Giles v. NBC Universal, Inc.

Filing 14

MEMORANDUM AND ORDER: that Defendant's Motion to Dismiss is GRANTED. Plaintiff's Complaint is hereby DISMISSED in its entirety, without leave to replead. The Clerk of the Court is directed to close the docket in this case. (Signed by Judge Deborah A. Batts on 9/20/2011) (ft)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---------------------------------X

CHARLES GILES

10 Civ. 7461 (DAB)

Plaintiff,
-

MEMORANDUM AND ORDER

against

NBC UNIVERSAL, INC.,
Defendant.

---------------------------------X

DEBORAH A. BATTS, United States District Judge.
Plaintiff Charles Giles ("Giles") brings the above-captioned
action against his current employer, Defendant NBC Universal, Inc.
("NBCU"), alleging retaliation for his prior engagement in
protected activities, pursuant to Title VII of the Civil Rights
Act of 1964 (42 U.S.C.
Executive Law

(§§

§§

290 et

2000e et
~),

~)

and New York State

and failing to accommodate his

reasonable disability request, in accordance with the Americans
with Disabilities Act ("ADA")

(42 U.S.C.

§§

12111 et seq.).

Plaintiff seeks compensatory damages and injunctive relief against
Defendant.
This matter is before the Court on a Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b) (6), filed
December 21, 2010 by Defendant NBC Universal, Inc.

For reasons

detailed herein, Defendant's Motion to Dismiss is GRANTED and the
Complaint is DISMISSED in its entirety.

1

I. FACTUAL BACKGROUND 1
At the time the Complaint was filed, Plaintiff Giles was a
51-year-old male resident of Ronkonkoma, New York.

(CompI. ~ 9.)

Giles was hired by NBCU as a technician in 1986, and later became
a member of the National Association of Broadcast Employees and
Technicians ("NABET").

(Compl.

~~

1 & 12.)

Giles has a history

of chronic kidney stones and suffers from back and neck pains
associated with herniated discs.

(CompI.

~ 1.)

In 1996, Giles filed a complaint with the New York State
Division of Human Rights alleging racial discrimination.
~

16.)

(Compl.

The matter was settled in 2001 after NBCU agreed that

Plaintiff would permanently be classified within a particular
paygrade.

(Compl.

~

17.) In April 2003, Plaintiff filed a

complaint with the federal Equal Employment Opportunity Commission
( "EEOC") .

(Compl.

~

18.)

In January 2005, the EEOC issued a

Right to Sue and Plaintiff filed a civil claim against NBCU in
federal court in April 2005; the matter was privately settled in
January 2006.

(Compl.

~

19.)

Giles is an active member of the NABET and in recent years he
has been rallying union members and non-union contractors to sign
a petition challenging NBCU current hiring practices.

(CompI.

~

20). Because of his union efforts and past EEOC claims, Plaintiff
Since this Motion to Dismiss is pursuant to Fed. R. Civ. P.
12(b) (6), all Plaintiff's allegations are assumed to be true.

1

2

alleges NBCU is holding him "to a different standard" from other
similarly situated employees.

(Compl.

~

24.)

In 2009, Plaintiff's

supervisor told him that another manager, Angela Crayton, had
stated: "Giles can never be a supervisor .
filed complaints in the past."

(Compl.

~

.

. because he had

23.)

Plaintiff also contends that Defendant retaliated against him
by assigning him to undesirable positions without considering his
kidney condition and by failing to accommodate his disability
requests.

(Compl.

~

31.)

Plaintiff alleges that in August 2008,

Plaintiff requested a modified work schedule because of his back
and neck pains, asking to arrive at work 15 minutes earlier and
leave 15 minutes earlier than the regular workday times. 2
~

36.)

(Compl.

Defendant allowed Plaintiff to leave early only on days he

had a medical appointment, and Plaintiff's requests for a
permanent shift modification were denied.

(Compl.

~~

38, 39 & 41.)

Plaintiff was on medical leave from September 14 - October
20, 2009.

(Compl.

~

~

48 - 49.) He was allowed to return to work

at NBCU in March 2010. He was offered a non-supervisory position
(the position he currently holds) in the Implementation Shop
loading video tapes to re-supply tape machines.

(Compl. ~~ 54

&

Plaintiff requested his work hours to permanently be modified
from 7:30 AM - 5:30PM to 7:15AM - 5:15PM so that he may (i) have a
greater opportunity to obtain a seat on the train home, (ii)
enable him to catch an express train, and (iii) enable him to make
the last chiropractor appointment for the day if he experienced
severe pain that day.
(Compl. ~ 36.)
2

3

55.)

The essential duties of this position require Giles to

"constantly jump in and out of his chair to load and unload tapes"
which makes it "virtually impossible for him to drink the required
amounts of water to combat his kidney condition, because he is
unable to use the restroom as needed."

(Compl.

~

56.)

On April 23, 2009, Plaintiff filed a complaint with the New
York State Division of Human Rights (cross-filed with the EEOC)
alleging retaliation and discrimination.
2010, the EEOC issued a Right to Sue.

(Compl.

(Id.)

~

7.) On June 29,

Plaintiff brought

this suit in federal court on September 29, 2010. Giles also filed
a §8(a) (1) and (3) charge with the National Labor Relations Board
("NLRB") on March 10, 2010.

(See CompI., Exhibit B.)

II. DISCUSSION
A.

Standard for Motion to Dismiss under Rule 12(b) (6)
For a complaint to survive dismissal under Rule 12(b) (6), the

plaintiff must plead "enough facts to state a claim to relief that
is plausible on its face."
544, 570 (2007).

Bell AtI. Corp. v. Twombly, 550 U.S.

"A claim has facial plausibility," the Supreme

Court has explained,
when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged. The plausibility standard is not
akin to a 'probability requirement,' but it asks for more than a
sheer possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are 'merely consistent with' a

4

defendant's liability, it 'stops short of the line between
possibility and plausibility of 'entitlement to relief.'
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
550 U.S. at 556-57).

(quoting Twombly,

"[A] plaintiff's obligation to provide the

grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do."
quotation marks omitted).

Twombly, 550 U.S. at 555 (internal
"In keeping with these principles,"

a court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.
Iqbal, 129 S.Ct. at 1950.
In ruling on a 12(b) (6) motion, a court may consider the
complaint as well as "any written instrument attached to the
complaint as an exhibit or any statements or documents
incorporated in it by reference."

Zdenek Marek v. Old Navy

(Apparel) Inc., 348 F. Supp.2d 275,279 (S.D.N.Y. 2004)

(citing

Yak v. Bank Brussels Lambert, 252 F.3d 127, 130 (2d Cir. 2001)
(internal quotations omitted».

B.

Plaintiff's Retaliation Claims
Plaintiff Giles alleges he was retaliated against as a result

of two prior protected activities:
5

(i) his involvement with NABET

and other union activities in recent years, and {ii} the federal
{Compl. ~~ 19 - 22}.

lawsuit that he filed in April 2005.

i. Retaliation Based on His Concerted Union Activities
Giles alleges that NBCU retaliated against him for advocating
on behalf of non-NABET union "daily hires," actively rallying
staff employees to sign a petition to bring suit against NBCU
challenging its practice of hiring these daily hires, and other
"concerted union activities."

(CompI.

activities are governed under the
Relations Act.

29 U.S.C.

§

§§

157 - 58.

~

20).

These labor union

7 and 8 of the National Labor
The National Labor

Relations Board ("NRLB") has exclusive jurisdiction over labor
union activities arguably protected by §§7 and 8.
Trades Council v. Garmon, U.S. 236, 244 - 45 (1959)

San Diego Bldg.
(holding that

federal and state courts must defer to the "exclusive competence"
of the NLRB). Numerous courts have explicitly held that when
interpreting any ambiguity in the meaning of
must defer to the interpretation of the NLRB.

§

8(a) (3), courts
E.g., Commc'n

Workers v. Beck, 487 U.S. 735, 742 - 43 (1988); N.L.R.B. v.
Fermont, a Div. of Dynamics Corps. of America, 928 F.2d 609, 613 ­
14 (2d Cir. 1991).
Here, Giles filed a NLRB Section 8(a) (1) and (3) complaint
(Compl. Exhibit B).

To the extent Plaintiff's retaliation claim

6

is based on his participation in union activities, it is preempted
by the NLRA, and thus DISMISSED.

ii.

Retaliation Based on 2005 Lawsuit

Giles further alleges he was retaliated against because he
filed an April 2005 lawsuit in federal court accusing NBCU of
failing to comply with the terms of a 2001 agreement.
To demonstrate a prima facie case of retaliation, a plaintiff
must establish:

(1) participation in a protected activity;

defendant knew of the protected activity;

(2) the

(3) adverse employment

action; and (4) a causal connection between the protected activity
and the adverse employment action.

3

Jute v. Hamilton Sundstrand

Corp., 420 F.3d 166, 173 (2d Cir. 2005).
To satisfy the fourth element of a retaliation claim, "[t]he
employee must show that retaliation was a substantial reason for
the [adverse] employment action. u

Id.

The causal connection

between the protected activity and adverse employment action can
be established through direct evidence of retaliatory animus or
through indirect circumstantial evidence.
Service, 899 F.2d 203, 209 (2d Cir. 1990)

Sumner v. U.S. Postal
{internal citation

New York courts apply the same analysis for retaliation claims
under state law as in federal employment cases and are subjected
to the same standard of proof under Title VII.
See Hendler v.
Intelecom USA, Inc., 963 F. Supp. 200, 209 - 11 (E.D.N.Y. 1997);
see also Pazamickas v. N.Y. State Office of Mental Retardation &
Dev. Disabilities, 963 F. Supp. 190, 196 - 97 (N.D.N.Y. 1997).
3

7

omitted). In cases where there is no direct allegation of
retaliatory animus, indirect circumstantial evidence of a temporal
relationship must exist. Clark Cnty. Sch. Dist. v. Breeden, 532

u.s.

268, 273 (2001).

Indirect circumstantial evidence can be

established by showing that the prior protected activity was
followed by discriminatory treatment or through evidence of
disparate treatment of employees who engage in similar conduct.
Sumner, 899 F.2d at 209.

While there is no "bright line" rule for

cases that rely solely on temporal proximity, the protected
activity and alleged discriminatory treatment must be "very
close[ly]" associated to support an inference of retaliation.
Breeden, 532 U.S. at 273 (rejecting a retaliation claim and
finding that 20 months was too long to support an inference of
causation) .
Here, the first two elements of Plaintiff's retaliation
claim--participation in a protected activity and Defendant's
knowledge of the protected activity--are not disputed. For the
fourth element, Giles must show either direct retaliatory animus
or a temporal link between his 2005 federal suit filing and
allegedly adverse actions. Breeden, 532 U.S. at 273.
Plaintiff fails to offer evidence of direct retaliatory
animus. Plaintiff alleges he was told that an NBC manager Angela
Crayton stated: "Giles can never be a supervisor . .
had filed complaints in the past."
8

(Compl.

~

23.)

. because he
However,

Plaintiff does not allege that Ms. Crayton was ever in a decision­
making position over Giles.

See Gaffney v. Dep't of Info. Tech.

and Telecomm., 536 F.Supp.2d 445, 471 (S.D.N.Y. 2008)

(finding

that only relevant statements made by relevant managers regarding
the allegedly adverse action at issue should be considered to
establish causation); see also Martin v. State Univ. of N.Y., 704
F.Supp.2d 202, 230 - 31 (E.D.N.Y. 2010)

(finding the alleged

display of retaliatory animus by "the very individual who made the
decision"). Accordingly, this statement is insufficient to
establish causation. See Danzer v. Norden Systems, Inc., 151 F.3d
50, 56 (2d Cir. 1998)

("Stray remarks, even if made by a decision

maker, do not constitute sufficient evidence [to support] a case
of employment discrimination.").
Where there is no showing of retaliatory animus, proof of
causation may be shown indirectly by demonstrating that the
protected activity was followed closely by retaliatory actions.
Time periods as short as three months have been found to be too
long to be considered causally connected, and periods over one
year are generally conclusive that no retaliation has taken
placed. Gorman-Bakos v. Cornell Co-op Extension of Schenectady
County, 252 F.3d 545, 554 (2d Cir. 2001)

(citing Richmond v.

ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 2007»; Burkybile v. Bd.
Of Educ. of Hasting-On-Hudson Union Free Sch. Dist., 411 F.3d 306,
314 (2d Cir. 2005).

Here, Giles's first allegation of NBCU's
9

retaliation after his April 2005 federal suit was in October 2007
(Comp. , 27.), two-and-a-half years after his protected activity.
Plaintiff alleges a number of retaliatory actions, all spanning
from October 2007 to September 2010. However, a temporal lag of
two-and-a-half to five years is too long to support an inference
of causation. See, e.g., Stroud v. N.Y.C., 374 F.Supp.2d 341, 351
(S.D.N.Y. 2005)

(finding the "yawning temporal gap" of almost two

years cannot give rise to an inference of causation). Plaintiff
has thus failed to allege a causal connection between the 2005
lawsuit and any adverse employment action. The fourth element of
his retaliation claim is not satisfied, and the Court need not
examine the third element of that claim.
Accordingly, Plaintiff has failed to state sufficiently a
claim for retaliation and Defendant's Motion is Dismiss the
retaliation claim is GRANTED.

C.

ADA Failure to Accommodate Claim
Giles alleges that NBCU failed to make reasonable

accommodations that he requested, as required by the ADA.
Specifically, Giles alleges that NBCU violated the ADA by:

(i)

assigning him his current position loading and unloading
videotapes in the Implementation Shop, which he claims to
restricts his restroom access, and (ii) denying his request for a
modified work schedule.

(Compl.

~~

10

34 - 36, 55 - 57.)

In order to demonstrate a prima facie case for reasonable
accommodation under the ADA, a plaintiff must establishment that:
(1) he is an individual with a disability under the ADA;

(2) his

employer is covered by the statute and had notice of his
disability;

(3) he could perform the essential duties of his

position with reasonable accommodation; and (4) his employer has
refused to make such accommodations.

McBride v. BIC Consumer

Products Mfg. Co., Inc., 583 F.3d 92, 97
citations omitted)
12111(8».

(2d Cir. 209)

(internal

(discussing the elements under 42 U.S.C.

§

"Disability" is defined by the ADA as: "(A) a physical

or mental impairment that substantially limits one or more of the
major life activities of such individual;

(B) a record of such an

impairment; or (C) being regarded as having such an impairment."
42 U.S.C.

§

12102.

The EEOC regulations define "reasonable

accommodations" as: "modifications or adjustments to the work
environment, or to the manner or circumstances under which the
position held or desired is customarily performed, the enable a
qualified individual with a disability to perform the essential
functions of that position."

29 C.F.R.

§

1630.2

(0)

(1) (ii).

i. Need to Urinate Frequently
Plaintiff alleges that NBCU, acting out of retaliation,
intentionally assigned him his current position without reasonable
accommodation for his kidney condition.
11

(Compl. , 57.) However,

"merely having an impairment does not make one disabled for the
purposes of the ADA."
Williams, 534

u.s.

Toyota Motor Mfg., Kentucky, Inc. v.

184, 195 (2002).

"major life activity."

Id.

The impairment must limit a

To constitute a disability, "an

impairment must not merely affect a major life activity, it must
'substantially limit' that activity."

EEOC v. Yellow Freight

Sys., Inc., No. 98 civ. 2270 (THK), 2002 WL 31011859, at *13
(S.D.N.Y. Sept. 9, 2002).
Plaintiff has not alleged facts to show his kidney condition
is a disability. He fails to allege that it "substantially" limits
his ability to engage in major life activities.

Simply put, the

need to urinate frequently is not a disability recognized by the
courts.

See Lewis v. Hill, No. 97 Civ. 3213 (DAB), 2005 WL

292748, at *4 (S.D.N.Y. Feb. 8, 2005)

(finding that plaintiff's

prostate condition, which caused him to urinate frequently, was
not "so severe as to constitute a substantial limitation" and was
therefore not "disabled" within the meaning of the ADA.).
Plaintiff has not satisfied the first element of his failure to
accommodate claim and to the extent that claim is based on urinary
frequency, it is DISMISSED.

ii.

Permanent Work Schedule Modification

Plaintiff alleges NBCU violated the ADA by refusing to
approve his proposed 2008 modified work schedule.
12

Defendants do

not dispute the first two elements of the claim:

(1) that

Plaintiff's back condition constitutes a disability, and (2) that
his employer had notice of the disability. To satisfy the third
element, Plaintiff must show that he could perform the essential
duties of his position with reasonable accommodations.
An employer is not required to make accommodations that are
"'primarily for the [individual's] personal benefit,' such as an
'adjustment or modification [that] assists the individual
throughout his or her daily activities, on and off the job,' or to
provide 'any amenity or convenience that is not job-related.'"
Lyons v. Legal Aid Soc., 68 F.3d 1512, 1516 (2d Cir. 1995).
Instead, the reasonable accommodation requirement is meant to
ensure employers consider possible modifications of jobs that
would allow an employee with a disability to perform them.

Here,

however, allowing Giles to arrive and leave fifteen minutes
earlier will not arguably make him a better employee in the work
environment. Giles' requested accommodation was for his personal
benefit and NBCU had no obligation to "provide any amenity or
convenience that is not job-related." Id.
Plaintiff fails to allege facts to satisfy the third element
of his reasonable accommodation claim, and to the extent that
claim is based on NBCU's refusal to grant him a modified work
schedule, it is DISMISSED.

13

D. Leave to Replead
When a complaint has been dismissed, permission to amend it
"shall be freely given when justice so requires." Fed. R. Civ. P.
15(a). However, a court may dismiss without leave to amend when
amendment would be "futile", or would not survive a motion to
dismiss.

Oneida Indian Nation of New York v. City of Sherrill,

337 F.3d 139, 168 (2d Cir. 2003)

(internal citations omitted),

rev'd on other grounds sub nom. City of Sherrill v. Oneida Indian
Nation of New York, 544 U.S. 197, 125 S.Ct. 1478, 161 L.Ed.2d 386
(2005). On the record before the Court, it appears beyond doubt
that the Plaintiff can prove no set of facts in support of his
claims which would entitle him to relief. Because an amended
complaint would not be able to survive a motion to dismiss,
Plaintiff's Complaint is hereby dismissed without leave to
replead.

III. CONCLUSION
Plaintiff's Complaint, even when construed under the
favorable 12(b) (6) standards, fails to state facts sufficient to
claim that Defendant retaliated against him because of prior
protected activity or failed to accommodate reasonably his
requests as required by the ADA.
For the foregoing reasons, Defendant's Motion to Dismiss is
GRANTED.

Plaintiff's Complaint is hereby DISMISSED in its
14

entirety, without leave to replead. The Clerk of the Court is
directed to close the docket in this case.

SO ORDERED.
DATED:

New York, New York

f)~a.&if6

Deborah A. Batts
United States District Judge

15