Fogle v. Monroe County
Filing
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DECISION AND ORDER denying 15 Motion to Dismiss. Plaintiffs application to amend his complaint is granted as to the ADA claim, and denied as to the Title VII claim. As discussed at oral argument, Defendant shall file and serve an answer to the Ame nded Complaint within twenty days of the date of this Decision and Order. Defendants motion [#15] to dismiss the original Complaint is denied as moot. Defendants request for attorneys fees is denied. Signed by Hon. Charles J. Siragusa on 10/7/11. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LARRY FOGLE,
Plaintiff,
DECISION AND ORDER
-v10-CV-6170 CJS
MONROE COUNTY,
Defendant.
APPEARANCES
For Plaintiff:
James F. Armstrong, Esq.
202 Main Street, Suite 200
Hamburg, New York 14075
For Defendant:
Paul D. Fuller, Esq.
Monroe County Law Department
39 West Main Street, Suite 307
Rochester, New York 14614
INTRODUCTION
This is an action alleging employment discrimination in violation of the Americans
With Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.
Now before the Court is
Defendant’s motion for judgment on the pleadings (Docket No. [#15]). For the reasons
discussed below, the application is denied, and Plaintiff’s request to file an amended
pleading is granted in part and denied in part.
BACKGROUND
Unless otherwise noted, the following facts are taken from Plaintiffs’ Complaint (“the
Complaint”) in this action, and are presumed to be true for purposes of this Decision and
Order. Plaintiff was previously employed by Defendant as a “per diem child care worker.”
Plaintiff worked at that job during the daytime. Plaintiff also had a second job, which
involved working at night. In May 2007, Plaintiff injured his back, which prevented him from
working for Defendant. Plaintiff subsequently received paid sick leave from Defendant, until
August 2007. Plaintiff contends that although he was unable to work at his job with
Defendant, he was still able to work his second job, because it did not require any physical
exertion. In or about August 2007, Plaintiff returned to work for Defendant, and he maintains
that he asked for a
light-duty assignment, and was told that none were available.
Defendant maintains that Plaintiff never asked about a light-duty assignment. Defendant
subsequently terminated Plaintiff’s employment, because it determined that he had
fraudulently obtained paid sick leave by representing that he was unable to work at all, while
still working at his second job.
On March 6, 2008, Plaintiff signed a discrimination complaint addressed to the New
York State Division of Human Rights. Plaintiff’s signature was notarized by this thenattorney, William E. Burkhart, Jr. The complaint purports to state claims under two federal
statutes: The ADA and the Age Discrimination in Employment Act (“ADEA”). The complaint
indicates that Plaintiff is alleging discrimination on the basis of “age” and “disability/perceived
disability/past disability.” The complaint does not allege any other type of discrimination.
In the complaint, Plaintiff states that he sprained his back, which left him unable to perform
his job for the Defendant, but able to perform a second job. The complaint also states that
Defendant terminated his employment because he allegedly falsely stated that he was
unable to work. The complaint further states that Defendant did not follow its progressive
discipline policy. Finally, the complaint states that a younger employee, who also worked
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two jobs, took time off from his county job to work at the second job, and was not
disciplined. On May 12, 2009, a hearing on Plaintiff’s complaint was held at the New York
State Division of Human Rights before Administrative Law Judge Michael Groben. The
Court has reviewed the 268-page transcript of that hearing, and it contains no reference to
racial discrimination. On June 30, 2009, ALJ Groben issue his “Recommended Findings of
Fact, Opinion and Decision, and Order,” finding that Plaintiff had failed to prove his claims,
and recommending that the case be dismissed. ALJ’s Groben’s Order observed, in
pertinent part, that Plaintiff was complaining of age discrimination and disability
discrimination. On September 16, 2009, Galen D. Kirkland, Commissioner of the New York
State Division of Human Rights, issued a “Notice and Final Order,” adopting Groben’s
recommended disposition. Plaintiff did not seek judicial review of the administrative ruling.
On March 26, 2010, Plaintiff, proceeding pro se, commenced this action. The form
complaint that Plaintiff used gave him the option of suing under Title VII, the Age
Discrimination in Employment Act, and/or the ADA. In that regard, the form indicated that
Title VII pertained to discrimination because of “race, color, gender, religion, national origin.”
However, Plaintiff chose only to assert a claim under the ADA. The form complaint also
asked Plaintiff to indicate whether he was alleging discrimination on the bases of “race” or
“color,” but Plaintiff did not check either box, and instead, checked only the box for
“disability” discrimination.
Later in the Complaint, Plaintiff reiterates that he was
discriminated against because of a “disability,” and that Defendant failed to provide him with
a reasonable accommodation for his disability. Consequently, Plaintiff’s Complaint [#1]
asserts a single claim, which is for discrimination under the ADA.
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On January 14, 2011, Defendant filed the subject motion for judgment on the
pleadings.
Defendant maintains that the Complaint fails to state any claim, since it
essentially consists of a single naked assertion, that “County has light duty, but my Director
refuse[d] to give me any.” Fuller Aff. [#15-1] at ¶ ¶ 6-7. In the alternative, Defendant
contends that “[P]laintiff’s Complaint has been fully litigated at a Public Hearing, there are
no material issues of fact that remain to be resolved, and the [D]efendant is entitled to
judgment as a matter of law.” Fuller Aff. [#15-1] at ¶ 8. Defendant further indicates that it
is entitled to attorney’s fees, under 42 U.S.C. § 1988, since the Complaint is frivolous.
On March 18, 2011, Plaintiff, who has now retained counsel, responded to
Defendant’s motion by requesting leave to amend the complaint. The Proposed Amended
Complaint again purports to state a claim under the ADA, and sets forth that claim in much
greater detail than in the original Complaint. In addition, it asserts a claim for race
discrimination under Title VII, and alleges that white employees received paid sick leave
while working at other jobs, but were not disciplined.
On April 7, 2011, Defendant filed a reply brief, in which it contends that the Court
lacks subject-matter jurisdiction over both of Plaintiff’s proposed claims:
The District Court lacks jurisdiction of plaintiff’s racial discrimination claim as
plaintiff did not exhaust the administrative remedies concerning that claim.
The District Court lacks subject matter jurisdiction of plaintiff’s age and
disability claims, because they were fully litigated by the New York State
Division of Human Rights and were dismissed on the merits.
4
Fuller Aff. [#22] at ¶ ¶ 3.1-3.2. 1
On October 6, 2011, counsel for the parties appeared before the undersigned for oral
argument.
DISCUSSION
“The same standard applicable to Fed.R.Civ.P. 12(b)(6) motions to dismiss applies
to Fed.R.Civ.P. 12(c) motions for judgment on the pleadings.” Bank of New York v. First
Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (citation omitted). The applicable
standard for 12(b)(6) motions is well settled:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order to
give the defendant fair notice of what the claim is and the grounds upon which
it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.
Factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007); see also,
ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (“To survive
dismissal, the plaintiff must provide the grounds upon which his claim rests through factual
1
W ith regard to the disability discrim ination claim , Defendant appears to be arguing that Plaintiff is
barred from bringing a disability discrim ination claim under either state or federal law, since he already brought
such a claim before the New York State Division of Hum an Rights. In support of its argum ent concerning the
disability claim , Defendant cites Cooper v. Sutherland Group, LTD, No. 10-CV-6575, 2011 W L 1118712
(W .D.N.Y. Mar. 24, 2011) (Telesca, J.) and Perry v. ARC, No. 10-CV-6337, 2010 W L 4721611 (W .D.N.Y.
Nov. 22, 2010) (Siragusa, J.), both of which held that pursuant to New York Executive Law § 297(9), a party
who elects to pursue an adm inistrative proceeding under the Hum an Rights Law m ay not later bring the sam e
Hum an Rights Law claim in court. See, Perry v. ARC, 2010 W L 4721611 at *4 (“Plaintiff here elected to
pursue rem edies in the New York Division of Hum an Rights and that body m ade a determ ination on the
m erits, therefore foreclosing claim s under the New York Hum an Rights law here.”). However, those cases
are inapposite, since Plaintiff is not asserting a Hum an Rights Law claim in this action.
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allegations sufficient ‘to raise a right to relief above the speculative level.’") (quoting Bell Atl.
Corp. v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)
(Indicating that Bell Atl. Corp. v. Twombly adopted “a flexible ‘plausibility standard,’ which
obliges a pleader to amplify a claim with some factual allegations in those contexts where
such amplification is needed to render the claim plausible[,]” as opposed to merely
conceivable.), reversed on other grounds, Ashcroft v. Iqbal, 129 S.Ct.1937 (2009). When
applying this standard, a district court must accept the allegations contained in the complaint
as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v.
Carothers, 192 F.3d 52, 56 (2d Cir. 1999). Moreover, even where dismissal is appropriate,
a plaintiff’s request for leave to replead should generally be granted, unless amendment
would be futile. See, Porat v. Lincoln Towers Community Ass'n , 464 F.3d 274, 276 (2d Cir.
2006) (“Without doubt, this circuit strongly favors liberal grant of an opportunity to replead
after dismissal of a complaint under Rule 12(b)(6).”).
In the instant case, Defendant moved to dismiss the original Complaint for failure to
state a claim, and even Plaintiff’s newly-retained counsel admits that the Complaint was
deficient. However, Plaintiff has requested leave to amend. In its Reply, Defendant does
not contend that the Proposed Amended Complaint fails to state a claim under the ADA.
Instead, Defendant argues only that the Court lacks subject matter jurisdiction over the
proposed amended claims. The Court agrees that the Title VII claim is barred for failure to
exhaust administrative remedies, but finds that the ADA claim is not barred by the prior
administrative proceeding.
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Plaintiff Did Not Exhaust Administrative Remedies
For His Proposed Racial Discrimination Claim
Defendant contends that the Court lacks jurisdiction over Plaintiff’s proposed Title VII
claim, because he did not administratively exhaust the claim. Clearly, exhaustion of Title VII
claims is required, but the failure to exhaust such claims does not deprive the Court of
jurisdiction. Instead, the failure to exhaust is a non-jurisdictional requirement which, like a
statute of limitations, can be waived. See, Francis v. City of New York, 235 F.3d 763, 768
(2d Cir. 2000) (“[A]s a general matter, the failure to exhaust administrative remedies is a
precondition to bringing a Title VII claim in federal court, rather than a jurisdictional
requirement.”) (citations omitted). The legal principles to be applied on a motion to dismiss
a Title VII claim for failure to exhaust are clear:
As a precondition to filing a Title VII claim in federal court, a plaintiff must first
pursue available administrative remedies and file a timely complaint with the
EEOC.2 We have recognized, however, that claims that were not asserted
before the EEOC may be pursued in a subsequent federal court action if they
are reasonably related to those that were filed with the agency. A claim is
considered reasonably related if the conduct complained of would fall within
the scope of the EEOC investigation which can reasonably be expected to
grow out of the charge that was made.3 This exception to the exhaustion
requirement is essentially an allowance of loose pleading and is based on the
recognition that EEOC charges frequently are filled out by employees without
the benefit of counsel and that their primary purpose is to alert the EEOC to
the discrimination that a plaintiff claims he is suffering. . . . In determining
2
The com plaint m ay also be filed with the New York State Division of Hum an Rights. See, e.g., Carter
v. New York City Dept. of Corr., Docket No. 00-7118, 7 Fed. Appx. 99, 102, 2001 (2d Cir. Apr. 5, 2001).
3
See, Joseph v. Price Costco, No. 03-7949, 100 Fed.Appx. 857-858 at *1 (2d Cir. Jun. 10, 2004)
(“This Circuit has recognized three situations where a plaintiff m ay assert in district court a claim that was not
specifically pleaded in his adm inistrative com plaint because it is ‘reasonably related’ to its EEOC claim s: (1)
claim s that are within the scope of the EEOC investigation that is likely to grow out of the charge; (2) claim s
of retaliation for filing the EEO C charge; and (3) further incidents that occur after the filing of the EEOC
charge.”) (citing Butts v. City of New York Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1402-03 (2d Cir.1993)).
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whether claims are reasonably related, the focus should be on the factual
allegations made in the EEOC charge itself, describing the discriminatory
conduct about which a plaintiff is grieving.
Deravin v. Kerik, 335 F.3d 195, 200-201 (2d Cir. 2003) (citations, footnotes, and internal
quotation marks omitted).
In this case, Plaintiff, who was represented by an attorney throughout the
administrative process, filed a state administrative complaint alleging only disability-related
and age-related discrimination. Plaintiff gave no indication, either in his administrative
complaint or during his hearing testimony, that he was complaining of racial discrimination.
As far as the Court is aware, the administrative agency did not investigate racial
discrimination, nor would it have been reasonable for it to do so, based on Plaintiff’s
complaint. Accordingly, the proposed racial discrimination claim is unexhausted, because
it is not reasonably related to the age- and disability-related claims that Plaintiff asserted in
his administrative complaint. It would therefore be futile for Plaintiff to assert a Title VII race
discrimination claim, and his application to amend is denied as to that claim.
Plaintiff’s ADA Claim Is Not Barred By His Earlier Administrative Proceeding
Defendant maintains that the Court lacks subject matter jurisdiction over Plaintiff’s
disability discrimination claims4 because Plaintiff previously brought the same claim
unsuccessfully before the New York State Division of Human Rights. The Court disagrees.
At the outset, the Court would agree that Plaintiff’s disability discrimination claim would be
barred by Executive Law § 297(9) if he were bringing it under the New York Human Rights
4
Defendant also states that the Court lacks such jurisdiction over Plaintiff’s age discrim ination claim s,
see, Reply Mem o [#22-1] at 4, but Plaintiff is not asserting such claim s.
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Law. However, Plaintiff is not asserting a disability discrimination claim under the New York
Human Rights Law, but instead, is only bringing such claim under the ADA. Moreover,
although Plaintiff’s claim was resolved on the merits by the New York State Division of
Human Rights, that administrative determination was not affirmed by a state court.
Consequently, the adverse administrative determination does not preclude Plaintiff from
pursuing his ADA claim. See, Smith-Henze v. Edwin Gould Services for Children and
Families, Officers and Employees, No. 06 Civ. 3049 LBS DCF, 2006 WL 3771092 at *4
(S.D.N.Y. Dec. 21, 2006) (“The NYSDHR's finding of no probable cause does not bar
[plaintiff’s] claim of discrimination on the basis of disability under the ADA. In University of
Tennessee v. Elliot, 478 U.S. 778 (1986), the Supreme Court held that Congress deprived
unreviewed state administrative proceedings of preclusive effect in Title VII claims. The
Supreme Court extended that rule in Astoria Federal Savings & Loan v. Solimino, 501 U.S.
104, 110-14 (1991), holding that the ADEA implicitly deprived state administrative
proceedings of preclusive effect.”) (citations omitted); see also, Joseph v. Athanasopoulos,
648 F.3d 58, 64, n. 6. (2d Cir. 2011) (Indicating, in pertinent part, that Elliot’s holding
“appl[ies] with equal force in the ADA context.”). Accordingly, Plaintiff’s proposed ADA claim
is not barred by New York State Division of Human Rights’s administrative determination,
and Plaintiff’s application to amend is granted as to that claim.
CONCLUSION
Plaintiff’s application to amend his complaint is granted as to the ADA claim, and
denied as to the Title VII claim. As discussed at oral argument, Defendant shall file and
serve an answer to the Amended Complaint within twenty days of the date of this Decision
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and Order. Defendant’s motion [#15] to dismiss the original Complaint is denied as moot.
Defendant’s request for attorney’s fees is denied.
SO ORDERED.
Dated:
October 7, 2011
Rochester, New York
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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