695 F.Supp.3d 551
S.D.N.Y.2023Background
- Plaintiff Robert Crosby, Jr. worked as Loss Prevention Manager at Stew Leonard’s Yonkers from 2001 until his termination in September 2020; he alleges repeated racial, sexist, and antisemitic remarks and a hostile work environment by CEO Stew Leonard Jr.
- In March 2020 Crosby raised COVID-19 safety concerns, was exposed, tested positive, was hospitalized, and suffered prolonged "Long Haul" COVID symptoms; he took FMLA leave and additional paid leave and sought accommodations and medical clearance to return.
- Crosby alleges Defendants pressured him to return, expected work while on medical leave, denied accommodations, and terminated him shortly after a second hospitalization; he also alleges prior exclusion from management communications.
- Procedurally, Crosby filed a Third Amended Complaint asserting claims under the ADA, Title VII, NYSHRL, and the FMLA; Defendants moved to dismiss and to strike portions of the TAC. The decision is by Judge Kenneth M. Karas (S.D.N.Y.), Sept. 28, 2023.
- Administrative exhaustion: Crosby filed charges with NYSDHR and EEOC and received a right-to-sue letter before filing suit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to strike specific TAC paragraphs | Paragraphs 46–59 relevant to hostile work environment and COVID-related conduct | Allegations are immaterial/scandalous and intended to embarrass | Strike granted as to ¶¶ 46–48 (burial-site allegations); denied as to ¶¶ 49–59 (COVID/workplace safety allegations may be relevant) |
| ADA / NYSHRL disability discrimination & failure-to-accommodate | Crosby alleges disability (Long Haul COVID), requested accommodations, worked from home, and was terminated after hospitalizations—sufficient to infer discrimination and ability to perform with accommodations | Defendants argue no discriminatory motive pleaded and plaintiff could not perform essential functions (attendance/onsite duties) | Claim survives: court finds plausible minimal inference of disability-based motive and that factual inquiry on essential functions/accommodation is premature on Rule 12(b)(6) |
| Title VII & NYSHRL retaliation (for opposing discrimination) | Crosby claims he repeatedly complained about discriminatory conduct and COVID safety, and suffered adverse actions (threats, exclusion from emails, termination) | Defendants argue allegations fail to identify actionable adverse acts or causal nexus (temporal gap, vagueness) | Claim dismissed: plaintiff failed to plausibly allege an adverse action causally connected to protected activity (temporal proximity and specificity lacking) |
| FMLA retaliation & interference | Crosby contends he exercised FMLA rights and was retaliated against and/or denied FMLA benefits (pressured to work, expected to work while on leave) | Defendants argue he exhausted FMLA leave before termination and no close temporal or other evidence of retaliatory intent; no interference during protected period | Claims dismissed: no plausible inference of retaliation given temporal gap; interference fails because alleged interference occurred after FMLA period and plaintiff did not show denial of FMLA benefits |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state plausible claim for relief)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (court must accept well-pleaded factual allegations and may disregard legal conclusions)
- Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015) (reduced prima facie pleading standard: show facts giving rise to a minimal inference of discriminatory intent)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden-shifting framework for discrimination/retaliation claims)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (retaliation: adverse action defined by acts that could dissuade a reasonable worker)
- McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013) (physical presence/time-specific attendance not per se an essential job function; fact-specific inquiry required)
- Lipsky v. Commonwealth United Corp., 551 F.2d 887 (2d Cir. 1976) (Rule 12(f) motions to strike are disfavored; relevance/admissibility usually require fuller record)
(Disposition: ADA and NYSHRL disability/disability-accommodation claims survive; Title VII/NYSHRL retaliation and FMLA retaliation/interference claims dismissed without prejudice; paragraphs 46–48 of the TAC struck; 30-day leave to amend.)