Moran v. Wegmans Food Markets, Inc.
Filing
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-CLERK TO FOLLOW UP-ORDER granting defendant's 4 Motion to Dismiss, and dismissing the complaint in its entirety, with prejudice. Signed by Hon. David G. Larimer on 12/13/14. (EMA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
STEVEN MORAN,
Plaintiff,
DECISION AND ORDER
13-CV-6343L
v.
WEGMANS FOOD MARKETS, INC.,
Defendant.
________________________________________________
INTRODUCTION
Plaintiff Steven Moran (AMoran@) brings this action alleging that defendant Wegmans
Food Markets, Inc. (“Wegmans”) discriminated against him with respect to his employment in
violation of the Americans with Disabilities Act (AADA@), 42 U.S.C. '12101 et seq. and the New
York Human Rights Law, N.Y. Exec. Law §296. 1
Moran has been employed since in or about 1996 by Wegmans as a truck driver. On or
about November 26, 2011, Moran filed a discrimination complaint against Wegmans with the
Equal Employment Opportunity Commission (“EEOC”), alleging that Wegmans had refused to
1 The NYHRL contains provisions against discrimination and retaliation that are similar to those under the
ADA, and are thus governed and analyzed using the same standards. See Rodal v. Anesthesia Group of Onondaga,
P.C., 369 F.3d 113, 117 n. 1 (2d Cir. 2004); Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).
permit him to take time off of work as a reasonable accommodation for his disability, testicular
cancer. 2
Moran alleges that the EEOC investigated his claims (the result of that investigation is not
specified), and that on April 4, 2013, the EEOC issued him a “90-day right to sue” letter. This
action followed. In his complaint, Moran amplifies the claims he made before the EEOC with the
following additional allegations: (1) in or about April 2011, Moran began working closely with
Wegmans’ Human Resources department to “address his need to take off certain days of work due
to his ongoing medical condition as a reasonable accommodation”; (2) on or about August 7, 2011,
Moran began feeling ill and left work to visit his physician; (3) later in the day, Moran’s physician
faxed a message to Wegmans stating that Moran would need to be out of work for the next three
days; and (4) on August 10, 2011, plaintiff returned to work, but was sent home after being
informed that he would spend the day on suspension for violating Wegmans’ attendance policy.
(Dkt. #1 at ¶¶20-23).
2 The Court notes that the plaintiff’s complaint, as well as the attorney affidavit in opposition to the motion
to dismiss, allege that “[d]efendant regarded Plaintiff as substantially limited in the major life activities [of caring for
himself, concentrating, thinking, communicating and working], and subjected him to a hostile work environment
because of a perception of mental illness based on myth, fear, and/or stereotype, as detailed below.” (Dkt. #1 at ¶19,
repeated and referenced at Dkt. #14 at 3) (emphasis added). However, the record contains no other reference to this
factual allegation, and plaintiff, in his EEOC charge, described the nature of his disability as, “cancer and related
medical conditions.” (Dkt. #14-1, Exh. B). Plaintiff’s counsel conceded at the July 22, 2014 hearing on the instant
motion that the inclusion of this allegation in the complaint was probably the result of a careless cut-and-paste job by
plaintiff’s former attorney, Christina Agola, who has since been suspended from practice. The Court thus assumes
that the hostile work environment and mental illness allegations are not actually part of plaintiff’s claim, regardless of
the fact that his present counsel appears to have compounded that error by parroting them in his affidavit in opposition
to the present motion.
Wegmans now moves to dismiss the Complaint pursuant to Fed. R. Civ. Proc. 12(b)(6), on
the grounds that Moran=s complaint fails to state a cause of action for disability-based
discrimination or retaliation. (Dkt. #4). For the reasons set forth below, the motion to dismiss is
granted, and the complaint is dismissed.
DISCUSSION
I.
Standard for Deciding a Motion to Dismiss
In deciding a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6), the Court’s review is
limited to the complaint, and those documents attached to the complaint or incorporated therein by
reference. See Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir.
1996).
The Court must “accept the allegations contained in the complaint as true, and draw all
reasonable inferences in favor of the non-movant.” Sheppard v. Beerman, 18 F.3d 147, 150 (2d
Cir. 1994), citing Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass=n v. Bernard M. Baruch
College, 835 F.2d 980, 982 (2d Cir. 1987). Nonetheless, “a plaintiff=s obligation . . . 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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, “bald assertions and
conclusions of law will not suffice,” Reddington v. Staten Island Univ. Hosp., 511 F.3d 126, 126
(2d Cir. 2007), and where a plaintiff “ha[s] not nudged [his] claims across the line from
conceivable to plausible, [his] complaint must be dismissed.” Twombly, 550 U.S. 544 at 570.
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II.
Moran’s Discrimination Claim
Title I of the ADA prohibits employers from discriminating again any “qualified individual
with a disability because of the disability of such individual in regard to” any aspect of
employment. 42 U.S.C. '12112(a). A plaintiff asserting a violation of the ADA must show that:
(1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he
was otherwise qualified to perform the essential functions of his job, with or without reasonable
accommodation; and (4) he suffered adverse employment action because of his disability. See
Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001).
Upon careful review of Moran’s complaint, I find that he has failed to state a plausible claim of
disability-based discrimination.
While Moran has alleged that he was disabled within the meaning of the ADA and NYHRL
during the time period in question, he has failed to plausibly allege that he was qualified to perform
the essential functions of his position at the time of the alleged discriminatory acts, with or without
reasonable accommodation. Indeed, Moran does not even set forth any of the essential functions
of his position. While the Court can reasonably infer that the essential functions of a job denoted
“Truck Driver” primarily consist of driving a truck, Moran nonetheless fails anywhere in the
complaint to allege that he was able to perform the requirements of the truck driver position, with
or without a reasonable accommodation. See generally Graves v. Finch Pruyn & Co., 2009 U.S.
App. LEXIS 25142 at *560 (2d Cir. 2009) (”[w]e have never expressly held that leaves of absence
from an employee’s job taken in order to recover from the employee’s disability are ‘reasonable
accommodations’ under the ADA . . . [e]ven assuming that they can be under certain
circumstances, however, they must enable the employee to perform the essential functions of his
job”) (unpublished opinion); Petrone v. Hampton Bays Union Free Sch. Dist., 2013 U.S. Dist.
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LEXIS 97292 at *69-*70 (E.D.N.Y. 2013) (unless an employee seeking medical leave as a
“reasonable accommodation” made a showing to the employer, contemporaneous with the request,
that the accommodation would allow him to perform the essential functions of his job, “the
employee has not established that he was a qualified individual”).
The Court declines plaintiff’s invitation to extrapolate his allegation that he “maintained an
above average work record” in his employment into an affirmative averment that he was able to
perform the requirements of his position with or without reasonable accommodations at or around
the time of his suspension. (Dkt. #14 at 8-9). While the Court is mindful of the need to grant
plaintiff every favorable inference on a motion to dismiss his pleading, the Court is not free to
correct its deficiencies sua sponte, by straying so far beyond the plain meaning of the text that it
imagines factual allegations which are not actually there. If plaintiff wished to amend the
complaint in response to the omissions identified by Wegmans in its motion to dismiss, he could
have cross moved to do so. Plaintiff opted to rely upon his original complaint, and the Court’s
analysis is accordingly cabined by the four corners of that pleading, in addition to the inferences
that can reasonably be drawn therefrom, and documents incorporated therein by reference.
Even assuming arguendo that the Court could or should infer simply by the nature of
Moran’s claims that he believed, and intended to convey in the complaint, that he “could return to
work under the right circumstances,” Haight v. NYU Langone Med. Ctr., 2014 U.S. Dist. LEXIS
88117 at *47 (S.D.N.Y. 2014), Moran has also failed to plausibly allege that he was subjected to an
adverse employment action. An adverse employment action is “a materially adverse change in
the terms and conditions of employment,” such as “termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits,
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significantly diminished material responsibilities, or other indices unique to a particular situation.”
Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004).
Initially, mere “threats” to terminate one’s employment do not, by themselves, constitute
adverse employment actions. See Honey v. County of Rockland, 200 F. Supp. 2d 311, 320-21
(S.D.N.Y. 2002) (“courts in this circuit have found that reprimands, threats of disciplinary action
and excessive scrutiny do not constitute adverse employment actions in the absence of other
negative results”). While a suspension can comprise an adverse employment action where it
negatively affects the terms and conditions of one’s employment, or exceeds the “employee’s
normal exposure to disciplinary policies” by going beyond the employer’s typical disciplinary
procedures, Moran makes no such allegation in the complaint. See Joseph v. Leavitt, 465 F.3d 87
at 92 n.1 (2d Cir. 2006). Moran’s only allegations concerning the one-day suspension in August
2011 – an action that Moran’s October 2011 EEOC charge did not even mention – is that it was
ostensibly done to punish his violation of Wegmans’ attendance policies following his
unauthorized three-day absence, and that it “has remained on Plaintiff’s [employment] record”
despite Moran’s effort to have it expunged. (Dkt. #1 at ¶26). See generally Brown v. City of
Syracuse, 673 F.3d 141 (2d Cir. 2006) (suspension with pay does not, without more, constitute an
adverse employment action). Moran does not allege that the suspension (or the record of it) had
any negative repercussions on the terms and conditions of his employment whatsoever, or that it
strayed beyond the boundaries of Wegmans’ disciplinary policies relative to attendance.
Because Moran has failed to allege facts establishing that he is a “qualified individual” for
purposes of the ADA and NYHRL, and/or that he was subjected to an adverse employment action
because of his disability, he has failed to state a plausible claim of disability-related discrimination
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under the ADA or NYHRL. Those claims are dismissed. See generally Iqbal v. Hasty, 490 F.3d
143 at 157-158.
III.
Moran=s Retaliation Claim
Moran also claims that the one-day suspension, along with threats by Wegmans to
terminate his employment, were adverse employment actions which occurred in retaliation for his
request for the “reasonable accommodation” of time off from work.
To state a claim for retaliation under the ADA, a plaintiff must allege that: (1) he engaged
in an activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer
took an adverse employment action against him; and (4) a causal connection exists between the
alleged adverse action and the protected activity. See Treglia, 313 F.3d 713 at 719.
First, I find that Moran has not plausibly alleged that he engaged in protected activity.
Although Moran characterizes the doctor’s note that was faxed to Wegmans on August 7, 2001 –
stating that Moran would be absent from work for three days – as a “request for an
accommodation,” the facts alleged in the complaint do not support the conclusion that it was a
“request” for anything. Moran alleges only that he left work because he was feeling poorly and
needed to see his physician, and didn’t return for three days. His actions, as alleged, were entirely
unilateral: Wegmans had no opportunity to grant or deny Moran time off as an accommodation,
because Moran never requested it: he simply “took off” from work, apparently without advising
anyone of his intention to do anything other than attend to a doctor’s appointment.
Furthermore, Moran has failed to plausibly allege a causal connection between any other
protected activity and his suspension. To the extent that Moran’s previous attempts to obtain days
off as an accommodation, alleged to have commenced in April 2011, might be viewed as the
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“protected activity” to which Wegmans was supposedly responding when it suspended Moran in
August 2011, the four-month lapse of time between those events is too remote to indicate such a
connection, given that temporal proximity is the sole evidence of causal connection upon which
Moran relies. (Dkt. #1 at ¶20) (Moran alleges that in April 2011, he began “work[ing] closely
with [Wegmans] Human Resources to address his need to take off certain days of work due to his
ongoing medical condition as a reasonable accommodation”). See e.g., Brown v. City of New
York, 2014 U.S. Dist. LEXIS 159202 at *9-*10 (S.D.N.Y. 2014) (collecting cases and noting that
where months pass between the alleged protected activity and the alleged adverse employment
action, temporal proximity alone is insufficient to plead or prove a causal link between them).
For these reason, I find that Moran had failed to state a plausible claim for retaliation under
the ADA or NYHRL, and those claims are dismissed.
CONCLUSION
For the foregoing reasons, I find that Moran has failed to state a claim upon which relief
can be granted. Accordingly, defendant’s motion to dismiss the complaint (Dkt. #4) is granted,
and the complaint is dismissed in its entirety, with prejudice.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
December 12, 2014.
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