Jordan v. City of New York et al

Filing 67

MEMORANDUM OPINION AND ORDER re: 53 MOTION in Limine filed by City of New York. The City's November 7, 2024 motion in limine is granted in part and denied in part. (Signed by Judge Denise L. Cote on 11/22/2024) (vfr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
TAMARA JORDAN,
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Plaintiff,
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-v:
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CITY OF NEW YORK,
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Defendant.
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23cv4962 (DLC)
MEMORANDUM
OPINION AND
ORDER

APPEARANCES:
For plaintiff Tamara Jordan:
Richard J. Washington, Jr.
Richard J. Washington, Attorney at Law
40 Wall Street, Suite 2800
New York, NY 10005
For the City of New York:
Amit Parab
Rodianna Katsaros
New York City Law Department
100 Church Street
New York, NY 10007
DENISE COTE, District Judge:
On June 12, 2023, Tamara Jordan initiated this action
against the City of New York (the “City”) and two co-defendants.
Trial is scheduled to begin on December 2.

This Opinion

addresses two issues raised by the City in its pretrial
submissions.

First, the City argues that a request for a

reasonable accommodation does not constitute protected activity
under New York state law and that Jordan’s retaliation claim

under the New York State Human Rights Law, N.Y. Exec. Law §§
290, et seq. (“NYSHRL”), should be dismissed.

It additionally

argues that Jordan’s request for punitive damages should be
dismissed as a matter of law.

For the reasons that follow, the

NYSHRL retaliation claim is dismissed and the motion to dismiss
Jordan’s request for punitive damages is denied.
Background
As described in her amended complaint (“FAC”), Jordan began
working as a per diem Hearing Officer at the New York City Taxi
and Limousine Commission (“TLC”) Tribunal in 2010.

In 2011, the

TLC Tribunal was consolidated with the Office of Administrative
Trials and Hearing (“OATH”) and Jordan became an OATH Hearing
Officer.
Jordan alleges that she suffers from a kidney condition and
is qualified as disabled under federal, state, and local law.
As relevant here, Jordan alleges that the City retaliated
against her for making a request on March 18, 2020, for a
reasonable accommodation of her disability.

Specifically, she

asserts that the City refused to assign her per diem work until
January 2021.
Jordan asserts a retaliation claim against the City
pursuant to the American Disabilities Act of 1990, 42 U.S.C.
§ 12101, et seq. (“ADA”); Section 504 of the Rehabilitation Act
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of 1973, 29 U.S.C. § 794 (“Rehabilitation Act”); the NYSHRL; and
the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101,
et seq. (“NYCHRL”).
Discussion
I.

Protected Activity under the NYSHRL
Under the ADA, the Rehabilitation Act, the NYSHRL, and the

NYCHRL, the first element that a plaintiff must prove in
bringing a retaliation claim is that the plaintiff was engaged
in “protected activity.”

See Tafolla v. Heilig, 80 F.4th 111,

125 (2d Cir. 2023) (ADA and NYSHRL); Weixel v. Board of Educ. of
the City of New York, 287 F.3d 138, 148–49 (2d Cir. 2002)
(Rehabilitation Act and ADA); Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., 715 F.3d 102, 112 (2d Cir. 2013)
(NYCHRL).

These four laws have been interpreted differently,

however, as to whether a request for a reasonable accommodation
constitutes protected activity.
The ADA’s retaliation provision states that:
No person shall discriminate against any individual
because such individual has opposed any act or
practice made unlawful by this chapter or because such
individual made a charge, testified, assisted, or
participated in any manner in an investigation,
proceeding, or hearing under this chapter.
42 U.S.C. § 12203(a).

Section 504 of the Rehabilitation Act

explains that the standards used to determine whether a

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violation has occurred under the Act “shall be the standards
applied” in interpreting the ADA, including those applied to 42
U.S.C. § 12203.

See 29 U.S.C. § 794(d).

Accordingly, federal

courts have interpreted the elements of a retaliation claim
under the Rehabilitation Act and the ADA to be the same.
Weixel, 287 F.3d at 148.

See

In applying these statutes, federal

courts have for decades interpreted the ADA’s statutory language
to mean that requesting a workplace accommodation constitutes
protected activity satisfying the first element of a retaliation
claim.

See id. at 149; see also Tafolla, 80 F.4th at 125-26 (2d

Cir. 2023) (treating request for an accommodation as protected
activity).
In contrast, New York’s intermediate appellate courts have
held that under both the NYSHRL and NYCHRL, a request for a
reasonable accommodation does not constitute protected activity.
See, e.g., D’Amico v. City of New York, 73 N.Y.S.3d 540, 541
(1st Dep’t. 2018); Witchard v. Montefiore Med. Ctr., 960
N.Y.S.2d 402, 403–04 (1st Dep’t. 2013).

These decisions,

however, predate two important statutory changes to the state
and local laws.
First, effective November 11, 2019, the New York City
Council amended the NYCHRL to expressly state that a request for
a reasonable accommodation is a protected activity.

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See New

York City, N.Y., Local Law No. 129 Int. No. 799 (2019)
(amending § 8-107(7)).

That is, the NYCHRL now states that is

unlawful for an employer
to retaliate or discriminate in any manner against any
person because such person has (i) opposed any
practice forbidden under this chapter, (ii) filed a
complaint, testified or assisted in any proceeding
under this chapter, (iii) commenced a civil action
alleging the commission of an act which would be an
unlawful discriminatory practice under this chapter,
(iv) assisted the commission or the corporation
counsel in an investigation commenced pursuant to this
title, [or] (v) requested a reasonable accommodation
under this chapter . . . .
N.Y.C. Admin Code § 8-107(7)(v) (emphasis added).

The

November 2019 amendment unquestionably brings the NYCHRL in
line with its federal counterparts: a request for a
reasonable accommodation constitutes protected activity.
The NYSHRL does not contain comparable language to the
NYCHRL.

Instead, like the ADA, it provides that:

It shall be an unlawful discriminatory practice . . .
to retaliate or discriminate against any person
because he or she has opposed any practices forbidden
under this article or because he or she has filed a
complaint, testified or assisted in any proceeding
under this article.
N.Y. Exec. Law § 296(7).

Even though this language is

similar to that in the ADA, state intermediate appellate
courts have interpreted the NYSHRL more restrictively than
the ADA and have held that a request for a reasonable

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accommodation does not constitute protected activity.

See,

e.g., D’Amico, 73 N.Y.S.3d at 541.
“When deciding a question of state law,” federal
courts “look to the state’s decisional law, as well as to
its constitution and statutes.”

Chen v. Dunkin’ Brands,

Inc., 954 F.3d 492, 497 (2d Cir. 2020) (citation omitted).
Absent a clear ruling from a state’s highest court, a
federal court must “predict” how that court “would resolve
the uncertainty or ambiguity.”
omitted).

Id. at 499 (citation

In doing so, the federal court “is bound to

apply the law as interpreted by a state’s intermediate
appellate courts unless there is persuasive evidence that
the state's highest court would reach a different
conclusion.”

Id. (citation omitted).

It is possible that a recent amendment to the NYSHRL
might change how New York courts would interpret the state
law.

Effective August 12, 2019, the NYSHRL was amended to

require courts to construe the statute “liberally for the
accomplishment of [its] remedial purposes . . . regardless
of whether federal civil rights laws, including those laws
with provisions worded comparably . . . have been so
construed.”

See N.Y. Exec. Law § 300.

New York courts

have not yet analyzed what impact the August 2019 amendment

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-- in isolation or in combination with the November 2019
change to the NYCHRL -- has on whether a request for a
reasonable accommodation is protected activity under state
law.
The plain text of the August 2019 amendment directs
courts applying the NYSHRL not to interpret the state law
to be in line with its federal counterparts simply because
the federal and state statutes contain comparable language.
But that sort of leveling down is not at issue here.

Here,

state courts have interpreted the NYSHRL (and the preamendment NYCHRL) to provide less protection than the ADA
not based on an interpretation of federal law, but on their
own interpretation of state law.
N.Y.S.3d at 541.

See, e.g., D’Amico, 73

While the New York City Council amended

the NYCHRL to state that a request for a reasonable
accommodation is protected activity, the New York State
Legislature did not similarly act.
In short, the August 2019 amendment to the NYSHRL did
not change the NYSHRL to mean that a request for a
reasonable accommodation is protected activity under the
statute.

Accordingly, the intermediate state court

decisions that predate the August 2019 amendment control
absent persuasive evidence that the New York Court of

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Appeals would reach a different conclusion.

Therefore,

Jordan’s claim of retaliation under the NYSHRL is dismissed
as a matter of law.
II.

Punitive damages

Next, the City argues that Jordan’s request for
punitive damages must be dismissed as a matter of law
because such damages “are not available against a
government or a governmental subdivision.”

In her

opposition to the City’s motion, Ms. Jordan “defers to the
Court on this issue.”
There is a common-law presumption against the
availability of punitive damages from municipalities, and
thus “[t]he general rule . . . is that no punitive damages
are allowed unless expressly authorized by statute.”

City

of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259-64 &
n.21 (1981).

The Second Circuit recently explained that to

rebut the common-law presumption a statute does not need to
specifically explain that punitive damages are recoverable
against governmental entities.

Gilead Cmty. Servs., Inc.

v. Town of Cromwell, 112 F.4th 93, 103 (2d Cir. 2024).
Rather, it is sufficient that a statute provides for
punitive damages “with no textually specified exceptions.”
Id.

“When a statute explicitly provides for certain

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remedies in general, and generally applies to municipal
defendants, it necessarily subjects those defendants to
those remedies.”

Id.

The federal statutes pursuant to which Jordan brings
her claims do not provide for punitive damages at all or do
not do so against governmental entities.

The

Rehabilitation Act adopts the “remedies” available under
Title VI of the Civil Rights Act of 1964.
794a(2).

See 29 U.S.C. §

The Supreme Court has interpreted these statutes

to permit compensatory, but not punitive damage.

Barnes v.

Gorman, 536 U.S. 181, 187-89 (2002).
In cases involving employment discrimination, the
ADA’s retaliation provision adopts the remedies available
under Title VII of the Civil Rights Act of 1964.

See 42

U.S.C. § 12203(c); 42 U.S.C. § 12117; 42 U.S.C. § 2000e–5.
In the Civil Rights Act of 1991, Congress expanded the
remedies available to Title VII plaintiffs and to ADA
plaintiffs bringing claims of intentional discrimination by
permitting recovery of compensatory and punitive damages.
See Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843,
848 (2001) (citing 42 U.S.C. § 1981a).

Following the chain

of statutory provisions, a plaintiff asserting claims under
the ADA’s retaliation provision is entitled to those

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remedies available under 42 U.S.C. 12117(a), which include
punitive damages but not against “a government, government
agency or political subdivision.”

See 42 U.S.C.

§ 1981a(b)(1).
The NYSHRL contains a carveout similar to those in the
ADA.

It explains that punitive damages are available

“only” in “cases of employment discrimination related to
private employers and housing discrimination.”

See N.Y.

Exec. Law § 297(9).1
In contrast, the NYCHRL provides:
Except as otherwise provided by law, any person
claiming to be a person aggrieved by an unlawful
discriminatory practice as defined in chapter 1 of
this title . . . shall have a cause of action in any
court of competent jurisdiction for damages, including
punitive damages.
N.Y.C. Admin. Code § 8–502(a).

Like the Fair Housing Act,

as analyzed by the Second Circuit in Gilead, the NYCHRL
explicitly provides for punitive damages, applies to
municipal defendants, and provides no textually specified
exceptions.

See Gilead, 112 F.4th at 103.

Accordingly,

the NYCHRL rebuts the common-law presumption against the
availability of punitive damages from municipalities.

For reasons explained supra, Jordan’s retaliation claim under
the NYSHRL must be dismissed.
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