Kleinman v. Fashion Institute of Technology et al
Filing
45
OPINION AND ORDER: re: 36 MOTION to Dismiss . filed by Fashion Institute of Technology. For the reasons set forth above, Defendants motion to dismiss is GRANTED. The Clerk of Court is directed to terminate the motion appearing at D ocket Entry 36. The parties are ORDERED to submit a proposed Civil Case Management Plan and Scheduling Order on or before August 4, 2017. The parties are forewarned that the Court will be disinclined to extend discovery deadlines, once those deadlines are proposed by the parties and endorsed by the Court. (Signed by Judge Katherine Polk Failla on 7/14/2017) (js)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
LAURA KLEINMAN,
:
:
:
Plaintiff,
:
v.
:
:
FASHION INSTITUTE OF TECHNOLOGY,
:
:
Defendant. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: July 14, 2017
______________
16 Civ. 4348 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
Plaintiff Laura Kleinman suffers from a spinal condition that limits her
mobility. Since 2011, she has worked as a clinician in the Counseling Center
at Defendant Fashion Institute of Technology. In 2013, Plaintiff’s spinal
condition worsened, and she took a five-day leave of absence from work in
order to undergo medical testing. Upon returning to the Counseling Center,
Plaintiff alleges, her colleagues and supervisors began to harass and
discriminate against her because of her disability. And Plaintiff claims that
this hostility only increased after she complained to Defendant’s
administration.
In June 2016, Plaintiff sued Defendant, seeking relief under several
federal, state, and local statutes. About a month later, Plaintiff filed a Charge
of Discrimination with the Equal Employment Opportunity Commission (the
“EEOC”), claiming that Defendant had violated the Americans with Disabilities
Act of 1990, 42 U.S.C. §§ 12101 to 12213 (the “ADA”). Plaintiff thereafter filed
an Amended Complaint, and later a Second Amended Complaint, in which she
alleged that Defendant had created a hostile work environment and retaliated
against her in violation of the ADA.
Defendant has moved to dismiss Plaintiff’s Eighth Cause of Action (her
ADA hostile work environment claim) and Ninth Cause of Action (her ADA
retaliation claim) under Federal Rule of Civil Procedure 12(b)(6). Defendant
argues that these two claims are unexhausted, untimely, and in any event,
meritless. For the reasons that follow, the Court grants Defendant’s motion. 1
1
This Opinion draws on facts from two sources. The first is Plaintiff’s Second Amended
Complaint (“SAC” (Dkt. #33)), the operative complaint in this case. For the purposes of
this Opinion, the Court assumes that the Second Amended Complaint’s well-pled
allegations are true. E.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The second is the Charge of Discrimination Plaintiff filed with the EEOC (“EEOC
Charge” (Dkt. #37-2)). “Because a Rule 12(b)(6) motion challenges the complaint as
presented by the plaintiff, taking no account of its basis in evidence, a court
adjudicating such a motion may review only a narrow universe of materials,” including
“[i] facts stated on the face of the complaint, … [ii] documents appended to the
complaint or incorporated in the complaint by reference, … [iii] matters of which judicial
notice may be taken,” and [iv] documents that are “‘integral’ to the complaint.” Goel v.
Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Concord Assocs., L.P. v. Entm’t
Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)). Plaintiff did not attach her Charge of
Discrimination to the Second Amended Complaint. Rather, Defendant attached the
Charge of Discrimination as an exhibit to the Declaration of Christopher G. Gegwich,
Esq. in Support of Fashion Institute of Technology’s Motion to Dismiss. (See Dkt. #372). And Defendant argues that the Court may consider the Charge of Discrimination in
adjudicating Defendant’s motion to dismiss because Plaintiff’s Second Amended
Complaint incorporates the Charge of Discrimination by reference. (Def. Br. 12 n.3
(Dkt. #38)). Plaintiff does not refute this argument; to the contrary, Plaintiff has
attached her Charge of Discrimination as an exhibit to a competing declaration. (See
Dkt. #41-1).
For two alternative reasons, the Court may consider Plaintiff’s Charge of Discrimination
in resolving Defendant’s motion. First, the Court agrees with Defendant that the
Second Amended Complaint incorporates the Charge of Discrimination by reference.
See Rose v. Goldman, Sachs & Co., 163 F. Supp. 2d 238, 243 n.2 (S.D.N.Y. 2001)
(plaintiff’s operative complaint incorporated charge of discrimination by reference by
citing directly to charge). (See SAC ¶ 2 (discussing filing of Charge of Discrimination)).
Second, the Charge of Discrimination is integral to Plaintiff’s Second Amended
Complaint. See Boonmalert v. City of N.Y., No. 16 Civ. 4171 (KMW), 2017 WL 1378274,
at *2 n.4 (S.D.N.Y. Apr. 12, 2017) (deeming plaintiff’s charge of discrimination integral
to plaintiff’s operative complaint); Washington v. Garage Mgmt. Corp., No. 11 Civ. 3420
(CM), 2012 WL 4336163, at *2 (S.D.N.Y. Sept. 20, 2012) (same).
2
BACKGROUND
A.
Factual Background
The events giving rise to Plaintiff’s dispute with Defendant transpired in
three phases. Plaintiff’s troubles began in 2013, when she returned from her
five-day medical leave and encountered various obstacles in her efforts to
secure tenure. They intensified in 2014 and 2015, after Plaintiff reported her
peers’ and superiors’ mistreatment of her to Defendant’s administration. And
they culminated in 2015 and 2016, when Plaintiff applied for a one-year
medical leave, a process that Plaintiff alleges was fraught with discrimination.
1.
Plaintiff’s Five-Day Medical Leave and Subsequent Tenure
Process
Defendant is a “college of art and design, business[,] and technology”
located in New York City. (SAC ¶ 8). In October 2011, Defendant hired
Plaintiff to work as a clinician in its Counseling Center. (Id. at ¶ 9). Plaintiff
remains employed at Defendant to this day. (Id. at ¶ 60).
In 2013, Plaintiff took a five-day leave of absence “in order to undergo
invasive neurological testing” for her spinal condition. (SAC ¶ 11). Before
Even when a document is integral to or incorporated by reference in a complaint, a
court may consider that document only if “there is no dispute regarding its authenticity,
accuracy, or relevance.” In re PetroChina Co. Sec. Litig., 120 F. Supp. 3d 340, 354
(S.D.N.Y. 2015), aff’d sub nom. Klein v. PetroChina Co., 644 F. App’x 13 (2d Cir. 2016)
(summary order). Such is the case here. The Charge of Discrimination is plainly
relevant to the Court’s resolution of Defendant’s motion. And the Court is confident
that the Charge of Discrimination is authentic and accurate, because both parties have
submitted copies of the document. Accordingly, the Court will consider the Charge of
Discrimination in order to evaluate the sufficiency of Plaintiff’s Second Amended
Complaint.
For ease of reference, the Court refers to Defendant’s brief as “Def. Br.,” to Plaintiff’s
opposition brief as “Pl. Opp.” (Dkt. #40), and to Defendant’s reply brief as “Def. Reply”
(Dkt. #44).
3
taking this leave, Plaintiff “had been unanimously reappointed in five previous
Tenure and Promotion [ ] rounds.” (Id. at ¶ 13). But upon returning to work,
Plaintiff encountered “increased scrutiny from her peers and colleagues,” which
Plaintiff interprets as a “reaction to her disability and associated medical
treatment.” (Id. at ¶ 14). And Plaintiff alleges that this hostility “reached a
fever pitch in the weeks leading to her final tenure meeting.” (Id.).
At a staff meeting in December 2013, Plaintiff’s peers criticized her for
not explaining clearly why she had been absent from work for five days. (SAC
¶ 15). Plaintiff then “explained her medical status in detail.” (Id. at ¶ 16). In
response, “the Chair of [Plaintiff’s] Tenure and Promotion Committee [ ] openly
expressed fear that” if Plaintiff were absent in the future, the Counseling
Center would “‘get[] stuck’ with a staff member who was unable to perform her
job.” (Id.).
The harassment escalated quickly. By Plaintiff’s admission, her spinal
condition often causes her to arrive to work “five to 20 minutes late in the
morning.” (SAC ¶ 19). Plaintiff has “consistently” sought to lessen the effects
of her tardiness by, for example, “working overtime” and “factoring any delays
into her calendar.” (Id.). During the weekend following the December 2013
staff meeting, a Counseling Center “staff member sent several confrontational
emails critiquing [Plaintiff’s] performance, particularly her purported issues
with punctuality.” (Id. at ¶ 17). And after Plaintiff received these emails, the
Counseling Center’s receptionist began tracking Plaintiff’s “arrival times and
4
session lengths in order to build a record against [Plaintiff’s] performance.” (Id.
at ¶ 18).
Plaintiff fared no better when it came time to prepare her tenure
application. Plaintiff was given deadlines (she does not say by whom) “only to
have them changed last minute.” (SAC ¶ 21). And Plaintiff was “instructed to
submit” documents (again, Plaintiff does not say by whom) that she later
learned were not necessary for her tenure application. (Id.). To make matters
worse, Plaintiff received no guidance during her tenure application
process — unlike “her non-disabled colleague,” Dr. Jen Mai Wong, who met
with “advisors” “multiple times.” (Id. at ¶¶ 22, 24).
Plaintiff came up for tenure in March 2014. (SAC ¶ 23). Although
Plaintiff had never before been criticized for her work at the Counseling Center,
the members of Plaintiff’s Tenure and Promotion Committee criticized her job
performance and “her presentation skills.” (Id.). And although Plaintiff claims
that her on-the-job performance and tenure presentation were virtually
identical to Dr. Wong’s, the Tenure and Promotion Committee gave Plaintiff
comparatively lower marks. (Id. at ¶ 24). Ultimately, the Tenure and
Promotion Committee recommended that Plaintiff not receive tenure. (Id. at
¶¶ 25-26).
Defendant’s administration, however, overrode the Tenure and Promotion
Committee’s recommendation. (SAC ¶ 26). In May 2014, Plaintiff received
tenure. (Id.). Since then, Plaintiff has suffered various forms of harassment at
work: “[S]everal personal items have been stolen from [Plaintiff’s] office and
5
computer desktop,” and Plaintiff’s “colleagues have stopped delivering
messages to her from her students.” (Id. at ¶¶ 27-28). 2
2.
Plaintiff’s Report of Harassment to Defendant’s Administration
On December 2, 2014, Plaintiff wrote a letter to Defendant’s Acting Vice
President, Kelly Brennan, “and other members of [Defendant’s] administration.”
(SAC ¶ 29). In the letter, Plaintiff “reported the harassment and discrimination
she [had] faced”; asked “that Defendant provide her with an alternate” Tenure
and Promotion Committee; and requested that Defendant “educate the three
members of [Plaintiff’s] department” who served on Plaintiff’s Tenure and
Promotion Committee “about the discriminatory bias that they demonstrated in
[Plaintiff’s] tenure evaluation.” (Id.).
On January 9, 2015, Plaintiff discussed her grievances with Griselda
Gonzalez, Defendant’s Affirmative Action Officer and Acting Director of
Compliance. (SAC ¶ 30). Gonzalez said “that she would immediately email
[Plaintiff] a form that would permit [an] investigation” into Plaintiff’s
mistreatment “to commence”; Gonzalez added that the investigation “would
take six to eight weeks.” (Id.).
Gonzalez did not send the form to Plaintiff until January 29, 2015. (SAC
¶ 30). And Defendant did not initiate its investigation into Plaintiff’s claims
until the middle of March 2015. (Id. at ¶¶ 31-32). While Plaintiff’s complaints
2
At various points in this Opinion, the Court quotes directly from the Second Amended
Complaint because it does not understand precisely what time period is covered by the
allegation. Plaintiff is advised that in unmooring certain of her allegations from any
specific date, she may well be rendering them less plausible.
6
languished, Plaintiff suffered “escalating abuse”: Unnamed individuals
“disparag[ed] [Plaintiff] on www.healthgrades.com, tamper[ed] with her patients’
appointments[,] and … ma[de] pointed remarks in meetings that were designed
to be hurtful and divisive.” (Id. at ¶ 33).
Dissatisfied with Defendant’s refusal to investigate her complaints,
Plaintiff retained counsel. (SAC ¶ 34). On April 1, 2015, Plaintiff’s attorney
wrote to Brennan to inform her that Plaintiff had hired a lawyer. (Id.). In
response, Plaintiff alleges, “the retaliation against [Plaintiff] only escalated.”
(Id.).
On June 17, 2015, Gonzalez reported to Plaintiff that Defendant “had
concluded that [Plaintiff] was unfairly treated and wrongfully evaluated.” (SAC
¶ 36). Defendant, however, refused to assign an alternate Tenure and
Promotion Committee to evaluate Plaintiff. (Id. at ¶ 37). Nor did Defendant
agree “to confront and counsel the” members of Plaintiff’s Tenure and
Promotion Committee in order to “counsel[] [them] on their discriminatory
animus.” (Id. at ¶ 38). By Plaintiff’s account, in the face of her persistent
complaints, “the only countermeasure [Plaintiff] has been offered is the
opportunity to continue complaining.” (Id. at ¶ 41).
3.
Plaintiff’s Application for a One-Year Medical Leave
According to Plaintiff, these long-running employment issues took a toll
on her health, and in August 2015, she was “forced … to take a leave of
absence” from work. (SAC ¶ 45). The Second Amended Complaint does not
disclose clearly how long this leave lasted, although Plaintiff refers to it as
7
“short-term.” (Id. at ¶ 56). Defendant “unlawfully interfered with” this shortterm leave “by, among other things, authorizing a peer of [Plaintiff’s] … to
contact [Plaintiff] in October 2015 to inquire about [Plaintiff’s] condition and
when she [would] be able to return to work.” (Id. at ¶ 46).
That same month, Plaintiff attempted to extend her leave and “obtain
approval of a one-year leave of absence.” (SAC ¶ 47). Defendant’s Human
Resources Department directed Plaintiff to contact Defendant’s Dean of
Students, Dr. Shadia Sachedina, to discuss Plaintiff’s request for a medical
leave. (Id.). Plaintiff e-mailed Dr. Sachedina, but did not hear back from her
until November 20, 2015. (Id. at ¶¶ 47-48). In her response, Dr. Sachedina
“interpreted [Plaintiff’s] email as a tender of her resignation and asked that
[Plaintiff] send a formal resignation letter.” (Id. at ¶ 48). That interpretation,
Plaintiff claims, was “yet another effort to hinder [Plaintiff’s] efforts to obtain
medical leave.” (Id.). Eric Odin and Cherese Hill-Cartagena (both of whom, the
Court surmises, work for Defendant) further hindered Plaintiff’s efforts by
giving her “inconsistent instructions and ask[ing] for additional documentation,
despite the fact that [Plaintiff] had easily satisfied the requirements for taking a
one-year leave of absence outlined in her employment contract.” (Id. at ¶ 53).
In early 2016, while Plaintiff’s application for a one-year medical leave
remained unresolved, several of Plaintiff’s colleagues at the Counseling Center
and members of Defendant’s administration “attended a colleague’s retirement
party.” (SAC ¶ 50). At the party, the Counseling Center’s “former director and
other members of [Defendant’s] [a]dministration spoke about [Plaintiff’s] leave
8
of absence, spread rumors that she was ‘suing [Defendant],’ and spoke
disparagingly about [Plaintiff’s] character and integrity.” (Id. at ¶ 51). Plaintiff
“came to learn that these rumors had been instigated by the Counsel[ing]
Center’s current Director,” who was “charged with determining whether
[Plaintiff’s] application for leave was approved.” (Id. at ¶¶ 51-52). Plaintiff, who
did not attend the party, does not explain how or when she learned of what
transpired at the party. (See id.).
In May 2016 — after Plaintiff “made clear” that she intended to sue
Defendant — Defendant granted Plaintiff’s request for a one-year medical leave.
(SAC ¶ 56). In the lead-up to that decision, Plaintiff “endure[d] the specter of
obtaining her own care in the ‘open-market,’” a fear vivified by Plaintiff’s
knowledge that the Counseling Center’s Director had expressed “animosity and
disdain for [Plaintiff] and her protected activity.” (Id. at ¶ 55). Plaintiff’s
mounting medical bills — over $1,200 per week — coupled with her “stress of
not knowing whether [Defendant] would continue to provide [Plaintiff] health
insurance,” added to Plaintiff’s concerns. (Id. at ¶ 57).
Plaintiff alleges that her troubles continued into her medical leave. In
October 2016, members of Defendant’s faculty received ballots “to vote
regarding whether to ratify [Defendant’s] new collective bargaining agreement
with the United College Employees.” (SAC ¶ 58). Plaintiff alleges that “[i]n
exchange for casting their votes, faculty members were promised retroactive
pay and a possible $1,000 signing bonus.” (Id.). Defendant never sent Plaintiff
9
a ballot, which Plaintiff interprets as “a clear effort to further retaliate and
discriminate against” her. (Id. at ¶ 59). 3
B.
Procedural Background
Plaintiff filed her initial Complaint in this action on June 10, 2016,
naming Defendant and the State University of New York (“SUNY”) as parties.
(Dkt. #1). In her Complaint, Plaintiff sought relief under various federal, state,
and local statutes, but not the ADA. (Id. at ¶¶ 46-75).
On July 19, 2016, Plaintiff filed her Charge of Discrimination with the
EEOC. (SAC ¶ 2). Three aspects of Plaintiff’s Charge of Discrimination merit
close attention here, because they bear on Defendant’s exhaustion and
timeliness arguments:
First, in her Charge of Discrimination, Plaintiff claimed that Defendant
had violated the ADA. (EEOC Charge 1). In a section that asked Plaintiff to
indicate her Charge’s “Cause of Discrimination,” Plaintiff marked two boxes:
(i) “Retaliation” and (ii) “Disability.” (Id.).
Second, in an adjacent section labeled “Date Discrimination Took Place,”
Plaintiff wrote that the “Earliest” date of the discrimination she encountered
was “December 2013,” and the “Latest” was “August 2015.” (EEOC Charge 1).
This section also included a box labeled “Continuing Action,” but Plaintiff did
not select it. (Id.).
3
Plaintiff does not indicate the result of the ratification vote.
10
Finally, Plaintiff attached to her Charge of Discrimination a forty-oneparagraph “Supplement” that mirrors the form and content of the Second
Amended Complaint — with one important difference: Like the Second
Amended Complaint, the Supplement to Plaintiff’s Charge of Discrimination
begins by cataloguing the difficulties Plaintiff faced when she returned from her
five-day medical leave in 2013. (EEOC Charge 2). And the Supplement
recounts the harassment and retaliation Plaintiff allegedly endured in 2014
and 2015. (Id. at 3-6). But the Supplement concludes with Plaintiff’s
allegation that one of her colleagues at Defendant’s Counseling Center
contacted Plaintiff during her short-term leave in October 2015. (Id. at 6). The
Supplement contains no allegations postdating that incident.
Plaintiff received a Right to Sue Letter from the EEOC on August 24,
2016. (SAC ¶ 2). On October 19, 2016, Plaintiff filed an Amended Complaint
against Defendant and SUNY, in which she alleged that Defendant had
discriminated and retaliated against her in violation of the ADA. (Dkt. #24).
Following a conference with the Court on November 30, 2016, Plaintiff
voluntarily dismissed SUNY as a party to this suit, and filed the Second
Amended Complaint against Defendant alone. (Dkt. #32, 33).
Defendant moved to dismiss Plaintiff’s Second Amended Complaint on
January 13, 2017. (Dkt. #36-38). 4 Plaintiff opposed the motion on February
4
On November 30, 2016, this Court issued an order setting a briefing schedule for
Defendant’s motion to dismiss. (Dkt. #31). At the time, Plaintiff had yet to dismiss
SUNY from this case. And in recognition of the fact that both SUNY and Defendant had
expressed their intention to file separate motions to dismiss, the Court permitted
Plaintiff to file a combined opposition brief of forty pages, well in excess of the twentyfive pages litigants are customarily granted under this Court’s Individual Rules of
11
13, 2017 (Dkt. #40-41), and briefing concluded when Defendant submitted its
reply on February 27, 2017 (Dkt. #44).
DISCUSSION
Defendant asserts three arguments in support of its partial motion to
dismiss. First, Defendant argues that Plaintiff failed to exhaust many of the
claims in her Second Amended Complaint, because she did not include those
claims in her Charge of Discrimination. Second, Defendant argues that many
more of Plaintiff’s claims are time-barred, because they occurred more than
300 days before Plaintiff filed her Charge of Discrimination. Finally, Defendant
argues that the Second Amended Complaint does not state plausible hostile
work environment or retaliation claims under the ADA.
The first of these arguments fails, but the second and third succeed.
Plaintiff administratively exhausted both her ADA hostile work environment
and ADA retaliation claims. But the bulk of the allegations Plaintiff adduces in
support of these claims are time-barred. And once the Court excises the
untimely allegations from the Second Amended Complaint, it is left with a
small subset of allegations that, taken together, do not plausibly support
Plaintiff’s hostile work environment or retaliation claims. In turn, Plaintiff’s
Eighth Cause of Action and Ninth Cause of Action do not survive Plaintiff’s
partial motion to dismiss.
Practice in Civil Cases. (Id.). Plaintiff dismissed SUNY from this suit on November 30,
2016 — but she nonetheless filed a forty-page brief opposing Defendant’s motion to
dismiss. Plaintiff’s counsel plainly knew better, and the Court will expect counsel to
honor both letter and spirit of all future Court orders.
12
A.
Plaintiff Administratively Exhausted Her ADA Hostile Work
Environment and ADA Retaliation Claims
1.
Applicable Law
“A plaintiff must file charges with the EEOC before bringing … ADA
claims in federal court.” Gomez v. N.Y.C. Police Dep’t, 191 F. Supp. 3d 293,
299 (S.D.N.Y. 2016) (citing 42 U.S.C. §§ 12117(a) and 20003-5(e)). The
consequence of this administrative exhaustion requirement is that “[a] district
court may only hear claims that are either included in [an] EEOC charge or are
based on conduct which is reasonably related to conduct alleged in the EEOC
charge.” Dellaporte v. City Univ. of N.Y., 998 F. Supp. 2d 214, 231 (S.D.N.Y.
2014) (quoting Fiscina v. N.Y.C. Dist. Council of Carpenters, 401 F. Supp. 2d
345, 356 (S.D.N.Y. 2005)).
“The Second Circuit has recognized three situations in which a claim
may be found to be ‘reasonably related’”:
[i] [W]here the conduct complained of would fall within
the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge of
discrimination; [ii] [W]here the complaint is one alleging
retaliation by an employer against an employee for filing
an EEOC charge; and [iii] [W]here the complaint alleges
further incidents of discrimination carried out in
precisely the same manner alleged in the EEOC charge.
Flum v. Dep’t of Educ. of the City of N.Y., 83 F. Supp. 3d 494, 499 (S.D.N.Y.
2015) (internal quotation marks omitted) (quoting Terry v. Ashcroft, 336 F.3d
128, 151 (2d Cir. 2003)).
Determining whether conduct alleged in a federal complaint is
“reasonably related” to conduct alleged in an EEOC charge of discrimination
13
“requires a fact-intensive analysis.” Mathirampuzha v. Potter, 548 F.3d 70, 76
(2d Cir. 2008). And in undertaking this analysis, courts consider both the
factual allegations a plaintiff presented in her EEOC charge and how that
plaintiff completed the preliminary informational sections of the charge. See
Littlejohn v. City of N.Y., 795 F.3d 297, 321-23 (2d Cir. 2015) (finding that
sexual harassment claim in plaintiff’s complaint was not reasonably related to
claims in plaintiff’s EEOC charge, where plaintiff did not mark charge’s “box to
indicate discrimination based on sex,” and did not allege sexual harassment in
the charge “or in her supplemental statements”); Morales v. Long Island R.R.
Co., No. 09 Civ. 8714 (HB), 2010 WL 1948606, at *4-5 (S.D.N.Y. May 14, 2010)
(reaching same result regarding hostile work environment claim in plaintiff’s
complaint, because plaintiff “did not check the ‘continuing action’ box on the
EEOC form,” and because in his charge plaintiff “allege[d] a single discrete act
of discrimination without any reference to continuing activity”).
2.
Analysis
Plaintiff’s Supplement to her EEOC Charge of Discrimination concludes
with Plaintiff’s allegation that a peer from the Counseling Center contacted
Plaintiff during her short-term medical leave in October 2015. But Plaintiff’s
Second Amended Complaint, Defendant notes, “includes alleged conduct from
November 2015 through October 2016.” (Def. Br. 12). And because none of
this alleged conduct, Defendant contends, is “reasonably related” to the
conduct Plaintiff alleged in her Charge of Discrimination, the post-October
14
2015 allegations in the Second Amended Complaint are unexhausted. (Id. at
12-14).
The Court disagrees. As a preliminary matter, the “reasonably related”
analysis usually focuses on whether a plaintiff has administratively exhausted
claims, not allegations underlying those claims. See, e.g., Clemmer v. Fordham
Bedford Cmty. Servs., No. 14 Civ. 2343 (AT), 2015 WL 273657, at *3 (S.D.N.Y.
Jan. 16, 2015) (finding that plaintiff failed to exhaust Title VII and ADEA
claims, because plaintiff’s administrative complaint to the New York State
Division of Human Rights did not seek relief under either of those statutes);
Lang v. N.Y.C. Health & Hosps. Corp., No. 12 Civ. 5523 (WHP), 2013 WL
4774751, at *3 (S.D.N.Y. Sept. 5, 2013) (reaching same result with regard to
plaintiff’s ADEA claim, because plaintiff sought redress under Title VII and the
ADA before the EEOC). And under this standard, Plaintiff clearly exhausted
both her hostile work environment and retaliation claims. In her Charge of
Discrimination, Plaintiff marked boxes indicating that the “Cause of
Discrimination” for her grievance included “Retaliation” and “Disability.”
(EEOC Charge 1). The allegations in Plaintiff’s Supplement, like the allegations
in the Second Amended Complaint, align with those selections. (See, e.g., id. at
2 (“I was subjected to discrimination on the basis of my disability and
retaliation for my complaints of harassment and discriminatory animus[.]”)).
Put simply, in her Charge of Discrimination, Plaintiff clearly alleged that
Defendant had discriminated and retaliated against her in violation of the ADA.
15
She thus administratively exhausted the ADA hostile work environment and
ADA retaliation claims in her Second Amended Complaint.
Defendant, however, contends that “[t]he exhaustion requirement applies
not only to causes of action but also to underlying factual allegations.” (Def.
Br. 11 (quoting Fanelli v. State of N.Y., 51 F. Supp. 3d 219, 227 (E.D.N.Y.
2014))). Case law from this District lends some support to this argument. See
Flum, 83 F. Supp. 3d at 499-500 (concluding that teacher’s anti-discrimination
claims arising out of her employment at a particular school were not
“reasonably related” to the claims plaintiff raised in her EEOC charge).
But even at this allegation-specific level, Defendant’s argument still fails.
Nearly all of the post-October 2015 allegations in the Second Amended
Complaint concern Plaintiff’s efforts to secure a one-year medical leave. And as
presented in the Second Amended Complaint, those allegations illustrate the
harassment, discrimination, and retaliation Plaintiff faced from her co-workers
as a consequence of her disability. The Second Amended Complaint’s postOctober 2015 allegations, in other words, concern the very same conduct that
Plaintiff alleged in her Charge of Discrimination. The Court is thus confident
that these post-October 2015 allegations are “reasonably related” to the
allegations in Plaintiff’s Charge of Discrimination, because these later-in-time
allegations “would fall within the scope of the EEOC investigation which c[ould]
reasonably be expected to grow out of” Plaintiff’s Charge of Discrimination.
Flum, 83 F. Supp. 3d at 499 (quoting Terry, 336 F.3d at 151).
16
B.
Most of the Second Amended Complaint’s Allegations Supporting
Plaintiff’s Hostile Work Environment and Retaliation Claims Are
Time-Barred Under the ADA
1.
Applicable Law
This Court has already explained that “[a]s a predicate to filing suit
under the ADA, a plaintiff must first file a timely charge with the [EEOC] or a
state or local agency capable of granting relief.” Clark v. Jewish Childcare
Ass’n, Inc., 96 F. Supp. 3d 237, 258 (S.D.N.Y. 2015) (quoting Flum, 83 F. Supp.
3d at 499). In addition to the exhaustion requirement the Court addressed
supra, there is also a timeliness requirement encoded in this administrative
process: “To be timely, [an] EEOC charge must be filed within 180 days of the
alleged discriminatory act or within 300 days if [a] state has local
administrative mechanisms for the redress of discrimination claims.” McCray
v. Project Renewal, Inc., No. 15 Civ. 8494 (VEC), 2017 WL 715010, at *3
(S.D.N.Y. Feb. 22, 2017). “In New York, ‘in which there is a designated state or
local agency with jurisdiction to consider discriminatory employment claims,
the limitations period for filing charges with the EEOC is … 300 days.’” Clark,
96 F. Supp. 3d at 258 (quoting Dawson v. N.Y.C. Transit Auth., No. 13 Civ.
6593 (GHW), 2014 WL 5343312, at *4 (S.D.N.Y. Oct. 21, 2014), vacated on
other grounds, 624 F. App’x 763 (2d Cir. 2015) (summary order)).
Accordingly, in New York, an ADA plaintiff’s “claims are barred to the
extent that they are based on conduct that occurred … [more than] 300 days
before she filed her EEOC charge.” Grimes-Jenkins v. Consol. Edison Co. of
N.Y., No. 16 Civ. 4897 (JCF), 2017 WL 2258374, at *6, *10 (S.D.N.Y. May 22,
17
2017), report and recommendation adopted, No. 16 Civ. 4897 (AT), 2017 WL
2709747 (S.D.N.Y. June 22, 2017). This 300-day time bar operates as a
“statute of limitations for … ADA … claims.” Smith v. Johnson, No. 14 Civ.
3975 (KBF), 2014 WL 5410054, at *4 (S.D.N.Y. Oct. 24, 2014).
When an anti-discrimination plaintiff seeks redress for “[d]iscrete acts
such as termination, failure to promote, denial of transfer, or refusal to hire,”
the accrual date for this 300-day limitation period is straightforward enough:
“Ordinarily, ‘[a] discrete ... discriminatory act occurred on the day that it
happened.” Gomez, 191 F. Supp. 3d at 301 (internal quotation marks omitted)
(quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 114 (2002)).
But “under the continuing violation doctrine, a ‘plaintiff may bring suit based
on conduct that occurred outside of the statute of limitations period, provided
that the conduct is part of specific discriminatory policies or practices.’” Clark,
96 F. Supp. 3d at 258 (quoting Early v. Wyeth Pharm., Inc., 603 F. Supp. 2d
556, 571 (S.D.N.Y. 2009)).
“The Second Circuit has summarized the requirements” of the continuing
violation doctrine thusly: “To trigger the continuing violation doctrine when
challenging discrimination, the plaintiff ‘must allege both the existence of an
ongoing policy of discrimination and some non-time-barred acts taken in
furtherance of that policy.’” Volpe v. N.Y.C. Dep’t of Educ., 195 F. Supp. 3d
582, 594 (S.D.N.Y. 2016) (quoting Shomo v. City of N.Y., 579 F.3d 176, 181 (2d
Cir. 2009)). Alternately, instead of alleging a discriminatory policy, an antidiscrimination plaintiff can establish a continuing violation by demonstrating
18
that “specific and related instances of discrimination are permitted by [her]
employer to continue unremedied for so long as to amount to a discriminatory
policy or practice.” Sullivan v. NYC Dep’t of Investigation, 163 F. Supp. 3d 89,
98 (S.D.N.Y. 2016) (internal quotation mark omitted) (quoting Cornwell v.
Robinson, 23 F.3d 694, 704 (2d Cir. 1994)), reconsideration denied sub nom.
Sullivan v. N.Y.C. Dep’t of Investigation, No. 12 Civ. 2564 (TPG), 2016 WL
7106148 (S.D.N.Y. Dec. 6, 2016), appeal dismissed, No. 16-4236-cv (2d Cir.
May 2, 2017). In any event, “[c]ourts in the Second Circuit have viewed
continuing violation arguments with disfavor.” Lyons v. N.Y., No. 15 Civ. 3669
(NSR), 2016 WL 5339555, at *3 (S.D.N.Y. Sept. 22, 2016) (internal quotation
mark omitted) (quoting Kpaka v. City Univ. of N.Y., No. 14 Civ. 6021 (RA), 2016
WL 4154891, at *5 (S.D.N.Y. Aug. 2, 2016)). “[A]nd multiple incidents of
discrimination, even similar ones, that are not the result of a discriminatory
policy or mechanism do not amount to a continuing violation.” Id. (internal
quotation marks omitted) (quoting Kpaka, 2016 WL 4154891, at *5).
“[A] plaintiff may not rely on a continuing violation theory of timeliness
unless she has asserted that theory in the administrative proceedings.”
Fitzgerald v. Henderson, 251 F.3d 345, 360 (2d Cir. 2001). Thus “a continuing
violation must be ‘clearly asserted both in the EEOC filing and in the
complaint.’” Carmellino v. Dist. 20 of N.Y.C. Dep’t of Educ., No. 03 Civ. 5942
(PKC), 2004 WL 736988, at *13 (S.D.N.Y. Apr. 6, 2004) (quoting Miller v. Int’l
Tel. & Tel. Corp., 755 F.2d 20, 25 (2d Cir. 1985)); see id. (finding that plaintiff
could not avail herself of continuing violation theory in federal court, because
19
in her EEOC charge plaintiff did not mark box indicating that “defendants’
alleged discrimination was of a continuing nature,” and because the allegations
plaintiff made in the charge did not suggest a continuing violation).
2.
Analysis
Plaintiff filed her Charge of Discrimination on July 19, 2016. (SAC ¶ 2).
300 days before that date was September 23, 2015. The bulk of the Second
Amended Complaint’s allegations predate September 23, 2015. (See id. at
¶¶ 9-45; Def. Br. 7). And all of these pre-September 23, 2015 allegations,
Defendant contends, are untimely, because they are not subject to the
continuing violation doctrine. In support of this argument, Defendant argues
that Plaintiff “failed to raise with the EEOC a continuing violation theory,” and
therefore cannot assert that theory before this Court. (Def. Br. 10).
The Court agrees. As a preliminary matter, in her opposition brief,
Plaintiff did not contest Defendant’s argument that Plaintiff failed to pursue a
continuing violation theory before the EEOC. (Def. Reply 2 (“Plaintiff’s failure
to address this argument amounts to a concession that her ADA claims arising
from events prior to September 23, 2015 are untimely and should be
dismissed.”)). But even if Plaintiff had addressed this argument, the
representations Plaintiff made in her Charge of Discrimination demonstrate
that Defendant’s take on this issue prevails.
As noted, the first page of Plaintiff’s Charge of Discrimination contains a
section titled “Date Discrimination Took Place.” (EEOC Charge 1). That
section contained a box that allowed Plaintiff to indicate whether she was
20
pursuing a “Continuing Action.” (Id.). Plaintiff did not select that box. And
this section also contained spaces for Plaintiff to indicate the “Earliest” and
“Latest” dates her discrimination occurred. (Id.). Plaintiff wrote that her
discrimination began in “December 2013” and ended in “August 2015.” (Id.).
Plaintiff, in other words, affirmatively informed the EEOC that Defendant had
stopped discriminating against her in 2015.
The allegations in Plaintiff’s Supplement to her Charge of Discrimination
point in the same direction. The final allegation in the Supplement is Plaintiff’s
claim that one of her Counseling Center peers impermissibly contacted Plaintiff
during her short-term medical leave in October 2015. (EEOC Charge 6). But
apart from a few conclusory incantations of continued harassment, the
Supplement does not suggest that Defendant discriminated against Plaintiff
after that date. (See id. at 4 (“Since I was granted tenure, I have been
consistently treated with hostility, ostracized, and subjected to abuse.”); id. at 6
(“[T]he same conditions that I previously endured, and about which I have
complained, nonetheless persist.”)). Put simply, Plaintiff did not “clearly assert”
a continuing violation theory in her Charge of Discrimination. Carmellino,
2004 WL 736988, at *13 (internal quotation mark omitted) (quoting Miller, 755
F.2d at 25). And accordingly, Plaintiff cannot rely on a continuing violation
theory to defeat the ADA’s 300-day statute of limitations in this Court.
There is another reason why Plaintiff cannot prevail on a continuing
violation theory, one that dovetails with the Court’s plausibility analysis in the
next section of this Opinion. “To trigger the continuing violation doctrine when
21
challenging discrimination, the plaintiff must allege … some non-time-barred
acts taken in furtherance of that policy.’” Volpe, 195 F. Supp. 3d at 594
(quoting Shomo, 579 F.3d at 181). Here, that requires Plaintiff to allege
actionable conduct post-dating September 23, 2015. Plaintiff has not done so,
in large part because on September 23, 2015, Plaintiff was not working at the
Counseling Center: She was on a short-term medical leave. And as the Court
will explain infra, the fact that Plaintiff was on leave during this period weakens
significantly her ADA hostile work environment and retaliation claims. See
Krachenfels v. N. Shore Long Island Jewish Health Sys., No. 13 Civ. 243 (JFB),
2014 WL 3867560, at *10 (E.D.N.Y. July 29, 2014); Gillman v. Inner City Broad.
Corp., No. 08 Civ. 8909 (LAP), 2011 WL 181732, at *1 (S.D.N.Y. Jan. 18, 2011).
Because Plaintiff’s post-September 23, 2015 allegations do not plausibly
support her ADA hostile work environment or retaliation claims, they cannot
serve as a hook for Plaintiff’s pre-September 23, 2015 allegations.
In sum, Plaintiff cannot base either of her ADA claims on events that
occurred before September 23, 2015. To evaluate whether Plaintiff’s Eighth
Cause of Action or Ninth Cause of Action survive Defendant’s motion to
dismiss, the Court will consider only those allegations in the Second Amended
Complaint concerning events that occurred after that date.
C.
Plaintiff Has Not Plausibly Alleged That Defendant Created a
Hostile Work Environment or Retaliated Against Plaintiff in
Violation of the ADA
The Court’s conclusion that most of Plaintiff’s allegations are untimely
saps much of the Second Amended Complaint’s strength. Carving out those
22
untimely allegations leaves intact the following post-September 23, 2015
allegations: (i) a Counseling Center peer contacted Plaintiff during her leave in
October 2015 (SAC ¶ 46); (ii) Defendant did not expeditiously or efficiently
process Plaintiff’s request for a one-year leave of absence (id. at ¶¶ 47-49, 5354); (iii) Plaintiff’s co-workers spoke ill of Plaintiff during a colleague’s
retirement party in early 2016 (id. at ¶¶ 50-52); and (iv) in late 2016, Plaintiff
did not receive a ballot to vote on Defendant’s collective bargaining agreement
(id. at ¶¶ 58-59). All of these events occurred while Plaintiff was on leave from
the Counseling Center. And none of these allegations plausibly supports
Plaintiff’s claims that Defendant created a hostile work environment and
retaliated against Plaintiff in violation of the ADA. The Court considers each
claim in turn.
1.
Plaintiff Has Not Plausibly Alleged That Defendant Created a
Hostile Work Environment in Violation of the ADA
a.
Applicable Law
“The Second Circuit has ‘not yet decided whether a hostile work
environment claim is cognizable under the ADA.’” Flieger v. E. Suffolk BOCES,
— F. App’x —, No. 16-2556-cv, 2017 WL 2377853, at *3 (2d Cir. June 1, 2017)
(summary order) (quoting Robinson v. Dibble, 613 F. App’x. 9, 12 n.2 (2d Cir.
2015) (summary order)). Nonetheless, district courts in the Second Circuit
have evaluated ADA hostile work environment claims using “the Title VII
standard.” Williams v. Rosenblatt Sec. Inc., No. 14 Civ. 4390 (JGK), 2016 WL
4120654, at *2 (S.D.N.Y. July 22, 2016); accord Monterroso v. Sullivan &
Cromwell, LLP, 591 F. Supp. 2d 567, 584 (S.D.N.Y. 2008) (“Hostile work
23
environment claims under the ADA are evaluated under the same standards as
hostile work environment claims under Title VII.”); see also Lee v. Colvin,
No. 15 Civ. 1472 (KPF), 2017 WL 486944, at *14 n.12 (S.D.N.Y. Feb. 6, 2017)
(“[C]ourts in this Circuit continue to evaluate hostile work environment claims
brought under the Rehabilitation Act.”).
This standard is well-settled. “At the motion to dismiss stage, ... ‘a
plaintiff need only plead facts sufficient to support the conclusion that she was
faced with harassment ... of such quality or quantity that a reasonable
employee would find the conditions of her employment altered for the worse.’”
Cromwell-Gibbs v. Staybridge Suite Times Square, No. 16 Civ. 5169 (KPF), 2017
WL 2684063, at *4 (S.D.N.Y. June 20, 2017) (quoting Cowan v. City of Mount
Vernon, No. 14 Civ. 8871 (KMK), 2017 WL 1169667, at *4 (S.D.N.Y. Mar. 28,
2017)). Accordingly, an ADA plaintiff need not “establish every element of a
prima facie hostile work environment claim” to survive a motion to dismiss. Id.
Rather, a complaint “need only give plausible support to a minimal inference of
discriminatory motivation.” Littlejohn, 795 F.3d at 311.
“As a practical matter, however, while a plaintiff need not allege specific
facts establishing a prima facie case of discrimination in order to withstand a
motion to dismiss, the elements of a prima facie case often provide an outline
of what is necessary to render a plaintiff’s claims for relief plausible.” Carter v.
Verizon, No. 13 Civ. 7579 (KPF), 2015 WL 247344, at *5 (S.D.N.Y. Jan. 20,
2015). A prima facie hostile work environment claim has three elements — “a
24
plaintiff must plead facts that would tend to show that the complained of
conduct”:
[i] [I]s objectively severe or pervasive — that
is, … creates an environment that a reasonable person
would find hostile or abusive; [ii] creates an
environment that the plaintiff subjectively perceives as
hostile or abusive; and [iii] creates such an environment
because of the plaintiff’s sex.
Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal quotation marks
and citation omitted).
“In determining whether a plaintiff suffered a hostile work environment,”
a court “must consider the totality of the circumstances, including ‘[i] the
frequency of the discriminatory conduct; [ii] its severity; [iii] whether it is
physically threatening or humiliating, or a mere offensive utterance; and
[iv] whether it unreasonably interferes with an employee’s work performance.’”
Littlejohn, 795 F.3d at 321 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993)). And “[i]n evaluating whether” a complaint’s allegations “suffice to find
a hostile work environment, the [Second Circuit] has ‘repeatedly cautioned
against setting the bar too high.’” Lewis v. Roosevelt Island Operating Corp.,
— F. Supp. 3d —, No. 16 Civ. 3071 (ALC), 2017 WL 1169647, at *6 (S.D.N.Y.
Mar. 28, 2017) (quoting Patane, 508 F.3d at 113).
b.
Analysis
The few timely allegations in the Second Amended Complaint do not
plausibly support Plaintiff’s claim that Defendant created a hostile work
environment. As the Court noted supra, all of the post-September 23, 2015
25
events in the Second Amended Complaint occurred after Plaintiff went on
medical leave. This means that none of Plaintiff’s timely allegations concerns
incidents that occurred at the Counseling Center. And in turn, the Court is
hard-pressed to conclude that these allegations demonstrate that Plaintiff’s
“workplace [was] permeated with discriminatory intimidation, ridicule, and
insult that [was] sufficiently severe or pervasive to alter the conditions of
[Plaintiff’s] employment and create an abusive working environment.”
Littlejohn, 795 F.3d at 320-21 (emphasis added) (quoting Harris, 510 U.S. at
21); see Krachenfels, 2014 WL 3867560, at *10 (alleged instance of ADA
discrimination that occurred while plaintiff was on work leave “ha[d] no bearing
on plaintiff’s hostile work environment claim, which requires evidence of
harassment in the ‘workplace’”); Gillman, 2011 WL 181732, at *1 (“[Plaintiff’s]
hostile work environment claim is based on incidents that occurred largely
while he was on leave, … Because there is no dispute that the alleged incidents
did not take place in the ‘workplace,’ [Plaintiff] cannot make out a hostile work
environment case.”). 5
But even if the timely allegations in the Second Amended Complaint
concerned events that occurred at the Counseling Center, Plaintiff’s hostile
5
The Court recognizes that “[t]here are various ways in which a hostile environment may
extend beyond the physical workplace, and thus contribute to and form part of a hostile
[work] environment claim.” Greer v. Paulson, 505 F.3d 1306, 1314 (D.C. Cir. 2007).
And nothing in this Opinion should be read to endorse “a per se rule against
considering incidents alleged to have occurred while an employee was physically absent
from the workplace.” Id. Plaintiff’s hurdle is that even if she had been continuously
employed at the Counseling Center through October 2016, none of the post-September
23, 2015 events alleged in the Second Amended Complaint would plausibly support her
hostile work environment claim. The fact that these events occurred while Plaintiff was
on leave simply buttresses that conclusion.
26
work environment claim would still fail. No “reasonable employee would find
the conditions of her employment altered for the worse” after experiencing the
post-September 23, 2015 events Plaintiff alleges in the Second Amended
Complaint. Cromwell-Gibbs, 2017 WL 2684063, at *4 (internal quotation mark
omitted) (quoting Cowan, 2017 WL 1169667, at *4). The Second Amended
Complaint’s timely allegations suggest, at worst, that Plaintiff’s co-workers
spoke ill of Plaintiff behind her back. But “[t]o plead a hostile work
environment claim, a complaint must allege that ‘a workplace is so severely
permeated with discriminatory intimidation, ridicule, and insult, that the terms
and conditions of [the plaintiff’s] employment were thereby altered.’”
Henriquez-Ford v. Council of Sch. Supervisors & Administrators, No. 14 Civ.
2496 (JPO), 2016 WL 93863, at *2 (S.D.N.Y. Jan. 7, 2016) (quoting Desardouin
v. City of Rochester, 708 F.3d 102, 105 (2d Cir. 2013)). The Second Amended
Complaint falls far short of this bar.
Even viewing the Second Amended Complaint’s timely allegations in the
light most favorable to Plaintiff, they do not state a plausible ADA hostile work
environment claim. The Court accordingly dismisses Plaintiff’s Eighth Cause of
Action.
2.
Plaintiff Has Not Plausibly Alleged That Defendant Retaliated
Against Her in Violation of the ADA
a.
Applicable Law
“[F]or [an ADA] retaliation claim to survive a ... motion to dismiss, the
plaintiff must plausibly allege that: [i] defendants discriminated or took an
adverse employment action against [her], [ii] ‘because’ [she] has opposed any
27
unlawful employment practice.” Toombs v. N.Y.C. Hous. Auth., No. 16 Civ.
3352 (LTS), 2017 WL 1169649, at *5 (S.D.N.Y. Mar. 27, 2017) (quoting Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015)); see also Shih
v. JPMorgan Chase Bank, N.A., No. 10 Civ. 9020 (JGK), 2013 WL 842716, at *5
(S.D.N.Y. Mar. 7, 2013) (“The anti-retaliation provisions in Title VII, the ADEA,
the ADA, and the NYSHRL contain nearly identical language and are analyzed
under the same framework.”).
To this first element, “[i]n the context of an ADA retaliation claim, an
adverse employment action is an action that ‘could well dissuade a reasonable
worker from making or supporting a charge of discrimination.’” Bien-Aime v.
Equity Residential, No. 15 Civ. 1485 (VEC), 2017 WL 696695, at *7 (S.D.N.Y.
Feb. 22, 2017) (quoting Ragusa v. Malverne Union Free Sch. Dist., 381 F. App’x
85, 90 (2d Cir. 2010) (summary order)). “Although ‘petty slights or minor
annoyances that often take place at work and that all employees experience do
not constitute actionable retaliation,’ … ‘a materially adverse action need not
affect the plaintiff’s terms and conditions of employment[.]’” Ward v. Shaddock,
No. 14 Civ. 7660 (KMK), 2016 WL 4371752, at *12 (S.D.N.Y. Aug. 11, 2016)
(quoting Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010); Klein v. N.Y. Univ.,
786 F. Supp. 2d 830, 848 (S.D.N.Y. 2011)). A court assessing whether an
employment action was actionably adverse must consider “context.” GrimesJenkins, 2017 WL 2258374, at *10 (alterations omitted) (quoting Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). Nonetheless, “the
28
standard is objective, examining the impact the action would have on a
reasonable employee.” Id.
And to the second element of an ADA retaliation claim, “[t]here is … an
unsettled question of law in this Circuit as to whether a plaintiff must show, in
order to succeed on her ADA retaliation claim, that the retaliation was a ‘butfor’ cause of the termination or merely a ‘motivating factor.’” Eisner v. Cardozo,
No. 16-872-cv, 2017 WL 1103437, at *1 (2d Cir. Mar. 24, 2017) (summary
order). “But-for causation does not ‘require proof that retaliation was the only
cause of the employer’s action, but only that the adverse action would not have
occurred in the absence of the retaliatory motive. Further, the but-for
causation standard does not alter the plaintiff’s ability to demonstrate
causation … through temporal proximity.’” Atencio v. U.S. Postal Serv., 198 F.
Supp. 3d 340, 361 n.12 (S.D.N.Y. 2016) (quoting Vega, 801 F.3d at 91). In
contrast, under the lower “motivating factor” standard, “[i]t suffices ... to show
that the motive to discriminate was one of the employer’s motives, even if the
employer also had other, lawful motives that were causative in the employer’s
decision.” Zarda v. Altitude Express, 855 F.3d 76, 81 (2d Cir. 2017) (per
curiam) (quoting Univ. of Tx. Sw. Med. Ctr. v. Nassar, — U.S. —, 133 S. Ct.
2517, 2523 (2013)).
b.
Analysis
Plaintiff has not plausibly alleged that Defendant retaliated against her in
violation of the ADA. Plaintiff protests “that she has alleged an ongoing
practice of retaliation occurring over a series of days or perhaps years.” (Pl.
29
Opp. 16-17 (internal quotation marks and citation omitted)). But in her
opposition brief, Plaintiff cites just two post-September 23, 2015 “adverse
actions” in support of her ADA retaliation claim: (i) Plaintiff’s allegation that
Defendant “repeated[ly] interfere[d] with [Plaintiff’s] request for medical leave
for roughly nine months, only granting her request after [Plaintiff] engaged
counsel and threatened to bring suit” (Def. Br. 38); and (ii) Plaintiff’s allegation
that when she “began her efforts to obtain a one-year, disability-related leave of
absence, just a month later the Dean of Students sought to make her resign”
(id. at 40).
Plaintiff’s characterization of these two events in her opposition papers
overstates considerably the Second Amended Complaint’s allegations. In the
Second Amended Complaint, Plaintiff alleges that Defendant’s employees
“continually gave [her] inconsistent instructions and asked for additional
documentation” regarding her leave request, and that these employees failed to
“follow up” with Plaintiff to explain what documents she needed to submit to
obtain a one-year medical leave. (SAC ¶¶ 53-54). These administrative
hiccups are a far cry from Plaintiff’s current position that Defendant
“repeated[ly] interfere[d] with [Plaintiff’s] request for medical leave.” (Def.
Br. 38). And the Second Amended Complaint’s allegations about Dr.
Sachedina suggest that she misconstrued Plaintiff’s request for a year-long
medical leave “as a tender of [Plaintiff’s] resignation,” a miscommunication that
does not betray any retaliatory or discriminatory animus. (SAC ¶ 48).
30
More fundamentally, neither of these incidents would have “dissuade[d] a
reasonable worker from making or supporting a charge of discrimination.”
Bien-Aime, 2017 WL 696695, at *7 (internal quotation mark omitted) (quoting
Ragusa, 381 F. App’x at 90). Plaintiff’s ultimately successful path to securing a
one-year medical leave may have taken longer than Plaintiff wished. But the
Second Amended Complaint does not plausibly suggest that the obstacles
Plaintiff encountered on that path after September 23, 2015, were materially
adverse. Nor does it plausibly support even a minimal inference that Plaintiff’s
disability was a motivating factor in Defendant’s treatment of Plaintiff.
Although Plaintiff does not state as much in her brief, her Second
Amended Complaint could be read to assert a retaliatory hostile work
environment claim. Courts in this Circuit have recognized that “[i]n general, a
retaliatory hostile work environment may indeed constitute materially adverse
employment action.” Marquez v. City of N.Y., No. 14 Civ. 8185 (AJN), 2016 WL
4767577, at *13 (S.D.N.Y. Sept. 12, 2016). “[T]here is an open question as to
whether a retaliatory hostile work environment claim merits a different
standard than a discriminatory hostile work environment claim.” Spaulding v.
N.Y.C. Dep’t of Educ., No. 12 Civ. 3041 (VMS), 2015 WL 12645530, at *58
(E.D.N.Y. Feb. 19, 2015), report and recommendation adopted, No. 12 Civ. 3041
(KAM), 2015 WL 5560286 (E.D.N.Y. Sept. 21, 2015). This open question,
distilled, is: “[W]hether to succeed on a retaliatory hostile work environment
claim, the employee must demonstrate that the hostile conduct would dissuade
a reasonable worker from engaging in protected activity, rather than that the
31
hostile conduct altered the terms and conditions of employment.” Id. For the
most part, judges in this District fall into the latter, “terms and conditions of
employment” camp. See Volpe, 195 F. Supp. 3d at 595-96; Villar v. City of N.Y.,
135 F. Supp. 3d 105, 137 (S.D.N.Y. 2015); Hahn v. Bank of Am. Inc., No. 12
Civ. 4151 (DF), 2014 WL 1285421, at *22 (S.D.N.Y. Mar. 31, 2014), aff’d sub
nom. Hahn v. Bank of Am. N.A., 607 F. App’x 55 (2d Cir. 2015) (summary
order).
Plaintiff cannot satisfy either standard. Plaintiff’s failure to make out an
ADA hostile work environment claim is fatal to her ADA retaliatory hostile work
environment claim (to the extent she is raising such a claim). At the risk of
belaboring the point, all of the Second Amended Complaint’s timely allegations
concern events that occurred while Plaintiff was on medical leave.
Consequently, those allegations undercut, rather than support, Plaintiff’s claim
that her work environment was hostile. And in turn, even under the more
lenient standard for evaluating retaliatory hostile work environment claims, the
Second Amended Complaint does not state a claim for relief. None of the postSeptember 23, 2015 discrimination Plaintiff allegedly suffered would have
dissuaded a reasonable employee from engaging in conduct protected by the
ADA.
In sum, Plaintiff has failed to allege plausibly that Defendant retaliated
against her in violation of the ADA. The Court accordingly dismisses Plaintiff’s
Ninth Cause of Action.
32
CONCLUSION
For the reasons set forth above, Defendant’s motion to dismiss is
GRANTED. The Clerk of Court is directed to terminate the motion appearing at
Docket Entry 36. The parties are ORDERED to submit a proposed Civil Case
Management Plan and Scheduling Order on or before August 4, 2017. The
parties are forewarned that the Court will be disinclined to extend discovery
deadlines, once those deadlines are proposed by the parties and endorsed by
the Court.
SO ORDERED.
Dated:
July 14, 2017
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
33
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