Graham v. Macy's Inc.

Filing 16

OPINION & ORDER: For the foregoing reasons, the Complaint is hereby dismissed without prejudice. The Clerk of Court is respectfully directed to terminate the motion pending at docket number 10 and to close this case. The Clerk is further directed to reopen this case if Graham files an Amended Complaint on or before May 23, 2015. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 3/23/2015) (kl)

USDC SDNY

DOCUMENT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ELECTRONICALLY FILED
DOC

#:-

DATE FILED:

3 IZSI

20/11'

EVELYN GRAHAM,
14

Civ, 3192 (PAE)

Plaintiff,
OPINION & ORDER
-v-

MACY'S INC.,
Defendant.

PAUL A. ENGELMAYER, District Judge:
Plaintiff Evelyn Graham, proceedingpro se, brings claims of failure to accommodate,
discriminatory treatment, and retaliation against Macy's Inc. under the Americans with
Disabilities Act ("ADA"),42 U.S.C. $$ 121 12-17. Macy's moves to dismiss Graham's
Complaint for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). For
the following reasons, Macy's motion is granted, but the Court provides Graham leave to amend
her Complaint.

I.

Background

A.

Factual Backgroundl

Graham is a 51-year-old woman who suffers from arthritis and bipolar disorder, Compl.
at 3,

7

.

Because of her arthritis, she cannot stand or walk for extended periods of

time. Id. at 7 .

I This account of the facts is drawn from Graham's Complaint and the documents attached
thereto, namely, a Notice of Right to Sue letter from the EEOC and a Charge of Discrimination
that Graham filed with the New York State Division of Human Rights ("DHR"). DkL2
("Compl."). For the purpose of resolving the motion to dismiss, the Court assumes all well-pled
facts to be true, drawing all reasonable inferences in favor of the plaintiff. See Koch v. Christie's

Int'l PLC,699 F.3d 141,145 (2dCir.2012).

On October 77,2007, Graham began working at Macy's as a bridal consultant.

1d.

Graham alleges that she was a hard-working and successful employee who "gainfed] a
substantial amount of business for the company."
accommodate her disabilities.
a

Id. However, she alleges, Macy's failed to

Id. at3,7. For example, although Graham was supposed to work

limited number of hours each week, Macy's 'ocontinually requested that fGraham] fill in for co-

workers when they fwere] absent." Id.
her medical conditions,

at7. Macy's also denied her breaks, which

exacerbated

1d.

In addition to failing to accommodate her disabilities, Graham claims that Macy's
subjected her to harassment ovet a five-year period. Id. af

7. This pattern of harassment

included taking away Graham's commissions, denying her access to her paychecks and 401K,

giving her incorrect paychecks for most of 2008, allowing managers and staff to "take
advantage" of her, refusing to accept her resignation in November 2013, and trying to stop

payment of her cash pension and unemployment benef,rts

, Id. at 3, 7. This harassment

continued

after Graham filed a complaint with the EEOC in June 2013' Id. at3.
On April 24,2013, Graham contacted Macy's Employee Connection to report that she

"was being mistreated.' Id, at 8. At the Employee Connection representative's direction,
Graham then contacted a third-party compliance company, Global Compliance.

Id. Gtaham

called Global Compliance for status updates multiple times but never heard back from them or

from Macy's Human Resources Department about her complaint' Id.
On May 28,2013, Graham took a leave of absence from Macy's due to her physical and
mental health issues. Id. at7-8. Macy's did not set up reasonable accommodations to help
Graham return to work. Id. at 3.

2

B.

Procedural History

On June 77,2013, Graham filed a charge with the EEOC, alleging that she had faced

discrimination on the basis of her disability and had been subjected to retaliation. Id. af
January 31,2014, the Commission issued a Notice of Right to Sue letter. Id. at

4,6.

3,5.

On

On July 19,

2013, Graham filed a charge with the New York State Division of Human Rights ("DHR"),

alleging that Macy's had subjected her to harassment and failed to accommodate her disability.

Id. at7. The Complaint
On

does not indicate how DHR resolved Graham's charge, See id.

April 24,2014, Graham commenced this action. Dkt. 1. Her Complaint

at7-8.

alleges

failure to accommodate her disabilities, mistreatment because of those disabilities, and retaliation

for filing an EEOC charge in violation of the ADA, Compl. at

l-3.

As relief, she seeks

monetary sanctions including compensatory, emotional distress, and punitive damages. Id. at 4.
On October 6,2014, Macy's filed a motion to dismiss, Dkt. 10, along with a supporting
memorandum of law, Dkt. 11 ("Def.

Br."). On October 30,2014, Graham submitted

her

opposition to Macy's motion. Dkt. 13 ("P1. Br."). On November 74,2014, Macy's filed its

reply. Dkt. 14 ("Def. Reply"). On December 5, 2014, Graham f,rled

a

letter attaching an

additional document, a Global Compliance "case history" record, that she would like the Court to
consider, Dkt. 15 ("P1. Reply").

II.

Applicable Legal Standards
To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead "enough

facts to state a claim to relief that is plausible on its face." Bell

Atl. Corp. v, Twombly, 550 U.S.

544,570 (2007). A claim will only have"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." Ashuoft v. Iqbal,556 U.S. 662,678 (2009). A complaint is properly

a

J

dismissed where, as a matter of law, "the allegations in a complaint, however true, could not
raise a claim of entitlement to relief." Twombly,550 U.S. at 558. Accordingly, a district court
must accept as true all well-pled factual allegations in the complaint, and draw all inferences in
the

plaintifls favor.

See

ATSI Commc'ns, Inc. v, Shaar Fund, Ltd.,493 F.3d 87, 98 (2d Cir.

2007). However, that tenet "is inapplicable to legal conclusions." Iqbal,556 U.S. at 678. A
o'a
formulaic recitation of the elements of a
pleading that offers only "labels and conclusions" or

cause of action

will not do." Twombly, 550 U.S.

at 555.

The District Court is "obligated to construe apro se complaint liberally," Hãruis v. Mills,

572F.3d66,72 (2d Cir. 2009), interpreting it "to raise the strongest arguments that [it]
suggestfs]," Triestmanv. Fed. Bureauof Prisons,470F.3d471,476(2dCir.2006) (citation

omitted). Courts may not, however, read intopro se submissions claims inconsistent with the

pro se litigant's allegations

, see

Phillips v. Girdich, 408 F.3d 124, 127 (2d Cir.2005), or

arguments that the submissions themselves do not "suggest," Pabon v, Wright,459 F.3d241,
248 (2d Cir.2006) (citation omitted). Pro se status "does not exempt aparty from compliance

with relevant rules of procedural and substantive law." Traguth v. Zuck,7l0 F.2d 90,95 (2d Cit
I

983) (citation omitted).

III.

Discussion
Graham assefts that Macy's violated the ADA in three ways: by failing to accommodate

her disabilities, mistreating her, and retaliating against her for filing an EEOC charge, As a
threshold matter, the Court considers whether Graham is disabled within the meaning of the

ADA, an essential element of each of Graham's claims. The ADA defines "disability"

as "a

physical or mental impairment that substantially limits one or more major life activities." 42
U.S.C. $ 12102(l)(A). "[M]ajor life activities include, but are not limited to, caring for oneself,

4

performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating, and working."

Id. S 12102(2XA). The Complaint alleges that Graham has arthritis and,
or walk for extended periods of time. Compl.

at3,7.

as a result, cannot stand

These allegations adequately plead that

Graham is disabled, as that term is defined in the ADA.
The Complaint also alleges that Graham has bipolar disorder. Id. at 3. Bipolar disorder
can, in some circumstances, qualify as a disability under the

ADA, but the Complaint does not

oosubstantially limits one or more" of Graham's "major life
explain how that impairment

activities." 42 U.S.C. $ 12102(1)(A). It therefore does not provide sufficient factual allegations
to establish that Graham's bipolar disorder was disabling. See Kramer v. Hickey-Freeman, Inc.,
142F. Supp,2d555,559(S.D.N.Y,2001)(fîndingplaintiffnotdisabledwhere"plaintiffsbipolar disorder [did] not substantially limit a major life activity"). Accordingly, in resolving the
motion to dismiss, the Court considered only Graham's arthritis, and not her bipolar disorder.
The Court now turns to Graham's three claims.

A.

Failure to Accommodate

To state a claim for an employer's failure to accommodate a disability, a plaintiff must
adequately allege that: "(1) plaintiff is a person with a disability under the meaning of the ADA;

(2) an employer covered by the statute had notice of his disability; (3) with reasonable
accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the
employer has refused to make such accommodations." McMillan v. City of New York,J71 F.3d

120,12516 (2dCir.2013) (citation omitted). As noted, Graham alleges that

she is disabled as a

result of her arthritis, Compl. at3, and that, with regular breaks and limited hours, she could

5

succeed as a bridal consultant,
elements of

a

id.

at7

. She has therefore sufficiently pled the first and third

prima facie case.

However, the Complaint does not identify when,

if ever, Graham notified Macy's of her

disability. Similarly, it does not allege that Graham asked Macy's for accommodations, or that
Macy's refused her request. Rather, the Complaint alleges only that on April 24,2073, Graham
"reportfed] that [she] was being mistreated," and on May 28,2013, she began a leave of absence
"due to stress, pain, and sanity." Id. af

7-8.

Based on these generic complaints, the Court has no

basis to infer that Graham ever told Macy's about her arthritis, or requested accommodations
such as extra breaks or limited hours. Accordingly, the Court must dismiss Graham's failure to

accommodate claim. See Rullan v. N.Y. City Sanitøtion Dep '/, No. 13 Civ. 5154 (JGK),2014

V/L 201 1771, at *8 (S.D.N.Y. May 16,2014) ("[T]he plaintiff

s Amended

Complaint contains

no allegation that fthe employer] knew the plaintiff was disabled, no allegation that the plaintiff
sought a reasonable accommodation, and no allegation that [the employer] denied the plaintiff a
reasonable accommodation. Because the

plaintiff fails to make any factual showing with respect

to these elements of his failure to accommodate claim, fthat] claim must be dismissed'").
In her opposition to the motion to dismiss, Graham contends that she "did not receive any

information" about disability assistance, Pl. Br. 7,that "no one contacted [her] from Macy's
Disability Staff Depfartment]," id. at 5, and that she 'owas not called into HR to discuss ways
that [Macy's] could plan reasonable accommodations," id. at

7. But the ADA

the employee to ask for help, not on the employer to proactively offer
783 F. Supp.

it.

places the onus on

See MacEntee

2d 434,443 (S.D.N .Y.2011) ("An employee must demonstrate that

v' IBM,

she suffers

from a disability and tell [her] employer about her disability before her employer has 'any
obligation to accommodate the disability."') (quoting Santiago v. N.Y. City Police Dep't,No. 05

6

Civ, 3035 (PAC) (MHD), 2007 WL 4382752, at *8 (S.D.N.Y. Dec' 14,2007)), aff'd,477

F'

App'x 49 (2dCir.2012) (summary order). In other words, Macy's inaction does not violate the
ADA unless Graham had previously notified Macy's of her disability and requested
accommodations. See id. at 444 ("Defendant cannot be held liable for failing to provide
reasonable accommodations when

it had no actual or constructive knowledge of the need for any

accommodations.").

B.

Discriminatory Treatment

To state a claim for discrimination on the basis of a disability, a plaintiff must adequately
allege that: "(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." McMillan,711 F.3d at I25 (citation omitted). Again, Graham has adequately
alleged that she is disabled and was qualified to work as a bridal consultant. See Compl. at3,7.
The central question is, therefore, whether Graham suffered an adverse employment action
because of her disability.

The Complaint alleges, among other things, that Macy's took Graham's commissions,
denied her access to her paychecks and 401K, and tried to stop payment of her cash pension and
unemployment benefits. See

id. Refusing to provide pay or benefits to which

an employee is

entitled qualifies as a materially adverse action. See, e.g., Galabyav. N.Y. City Bd. of Educ.,202
F.3d 636,640 (2d Cir. 2000) (actionable adverse actions include "a decrease in wage or salary"

7

ando'amaterial loss of benefits") (citation omitted); Borrero v. Am. Exp. Bank Ltd.,533 F. Supp.

2d,42g,438 (S.D.N.Y. 2008) ("unequal pay" is a materially adverse employment action).2
However, the Complaint fails to state a claim for discriminatory treatment for two
reasons: First, the Complaint does not specify when these adverse employment actions occurred.

"[A] claimant pursuing claims

under the

ADA must file charges with the EEOC within 300 days

of the purportedly unlawful acts." Troeger v. Ellenville Cent. Sch. Dist., 523

F.

App'x 848, 851

(2dCir.2013) (summary order) (citing 42 U.S.C. $ 12117(a)). Graham filed her charge with the
EEOC on June ll,2013,see Compl. at 3, and so her claims of discrimination are time'barred

if

the alleged discriminatory acts occurred before August 15,2012. Because the Complaint does
not allege when, concretely, Macy's denied Graham's pay or benefits, the Court has no basis on

which to find her claims timely.
Second, the Complaint does not adequately allege that Macy's took these actions because

of Graham's disability.

See, e.g., Sneedv, City of N.Y.

Dep't of Parks & Recreation, No. 10 Civ.

299 (V/HP),2011 WL 4542960, at *3 (S.D.N.Y. Sept. 30,2011) (dismissing complaint where

plaintiff "fail[ed] to allege that any purported mistreatment was motivated by discriminatory
animus or ill will based on her disability"). It does not, for example, allege that anyone at

Macy's made derogatory comments about Graham's arthritis or that Graham's non-disabled co-

2

The Complaint also alleges that Macy's harassed Graham, allowed managets and staff to "take
advantage" of her, and refused to accept her resignation. Compl. at3,7. These allegations are
too vague to state a claim of discrimination. Harassment is unlawful only if it is "'sufficiently
severe or pervasive to alter the conditions of the victim's employment and create an abusive
working environment,"' Raspardov. Carlone,770F.3d97,Il4 (2dCir,2014) (quoting Harris
v, Forklift Sys., Inc., 510 U.S. 77,27 (1993)). And an employment action violates the ADA only
if it "createfs] a materially significant disadvantage in fthe plaintiff s] working conditions."
thilliams v. R.H. Donnelley, Corp.,368 F.3d 123, 128 (2d Cir.2004); see also Burlington N. &
Santa Fe Ry. Co. v. White,548 U,S. 53,71(2006). Without more detailed factual allegations
about the harassment Graham experienced, or how Macy's took advantage of her, the Court
cannot evaluate whether the Complaint satisfies either of these standards.
8

workers were treated more favorably. See, e.g., Graham v. l4/omen in Need,1zc., No. 13 Civ.
07063 (LGS), 2014WL2440849, at *4 (S.D.N.Y. May 30,2014) (holding that

plaintiff

"sufficiently plefd] facts giving rise to an inference that [she] was terminated because of her
disability" where complaint alleged that plaintifls disability was "the subject of contention
between Plaintiff and Defendants"); Thompsonv. N.Y. City Dep't of Prob., No. 03 Civ.4182
(JSR) (JCF), 2003 WL 22953165, at *4 (S.D.N.Y. Dec, 12,2003) ("'[W]hat is needed is the

allegation of factual circumstances that permit the inference that plaintiff was subjected to a
hostile work environment because of her [disability]."' (quoting Gregory v, Daly,243 F.3d 687,
694 (2d Cir. 2001) (alteration in

original)). Indeed, the Complaint does not even allege that

Macy's was aware of Graham's disability. V/ithout specific factual allegations that support an
inference of discriminatory animus, discrimination is no more than one conceivable explanation

for Macy's actions. See Ortiz v, Standard & Poor 's, No. l0 Civ. 8490 (NIRB),201I V/L
4056901, at *4 (S.D.N.Y. Aug.

29,2011). That speculative possibility does not suffice to state

a

claim for discrimination.

C.

Retaliation

To make out a prima facie case of retaliation, the plaintiff must establish that: "( 1 ) she
engaged in a protected activity; (2) her employer was aware of this activity; (3) the employer

took adverse employment action against her; and (4) a causal connection exists between the
alleged adverse action and the protected activity." Schiano v. Quality Payroll Sys., lnc.,445

F.3d 597,603 (2d Cir. 2006). As to the first element, the Complaint alleges that Macy's
oocontinued

to harass fGraham] after [she] filed [her] EEOC claim." Compl. at 3. And at this

stage, the Court assumes that
$ 2000e-5 ("Vy'henever

Macy's was aware of Graham's EEOC charge. See 42 U.S.C.

a charge is filed by or on behalf of

9

a person

claiming to be aggrieved . . .

alleging that an employer , . . has engaged in an unlawful employment practice, the Commission
shall serve a notice of the charge (including the date, place and circumstances of the alleged

unlawful employment practice) on such employer . . . within ten days'").
However, this claim fails for the reasons discussed above: The conclusory allegation of
"harassment" is too vague to establish that Macy's "took adverse employment action" against
Graham, see p.7 &, n.2, supra, and the Complaint does not provide any allegations that support
an inference of a causal connection between the harassment Graham experienced and her

protected activity, see pp.8-9, supra, If anything, the Complaint's allegation that Macy's

"continuedto harass" Graham after she filed a charge with the EEOC indicates that the pattern of
harassment began before, and therefore was not caused by, Graham's protected activity.

IV.

Leave to Amend
Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend a complaint shall

be

"freely" given when "justice

so requires," although "a

district court has discretion to deny

leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the

opposing patty," McCarthy v. Dun & Bradstreet Corp. , 482

F

.3d 184, 200 (2d Cir. 2007).

Granting leave to amend is "futile" if a revised claim still "could not withstand a motion to
dismiss pursuant to Rule 12(bX6)," Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals,

282F.3d 83, 88 (2dCir.2002), If the problems with a claim are "substantive" rather than the
result of an "inadequately or inartfully pleaded" complaint, an opportunity to replead would be

"futile"

and "should be denied," Cuoco v, Moritsugu,222 F.3d 99,

II2 (2d Cit.

2000).

Here, new allegations contained in Graham's opposition to Macy's motion to dismiss
begin to-although they do not fully-remedy the deficiencies in her Complaint. In particular,
Graham claims that she made an "initial request" for accommodations in 2011, Pl. Br. 5;

10

"decided to reveal [her] disabilities to Macy's in2012," id. ar.2; and did in fact disclose
something in2012, id. at8. Additionally, a Global Compliance record that Graham submitted
after Macy's motion to dismiss was fully briefed states that Graham "had a medical restriction
request
at

on7lI3l2072 from her physician for the associate to work 17 l12 hours only," Pl. Reply

5. Moreover, an unemployment insurance appeal board decision

attached to Graham's

brief

states that Graham attempted to return from her leave of absence in November 2013, but Macy's

"repeated delays in meeting with [Graham] to discuss workplace accommodations prevented

[her] from returning to her

job."

Pl. Br. Ex. 1, at 8. Although

"it is axiomaticlhat the Complaint

cannot be amended by the briefs in opposition to a motion to dismiss," Weir v. City of New York,

No. 05 Civ.9268 (DFE), 2008 WL 3363129, at *9 (S.D,N.Y. Aug. 11, 2008) (citation omitted),
these allegations indicate that Graham may be able to state a viable

ADA claim if given

leave to

amend. The Court is also mindful of Graham's status as apro se litigant, who may not,
heretofore, have been familiar with the particular pleading requirements of the

ADA. If an

Amended Complaint alleged, with sufficient detail, that Graham informed Macy's of her

arthritis, and requested limited hours or other accommodations to help her return to work, and

Macy's refused to provide such accommodations, that complaint could state a claim for failure to
accommodate.

If Graham wishes to file
Opinion and Order, i.e.,by

}r1Lay

an Amended Complaint, she must do so within 60 days of this

23,2015. To revive Graham's failure to accommodate claim,

the Amended Complaint must allege, as specifically as possible, when Graham informed Macy's

of her arthritis andlor bipolar disorder, what accommodations she requested, and how Macy's
responded to those requests. As to Graham's discriminatory treatment and retaliation claims, the

Amended Complaint must allege, in as much detail as possible, how Macy's harassed or

l1

otherwise mistreated Graham, and why Graham believes that those actions were related to her

disability or the frling of her EEOC charge.

CONCLUSION
For the foregoing reasons, the Complaint is hereby dismissed without prejudice. The

Clerk of Court is respectfully directed to terminate the motion pending at docket number 10 and
to close this case. The Clerk is further directed to reopen this case if Graham files an Amended
Complaint on or before May 23,2015.
SO ORDERED.

Po,,,r( A
YER
PAUL A. EN
States District Judge
United
Dated: March 23,2015
New York, New York

t2