Osby v. The New York City Dept. of Probation

Filing 22

OPINION re: 7 MOTION to Dismiss the Complaint. filed by City of New York. Defendant moves to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The motion is granted. The court dismisses plaintiffs complaint in its entirety. This opinion resolves item #7 on the docket. (Signed by Judge Thomas P. Griesa on 8/19/2014) (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Tammy Osby,
Plaintiff,

13 Civ. 8826

v.
OPINION
City of New York,
Defendant.

Plaintiff Tammy Osby, proceeding pro se, is a probation officer for the
New York City Department of Probation (“DOP”) and brings this employment
discrimination action against the City of New York. Plaintiff alleges that she
was discriminated against on the basis of her race, gender, age, and disability.
Defendant moves to dismiss the complaint pursuant to Rule 12(b)(6) for
failure to state a claim upon which relief can be granted. The motion is
granted.
Complaint
Plaintiff has filed a complaint that is based upon the form-document
provided by the Clerk’s office, “Complaint for Employment Discrimination.”
This form complaint provides a plaintiff with boxes to check in order to set

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forth a claim of employment discrimination. Plaintiff has also attached to her
complaint, and included by reference, the record of her 2012 charge of
employment discrimination with the Equal Employment Opportunity
Commission (“EEOC”). This record includes the following documents: the
EEOC “Charge of Discrimination,” the Exhibits to the EEOC Charge of
Discrimination, and the EEOC “Dismissal and Notice of Rights” form.
Together, the form complaint as well as the record of plaintiff’s 2012 EEOC
charge constitute plaintiff’s complaint.
In the form complaint, plaintiff has checked boxes asserting the following
claims of employment discrimination: (1) Title VII of the Civil Rights Act (“Title
VII”), 42 U.S.C. § 2000e, et seq. (2) the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621, et seq., and (3) the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12112, et seq. Additionally, using the appropriate boxes
on the form, plaintiff alleges that defendant discriminated against her based
upon her race (“African-American”), gender (“female”), age (DOB: 10-18-1961),
and disability (“knee problems”).
Along these lines, plaintiff has checked the following boxes to detail the
following discriminatory conduct by defendant: “failure to promote me,”
“unequal terms and conditions of my employment,” and “retaliation.” Plaintiff
alleges that the discrimination began in 2007 and continues to the present day.
To summarize, plaintiff alleges that she has been discriminated against
on the basis of her race, gender, age, and disability.
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Plaintiff has incorporated by reference the facts set forth in her 2012
EEOC charge. Thus, in considering all of the documents that make up
plaintiff’s complaint, the court understands the following allegations to be the
basis of plaintiff’s complaint.
In September 2011, plaintiff began experiencing knee pain as a result of
a torn ligament from a previous on-the-job injury. The injury made it difficult
for plaintiff to walk or stand for long periods of time and also for plaintiff to
complete her field work. On February 27, 2012, plaintiff began weekly sessions
with an orthopedic doctor to relieve her knee pain. Plaintiff requested a
reasonable accommodation for her injury—specifically, one-hour per week of
sick leave to attend these treatment sessions. Plaintiff’s supervisors granted
the request. After plaintiff had already taken her permitted leave, she was
asked for additional medical documentation to continue her weekly sessions.
On June 28, 2012, plaintiff underwent knee surgery.
Around this time, plaintiff, concerned that her pay had been incorrectly
docketed, began to investigate her time and leave information. In May 2012,
DOP informed plaintiff that an audit of her time and leave record had been
conducted from 2008 until the present, and that plaintiff had been overpaid by
eleven hours and fifty-six minutes. Plaintiff subsequently requested that an
outside source conduct a six-month audit to determine why her time and leave
had been “changed without her knowledge.” On May 31, 2012, DOP denied
this request and deducted plaintiff’s salary in accordance with its audit.

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In September 2012, plaintiff appeared in front of the DOP “gun
committee” to request the return of her weapon. Plaintiff had surrendered her
weapon to the DOP in 2007, following an incident with a fellow officer. The
committee did not return plaintiff’s weapon to her.
2012 EEOC Charge
On December 31, 2012, plaintiff filed a charge of discrimination with the
EEOC. This was not plaintiff’s first charge of discrimination with the EEOC.
In February 2011, plaintiff had filed a complaint with the EEOC alleging
employment discrimination by the DOP on the basis of sex and disability.
For reasons which will be described later in this opinion, it is of
importance to describe exactly the kind of discrimination which plaintiff
complained about in 2012 to the EEOC. In her 2012 charge of discrimination,
plaintiff alleged that in violation of the ADA, she was subject to discrimination
based on her disability (knee injury) and retaliated against for filing a prior
EEOC complaint. Specifically, plaintiff alleged to the EEOC that the following
events exhibited discrimination and retaliation on the part of her employer: (1)
beginning on February 27, 2012, plaintiff was asked for additional medical
documentation in order to accommodate her weekly leave requests, (2) in the
spring of 2012, plaintiff was threatened with disciplinary action for “making
repeated requests to the DOP timekeeping office,” (3) in March 2012, plaintiff
was subject to “impossible work expectations,” (4) in May 2012, plaintiff had
her pay incorrectly docked following an audit of her time and leave records, (5)
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an audit of plaintiff’s time and leave records was not conducted by an outside
source, as plaintiff had requested, (6) on July 2, 2012, plaintiff was threatened
with being written up for not being prepared for a meeting with her supervisor,
(7) after a September 2012 meeting, plaintiff’s supervisor refused to return
plaintiff’s service weapon to her, (8) plaintiff did not receive the workers’
compensation award she was due for an on-the-job injury that occurred in
August 2008, (9) the DOP issued plaintiff a disciplinary write-up after she
made a complaint to the inspector general’s office in December 2011, alleging
that her pay had been improperly docked, (10) plaintiff was not promoted
following her 2004 civil service exam, (11) from October 12, 2012 to December
10, 2012, plaintiff was heavily monitored at work, and (12) since 2008, DOP
has tampered with plaintiff’s time sheets and incorrectly docked her pay.
By letter dated September 13, 2013, the EEOC provided plaintiff with
notice of its decision that plaintiff had not established employment
discrimination by the DOP. The EEOC advised plaintiff of her right to file suit
within ninety days of her receipt of the notice of decision. On December 11,
2013, plaintiff filed her complaint in the instant action. On December 20 2013,
this court entered an order dismissing the claims against the DOP and adding
the City of New York as a defendant.
Discussion
To survive a motion to dismiss under Rule 12(b)(6), a complaint must
plead sufficient facts to state a claim for relief that is plausible on its face.
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Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atlantic Corporation v.
Twombly, 550 U.S. 544, 570 (2007). “‘Labels and conclusions' or ‘a formulaic
recitation of the elements of a cause of action will not do,’” rather, a plaintiff
must plead “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 555). Therefore, unless a plaintiff’s well-pleaded
allegations have “nudged [her] claims across the line from conceivable to
plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570.
Pro se complaints are held to less stringent standards than those drafted
by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). The pleadings of a
pro se party should be construed liberally to raise the strongest arguments that
they suggest. See Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013).
Nevertheless, a pro se complaint must state a plausible for relief. Id. The court
should dismiss a pro se complaint where the plaintiff has clearly failed to meet
the minimum pleading requirements. See Kinsey v. Bloomberg, No. 12-Civ8936 (PAE)(JCF), 2104 WL 630670, at *3 (S.D.N.Y. Feb. 18 2014).
Exhaustion of Administrative Remedies for Title VII and ADEA Claims
Before filing a claim in federal court under either Title VII or the ADEA, a
plaintiff must first file a timely charge of discrimination with the EEOC. See
Tanvir v. New York City Health & Hospitals Corporation, 480 Fed. Appx. 620,
621 (2d Cir. 2012); Legani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683,
686 (2d Cir. 2001). Claims under Title VII and the ADEA that were not
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presented to the EEOC may only be pursued in an action if they are found to
be reasonably related to the claims actually presented to the agency. Id.
However, “claims that introduce a wholly different type of discrimination from
that in the administrative charge are typically deemed to be not reasonably
related.” Young v. U.S. Department of Homeland Security, No. 10-Civ-9571
(RJS), 2011 WL 6057849, at *2 (S.D.N.Y. December 5, 2011).
Here, plaintiff failed to exhaust her claims that she was subject to
discrimination on the basis of race and gender in violation of Title VII, and on
the basis of age in violation of the ADEA. In her complaint, plaintiff has alleged
discrimination based upon the ADA, ADEA, and Title VII. However, in her
2012 EEOC charge, plaintiff only set forth allegations of discrimination and
retaliation pursuant to the ADA. See Supra at 4. Plaintiff set forth a variety of
claims in her 2012 EEOC charge, but the court cannot construe any of the
claims as alleging discrimination under the ADEA or Title VII. Thus, having
failed to exhaust her administrative remedies with respect to her discrimination
claims under the ADEA and Title VII, and given that these claims are not
reasonably related to the discrimination claims under the ADA raised in her
2012 EEOC charge, plaintiff cannot pursue these claims for the first time in
the present litigation. Accordingly, the court dismisses plaintiff’s Title VII and
ADEA claims.
Discrimination under the ADA

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Title I of the ADA makes it unlawful for an employer to “discriminate
against a qualified individual on the basis of disability in regard to job
application procedures, the hiring, advance, or discharge of employees,
employee compensation, job training, and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a). Courts interpret the ADA
coextensively with the substantive antidiscrimination provisions of Title VII.
See Rios v. Department of Education, 351 F. App’x 503, 504 (2d Cir. 2009). In
order to establish a prima facie claim of discrimination pursuant to the ADA, a
plaintiff must demonstrate: “(1) his employer is subject to the ADA; (2) he was
disabled within the meaning of the ADA; (3) he was otherwise qualified to
perform the essential functions of his job, with or without reasonable
accommodation; and (4) he suffered adverse employment action because of his
disability.” Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 169 (2d Cir.
2006).
Plaintiff alleges that she was discriminated against on the basis of her
disability—namely, her knee problems. However, plaintiff does not provide the
specifics of that claim in the fashion required for pleading. In plaintiff’s twelvepoint claim of discrimination to the EEOC, referred to earlier in this opinion,
which constitutes an essential part of the complaint, plaintiff makes allegations
as to a miscellany of matters. However, the court cannot read these
allegations, either when considered individually or collectively, as setting forth
a claim relating to disability discrimination. Accordingly, the court dismisses
plaintiff’s ADA discrimination claim.
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Retaliation under the ADA
In her complaint, plaintiff has also set forth a claim for retaliation under
the ADA. The ADA prohibits retaliation for the assertion of rights protected
under the act. 42 U.S.C. § 12203(a). A prima facie case of retaliation requires
a plaintiff to demonstrate that “(1) the employee was engaged in protected
activity; (2) the employer was aware of that activity; (3) the employee suffered
an adverse employment action; and (4) there was a causal connection between
the protected activity and the adverse employment action.” Gregory v. Daly,
243 F.3d 687, 700 (2d Cir. 2001).
In her complaint, plaintiff relies on the twelve-point EEOC claim that
served as the basis for her discrimination claim to also support her claim for
retaliation. Once again, the court cannot read these allegations, either when
considered individually or collectively, as setting forth a claim relating to
retaliation under the ADA. Accordingly, the court dismisses plaintiff’s
retaliation claim.
Letter to Amend Complaint
On May 9, 2014, plaintiff submitted a letter requesting leave to amend
her complaint. In her letter, plaintiff does not address the deficiencies of her
original pleadings as identified by defendant in its motion to dismiss and in its
reply in further support of its motion to dismiss. Instead, plaintiff sets forth
allegations very similar to those contained in her original complaint. Thus, the
court denies plaintiff’s May 9, 2014 request to amend her complaint as futile.
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See McCarthy v. Dun & Bradstreet Corporation, 482 F.3d 184, 200 (2d Cir.
2007).
Conclusion

The court dismisses plaintiffs complaint in its entirety. This opinion
resolves item #7 on the docket.

SO ORDERED.
Dated: New York, New York
August 19, 2014

~!?L
Thomas P. Griesa
United States District Judge

USDCSDNY
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