting that
Plaintiff Suffered an Adverse Employment Action as to Her Second Claim
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendants’ memorandum of law. (Dkt. No. 35-4, at 3-7 [Defs.’ Mem. of
Law].) To those reasons, the Court adds the following analysis.
As Defendants correctly argue, claims of employment discrimination under the NYSHRL
are analyzed under the McDonnell Douglas framework that governs claims of employment
discrimination under Section 1983 and Title VII 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
9
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 age-based 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 (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).
Therefore, to state a prima facie claim, Plaintiff’s second claim must allege facts
plausibly suggesting that she suffered 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
materially adverse change in the terms and conditions of employment.” See Vega v. Hempstead
10
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 (quoting Terry v. Ashcroft, 336 F.3d 128, 138 [2d
Cir. 2003]).
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 relies on cases in this Circuit that found that an
employer’s change to an employee’s existing work schedule may constitute an adverse
employment action when it disrupted the employee’s existing or anticipated child care routine.
(Dkt. No. 37, Attach. 2, at 8-10 [Pl.’s Opp’n Mem. of Law].) 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”); 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 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”).
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However, Plaintiff alleges in this case that Defendants’ failure to change her existing
work schedule to accommodate changes in her childcare needs is an adverse action. 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 Defendants argue, Plaintiff’s Amended Complaint does not allege any facts plausibly
suggesting that 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,”. . . .
“[s]uch subjective, personal disappointments do not meet the objective indicia of an adverse
employment action”) (internal quotation marks omitted); Bunis v. Runyon, 94-CV-2063, 1997
WL 639241, at *3-4 (S.D.N.Y. Oct. 16, 1997) (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 alleges merely that Defendants denied her request for a
12
hardship accommodation allowing her to be scheduled on the day shift after she became the legal
custodian of her grandsons in October 2015. (Dkt. No. 2, at ¶¶ 9-12 [Pl.’s Am. Compl.].) This
allegation does not rise to the level of an adverse action under the NYSHRL. See Lee v. New
York State Dep’t of Health, 98-CV-5712, 2001 WL 34031217, at *17 (S.D.N.Y. April 23, 2001)
(denial of plaintiff’s request to work a “compressed work hour schedule” did not constitute an
adverse employment action under Title VII or NYSHRL).
Because Plaintiff’s Amended Complaint does not allege facts plausibly suggesting that
she suffered an adverse employment action, she has not stated a NYSHRL claim upon which
relief can be granted. Therefore, the Court finds that Defendants’ motion to dismiss Plaintiff’s
second claim should be granted. The only claim remaining in this action is Plaintiff’s first claim,
i.e., her claim that Defendants violated the FMLA when they willfully denied Plaintiff’s request
for leave to care for her daughter on or after February 28, 2013. (Dkt. No. 2, at ¶¶ 17-22 [Pl.’s
Am. Compl.].)
C.
Whether the Above-Described Dismissals Should Be Only Without Prejudice
Although Plaintiff did not file a motion to amend, she did request in her opposition
memorandum of law that, if the Court finds that her second claim fails to state a claim, she be
permitted leave to amend this claim to correct any identified deficiencies. (Dkt. No. 37, Attach.
2, at 11-12 [Pl.’s Opp’n Mem. of Law].) Plaintiff made a similar request in response to
Defendants’ successful motion to dismiss her Title VII and ADEA claims. (Dkt. No. 13, Attach.
3, at 11.) The Court’s Amended Decision and Order of August 13, 2008, set out the legal
standards applicable to such a request. (Dkt. No. 33, at 16-18 [Am. Decision and Order, filed
August 13, 2018].) Because the parties’ motion papers demonstrate an accurate understanding
of those relevant legal standards, the Court will not repeat them in this Decision and Order,
which is intended primarily for the review of the parties.
13
In her request for leave to amend her second claim, Plaintiff has failed to provide any
indication of how she would attempt to cure the pleading deficiencies discussed above in Part
III.B of this Decision and Order, if granted leave to amend. Plaintiff has merely 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. 37, Attach. 2, at 7-11 [Pl.’s Opp’n Mem. of Law].) Moreover, the
Court has been unable to find any cases from within the Second Circuit or from New York State
courts holding that failure to grant a request for a shift change constitutes an adverse action. In
fact, those cases that address the issue have held the opposite. Under the circumstances, the
Court finds that amendment of the Amended Complaint would be futile.
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss (Dkt. No. 35) is GRANTED such that
Plaintiff’s second claim pursuant to the NYSHRL is DISMISSED; and it is further
ORDERED that Plaintiff’s cross-motion for remand to state court (Dkt. No. 37) is
DENIED; and it is further
ORDERED that this case is referred back to Magistrate Judge Dancks to determine
what, if any, discovery needs to be completed and for the re-setting of pretrial scheduling
deadlines.
Dated: March 12, 2019
Syracuse, New York
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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