Higgins v. NYP Holdings
Filing
36
OPINION & ORDER re: 26 MOTION to Amend/Correct 2 Complaint. filed by Aaron Higgins. For the foregoing reasons, the Court denies plaintiffs motion for leave to amend the Complaint as to all claims except his claim of retaliation for the exercise of FMLA rights, based on the leave he took to tend to his daughter's hospitalization. See 29 U.S.C. § 2612(a)(1)(D). Defendant's cross-motion for sanctions is denied. Plaintiff is directed to file an amended Complaint consistent with this opinion by no later than December 14, 2011. The Clerk of Court is directed to terminate the motion at Docket No. 26. (Signed by Judge Paul A. Engelmayer on 12/7/2011) (djc)
~======n,"
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------------J(
USDCSDNY
DOCUMENT
ELECTROlSICALLY FILED
DOC #:_ _ _ _+-+-
DATE FILED: I"v11.-'1I '"""
AARON HIGGINS,
Plaintiff,
10 Civ. 8217 (PAE)
-v-
OPINION & ORDER
NYP HOLDINGS, INC.,
Defendant.
------------------------------------------------------------------------J(
PAUL A. ENGELMAYER, District Judge:
Plaintiff Aaron Higgins ("Higgins") moves for leave to amend his complaint against
defendant NYP Holdings, Inc. ("NYP"). Defendant NYP cross-moves for sanctions pursuant to
28 U.S.C. § 1927. For the following reasons, plaintiffs motion for leave to amend is granted in
part and denied in part, and defendant's cross motion for sanctions is denied.
I.
Background!
Plaintiff Higgins is a former employee of defendant NYP, where he served as a finance
order entry clerk for over four years. On November 12,2008, NYP terminated Higgins's
employment. On March 11, 2009, Higgins filed an administrative complaint against NYP with
the New York State Division of Human Rights ("SDHR"), alleging racial discrimination and
retaliation. That complaint was simultaneously filed with the Equal Employment Opportunity
Commission ("EEOC"). On March 26,2009, NYP filed a response to plaintiffs complaint.
After a period of investigation, the SDHR found that there was no probable cause to believe that
1 The description of the underlying facts ofthis case is drawn from the parties' submissions on
the instant motion, as well as the pleadings in this case. Except where specifically referenced, no
further citation to these documents will be made.
[1]
NYP had engaged in unlawful discriminatory activity. Higgins did not appeal that
determination. On July 22, 2010, the EEOC adopted the findings of the SDHR and issued
plaintiff a "right to sue" letter.
On October 20, 2010, plaintiff, appearing pro se, filed a complaint against NYP in this
Court. In that complaint, plaintiff claimed race and sex discrimination, and attendant retaliation,
in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), the New
York State Human Rights Law (New York State Executive Law § 296 et seq.) ("NYSHRL"),
and the New York City Human Rights Law (J'J"ew York City Administrative Code § 8-107 et
seq.) ("NYCHRL"). On February 22, 2011, NYP answered the complaint. On March 28,2011,
Higgins retained counsel to prosecute his case. In late April, plaintiff's counsel began contacting
the defendant and defense counsel regarding a putative amended complaint, and on May 6, 2011,
filed a notice of appearance in this case.
Thereafter, plaintiff submitted a letter to the Honorable William H. Pauley III, United
States District Judge, to whom this case was then assigned, requesting a pre-motion conference
in relation to this contemplated motion to amend the complaint. On July 29, 2011, that
conference-which included an extensive discussion of the proposed amended complaint
("PAC")-was held. By Order dated August 3, 2011, Judge Pauley set a briefing schedule for
the instant motion. Judge Pauley also noted that, "[h]aving discussed Plaintiffs proposed
amendments at length at the July 29 conference, Plaintiff is cautioned that in the event the
proposed Amended Complaint asserts frivolous claims, this Court will entertain a motion for
sanctions." On September 23,2011, Higgins filed this motion to amend.
The PAC now before the Court for consideration alleges nine causes of action, asserting
violations of nearly every employment-related statute applicable in this District. Counts I
[2]
through IV allege violations of 42 U.S.C. § 1981, Title VII, the NYSHRL, and NYCHRL,
respectively. They set forth a variety of theories of recovery, including hostile work
environment, disparate treatment, failure to promote, failure to investigate allegations of
discrimination, reliance on a biased and ineffective investigation of those allegations, improper
discharge, and impermissible post-employment discrimination. Each theory posits that Higgins
was unfavorably treated because of his race (African-American) and/or religion (Muslim).
In Counts V through VII, plaintiff asserts separate violations ofthe Family and Medical
Leave Act (29 U.S.C. § 2601, et seq.) ("FMLA"). Those claims attack NYP's alleged
interference with plaintiffs right to take FMLA-protected leave, failure to maintain adequate
postings advising employees of their FMLA rights, and retaliation against plaintiff for utilizing
FMLA-protected leave.
Finally, in Counts VIII and IX, Higgins claims that NYP is liable under the NYSHRL
and NYCHRL for failing to accommodate an anxiety disorder which, plaintiff alleges, was
caused by NYP's discriminatory treatment of him and exacerbated by its refusal to allow Higgins
to take protected leave in order to recover.
II.
Discussion: Motion to Amend
A.
Applicable Legal Standard
Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend a complaint shall
be "freely" given when "justice so requires." However, "a district court has discretion to deny
leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the
opposing party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200-01 (2d Cir. 2007). A
proposal to amend a complaint is futile if the proposed amended complaint would fail to state a
claim on which relief could be granted. Dougherty v. North Hempstead Bd. o/Zoning Appeals,
[3]
282 F.3d 83, 88 (2d Cir. 2002); see also Gorham-DiMaggio v. Countrywide Home Loans, Inc.,
421 F. App'x 97, 101 (2d Cir. 2011) (summary order).
Thus, the issue of whether an amendment would be futile is governed by the same
standard applied to the adequacy of an already-filed pleading. Dougherty, 282 F.3d at 88;
Rodriguez v. New York City Police Dep't, No. 1O-cv-891, 2011 U.S. Dist. LEXIS 122871, at *7
8 (S.D.N.Y. Oct. 24,2011). Under that standard, the proposed amended complaint must contain
factual allegations amounting to "more than an unadorned, the-defendant-unlawfully-harmed me
accusation," Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), such that those allegations, if
accepted as true, "state a claim for relief that is plausible on its face." South Cherry Street LLC
v. Hennessee Group LLC, 573 FJd 98, 110 (2d Cir. 2009) (emphasis in original).
"The Iqbal plausibility standard applies in conjunction with employment discrimination
pleading standards." See Jackson v. NY. State Dep't ofLabor, 709 F. Supp. 2d 218,224
(S.D.N.Y. 2010) (citing Gillman v. Inner City Broad Corp., No. 08-cv-8909, 2009 U.S. Dist.
LEXIS 85479, at * 11-12 (S.D.N. Y. Sept. 18, 2009». That is because the decisions in Twombly
and Iqbal "expounded the pleading standard for all civil actions and it applies to antitrust and
discrimination suits alike." Iqbal, 129 S. Ct. at 1953 (emphasis added); see also Laurent v. G &
G Bus Serv., No. 1O-cv-4055, 2011 U.S. Dist. LEXIS 77138, at * 10 (S.D.N.Y. May 17,2011).
As a result, while employment discrimination complaints need not contain specific facts
establishing a prima facie case of discrimination, see Swierkiewicz v. Sorema NA., 534 U.S. 506,
514-15 (2002), they must present at least "a short and plain statement of the claim ... [that]
give[s] the defendant fair notice of what the plaintiffs claim is and the grounds upon which it
rests." Id at 512 (quotation marks and citations omitted). That statement must also allege
sufficient facts to make the claim for discrimination "facially plausible." Samuels v. William
[4]
Morris Agency, No. 1O-cv-7805, 2011 U.S. Dist. LEXIS 79293, at *5 (S.D.N.Y. July 19,2011)
(citing Iqbal, 129 S. ct. at 1953).
Defendants argue that an amendment to add various of Higgins's proposed new claims
would be futile. The Court considers each category of claims in turn.
B.
Futility
1. Plaintiffs NYSHRL and NYCHRL Claims
NYP argues that Higgins's proposed NYSHRL and NYCHRL claims are barred by the
"election of remedies" provisions in those statutes. These provide that a person who files a
complaint with either the SDHR or the New York City Commission on Human Rights (the
"Commission") thereby waives his or her right to sue in court.
The applicable provision of the NYSHRL reads as follows:
Any person claiming to be aggrieved by an unlawful discriminatory practice shall
have a cause of action in any court of appropriate jurisdiction . . . unless such
person had filed a complaint hereunder or with any local commission on human
rights ... provided that, where the division has dismissed such complaint on the
grounds of administrative convenience, on the grounds of untimeliness, or on the
grounds that the election of remedies is annulled, such person shall maintain all
rights to bring suit as if no complaint had been filed with the division.
NYS Executive Law § 297(9). The pertinent part of the NYCHRL similarly provides:
Except as otherwise provided by law, any person claiming to be aggrieved by an
unlawful discriminatory practice as defined in chapter one of this title or by an act
of discriminatory harassment or violence as set forth in chapter six of this title
shall have a cause of action in any court of competent jurisdiction ... unless such
person has filed a complaint with the city commission on human rights or with the
state division of human rights with respect to such alleged unlawful
discriminatory practice or act of discriminatory harassment or violence.
NYC Administrative Code § 8-502(a).
Thus, both the NYSHRL and the NYCHRL require dismissal ofa suit in court if the
complainant lodges a complaint with either the SDHR or the Commission. This bar applies in
[5]
federal as well as state court. See York v. Ass 'n ofthe Bar ofCity ofN. Y., 286 F .3d 122, 127 (2d
Cir. 2002); see also McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 74 n.3 (2d Cir. 2010) ("[AJ
state law depriving its courts ofjurisdiction over a state law claim also operates to divest a
federal court ofjurisdiction to decide the claim.") (internal citation and quotation marks
omitted). The election of remedies bar is jurisdictional, such that claims dismissed pursuant to it
must be dismissed under Fed. R. Civ. P. 12(b)(1) rather than 12(b)(6). Moodie v. Federal
Reserve Bank, 58 F.3d 879,882 (2d Cir. 1995); see also Skalafuris v. City ofNew York, No. 10
4603-cv, 2011 U.S. App. LEXIS 22451, at *2 (2d Cir. Nov. 4, 2011) (summary order).
a.
Direct bar
Here, the election of remedies bar requires dismissal of all of Higgins's claims brought
under the NYSHRL that were based on the protected classification ofrace or color. These
include claims alleging discriminatory termination, hostile work environment, failure to
investigate discrimination, disparate treatment, negative performance reviews, and failure to
train. The bar is "direct" as to these claims because (1) Higgins's complaint to the SDHR
expressly included these claims, (2) the SDHR concluded after an investigation that there was
"no probable cause" to believe such prohibited conduct occurred, and (3) "[w]hen the [SDHR]
has issued a finding of no probable cause ... plaintiffs claims ... are barred by the law['s]
election of remedies provisions because [plaintiffJ has already litigated the claims before the
[SDHR]." Guardino v. Vill. ofScarsdale Police Dep 't, No. 09-cv-8599, 2011 U.S. Dist. LEXIS
100200, at *6 (S.D.N.Y. Sept. 6,2011) (citing Illie-Stout v. Barrier Free Living, No. 08-cv-6388,
2009 U.S. Dist. LEXIS 1986, at *3-4 (S.D.N.Y. Jan. 12,2009) (Lynch, J.)); see also Henriquez
v. Starwood Hotels Resorts Worldwide, Inc., 08-cv-7666, 2011 U.S. Dist. LEXIS 111520, at *8
9 (S.D.N.Y. Sept. 29, 2011). The only NYSHRL claims alleged in PAC Counts I-IV that survive
[6]
the bar are those based on Higgins's Muslim faith, because Higgins did not allege religious
discrimination before the SDHR.
b.
Derivative bar
The election of remedies bar also precludes consideration of any claim-whether brought
under the NYSHRL or the NYCHRL-arising out of the same incident on which Higgins's
SDHR complaint was based. That is because the "New York Court of Appeals has interpreted
the State Human Rights Law as precluding an action in court that is 'based upon the same
incident: as the Agency complaint." Borum v. Vill. ofHempstead, 590 F. Supp. 2d 376,383
(E.D.N.Y. 2008) (quoting Emil v. Dewey, 49 N.Y. 2d 968,969 (1980)).2 Higgins disputes that
his putative NYCHRL claims are subject to such preclusion, for two reasons. First, he notes that
following enactment of the Local Civil Rights Restoration Act of 2005, N.Y.C. Local Law No.
85 (2005), courts in this circuit have stated that "all provisions of the [NYCHRL] require
independent construction to accomplish the law's uniquely broad purposes." See, e.g., Fowler v.
Scores Holding Co., 677 F. Supp. 2d 673,682 (S.D.N.Y. 2010) (citing Loeffler v. Staten Island
2 See also Coppedge v. New York City Sales Inc., No. 1O-cv-6349, 2011 U.S. Dist. LEXIS
104231, at *7 (S.D.N.Y. Sept. 8,2011 )(Jones, J.); Lavien Sales v. NYC. Transit
Authority/Manhattan, No. 08-cv-3420, 2011 U.S. Dist. LEXIS 99048, at *20 n.ll (S.D.N.Y.
Aug. 26, 2011) (Preska, C.J.); Musaji v. Banco Do Brasil, No. 10-cv-8541, 2011 U.S. Dist.
LEXIS 68161, at *14 (S.D.N.Y. June 24,2011) (Holwell, J.); Wiercinski v. Mangia 57, Inc., No.
09-cv-4413, 2010 U.S. Dist. LEXIS 66498, at *7 (RO.N.Y. July 2,2010) (Glasser, J.); Marine
Midland Bank v. New York State Div. ofHuman Rights, 75 N.Y. 2d 240,245 (1989) ("once a
complainant elects the administrative forum by filing a complaint with the Division of Human
Rights, a subsequent judicial action on the same complaint is generally barred"); Benjamin v
NYC. Dep't ofHealth, 851 N.Y.S.2d 68 (Table), 2007 N.Y. Misc. LEXIS 7367, at *5 (Sup. Ct.
N.Y. County Oct. 23, 2007), ajf'd, 57 A.D.3d 403 (1st Dep't 2008) ("If substantially the same
facts are involved, then the doctrine of election of remedies will bar any subsequent court
proceedings. The facts need not be perfectly identical, and merely adding some additional facts
anellor re-Iabeling the claim will not prevent the application of the doctrine of election of
remedies.")
[7]
Univ. Hosp., 582 F.3d 268,278 (2d Cir. 2009)). Second, he argues that the NYCHRL's election
of remedies provision textually exempts his claims. These arguments are unpersuasive.
First, the recent decisions on which Higgins relies address an issue not present here.
They note various substantive differences between the NYSHRL and NYCHRL as to the
standards of liability. These decisions do not disturb the settled case law holding that a
claimant's SDHR complaint addressing the same incident, and that results in a finding of no
probable cause, procedurally bars the claimant from relief under the NYCHRL. See, e.g., Vargas
v. Morgan Stanley, No. 10-4043-cv, 2011 U.S. App. LEXIS 18740 (2d Cir. Sept. 9,2011)
(summary order); Briefv. Albert Einstein Coil. ofMed, 423 F. App'x 88 (2d Cir. 2011)
(summary order); Blanc v. Sagem Morpo, Inc., 394 F. App'x 808 (2d Cir. 2010) (summary
order); LoefJler, 582 F.3d at 278-79; Fowler, 677 F. Supp. 2d. at 681-83; Williams v. New York
City Hous. Auth., 61 AD.3d 62 (1st Dep't 2009).
Second, Higgins misreads the NYCHRL's election of remedies clause. He argues that §
8-502(a) of the NYCHRL bars from litigation only those NYCHRL claims explicitly filed in an
administrative complaint, and identified by specific subsection. To this end, he points to the
language in § 8-502(a) stating that the bar extends to actions by "those aggrieved by an unlawful
discriminatory practice as defined in Chapter 1 of this title." Higgins thus asks the Court to hold
that unless a party explicitly cites to a specific provision of Chapter 1 of the NYCHRL in his or
her administrative complaint to the Commission or SDHR, there is no bar on a subsequent
lawsuit under that provision.
The Court rejects this formalistic, hypertechnical interpretation. Section 8-502(a)
imposes a litigation bar where the complainant "has filed a complaint ... with respect to such
alleged unlawful discriminatory practice or act of discriminatory harassment or violence." This
[8]
language, properly read, imposes a bar that is coextensive with the substance of the claim-i.e.,
litigation claims directed at the same "act of harassment of violence" are preempted. Further, in
practice, Higgins's construction would render the bar a dead letter, by enabling litigants who
were canny enough to bring administrative complaints that omitted to reference by name
particular provisions of the NYCHRL to preserve their ability to make substantively identical
claims under the NYCHRL in court. Yet preventing just such duplicative administrative and
litigation claims is the very purpose of an election of remedies provision.
The Court therefore concludes that Higgins's NYCHRL claims are barred under § 8
502(a) if they are based on the same operative events he presented to the SDHR. See Jackson,
709 F. Supp. 2d at 224-25 (citing York, 286 F.3d at 127); Coppedge, 2011 U.S. Dist. LEXIS
104231, at *7 (where NYCHRL claims in "the [subsequent] Complaint contain[] some additional
and modified facts, [but] the allegations are identical and emerge from the exact same operative
events" as the claims previously presented to the SDHR, such claims are barred). Here, because
all of Higgins's NYSHRL and NYCHRL claims "emerge from the exact same operative events"
brought before the SDHR, they are barred. Id.
Importantly, this derivative bar serves to preclude not only Higgins's race-based claims,
but also his claims based on his Muslim faith (brought in PAC Counts I through IV) and based
on NYP's purported failure to accommodate plaintiff's anxiety disorder (PAC Counts VIII and
IX). That is because Higgins presented these same operative events to the SDHR, which did not
find probable cause. Specifically, in a letter to the SDHR dated December 23,2009, Higgins
claimed that one of his superiors had inquired as to when he was going to cut his hair and goatee
(which, according to Higgins's letter, "has religious significance") and also inquired whether
Higgins was a Muslim. See Cmplt. 5-13, Dkt. No.1. Those events are precisely the events on
[9]
which Higgins's PAC would base his claim of religious discrimination. See PAC ~~ 27,97, 101,
109. Indeed, the PAC effectively admits as much, by citing to his SDHR complaint in detailing
these alleged instances of religious discrimination and/or harassment. See PAC ~ 27.
Similarly, the PAC's claims under the NYSHRL and NYCHRL based on the NYP's
purported failure to accommodate his anxiety disorder rest on facts that Higgins presented to the
SDHR in his original complaint to that agency. In his December 23,2009 letter, Higgins states
that after "over a year of facing a wall and supplying the NY Post with doctor's notes ...
regarding my absences, the NY Post took not one single step of action to contact my doctors
regarding my illness/absences." Cmplt. 7, Dkt. No. 1. He appended to that letter copies of
various doctors' notes and prescriptions diagnosing Higgins with, inter alia, anxiety and chest
pains. Id. at 17-19. Those doctors' notes are the very same ones that Higgins now appends to
the PAC as incorporated, in support of his claims that NYP failed to accommodate his disability.
See PAC Ex. F. The facts underlying the PAC as to Higgins's disability claims are thus identical
to those which he previously pursued, unsuccessfully, administratively.
The Court thus holds that the election of remedies provisions of the NYSHRL and
NYCHRL bar all of the claims Higgins proposes to bring in the PAC under those statutes. The
Court therefore would lack jurisdiction to hear them, and an amendment adding them to this
action would be futile. 3
2. Plaintiffs Claims of Religious Discrimination Under Title VII
3
In a final attempt to avoid this result, Higgins claims that his complaint to the SDHR was
dismissed solely for administrative convenience. That argument has no record support. The
SDHR expressly concluded that there was "No Probable Cause" to support Higgins's claims, and
the matter was never appealed or reopened. Higgins has not pointed to any evidence that
supports his claim that the SDHR dismissed his complaint for administrative convenience.
[10]
Higgins also seeks to add claims under Title VII, alleging that NYP unlawfully
discriminated against him based on his Muslim faith. The Court agrees with NYP that these
claims fall short of the required pleading standards, and hence that this amendment would be
futile.
As noted, the plausibility standard of Twombly and Iqbal governs Higgins's proposed
pleading here. See Laurent, 2011 U.S. Dist. LEXIS 77138, at *10. Thus, while an employment
discrimination complaint need not contain specific facts establishing a prima facie case of
discrimination, it must present at least "a short and plain statement of the claim ... [that] givers]
the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests,"
Swierkiewicz, 534 U.S. at 512, and, following Twombly and Iqbal, must allege sufficient facts to
make the claim of discrimination "facially plausible." Samuels, 2011 U.S. Dist. LEXIS 79293,
at *5 (citing Iqbal, 129 S. Ct. at 1953).
Here, Higgins bases his claim of religious discrimination on the allegations (1) that he
was allegedly asked, by his superior Ken Kiczales, if he was Muslim; and (2) that one or more of
his co-workers, including Kiczales, allegedly inquired about the length of his hair and goatee
which, Higgins alleges, has religious significance to him. Higgins does not, however, allege that
he responded to any of these inquiries, or, for that matter, that NYP or its employees knew of
Higgins's religious beliefs. Indeed, the PAC fails to allege that anybody at NYP, much less a
decision-maker, was actually aware that Higgins is, in fact, a practicing Muslim. Nor does the
PAC allege, beyond the single unanswered question put to Higgins, that any NYP employee even
perceived that he was a Muslim, let alone that they discriminated against Higgins on that basis.
As to the question put to Higgins, without more, it does not give rise to an inference of
discrimination; "[n]othing in the [alleged] remarks conveys anything but curiosity" about a co
[11]
worker, and such quotidian workplace interactions are not tantamount to discrimination. Joseph
v. Marco Polo Network, Inc., No. 09-cv-1597, 2010 U.S. Dist. LEXIS 119713, at *33 (S.D.N.Y.
Nov. 10, 2010). Nor is there any other factual allegation of animus against Muslims by anyone
at NYP. The bare pleadings in the PAC thus do not make out a plausible claim of religious
discrimination.
Furthermore, even if the PAC had satisfactorily pled knowledge by NYP of Higgins's
religious faith or that employees there harbored religious animosity towards Muslims, the PAC
fails to allege any nexus to an adverse employment action or to Higgins's termination. The PAC
fails to allege any connection between the inquiry as to Higgins's religious affiliation or about
his hair to any such adverse actions. As alleged, any connection is entirely speculative. Further,
while Higgins has appended to the PAC (and the earlier complaints) a number of performance
reviews and warning letters regarding his workplace conduct, he does not explain, beyond a
conclusory assertion, why these reviews and warnings in fact arose from religious animus. In
sum, the PAC's threadbare assertion that his termination is traceable to discrimination is not
sufficient to "nudge[] [his] claims across the line from conceivable to plausible." Twombly, 550
U.S. at 570. As such, the PAC's proposed Title VII claims alleging improper religious
discrimination would fail to state a claim, and an amendment to add them would therefore be
futile.
3. Plaintiff s FMLA Claims
Higgins also seeks to amend his complaint to add three claims under the FMLA, to wit,
that: (1) NYP interfered with his protected leave; (2) he was retaliated against for using protected
leave; and (3) NYP failed to properly display posters and notifications of employees' rights
under the FMLA. The PAC is unclear whether the alleged FMLA violations Higgins claims
[12]
arise out ofleave sought to tend to Higgins's own medical problems (29 U.S.c. § 2612(a)(1)(C)
or those of his daughter (29 U.S.C. § 2612(a)(1)(D». In the interest of completeness, the Court
analyzes the FMLA claims under both scenarios.
a. Statute of limitations
To be timely, suits under the FMLA must be filed within two years of the last occurrence
constituting an alleged violation ofthe act, unless the violation was "willful," in which case the
limitations period is extended to three years. See 29 U.S.C. § 2617(c)(1}-(2). The vast majority
of the conduct on which the PAC's FMLA claims are based occurred on or before July 1,2008
(see PAC m\45-54, 59-66); however, Higgins's second claim, for retaliation for his use of
FMLA-protected leave, is based on conduct that includes his termination, which occurred on
November 12,2008. See PAC" 61-62, 142-147. The earliest date on which Higgins arguably
made any FMLA claim in this case is July 7, 201 I-and that date is generous. That day, Higgins
submitted by letter, but did not file, the PAC, which included, for the first time, FMLA claims.
The statute of limitations did not definitively stop running until September 23, 2011, when the
instant motion was filed. See Scelfo v. Aurora Concept, Inc., No. 02-cv-7835, 2006 U.S. Dist.
LEXIS 5473, at *54-55 (S.D.N.Y. Feb. 9, 2006).
As a result, Higgins's first and third FMLA claims, which accrued no later than July 1,
2008, are untimely unless they both (l) were willful (triggering the three-year limitations
period); and (2) "relate back" to the October 20, 2010 filing of the initial complaint in this case.
By contrast, his second claim, for retaliation, as alleged, appears to have accrued until November
12,2008. It is thus timely if either (1) it is for "willful" misconduct, or (2) it relates back to the
October 20,2010 complaint.
i.
"WillfuUness" ofFMLA claims
[13]
At the motion to dismiss stage, a plaintiff must make only a general allegation of
willfulness to gain the benefit of the three-year statute of limitations under the FMLA. Smith v.
Westchester Cnty., 769 F. Supp. 2d 448, 463-{)4 (S.D.N.Y. 2011) (citing Cinelli v. OppenheimEphratah Cent. Sch. Dist., No. 07-cv-235, 2009 U.S. Dist. LEXIS 111766 (N.D.N.Y. Dec. 2,
2009); Krosmico v. JP Morgan Chase & Co., No. 06-cv-1178, 2006 U.S. Dist. LEXIS 77079
(E.D.N.Y. Oct. 19,2006)); see also Male v. Tops Mkts., LLC, 08-cv-6234, 2011 U.S. Dist.
LEXIS 63966, at *14-15 (W.D.N.Y. June 13,2011); Mahran v. Benderson Dev. Co., LLC, 10
cv-715A, 2011 U.S. Dist. LEXIS 41599 (W.D.N.Y. April 18, 2011); Hodge v. United Airlines,
4
666 F. Supp. 2d 14 (D.D.C. 2009). Higgins has done so here. See PAC, 133. Accordingly,
Higgins's second FMLA claim, for retaliation, is timely, and the first and third claims are timely
if they relate back to the original complaint.
ii. Relation back of the first and third FMLA claims
As relevant here, "an amendment of a pleading relates back to the date of the original
pleading when ... (2) the claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading."
Fed. R. Civ. P. 15(c). In making this determination, "the pertinent inquiry ... is whether the
original complaint gave the defendant fair notice of the newly alleged claims." Fama v. Comm'r
ofCarr. Servs., 235 F.3d 804, 815 (2d Cir. 2000) (citing Wilson v. Fairchild Republic Co., 143
F.3d 733, 738 (2d Cir. 1998»; see also Slayton v. Am. Express Co., 460 F.3d 215, 228 (2d Cir.
2006); Veal v. United States, No. 01-cv-8033, 2007 U.S. Dist. LEXIS 80029, at *13 (S.D.N.Y.
Oct. 9, 2007).
At the summary judgment stage, however, Higgins would need to demonstrate a factual basis
on which a trier of fact could find willfulness for the three-year limitation period to apply.
4
[14]
Here, the original complaint supplied fair notice as to the first of Higgins's claims
(alleged interference with protected leave), but not the third (alleged improper notification to
employees of their FMLA rights).5 The original complaint is devoid of allegations of
substandard notice. Accordingly, that claim does not relate back and thus is barred.
Higgins's first FMLA claim, however, is adverted to in a letter from Higgins to the
SDHR which he appended to his original complaint. In that letter, dated December 23, 2009,
Higgins-although hardly explicit on this point-at least hinted that NYP was not adequately
allowing him sufficient leave to cope with illnesses. He wrote: "[I]n 2007, over a year of facing
a wall and supplying the NY Post with doctor's notes ... regarding my absences, the NY Post
took not one single step of action to contact my doctors regarding my illness/absences as a result
offacing a wall." See December 23, 2009 letter, Cmplt. 7, Dkt. No.1.) He also added, in
language that can be taken to imply that FMLA-protected leave (including that relating to his
daughter's hospitalization) was being mischaracterized by NYP as sick leave, to his detriment:
"As I finished reading the [warning] letter I was in shock and disbelief, because it was apparent
that the New York Post was manipUlating the fact that I was ill and taking days off solely due to
this; from previously being seated facing a wall for over a year. This was never included in the
false job performance letter, nor addressed to my doctors." Id at 9. In the Court's view,
although the issue is not free from doubt, the statements suffice to "give defendant fair notice"
that a FMLA claim may arise in the course of this litigation. Fama, 235 F.3d at 815. Higgins's
first claim for interference therefore also relates back and is not time barred.
In sum, Higgins's first and second FMLA claims (for interference and retaliation,
respectively) are timely, but the third (for deficient notice) is not.
5 This conclusion applies equally to claims premised on Higgins's own health and that of his
daughter, i.e. 29 U.S.C. § 2612(a)(1)(C) and 29 U.S.C. § 2612(a)(1)(D).
[15]
b. Substantive adequacy
i.
The interference claim
Higgins's interference claim is substantively deficient. The FMLA entitles covered
employees to take up to 12 weeks of leave per year to care for a spouse, parent, or child that has
a serious health condition, or for the employee's own serious health condition that makes the
employee unable to perform the functions of his or her position. 29 U.S.C. §§ 2612(a)(1)(C),
(a)(l)(D), (b). "The term 'serious health condition' means an illness, injury, impairment, or
physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential
medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. §
2611(11)(A)-(B).
To make out aprimajacie case on a claim for interference with FMLA rights under 29
U.S.C. § 2615(a)(1), a plaintiff must establish five elements: "(1) that [he] is an eligible
employee under the FMLA; (2) that defendant is an employer as defined in [the] FMLA; (3) that
[he] was entitled to leave under [the] FMLA; (4) that [he] gave notice to the defendant of [his]
intention to take leave; and (5) that [he] was denied benefits to which she was entitled under
[the] FMLA." Geromanos v. Columbia Univ., 322 F. Supp. 2d 420, 427 (S.D.N.Y. 2004) (citing
Santos v. Knitgoods Workers' Union, LoealI55, No. 99-cv-1499, 1999 U.S. Dist. LEXIS 9036,
at *7 (S.D.N.Y. June 15,1999), aff'd, 252 F.3d 175 (2d Cir. 2001)); see also Garrawayv.
Solomon R. Guggenheim Found., 415 F. Supp. 2d 377, 382 (S.D.N.Y. 2006).
Here, Higgins has failed to allege his entitlement to protected leave with respect to to his
own medical condition. The PAC fails to allege facts sufficient to establish that Higgins suffered
from a "serious health condition" as defined in the statute, to wit, that his condition involved
inpatient treatment or continuing care. At most, the doctor's notes that Higgins submitted with
[16]
his complaints show three distinct clinical diagnoses rendered at least seven months apart and
regarding discrete problems, including a viral syndrome, chest pains, and anxiety. The PAC
asserts no facts to suggest that these issues were continuing (or related), or that Higgins
underwent any continuing course of treatment in response to them. Higgins offers nothing
besides conclusory statements to support his claim of entitlement to FMLA leave (see PAC ~~
48-53, 122-47), and such statements "are not entitled to weight under Iqbal and cannot be the
basis of a plausible complaint surviving a motion to dismiss." Milne v. Navigant Consulting, No.
08-cv-8964, 2010 U.S. Dist. LEXIS 115650, at *31 (S.D.N.Y. Oct. 27, 2010).
Furthermore, Higgins fails to satisfactorily allege either that he gave NYP notice of an
intention to take FMLA leave, or that any such request was denied. Apart from its non
cognizable conclusory allegations (see PAC ~~ 48-53, 122-47), Higgins's PAC alleges no facts
suggesting that he notified NYP of any qualifying medical problem that he had or was denied
any leave which he sought. Quite to the contrary, the PAC states that Higgins took leave as a
result of the alleged medical issues. PAC ~~ 48-53. While Higgins may have elected to report
this limited leave time as sick days rather than as designated FMLA leave, this does not assist
Higgins, because he fails to allege that he had notified NYP of a serious ongoing medical
condition justifying such leave. See Yanklowski v. Brockport Cent. School Dist., No. 10-cv
6601L, 2011 U.S. Dist. LEXIS 66360, at *3-4 (W.D.N.Y. June 22,2011) (rejecting FMLA
interference claim where plaintiff elected to record leave as sick days rather than FMLA leave).
As to Higgins's proposed interference claim with respect to his daughter's
hospitalization, that claim is also deficient. The PAC does satisfactorily allege an entitlement to
protected leave on his daughter's account. See PAC ~ 61. However, Higgins acknowledges that
he was granted leave in that instance (PAC ~ 143) and fails to allege the denial of any request for
[17]
FMLA leave in relation to his daughter's condition. Accordingly, Higgins's claim of
interference by NYP is deficient in all permutations, and an amendment adding it would be
futile.
ii. The retaliation claim
Finally, Higgins's claim of retaliation premised on 29 U.S.C. § 2612(a)(1)(C) for taking
protected leave, to the extent based upon his own medical condition, fails because a necessary
predicate to such a claim is an entitlement to FMLA leave, which the PAC fails to allege. See
Milne, 2010 U.S. Dist. LEXIS 115650, at *37-38 n.19; Lee v. Heritage Health & Hous., Inc.,
No. 07-cv-l0628, 2009 U.S. Dist. LEXIS 91419, at *42 n.14 (S.D.N.Y. Sept. 30,2009) ("If
Plaintiff cannot show that she had a serious health condition, entitling her to FMLA leave, then,
a jortiori, she cannot show that she was retaliated against for exercising rights that were, in fact,
protected by the Act."); Brown v. Pension Bds., United Church ojChrist, 488 F. Supp. 2d 395,
410 (S.D.N.Y. 2007).
To the extent that Higgins asserts a retaliation claim relating to FMLA leave he was
granted due to his daughter's hospitalization (see 29 U.S.c. § 2612(a)(1)(D); PAC ~ 61), that
claim may be added. A claim of retaliation for exercising FMLA rights is analyzed under the
burden-shifting test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Potenza v. City ojNew York, 365 F.3d 165, 167-68 (2d Cir. 2004); Geromanos, 322 F. Supp. 2d
at 433. To establish aprimajacie case of retaliation, a plaintiff must establish that (1) he
exercised rights protected under the FMLA; (2) he was qualified for the position; (3) he suffered
an adverse employment action; and (4) the adverse employment action occurred under
circumstances giving rise to an inference of retaliatory intent. Potenza, 365 F.3d at 168; accord
Reilly v. Revlon Inc., 620 F. Supp. 2d 524,537-38 (S.D.N.Y. 2009); Geromanos, 322 F. Supp.
[18]
2d at 433-34. The first and second prongs of this test are not in dispute. As to the third, neither
party disputes that Higgins was terminated by NYP and that certain performance warnings were
a factor in that termination. Finally, as to the fourth prong, Higgins alleges that at least one of
these performance warnings (dated July 1,2008) was made soon after the FMLA-protected leave
he took to tend to his daughter, May 16-23,2008. Higgins alleges, and the documents appended
to the PAC reflect, that this review referred negatively to Higgins's "improper attendance" at
work. See PAC
~
61-62; PAC Ex. G 2. In the context of the full warning letter, it appears to the
Court most likely that this statement referred to excessive breaks allegedly taken by Higgins, not
to FMLA-protected leave. However, the letter is not conclusive on this point, and given the
temporal proximity of the warning to Higgins's use ofFMLA-protected leave some five to six
weeks earlier, the Court determines that Higgins has met his pleading burden as to a plausible
inference of retaliatory intent. See Samuels, 2011 U.S. Dist. LEXIS 79293, at *5 (citing Iqbal,
129 S. Ct. at 1953). This one claim is accordingly not futile. The Court grants Higgins leave to
add it.
III.
Discussion: Sanctions
Title 28 U.S.C. § 1927 authorizes sanctions "when the attorney's actions are so
completely without merit as to require the conclusion that they must have been undertaken for
some improper purpose," and upon "a finding of conduct constituting or akin to bad faith."
Gollomp v. Spitzer, 568 F.3d 355,368 (2d CiT. 2009) (citing 60 E. 80th St. Equities, Inc. v. Sapir
(In re 60 E. 80th St. Equities, Inc.), 218 F.3d 109, 115 (2d Cir. 2000) (internal quotation marks
omitted»). The Second Circuit also has imposed a procedural requirement of notice and an
opportunity to be heard. Gollomp, 568 F.3d at 368. This requires that the party facing possible
sanctions receive notification of (1) the source of authority for the sanctions being considered;
[19]
and (2) the specific conduct or omission for which the sanctions are being considered. Id With
regard to the opportunity to be heard, depending on the circumstances, "a full evidentiary hearing
is not required[, and] the opportunity to respond by brief or oral argument may suffice." Id
Here, sanctions are not warranted. Although Higgins's motion for leave to amend was
overwhelmingly unsuccessful, his counsel generally articulated colorable arguments in support
of the PAC's proposed new claims, such that the Court is not prepared to term these unsuccessful
claims frivolous. Higgins's counsel also dropped some claims-including, inter alia, under the
FLSA, New York Labor Law, and Americans with Disabilities Act-from the PAC as initially
presented to Judge Pauley. The Court also notes that plaintiff has not sought to impose liability
on or recover damages from parties with immunity, a common feature of behavior held
sanctionable. See, e.g., Gol/omp, 568 F.3d at 372-73.
The Court is, finally, mindful that "[i]fthe sanction regime is too severe, lawyers will
sometimes be deterred from making legitimate submissions on behalf of clients out of
apprehension that their conduct will erroneously be deemed improper." Gol/omp, 568 F.3d at
373 (citing In re Pennie & Edmonds LLP, 323 F.3d 86, 90-91 (2d Cir. 2003)). It is especially
important to avoid such overdeterrence in discrimination cases. As the Supreme Court has
emphasized, "assessing attorney's fees against Plaintiffs simply because they do not finally
prevail would substantially add to the risks inhering in most litigation and would undercut the
efforts of Congress to promote the vigorous enforcement of the provisions of Title VII" and
other anti-discrimination laws. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422
(1978). The Court therefore declines to impose sanctions on plaintiff's counsel.
[20]
CONCLUSION
For the foregoing reasons, the Court denies plaintiffs motion for leave to amend the
Complaint as to all claims except his claim of retaliation for the exercise of FMLA rights, based
on the leave he took to tend to his daughter's hospitalization. See 29 U.S.C. § 2612(a)(1)(D).
Defendant's cross-motion for sanctions is denied. Plaintiff is directed to file an amended
Complaint consistent with this opinion by no later than December 14, 2011. The Clerk of Court
is directed to terminate the motion at Docket No. 26.
SO ORDERED.
pa!w:Li~
United States District Judge
Dated: December 7, 2011
New York, New York
[21]
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