Schubbe v. Derrick Corporation
Filing
31
REPORT AND RECOMMENDATIONS RE: 11 MOTION to Dismiss filed by Derrick Corporation, 24 MOTION to Dismiss MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Derrick Corporation.Objections due per 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72.Signed by Hon. Hugh B. Scott on 3/5/2015. (GAI)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LARRY C. SCHUBBE,
Plaintiff,
REPORT AND
RECOMMENDATION
v.
14-CV-531S
DERRICK CORPORATION,
Defendant.
I.
INTRODUCTION
Chief Judge Skretny referred this case to this Court under 28 U.S.C. § 636.
(Dkt. No. 12.) Pending before the Court is a motion (Dkt. Nos. 11, 24) by
defendant Derrick Corporation to dismiss the amended complaint of plaintiff Larry
Schubbe (“Schubbe”) under Rule 12(b)(6) of the Federal Rules of Civil Procedure
(“FRCP”). Schubbe claims that defendant regarded him as an alcoholic and
subjected him to suspension, unnecessary drug and alcohol testing, changes in
work assignments, and ultimately termination as a result. Schubbe alleges that
defendant’s conduct violated the Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12101–12213; the Family and Medical Leave Act of 1993 (“FMLA”), 29
U.S.C. §§ 2601–2654; and the New York Human Rights Law (“NYHRL”), N.Y.
Exec. Law §§ 290–301. Defendant urges dismissal on the basis that it disciplined
and fired Schubbe for misconduct, and that other events that he alleges do not
rise to the level of adverse actions that warrant a remedy.
The Court held oral argument on February 24, 2015. For the reasons
below, the Court respectfully recommends granting defendant’s motion.
II.
BACKGROUND
This case concerns allegations that defendant targeted Schubbe for
harassment and intimidation after it perceived that he was an alcoholic.
According to the amended complaint, defendant designs and manufactures
equipment used in mining and drilling and employs over 600 people. Schubbe is
55 years old and worked for defendant for over 18 years. Subtracting 18 years
from Schubbe’s May 6, 2014 termination date, Schubbe appears to have begun
working for defendant around 1996. The amended complaint contains no
information about Schubbe’s employment history between 1996 and 2012, except
to note briefly that Schubbe began in the welding department and worked his way
up to complex repair work with overtime opportunities by 2012. The amended
complaint says nothing about any flexibility that supervisors had in assigning
employees to different tasks or departments. The amended complaint also says
nothing about any drug or alcohol policies that defendant had, including when
and how defendant might require drug and alcohol testing for its employees.
The events that gave rise to plaintiff’s action allegedly began in September
2012. Schubbe suffered an unspecified injury at work that month, missed two
2
days, and then returned to work. The amended complaint appears to list two
overlapping reasons why Schubbe missed two days. Defendant told Schubbe
the day after the injury that he could not return until he was medically cleared to
do so, and the process of medical evaluation and clearance seems to have taken
a day. At the same time, defendant “suspended plaintiff for failure to take a drug
or alcohol test immediately after the injury at work.” (Dkt. No. 22 at 2 ¶ 15.)
Schubbe pleads that defendant never ordered him to take a drug or alcohol test
at the time of the injury, but Schubbe does not place this allegation in the context
of any company policies regarding drug and alcohol testing. When Schubbe
returned to work, he complained to defendant about the demand for alcohol and
drug testing. “Shortly after plaintiff complained about defendant’s demand that
plaintiff be screened for alcohol and drugs, defendant terminated plaintiff’s son.
Defendant claimed that this termination was based on layoff.” (Id. at 3 ¶ 21.)
Schubbe asserts that defendant “terminated plaintiff’s son as retaliation against
plaintiff despite the fact that defendant kept less senior workers in the
department.” (Id. ¶ 22.) This assertion in the amended complaint lacks context
such as what Schubbe’s son did on the job, which department is being
referenced, exactly when the termination occurred, and whether any supposed
layoff affected any other employees.
Schubbe’s return to work in September 2012 also brought about a change
in his work duties. Schubbe previously performed mechanical and electrical
3
repair work. After Schubbe returned, defendant assigned him to a tool repair
area apparently nicknamed the “cage.” Schubbe does not plead whether any
particular company policies applied to work in the tool repair area. Nonetheless,
Schubbe pleads that defendant became “hypervigilant” about supervising him in
the tool repair area, even to the point of challenging his use of the restroom.
When Schubbe had no assignments to perform in the tool repair area, defendant
either directed him to stay there anyway or deployed him to labor-intensive and
menial tasks such as installing drain tile; painting on a roof in June 2013;
installing plastic slats in a chain-link fence; and unplugging toilets. Schubbe lost
opportunities for overtime because the tool repair area offered none. In
November 2013, defendant moved Schubbe to a job assignment involving motor
assembly, which Schubbe describes as both physically intensive and requiring
fine motor skills.
During the last two years of his employment, Schubbe endured several
disciplinary actions that bear on this case. As noted above, defendant
suspended Schubbe in September 2012 for not undergoing drug and alcohol
testing at the time of his injury. Defendant suspended Schubbe on October 22,
2012 for falling asleep in the tool repair area. Defendant directed Schubbe to
undergo alcohol and drug testing that day. Schubbe did so and returned to work
the same day but does not say what the result was. Defendant allegedly told
Schubbe that he would remain permanently suspended until he enrolled in an
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alcohol or drug rehabilitation program, but Schubbe does not plead any context or
any proposed theory as to why falling asleep on the job would have anything to
do with alcohol or drugs, let alone rehabilitation. Schubbe also does not plead
what became of the threat of permanent suspension given that he also appears
to have returned to work the same day when he fell asleep. On May 2, 2014,
Schubbe injured his wrist on the job, took the weekend off, and returned to work
Monday morning, May 5, 2014. That morning, defendant directed Schubbe to
undergo a portable breath test for alcohol. Schubbe pleads that he took the test
twice and that a doctor for defendant “fumbled” with the breath test device, but
that the breath test did detect the presence of alcohol. Schubbe denies
“intoxication” but does not deny the positive breath test result. The positive
breath test result led to a letter, dated May 13, 2014, from defendant to Schubbe
terminating him. Defendant terminated Schubbe as of May 6, 2014.
Schubbe sought remedies for the events leading to his termination once it
occurred. On July 24, 2013, Schubbe filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”). In a letter dated April 3, 2014,
the EEOC informed Schubbe that “[t]he evidence uncovered in this investigation
fails to show any complaint of employment discrimination made to Respondent
against which they could retaliate. With regard to the medical exam (alcohol test)
and your suspension, the evidence shows that Respondent submitted you to that
exam because of reasonable concern caused by your behavior at work; and
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since you failed that exam, Respondent had a legitimate, non-discriminatory
reason to suspend you.” (Dkt. No. 24-6 at 1.) The EEOC issued a Dismissal and
Notice of Rights the same day. (Dkt. No. 24-5.) Schubbe filed his original
complaint on July 1, 2014. After obtaining permission from the Court to make
amendments, Schubbe filed his amended complaint on October 31, 2014. The
amended complaint recites the events of Schubbe’s last two years of employment
as noted above. The amended complaint also mentions four former coworkers
by name who supposedly have a history of alcohol abuse but who nonetheless
have remained employed with defendant. The amended complaint proceeds to
list seven claims. In the first three claims, Schubbe accuses defendant of
discrimination, retaliation, and a hostile work environment in violation of the ADA.
Schubbe asserts that defendant perceived him as having the disability of
alcoholism and subjecting him to several adverse actions based only on that
perceived disability: suspensions, unnecessary drug and alcohol tests, medical
examinations, treatment, changes in work assignments, denial of overtime, and
termination. Schubbe’s complaints about drug and alcohol testing and his
communications with the EEOC constituted protected activities for which
defendant punished him. The adverse actions also created a hostile work
environment, according to Schubbe. In the fourth claim, Schubbe accuses
defendant of retaliation under the FMLA. Specifically, Schubbe claims that
defendant suspended him after his injury in September 2012 to dissuade him
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from exercising his rights under the statute, and that the concerns about testing
and medical clearance were pretextual only. The fifth, sixth, and seventh claims
contain analogous allegations about discrimination, retaliation, and hostile work
environment, except under the NYHRL.
Defendant seeks dismissal of the amended complaint on multiple grounds.
Defendant argues that any claims based on discrimination should fail because
they rest on defendant’s reactions to Schubbe’s misconduct. According to
defendant, each alleged act of discrimination corresponds to a specific instance
of failure to submit to drug and alcohol testing, falling asleep at work, or a positive
alcohol test. To call workplace discipline discrimination would, in defendant’s
opinion, mean that employers could not take action against unprofessional
behavior on the job. Defendant argues that the claims for hostile work
environment fail also because the work reassignments were not severe or
pervasive and because lawful requests for drug and alcohol testing cannot
constitute harassment. Finally, defendant wants the Court to dismiss the
retaliation claims because they challenge permissible drug and alcohol testing
and because the work reassignments did not change Schubbe’s pay or constitute
demotion. To the extent that Schubbe alleges retaliation for the filing of his
EEOC complaint, defendant notes that 10 months passed between the filing of
the charge and Schubbe’s termination. Such a long interval between events,
according to defendant, undermines any charge of retaliation.
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Schubbe opposes defendant’s motion in all respects. Schubbe argues
that, for a motion to dismiss, defendant relies too much on inferences or outside
information. Schubbe urges the Court to reject defendant’s characterizations of
“lateral” work reassignments and legitimate, non-discriminatory reasons for
termination. Schubbe has pled a discriminatory motive and argues that the Court
should assess the amended complaint on its face. With respect to drug and
alcohol testing, Schubbe argues that he bears no burden to show generally that
drug and alcohol testing is permissible. Rather, Schubbe has pled that defendant
imposed testing subjectively and in a discriminatory manner, which would make
otherwise legal testing procedures illegal. Finally, Schubbe contends that
defendant has ignored allegations in the amended complaint that support his
claims and has tried to introduce outside information through its motion papers.
Specifically, defendant included with its motion papers what appears to be a
transcript of proceedings from Schubbe’s appearance before the New York State
Unemployment Insurance Appeal Board on August 25, 2014. (Dkt. No. 24-7.)
Defendant attempts to draw the Court’s attention to the testimony from that
proceeding that Schubbe’s two breath alcohol tests on May 5, 2014 yielded
blood-alcohol levels of 0.139% and 0.155%. (See id. at 19–20.) Defendant
contends that the rising levels indicated that Schubbe consumed alcohol only a
short time before the tests occurred. Schubbe argues that the Court should reject
8
the transcript in its entirety because Schubbe made no mention of blood-alcohol
levels or of the unemployment insurance proceeding in his amended complaint.
III.
DISCUSSION
A.
Motions to Dismiss Generally
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face. A
claim has 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. The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that a defendant has
acted unlawfully. Where a complaint pleads facts that are merely consistent with
a defendant’s liability, it stops short of the line between possibility and plausibility
of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks and citations omitted). Court assess Rule 12(b)(6) motions
“accepting all factual allegations in the complaint as true, and drawing all
reasonable inferences in the plaintiff’s favor.” Peter F. Gaito Architecture, LLC v.
Simone Dev. Corp., 602 F.3d 57, 61 (2d Cir. 2010) (internal quotation marks and
citation omitted). “Simply stated, the question under Rule 12(b)(6) is whether the
facts supporting the claims, if established, create legally cognizable theories of
recovery.” Cole-Hoover v. Shinseki, No. 10-CV-669, 2011 WL 1793256, at *3
9
(W.D.N.Y. May 9, 2011) (Arcara, J.) (internal quotation marks and citation
omitted).
As a preliminary matter, the Court must decide whether to consider the
Dismissal and Notice of Rights and the April 3, 2014 letter from the EEOC, as
well as the transcript of Schubbe’s unemployment insurance appeal. “In
considering a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), a district court may consider the facts alleged in the complaint,
documents attached to the complaint as exhibits, and documents incorporated by
reference in the complaint. Where a document is not incorporated by reference,
the court may neverless consider it where the complaint relies heavily upon its
terms and effect, thereby rendering the document integral to the complaint.
However, even if a document is integral to the complaint, it must be clear on the
record that no dispute exists regarding the authenticity or accuracy of the
document. It must also be clear that there exist no material disputed issues of
fact regarding the relevance of the document.” DiFolco v. MSNBC Cable L.L.C.,
622 F.3d 104, 111 (2d Cir. 2010) (internal quotation marks and citations omitted).
Applying this standard, the Court notes that paragraphs six through eight of
the amended complaint refer to the filing of the EEOC complaint, the demand for
a “right to sue” letter after 180 days, and the issuance of the Dismissal and Notice
of Rights. The Dismissal and Notice of Rights states on its face that “the EEOC
is unable to conclude that the information obtained establishes violations of the
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statutes.” (Dkt. No. 24-5 at 1.) The April 3, 2014 letter that the EEOC also sent
mentions that the Dismissal and Notice of Rights was mailed together with that
letter. The EEOC papers together are critical in confirming that Schubbe
exhausted his administrative remedies and that the Court has jurisdiction over his
case. The parties do not dispute the authenticity of the EEOC papers. The Court
thus will consider the EEOC papers when considering defendant’s motion.
In contrast, the amended complaint does not mention unemployment
insurance proceedings at all. The Court does not have the full appeal transcript
or documentation of the ultimate outcome of the unemployment insurance
application. Any unemployment insurance proceedings naturally would have
occurred after Schubbe’s termination and would have no bearing on events that
occurred before the termination. Perhaps most importantly, whatever happened
to Schubbe’s unemployment insurance application would not have any collateralestoppel effect here. “Two questions control whether New York will apply the
doctrine of collateral estoppel. First, is the issue to be decided in the second
action identical to an issue necessarily decided in the earlier proceeding?
Second, did the party against whom collateral estoppel is asserted have a full and
fair opportunity to litigate the issue in that earlier proceeding?” Hill v. Coca Cola
Bottling Co. of N.Y., 786 F.2d 550, 552 (2d Cir. 1986) (citations omitted). In
Schubbe’s unemployment insurance proceedings, the principal issue would have
been whether Schubbe, for state purposes, committed misconduct to warrant a
11
denial of unemployment benefits. Whether Schubbe also committed misconduct
to warrant termination, and whether defendant discriminated against Schubbe so
as to taint the decision to terminate, are different issues that neither side would
have explored fully during the unemployment insurance proceedings. Cf. Merkl v.
Allied Bldg. Prods. Corp., No. 09-CV-03085 DLI JMA, 2013 WL 1346032, at *12
(E.D.N.Y. Mar. 28, 2013) (finding that plaintiff could not take a finding of
alcoholism from unemployment insurance proceedings and prohibit his former
employer from litigating whether it fired him because of alcoholism). The Court
accordingly will not consider the transcript of unemployment insurance
proceedings that defendant included in its papers.
B.
Regarding Schubbe as Disabled
Of the various issues that the parties have raised, the one that draws the
Court’s immediate attention is whether defendant has regarded Schubbe as
disabled. Schubbe does not allege that he has an actual disability, choosing
instead to plead a “regarded as” disability based on defendant’s conduct. The
choice to plead a “regarded as” disability affects what Schubbe needs to plead.
Congress amended the ADA in 2008 to expand the scope of “regarded as”
disabilities, eliminating any requirement that an employer perceive an individual
as having an impairment that substantially limited a major life activity. See
generally ADA Amendments Act of 2008, Pub. L. 110–325, 122 Stat. 3553 (Sept.
25, 2008). As the ADA reads now, “[t]he term ‘disability’ means, with respect to
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an individual . . . being regarded as having such an impairment (as described in
paragraph (3)).” 42 U.S.C. § 12102(1)(C). “For purposes of paragraph (1)(C) . . .
An individual meets the requirement of ‘being regarded as having such an
impairment’ if the individual establishes that he or she has been subjected to an
action prohibited under this chapter because of an actual or perceived physical or
mental impairment whether or not the impairment limits or is perceived to limit a
major life activity.” Id. § 12102(3)(A). “Whether an individual is ‘regarded as’
having a disability is a question of the employer’s intent, rather than whether the
employee actually has a disability.” Hammond v. Keyspan Energy, 349 F. App’x
629, 631 (2d Cir. 2009) (summary order) (citation omitted). The legislative history
behind the 2008 ADA amendments indicates that Congress wanted to expand
“regarded as” liability to respond to adverse employment actions that result from
negative stereotypes about disabilities. “Under this bill, the third prong of the
disability definition will apply to impairments, not only to disabilities. As such, it
does not require a functional test to determine whether an impairment
substantially limits a major life activity. This section of the definition of disability
was meant to express our understanding that unfounded concerns, mistaken
beliefs, fears, myths, or prejudice about disabilities are often just as disabling as
actual impairments, and our corresponding desire to prohibit discrimination
founded on such perceptions.” 154 Cong. Rec. S8342-01 (daily ed. Sept. 11.
2008), 2008 WL 4180153 (statement of Sen. Harkin); see also, e.g., Darcy v. City
13
of N.Y., No. 06-CV-2246 RJD, 2011 WL 841375, at *4 (E.D.N.Y. Mar. 8, 2011)
(“Obviously, the statute recognizes that perceptions about disabilities carry
stigma enough and that, when these perceptions are the motivating force in an
employment decision, they often become agents of the improper biases and
prejudices associated with the disability (real or imagined) in question.”).
Here, even the most favorable inferences from the amended complaint do
not generate enough factually plausible information that defendant regarded or
stereotyped Schubbe as an alcoholic. Schubbe worked for defendant for over 18
years. Schubbe provides only cursory information about promotions for the first
16 years of his time with defendant. The Court infers, favorably for Schubbe, that
his first 16 years with defendant went well and that defendant took no adverse
actions against him or regarded him as having any disability. The favorable
inference for the first 16 years, however, boomerangs when applied to the last
two years because it makes the perception of disability seem abrupt and almost
random. After 16 years of promotions, increased responsibility, and successful
overtime pay, why would defendant suddenly view Schubbe as an alcoholic who
had to be kept in a “cage” all day? Schubbe does not plead any theory that
answers that question. Instead, Schubbe pleads only discrete disciplinary actions
that occurred in response to discrete instances of misconduct. Cf. Mitchell v.
N.Y.C. Trans. Auth., 856 F. Supp. 2d 478, 484 (E.D.N.Y. 2012) (“[T]he mere fact
that an employer is aware of an employee’s impairment is insufficient to
14
demonstrate either that the employer regarded the employee as disabled or that
the perception caused the adverse employment action . . . . Nor is there any
evidence that the [defendant] pursued disciplinary action against Plaintiff for any
reason other than his violations of the sick leave policies, violations that he does
not dispute are covered by the CBA.”) (internal quotation marks and citation
omitted). When Schubbe fell asleep on the job, defendant suspended him.
When Schubbe tested positive for alcohol in his system while at work, defendant
fired him. The EEOC’s dismissal of Schubbe’s allegations to the agency are not
binding and carry little weight here. See Miller v. Saint-Gobain Advanced
Ceramics Corp., No. 02-CV-0052E(SR), 2004 WL 941798, at *3 n.8 (W.D.N.Y.
Apr. 9, 2004) (Elfvin, J.) (“District Courts have substantial discretion with respect
to the weight to be accorded an EEOC determination . . . . This Court will accord
the EEOC determination no weight because it was sparse and conclusory.
Moreover, it is not clear what the EEOC’s investigation involved.) (citations
omitted). Nonetheless, the Court notes that the EEOC found the same
relationship between misconduct and discipline. While Schubbe pleads that
defendant had no basis to suspect alcohol or drug abuse for the incidents of
October 22, 2012 or May 5, 2014, he does not plead any protest or surprise
about the requests for testing. This lack of protest or surprise undermines
Schubbe’s credibility when he pleads that, just one month earlier in September
2012, he had no idea that defendant would want him to take a drug or alcohol
15
test. Schubbe’s allegations about a suspension in September 2012 also do not
sound plausible given the chronology that Schubbe has asserted. Schubbe
asserts that defendant suspended him for failure to take a drug or alcohol test
immediately after his injury. Schubbe then asserts that medical clearance was
the only barrier to Schubbe’s return, and Schubbe indeed returned to work one
day after obtaining medical clearance. In what sense, then, was Schubbe
suspended? The reconciliation of these two assertions that is most favorable to
Schubbe would be something to the effect that defendant actually did tell
Schubbe that he would be suspended but then quickly backed off and wanted
only medical clearance. Even then, the chronology that Schubbe has asserted
and the competing allegations of suspension and medical clearance do not
support any claim that defendant regarded Schubbe as disabled and singled him
out for it.
If defendant at least had made comments about alcoholism to Schubbe
apart from instances of misconduct then Schubbe’s “regarded as” contention
perhaps would sound more plausible. Compare Kelly v. N. Shore-Long Island
Health Sys., No. 13-CV-1284 JS WDW, 2014 WL 2863020, at *7 (E.D.N.Y. June
22, 2014) (dismissing a disability discrimination complaint in part because “the
Complaint stops short of alleging facts from which it can be inferred that anyone
at LIJ regarded Plaintiff as a recovering alcoholic”) with Darcy, 2011 WL 841375,
at *1 (denying summary judgment on a regarded-as claim of discrimination
16
against alcoholism, where, inter alia, plaintiff’s supervisor told him, “You are a
lowly lieutenant and you suffer from the same disease as my brother.”). As the
amended complaint reads, though, the Court cannot discern how specific
responses to specific acts can grow into a general perception of a disability.
Under these circumstances, all of Schubbe’s claims under the ADA and
NYHRL fail. Schubbe does not have to prove anything at this early stage of the
case, of course, but he is not asserting that he actually has a disability and has
not pled plausibly that defendant regarded him as disabled. Without a properly
pled disability, Schubbe cannot accuse defendant of discriminating against him,
creating a hostile work environment, or retaliating against him on the basis of a
disability. The Court thus recommends dismissing claims 1–3 and 5–7 in the
amended complaint.
C.
Schubbe’s FMLA Claim
The Court next turns to Schubbe’s fourth claim, that he suffered retaliation
in violation of the FMLA when he requested leave to address his work injury in
September 2012. “In order to make out a prima facie case, he must establish
that: 1) he exercised rights protected under the FMLA; 2) he was qualified for his
position; 3) he suffered an adverse employment action; and 4) the adverse
employment action occurred under circumstances giving rise to an inference of
retaliatory intent.” Potenza v. City of N.Y., 365 F.3d 165, 168 (2d Cir. 2004).
“However, a complaint asserting an employment discrimination claim, including
17
an FMLA retaliation claim, need not plead specific facts establishing a prima facie
case of discrimination in order to survive a motion to dismiss. Instead, to state an
FMLA retaliation claim, Plaintiff need only show that his claims are plausible
under Iqbal and Twombly, by pleading facts sufficient to state a claim to relief that
is plausible on its face.” Smith v. Westchester Cnty., 769 F. Supp. 2d 448, 469
(S.D.N.Y. 2011) (editorial and internal quotation marks and citations omitted).
Here, Schubbe simply has not pled enough information to maintain a claim
for retaliation in September 2012. The factual background section of the
amended complaint does not even mention the FMLA where it describes
Schubbe’s injury and return to work in September 2012. Schubbe mentions an
invocation of the FMLA only within the fourth claim itself. In the fourth claim,
Schubbe asserts that he requested leave to address his work injury. Schubbe,
however, returned to work just two days after he was injured. Schubbe obtained
medical clearance just one day after the injury. Schubbe does not plead
anywhere how much leave he was considering or whether defendant pressured
him into cutting short any contemplated leave. If Schubbe returned to work that
quickly then requesting formal medical leave and being suspended for that
request do not sound plausible. Additionally, and as noted above, the claim that
defendant suspended Schubbe does not sound plausible given the immediate
request for medical clearance and Schubbe’s willingness to obtain clearance and
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to return to work just two days after the injury. Under these circumstances, the
Court recommends dismissing this claim as well.
D.
Repleading
At this point, the only issue left for the Court to consider is whether to allow
any further repleading. “When a motion to dismiss is granted, the usual practice
is to grant leave to amend the complaint. Although the decision to grant leave to
amend is within the discretion of the court, refusal to grant leave must be based
on a valid ground. However, where the plaintiff is unable to demonstrate that he
would be able to amend his complaint in a manner which would survive dismissal,
opportunity to replead is rightfully denied.” Hayden v. Cnty. of Nassau, 180 F.3d
42, 53 (2d Cir. 1999) (citations omitted). Here, Schubbe already has submitted
one amended complaint. Schubbe requested leave to amend “to provide the
Court and Defendant with a more accurate statement about the events
leading to this suit and make an additional claim.” (Dkt. No. 17-3 at 2.) Schubbe
presumably has provided that more accurate statement and has not held back on
any details that would have helped his allegations. Cf. TechnoMarine SA v.
Giftports, Inc., 758 F.3d 493, 506 (2d Cir. 2014) (“Here, Plaintiff already amended
its complaint once following Defendant’s first motion to dismiss for failure to state
a claim. TechnoMarine failed to resolve its pleading deficiencies in its First
Amended Complaint. In its request to amend this complaint below and in its brief
here, moreover, TechnoMarine has entirely failed to specify how it could cure its
19
pleading deficiencies.”). At the same time, the Court does not see how yet
another pleading would elevate specific instances of misconduct and discipline to
a “regarded-as disability” and discrimination against it. The Court thus will not
recommend allowing an opportunity for a second amended complaint.
IV.
CONCLUSION
For all of the foregoing reasons, the Court respectfully recommends
granting defendant’s motion to dismiss (Dkt. Nos. 11, 24).
V.
OBJECTIONS
A copy of this Report and Recommendation will be sent to counsel for the
parties by electronic filing on the date below. Any objections to this Report and
Recommendation must be electronically filed with the Clerk of the Court within 14
days. See 28 U.S.C. § 636(b)(1); FRCP 72. “As a rule, a party’s failure to object
to any purported error or omission in a magistrate judge’s report waives further
judicial review of the point.” Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003)
(citations omitted).
SO ORDERED.
__/s Hugh B. Scott________
HONORABLE HUGH B. SCOTT
UNITED STATES MAGISTRATE JUDGE
DATED: March 5, 2015
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