Caskey v. County of Ontario
Filing
13
-CLERK TO FOLLOW UP-DECISION AND ORDER granting 5 Motion to Dismiss. Signed by Hon. Charles J. Siragusa on 7/15/13. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DEBORAH W. CASKEY,
Plaintiff,
-vs-
DECISION & ORDER
13-CV-6093-CJS
COUNTY OF ONTARIO,
Defendant.
APPEARANCES
For Plaintiff:
Ryan C. Woodworth, Esq.
Christina A. Agola, PLLC
1415 Monroe Avenue
Brighton, NY 14618
(585) 262-3320
For Defendant:
Kristen J. Thorsness, Esq.
Ontario County Attorney
27 North Main Street 4th Floor
Canandaigua, NY 14424
(585) 396-4166
INTRODUCTION
Siragusa, J. This employment discrimination case is before the Court on
Defendant’s motion to dismiss. Defendant argues that many of the allegations are
precluded on res judicata grounds or statute of limitations grounds, and that the
remaining allegations are insufficient to state a claim and that they should be dismissed
under Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below,
Defendant’s motion to dismiss is granted regarding all claims.
Page 1 of 19
BACKGROUND
For the purposes of adjudicating the pending motion, the Court will assume that
the allegations in the complaint are true and that the complaint also encompasses the
matters described in Plaintiff’s filing with the Equal Employment Opportunity
Commission (“EEOC”). See Rothman v. Gregor, 220 F.3d 81, 88–89 (2d Cir. 2000)
(complaint includes any statements or documents incorporated by reference and
documents plaintiff either possessed or knew about and upon which she relied in
bringing suit). In that regard, the following paragraphs from the complaint constitute the
factual allegations:
15. Plaintiff is a Caucasian female over the age of 40; Plaintiff’s date of
birth is June 13, 1947.
16. Plaintiff is a long term employee of the defendant, having been first
hired by the defendant in July 9, 1984 as a “Data Entry Operator.”
17. Thereafter, Plaintiff tested for and became “Finance Clerk I Grade 6.”
18. Plaintiff performed her job in an exemplary fashion throughout her
entire tenure.
19. Commencing in the year 2005, Plaintiff had a good faith basis to
believe she was being subject to age discrimination, and
discrimination on the basis of her disability.
20. Plaintiff suffers from a chronic knee problems [sic], which have
resulted in several knee replacements and which significantly impairs
one or more “major life activities.”
21. The “major life activities” as defined by the ADA which affected Plaintiff
included “...walking, and working.” 42 U.S.C. § 12102(A).
22. The Defendant had actual notice of Plaintiff’s medical conditions for
three (3) years.
23. Further, for all relevant times herein, Defendant regarded Plaintiff as
having such an impairment under 42 U.S.C. § 12102(1).
24. Defendant regarded Plaintiff as substantially limited in the major life
activities enumerated above, and subjected her to a hostile
environment because of that perception, and because of her age, as
detailed below.
Page 2 of 19
Background of Plaintiff’s Claims
25. By way of background, in or about April of 2005, the County was
offering an incentive of $25,000 to the older employees to retire.
26. Department Head Cooley asked Plaintiff did “[she] plan on retiring
early?”
27. Plaintiff was 58 years old at that time.
28. On June 29, 2006, Plaintiff received a memo from Department head
Cooley asking again if she was “going to retire;” Plaintiff replied “no.”
29. Plaintiff was 59 years old at that time.
30. On July 7, 2006, Department Head Cooley constructed a chart which
gratuitously included Plaintiff as “retiring as of June 13, 2009,” when in
fact Caskey had no intention of retiring whatsoever.
31. On July 15, 2008, Department head Cooley asked Caskey yet again if
she was “going to retire,” and yet again, Plaintiff told Cooley that she
had no intention of retiring in 2009.
32. In or about August of 2008, Plaintiff called Human Resources (“HR”)
and reported what she perceived to be in good faith discrimination
based on age due to Department Head Cooley’s gratuitous, excessive
questioning as to her intention of retiring, when in fact, Plaintiff had no
intention of retiring.
33. HR’s response was “the County likes to project and plan ahead,” but
ignored Plaintiff’s good faith complaint, and took no further remedial
action with regard to the same.
34. Thereafter, Plaintiff was severely scrutinized by Department Head
Cooley, who nitpicked and tried to find fault in Plaintiff’s every move,
no matter how minor.
35. On or about July 1, 2008, Plaintiff met with Department Head Cooley
and told him she was going out on disability for knee surgery.
36. Department Head Cooley then questioned Plaintiff if she was going to
retire in the next year.
37. On or about February 20, 2009, Plaintiff asked Department Head
Cooley for “flex time” for a doctor’s appointment.
38. Plaintiff was denied this request, while other substantially younger and
similarly situated workers were allowed to take time off for nonmedical reasons.
39. Plaintiff complained to HR regarding Department Head Cooley’s denial
of flex time.
Page 3 of 19
40. Shortly thereafter on March 3, 2009, Department Head Cooley
approached Plaintiff in the middle of her work day, in front of coworkers and customers, and screamed loudly at Plaintiff that she did
not “balance an account,” greatly embarrassing the Plaintiff.
41. Department Head Cooley demanded that Plaintiff prepare a training
manual; Plaintiff replied by asking Cooley if he wanted her assume
more job responsibilities and training and Cooley said “yes.”
42. Two days later, Department Head Cooley informed Plaintiff that she
“misunderstood” his intention, and denied her any further training for
the purpose of assuming greater job responsibilities.
43. On April 16, 2009, Department Head Cooley presented Plaintiff with
formal notice that her position Finance Clerk I, a Grade 6 was being
abolished, even though there was no board resolution with regard to
the same at that time.
44. Plaintiff was told by Department Head Cooley for the first time ever
that she was not “mechanically inclined,” and that she “didn’t even
know how to change [copier] toner.”
45. A week later on April 24, 2009, the Ontario County Board of
Supervisors passed Resolution 247-2009 abolishing Plaintiff’s position
after she had been informed of the same, and creating the position of
“Microfilm Machine Operator (Grade 2).”
46. However, that position was not offered to Plaintiff who was qualified for
that position (which was essentially her former position with a new
name).
47. Thereafter, Plaintiff was told that she would be training several people
regarding her job duties and continued to do so until the date she was
laid off on June 29, 2009.
48. Plaintiff was told that she was training others so that she would have
“back-up” for her vacation, when, in reality, Plaintiff was training other
employees to assume her job responsibilities.
49. Plaintiff was laid off 10 days short of 25 years employment with the
County, and replaced with a significantly younger female.
50. When Plaintiff inquired with HR why her job was shifted around and
given to a younger female, Plaintiff was told that “the County and
Cooley could fill positions any way they see fit because [Cooley] is an
elected official.”
Plaintiff’s First EEOC Charge
51. Plaintiff, having a good faith basis to believe that she had been subject
to discrimination on the basis of her age and actual/perceived
disability, filed a charge of discrimination with the EEOC on or about
Page 4 of 19
September 19, 2009.
52. However, from there, things only got worse for Plaintiff, a dedicated
long term employee of the Defendant.
Current Claims Set forth in Plaintiff September 2011 Charge of
Discrimination
53. Shortly after filing her charge with the EEOC, Plaintiff began to be
subject to verbal assaults and an increase in workload from her
supervisors in retaliation from the charges she filed based with the
EEOC in September of 2009.
54. On or about July 7, 2010, Plaintiff was asked to meet with her
supervisor to review her “Performance Appraisal,” however the
meeting never took place and to this date, Plaintiff has never seen the
Performance Appraisal.
55. Thereafter, on December 10, 2011, Plaintiff had severe pain in her
shin, and visited the Public Health Department.
56. On or about December 30, 2010, Plaintiff saw several doctors who
advised that she take time off of work and go on disability leave.
57. However, Plaintiff was worried that the department would suffer in her
absence, so Plaintiff decided to return to work against the doctors [sic]
advice.
58. Subsequently, on January 4, 2011, Plaintiff received a negative
employment review from her supervisors which stated that Plaintiff
had to be “monitored.”
59. Plaintiff was extremely worried that her supervisor would retaliate
against her by terminating her employment.
60. On or about January 12, 2011, Plaintiff continued having severe leg
and knee pain.
61. Plaintiff again saw several doctors, but this time was informed that she
required surgery.
62. Thereafter, Plaintiff was out on disability leave for the full six (6)
months.
63. On July 14, 2011, at the advice of her doctors, Plaintiff requested an
additional thirty (30) day leave of absence after having complications
from the surgery, but was denied.
64. However, Human Resources notified Plaintiff that she was approved
for the thirty (30) days, but still needed approval from her supervisor,
which she never received.
65. On July 28, 2011, Plaintiff sent a second request for a thirty (30) day
leave of absence, but never received an answer.
Page 5 of 19
66. On August 22, 2011, Plaintiff was required to return to work because
again, she was scared that she would [sic] either going to be
terminated or lose her health insurance.
67. When Plaintiff arrived, her supervisor met with her and told her that
there were several changes to her job duties, and informed her yet
again that she would be closely “monitored.”
68. Plaintiff was shocked and, and told her supervisor that she may have
no choice but to retire if they could not find additional support for the
department.
69. Plaintiff was then admonished that she needed to “promptly sign her
retirement letter” so they could “find her replacement.”
70. However, Plaintiff wanted to wait and speak with the Human Resource
department before she made her final decision.
71. Plaintiff’s supervisors gave Plaintiff no choice but to sign the retirement
letter “immediately,” compelling Plaintiff to retire from her long term job
with the County.
72. Defendant had no legitimate reasons for its actions to treat Plaintiff, a
long term employee over the age of 40 in such a discriminatory
fashion.
73. Any reason proffered by the Defendant is merely a pretext for unlawful
discrimination.
Compl. ¶¶ 15–73. Plaintiff pleads three causes of action: (1) violation of the Americans
with Disabilities Act (“ADA”); (2) retaliatory treatment under the ADA; and (3) violation of
the Age Discrimination in Employment Act (“ADEA”).
STANDARDS OF LAW
Rule 12(b)(6) Standard
In Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(May 21, 2007), the Supreme Court clarified the standard to be applied to a Rule
12(b)(6) motion to dismiss:
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
Page 6 of 19
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).
Id. at 1964-65 (citations and internal quotations omitted). See also, A TSI
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 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,
2007 WL 1717803 (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.) 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 (1999), cert. denied, 531 U.S. 1052, 121 S. Ct. 657, 148 L. Ed. 2d 56 (2000). On
the other hand, "[c]onclusory allegations of the legal status of the defendants' acts need
not be accepted as true for the purposes of ruling on a motion to dismiss." Hirsch v.
Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995) (citing In re American
Express Co. Shareholder Litig., 39 F.3d 395, 400-01 n. 3 (2d Cir.1994)).
ADEA
The ADEA makes it unlawful for an employer “to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with respect to
[her] compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” 29 U.S.C. § 623(a)(1). In order to state a claim of age discrimination
Page 7 of 19
under the ADEA, a plaintiff must allege (1) she is a member of the protected age group,
(2) she was qualified for the position, (3) an adverse employment action, and
(4) circumstances that give rise to an inference of discrimination. Collins v. N.Y.C.
Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002).
ADA
The ADA provides in pertinent part that, “No covered entity shall discriminate
against a qualified individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.”
42 U.S.C.S. § 12112(a). To allege a plausible case of discrimination under the ADA, a
plaintiff must show that: “(1) the defendant is covered by the ADA; (2) plaintiff suffers
from or is regarded as suffering from a disability within the meaning of the ADA;
(3) plaintiff was qualified to perform the essential functions of the job, with or without
reasonable accommodation; and (4) plaintiff suffered an adverse employment action
because of [her] disability or perceived disability.” Capobianco v. City of New York, 422
F.3d 47, 356 (2d Cir. 2005). The ADA definition of disabled is an impairment which
“substantially limits one or more of a plaintiff’s major life activities.” Wernick v. Federal
Reserve Bank of New York, 91 F.3d 379, 383 (2d Cir. 1996).
Retaliation
In order to state a claim for retaliation, a plaintiff must plausibly allege that
“(1) [Plaintiff] engaged in a protected activity; (2) the employer was aware of the
protected activity; (3) the employer took adverse action; and (4) a causal connection
exists between the protected activity and the adverse action.” Shah v. N.Y. State Dept.
Page 8 of 19
of Civil Services, 341 Fed. Appx. 670, 673 (2d Cir. 2009).
ANALYSIS
As stated above, both the ADA and the ADEA standards require that a plaintiff
plausibly allege an adverse employment action. An adverse employment action may be
either “actual,” where an employer took action against an employee directly, or the
result of “constructive discharge,” where an employer pressures an employee into
leaving his or her position through repetitive or coercive actions over a period of time.
Retaliation broadens this requirement to encompass any negative action taken by the
employer in retaliation to an employee’s participation in an activity protected by the ADA
or ADEA. However, the Court must first determine the extent of Plaintiff’s history of
employment legally open to evaluation before it can properly investigate Plaintiff’s
claims potentially involving constructive discharge. Therefore, this analysis turns first to
the “background information” Plaintiff provided in her complaint that Defendant alleges
is barred or improperly included.
Paragraphs 17-54 may be considered background
information and are not barred by res judicata or
considered untimely
Defendant argues that the allegations in paragraphs 17–54 of the complaint are
time-barred, are barred by res judicata, exceed the scope of Plaintiff’s EEOC filing, and
subsequently are not properly background information. Plaintiff responds by arguing
that the allegations in paragraphs 17–54 are relevant background evidence in support of
her timely claim, citing to Jute v. Hamilton, 420 F.3d 166 (2d Cir. 2005). As the Supreme
Court explained in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122
S.Ct. 2061, 2072 (2002):
Page 9 of 19
First, discrete discriminatory acts are not actionable if time barred, even
when they are related to acts alleged in timely filed charges. Each discrete
discriminatory act starts a new clock for filing charges alleging that act.
The charge, therefore, must be filed within the 180– or 300–day time
period after the discrete discriminatory act occurred. The existence of past
acts and the employee’s prior knowledge of their occurrence, however,
does not bar employees from filing charges about related discrete acts so
long as the acts are independently discriminatory and charges addressing
those acts are themselves timely filed. Nor does the statute bar an
employee from using the prior acts as background evidence in support of
a timely claim.
Indeed, in Pawlowski v. N.Y. State Unified Court System, 2012 U.S. Dist. LEXIS 85087,
*8, 2012 WL 2339263, *3 (W.D.N.Y. June 15, 2012), Chief Judge Skretny stated: “This
Court expresses no view on the extent to which acts outside the EEOC filing deadline
may be used as background evidence for Plaintiff’s surviving claim.” Therefore, as far
as any of the allegations in paragraphs 17-54 may be time-barred, it is not inappropriate
for them to be included in the complaint as background information. Here, the adverse
employment actions that form the basis of the Plaintiff’s claims occurred within the 300day period (Compl. ¶¶ 63-72), and any “background facts” outside of that period may be
included in the complaint as long as they are not discrete, discriminatory actions upon
which the Plaintiff bases any current causes of action.
To the extent that Defendant claims that these paragraphs state facts outside the
scope of the EEOC complaint, an examination of Defendant’s reasoning on this point in
its motion to dismiss reveals that this argument is an extension of the time-bar
argument. “Given the 300 day limitations for charges to the EEOC, none of those preSeptember 24, 2010 matters could reasonably be expected to have fallen within the
scope of the EEOC investigation of Plaintiff’s Charge.” Def.’s Mot. Dismiss at 5, ECF
No. 5. This Court is not bound to recreate the investigation performed by the EEOC.
See generally Butts v. N.Y. Dep’t of Hous. Preservation & Dev., 990 F.2d 1397, 1402-03
Page 10 of 19
(2d Cir. 1993) (laying out situations where claims not alleged in an EEOC charge are
sufficiently related to the allegations in the charge that it would be unfair to bar such
claims in a civil action because they are reasonably related). As such, the Court accepts
paragraphs 17-54 as neither time barred nor outside the scope of the EEOC complaint.
Next, Defendant argues that paragraphs 17-54 should be stricken because they
were the subject of previous litigation and should be considered barred by res judicata.
Def.’s Mot. Dismiss at 5-6, ECF No. 5. On April 15, 2011, Plaintiff filed a complaint in
this Court raising claims for discrimination and retaliation under the ADEA and the New
York State Human Rights Law. ECF No. 1, Caskey v. County of Ontario, No. 11-CV6194-DGL (W.D.N.Y. Apr. 15, 2011). The Honorable David G. Larimer issued a decision
and order dismissing Plaintiff’s retaliation claims, and finding that her ADEA claim,
“albeit narrowly, manages to state a claim for age-based discrimination.” Decision and
Order at 5, Aug. 2, 2011, ECF No. 11. Paragraphs 13–39 of the complaint in Plaintiff’s
2011 lawsuit are repeated mostly verbatim in paragraphs 19–50 of the current
complaint:
13. Commencing in the year 2005, Plaintiff had a good faith basis to
believe she was being subject to age discrimination.
14. In or about April of 2005, the County was offering an incentive of
$25,000 to the older employees to retire.
15. Department Head Cooley asked Plaintiff is "[she] planned on retiring
early."
16. Plaintiff was 58 years old at that time.
17. On June 29, 2006, Plaintiff received a memo from Department head
Cooley asking again if she was "going to retire;" Plaintiff said "no."
18. Plaintiff was 59 years old at that time.
19. On July 7, 2006, Department Head Cooley constructed a chart which
gratuitously included Plaintiff as "retiring as of June 13, 2009," when in
fact Caskey had no intention of retiring whatsoever.
Page 11 of 19
20. On July 15, 2008, Department head Cooley asked Caskey yet again if
she was "going to retire," and yet again, Plaintiff told Cooley that she
had no intention of retiring in 2009.
21. In or about August of 2008, Plaintiff called Human Resources (“HR”)
and reported what she perceived to be in good faith discrimination
based on age due to Department Head Cooley's gratuitous, excessive
questioning as to her intention of retiring, when in fact, Plaintiff had no
intention of retiring.
22. HR's response was "the County likes to project and plan ahead," but
ignored Plaintiff's good faith complaint, and took no further remedial
action with regard to the same.
23. Thereafter, Plaintiff was severely scrutinized by Department Head
Cooley, who nitpicked and tried to find fault in Plaintiffs every move,
no matter how minor.
24. On or about July 1, 2008, Plaintiff met with Department Head Cooley
and told him she was going out on disability for knee surgery.
25. Department Head Cooley then questioned Plaintiff if she was going to
retire in the next year.
26. On or about February 20, 2009, Plaintiff asked Department Head
Cooley for “flex time” for a doctor’s appointment.
27. Plaintiff was denied this request, while other substantially younger and
similarly situated workers were allowed to take time off for nonmedical reasons.
28. Plaintiff complained to HR regarding Department Head Cooley’s
denial of flex time.
29. Shortly thereafter on March 3, 2009, Department Head Cooley
approached Plaintiff in the middle of her work day, in front of coworkers and customers, and screamed loudly at Plaintiff that she did
not “balance an account,” greatly embarrassing the Plaintiff.
30. Department Head Cooley demanded that Plaintiff prepare a training
manual; Plaintiff replied by asking Cooley if he wanted her assume
more job responsibilities and training and Cooley said “yes.”
31. Two days later, Department Head Cooley informed Plaintiff that she
“misunderstood” his intention, and denied her any further training for
the purpose of assuming greater job responsibilities.
32. On April 16, 2009, Department Head Cooley presented Plaintiff with
formal notice that her position Finance Clerk I, a Grade 6 was being
abolished, even though there was no board resolution with regard to
the same at that time.
Page 12 of 19
33. Plaintiff was told by Department Head Cooley for the first time ever
that she was not “mechanically inclined,” and that she “didn’t even
know how to change [copier] toner.”
34. A week later on April 24, 2009, the Ontario County Board of
Supervisors passed Resolution 247-2009 abolishing Plaintiff’s position
after she had been informed of the same, and creating the position of
“Microfilm Machine Operator (Grade 2).”
35. However, that position was not offered to Plaintiff who was qualified
for that position (which was essentially her former position with a new
name).
36. Thereafter, Plaintiff was told that she would be training several people
regarding her job duties and continued to do so until the date she was
laid off on June 29, 2009.
37. Plaintiff was told that she was training others so that she would have
“back-up” for her vacation, when, in reality, Plaintiff was training other
employees to assume her job responsibilities.
38. Plaintiff was laid off 10 days short of 25 years employment with the
County, and replaced with a significantly younger female.
39. When Plaintiff inquired with HR why her job was shifted around and
given to a younger female, Plaintiff was told that “the County and
Cooley could fill positions any way they see fit because [Cooley] is an
elected official.”
Complaint ¶¶ 13–39, Apr. 15, 2011, No. 11-CV-6194, ECF No. 1. Following Judge
Larimer’s decision, the parties entered into a stipulation of dismissal on August 16,
2011. In relevant part, that document states: “Plaintiff agrees to, and hereby does,
voluntarily dismiss her remaining claims of age discrimination against the Defendants in
their entirety and with prejudice.” Stipulation of Dismissal ¶ 4, No. 11-CV-6194, ECF No.
12 (emphasis added).
With regard to res judicata, the Second Circuit has held:
The fact that both suits involve[] essentially the same course of wrongful
conduct is not decisive; nor is it dispositive that the two proceedings
involve[] the same parties, similar or overlapping facts, and similar legal
issues… If the second litigation involve[s] different transactions, and
especially subsequent transactions, there generally is no claim preclusion.
Interoceanica Corp. v. Turbana Corp., 107 F.3d 86, 91 (2d Cir. 1997).
Page 13 of 19
As discussed in the time-bar issue analysis above, Plaintiff is not suing based on
discrete discriminatory events that occurred previous to the stipulation of dismissal. Nor
does the Court take Defendant to be implying that Plaintiff gave up her right to sue for
discrimination in the future by signing the Stipulation.
Therefore, even though this
cause of action involves many of the same facts that were involved in previous litigation,
the current alleged acts of discrimination that form the basis of Plaintiff’s recovery are
not barred by res judicata and will be considered as relevant, supporting background
information as they have been plead in the Complaint.
Plaintiff does not plausibly allege an actual adverse
employment action or constructive discharge
Both the ADA and ADEA require that a plaintiff plausibly allege an adverse
employment action in order to state a claim of discrimination. The only paragraphs in
the Complaint that state what might be called an adverse employment action are:
67. When Plaintiff arrived [back from leave for surgery], her supervisor met with
her and told her that there were several changes to her job duties, and
informed her yet again that she would be closely “monitored.”
68. Plaintiff was shocked and told her supervisor that she may have no choice
but to retire if they could not find additional support for the department.
69. Plaintiff was then admonished that she needed to “promptly sign her
retirement letter” so they could “find her replacement.”
70. However, Plaintiff wanted to wait and speak with the Human Resource
department before she made her final decision.
71. Plaintiff’s supervisors gave Plaintiff no choice but to sign the retirement letter
“immediately,” compelling Plaintiff to retire from her long term job with the
County.
Compl. ¶¶ 67-71, ECF No. 1. Plaintiff further clarified in her response to Defendant’s
motion to dismiss “that she suffered an adverse employment action when she was
forced to retire.” Pl.’s Resp. Mot. Dismiss at 16, ECF No. 10. No other allegations
Page 14 of 19
falling within the 300-day EEOC period or subsequent to the stipulation of dismissal
ending the prior litigation can be interpreted to describe an adverse employment action.
Being “forced to retire” falls under the doctrine of constructive discharge. See
Ternullo v. Reno, 8 F. Supp. 2d 186, 190 (S.D.N.Y. 1998) (“Given that plaintiff resigned
from her position, she must rely on a theory of constructive discharge.”) “A constructive
discharge occurs when the employer, rather than acting directly, ‘deliberately makes an
employee’s working conditions so intolerable that the employee is forced into an
involuntary resignation.’” Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983)
(quoting Young v. Southwestern Savings & Loan Assn., 509 F.2d 140, 144 (5th Cir.
1975)). And, “‘the working conditions [must] have been so difficult or unpleasant that a
reasonable person in the employee’s shoes would have been compelled to resign.’” Id.
The allegations in the Complaint fail to support the conclusory statements that
Plaintiff was forced to retire on the basis of either her age or disability.
While
paragraphs 67 and 68 indicate that Plaintiff was “shocked” with the changes made to
her responsibilities, it is not alleged that these changes made her position intolerable,
therefore coercing her into retiring against her will. Nor does the complaint allege any
way in which these changes may relate to an attempt to discharge her on the basis of
her age or potential disability. Instead, the allegations are reasonably read to state that
Plaintiff was surprised that the department had made changes while she was on leave,
expressed an opinion about departmental staffing, and then brought up retirement of
her own accord assumedly because of her displeasure with the changes. Therefore, as
far as potential constructive discharge goes, “the plaintiff[] [has] not nudged [her] claims
across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
Page 15 of 19
570, 127 S. Ct. 1955, 1974 (2007).
Reading further, the additional information supplied as background in paragraphs
17-54 may be interpreted as alleging a basis for finding a continuing violation. Those
paragraphs contain five references to instances where a former supervisor asked
Plaintiff about her retirement plans and one instance where he denied her “flex-time” for
a medical appointment. However, these events occurred two or three years earlier while
she was working in a different department under a different supervisor. Compl. ¶¶ 26-39,
ECF No. 1. Plaintiff alleges no connection between the earlier events and those in the
instant case. As previously stated, it was Plaintiff who suggested that she might retire in
this instance, and the conditions that she faced upon her return are not alleged to have
been intolerable. Since there was no negative or coercive action on behalf of the
Defendant in the instant case, the most recent events cannot be interpreted as the
latest in a series of actions toward constructive discharge. Thus, Plaintiff was not
constructively discharged, and without any other allegations of actual discharge or other
adverse employment actions, Plaintiff’s ADA and ADEA claims fail and must be
dismissed.
In the absence of any adverse employment action, the Court determines that it is
unnecessary to decide whether Plaintiff has sufficiently alleged a disability or perception
of disability under the ADA. The Court does note that the complaint is sorely lacking on
this element as well because it offers no allegations illustrating Plaintiff’s substantial
limitations required to qualify as disabled under the ADA, nor does the complaint offer
Page 16 of 19
any basis for believing that Defendant regarded Plaintiff as disabled.1
Plaintiff alleges no adverse employment action due to
engaging in a protected activity
Plaintiff’s allegations regarding her retaliation claim are just as inadequate as her
discrimination claims, failing to state any adverse employment action taken in response
to any engagement in a protected activity. Although not clear from the complaint,
Plaintiff’s response to Defendant’s motion states that she engaged in a protected
activity when she twice requested additional leave in order to continue recuperating
from knee surgery. Pl.’s Resp. Mot. Dismiss at 17, ECF No. 10. Additionally, Plaintiff
states that she suffered an adverse employment action in retaliation for these requests
when she was forced to retire. Id. at 17-18. The relevant paragraphs of the Complaint
are as follows:
60. On or about January 12, 2011, Plaintiff continued having severe leg and
knee pain.
61. Plaintiff again saw several doctors, but this time was informed that she
required surgery.
62. Thereafter, Plaintiff was out on disability leave for the full six (6) months.
63. On July 14, 2011, at the advice of her doctors, Plaintiff requested an
additional thirty (30) day leave of absence after having complications from
the surgery, but was denied.
64. However, Human Resources notified Plaintiff that she was approved for the
thirty (30) days, but still needed approval from her supervisor, which she
never received.
65. On July 28, 2011, Plaintiff sent a second request for a thirty (30) day leave of
absence, but never received an answer.
66. On August 22, 2011, Plaintiff was required to return to work because again,
she was scared that she would either going [sic] to be terminated or lose her
1
Indeed, Plaintiff’s counsel at oral argument on June 21, 2013, conceded that the complaint failed to state a
plausible cause of action under the ADA, stating: “I would agree [under Rule 11] there would be no cause of action
for the ADA.”
Page 17 of 19
health insurance.
Compl. ¶¶ 60-67, ECF No. 1.
As discussed in the analysis of Plaintiff’s ADA and ADEA discrimination claims
above, the Court does not find that the Plaintiff suffered any adverse employment
action. She voluntarily retired from her position with the County, and any allegations that
she was coerced into resigning are conclusory or insufficient. Moreover, counsel for
Plaintiff admitted at oral argument that Plaintiff received an additional seventh month of
leave she alleges she requested but was either denied or received no answer on in
paragraphs 63-65.2 So to the extent that refusing to approve of her taking leave could
be inferred as an adverse employment action, there is no such allegation because
Plaintiff received what she had asked for without any detrimental effect. Since the
Plaintiff has not suffered an adverse employment action, her retaliation claim is also
dismissed.
2
The Court notes that the allegations in paragraphs 62-66 could also be interpreted to mean that Plaintiff took six
months leave as allowed under New York State law (N.Y. CLS Work Comp § 205), a seventh month as allowed
under her CSEA union agreement (which was included as Exhibit 6 to Defendant’s motion papers), and that she
was seeking an eighth month of leave to finish recuperating. Since she was not granted an eighth month, this
might have qualified as a request for reasonable accommodation assuming she was or was perceived to be
disabled. However, when questioned directly at oral argument about this apparent ambiguity in the Complaint,
Plaintiff’s attorney explicitly stated that Ms. Caskey was seeking and received only seven months of total leave
when she made the requests. Therefore, to the extent that she could have been seeking an eighth month and
such request was denied or ignored by the Defendant, the Court takes the word of Ms. Caskey’s attorney that such
was not the case and infers that she was either unaware of the seventh month she was entitled to as a union
member or was simply trying to inform her employer of her intent to avail herself of that benefit.
To the extent that the CSEA agreement was not part of the original complaint and should not be considered for the
purpose of ruling on this motion, the Court is aware of its limitations as laid out in Rothman v. Gregor, 220 F.3d 81,
88-89 (2d Cir. 2000). However, the applicable portion of the agreement was included with the Defendant’s motion
and brought to the attention of the Court an alternative interpretation of paragraphs 62-66 of the Complaint of
which it would not otherwise have been aware. Subsequently, the Court questioned Ms. Caskey’s attorney at oral
argument about this interpretation which counsel explicitly rejected as discussed above. So, to the extent that the
Court may have peeked behind the iron curtain of the complaint, doing so could have only helped Plaintiff survive
this motion.
Page 18 of 19
CONCLUSION
In conclusion, Plaintiff has failed to adequately allege any adverse employment
action subsequent to the stipulation of dismissal signed as part of her 2011 litigation
against Defendant.
Any claim of constructive discharge is undermined by the
inadequacy of the paragraphs apparently attempting to allege that the conditions of her
employment upon her return from leave were intolerable. Furthermore, any attempt to
support the theory of constructive discharge by alluding to a continuing violation by the
County through the “background” information provided in the complaint is misguided in
light of the fact that it was Plaintiff herself who suggested she might retire in the instant
case. Finally, counsel for Plaintiff explicitly disclaimed that Plaintiff was denied her
request for additional leave and instead acknowledged she had taken the additional
time requested without confirmation of approval. Since all of Plaintiff’s claims require
that she be harmed in some way and no harm has been plausibly alleged, all of
Plaintiff’s claims are hereby dismissed.
IT IS SO ORDERED.
Dated: July 15, 2013
Rochester, New York
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
Page 19 of 19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?