Case Information
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBERT CROSBY, JR.,
Plaintiff,
No. 22-CV-4907 (KMK) v. OPINION & ORDER
STEW LEONARD’S YONKERS LLC and STEW LEONARD, JR.,
Defendants. Appearances:
Karen L. Mizrahi, Esq.
Hertz Legal, PC
Croton-On-Hudson, NY
Counsel for Plaintiff
Loraine M. Cortese-Costa, Esq.
Law Offices of Loraine Cortese-Costa
Old Saybrook, CT
Counsel for Defendants
KENNETH M. KARAS, United States District Judge:
Plaintiff Robert Crosby, Jr. (“Plaintiff”) brings this Action against Stew Leonard’s Yonkers LLC (“Stew Leonard’s Yonkers”) and Stew Leonard, Jr., (“Leonard”; collectively, “Defendants”), alleging wrongful termination and discrimination based on Plaintiff’s disability in violation of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12132, et seq. , discrimination and retaliation based upon Plaintiff’s race, gender, and religion under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. , disability discrimination under New York Human Rights Law (“NYSHRL”), New York Executive Law § 296, and various violations sounding in retaliation and interference with the exercise of rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601–2654. ( See Third Am. Compl. (“TAC”) (Dkt. No. 52).) [1] Before the Court are Defendants’ Motion to Dismiss the TAC and Motion to Strike portions of the TAC (collectively, the “Motions”). ( See Not. of Mot. (“Not. of Mot. 1”) (Dkt. No. 55); Not. of Mot. (“Not. of Mot. 2”) (Dkt. No. 57).) [2] For the foregoing reasons, Defendants’ motions are granted in part and denied in part.
I. Background
A. Motion to Strike
As an initial matter, Defendants ask this Court to strike a series of paragraphs in
Plaintiff’s complaint under Federal Rule of Civil Procedure 12(f). (
See
Defs’ Mem. 17–18.)
Rule 12(f) provides in relevant part that “[t]he court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
“Federal courts have discretion in deciding whether to grant motions to strike.”
Capri Sun
GmbH v. Am. Beverage Corp.
,
The Second Circuit has instructed that “ordinarily” a district court should not “decide to
strike a portion of the complaint on the grounds that the material could not possibly be relevant
on the sterile field of the pleadings alone.”
Lipsky v. Commonwealth United Corp.
, 551 F.2d
887, 893 (2d Cir. 1976);
see also Frio Energy Partners, LLC. v. Finance Tech. Leverage, LLC
,
—F. Supp. 3d—,
Here, Defendants have asked the Court to strike paragraphs 46 through 59 of Plaintiff’s complaint, because “[t]he only possible motivation for including the allegations appears to be to defame and embarrass the corporate and individual Defendants.” (Defs’ Mem. 18.) The allegations can be categorized as follows: (1) Plaintiff’s identification of an Orthodox Jewish Cemetery on Stew Leonard’s Yonkers property, ( see TAC ¶¶ 46–48); and (2) Defendants’ response to the onset of the COVID-19 pandemic and Plaintiff’s allegations regarding working conditions at Stew Leonard’s Yonkers during the pandemic, ( see id . ¶¶ 49–59). In opposition, Plaintiff argues that the allegations “are relevant and pertinent to illustrate [P]laintiff’s concerns about the hostile racist, sexist[,] and antisemitic work environment created by Defendants” as well as relevant to Plaintiff’s “work-related PTSD.” (Mem. of Law in Opp. to Mot. (“Pl’s Opp.”) 20 (Dkt. No. 62).)
As to the first category of allegations, it is clear that these allegations “have no bearing on
the relevant issues” and would prejudice the Defendants.
Lynch
,
However, as to the second set of allegations, the Court denies Defendants’ motion.
While the Court agrees with Defendants that Plaintiff offers “scant evidence in [his] pleadings”
that these categories are relevant to Plaintiff’s claims, the Court cannot find that Plaintiff’s
allegations, taken as true, have no potential bearing on the issues in this case.
See Li v. China
Merchants Bank Co., Ltd.
, No. 22-CV-9309,
Accordingly, the Court denies Defendants’ motion to strike paragraphs 49–59.
See id
. at
*3–4 (granting a motion for reconsideration of a motion to strike);
Lipsky
,
B. Factual Background
The following facts are drawn from the Complaint and are assumed to be true for the
purposes of resolving the instant Motion.
See Div. 1181 Amalgamated Transit Union-N.Y. Emps.
Pension Fund v. N.Y.C. Dep’t of Educ.
,
Plaintiff is a male resident of Orange County in New York, who began working at Stew Leonard’s Yonkers as a “Loss Prevention Manager” in February 2001, earning $97,359.78 per year at the time of Plaintiff’s termination in September 2021. (TAC ¶¶ 13, 16–17, 22–23.) [3] Stew Leonard’s Yonkers is a 120,000 square-foot grocery store in Yonkers, New York. ( Id . ¶ 14.) Defendant Leonard is a resident of Westport, Connecticut, and is the CEO of Stew Leonard’s Yonkers. ( Id . ¶ 15.) Plaintiff alleges that at all times relevant to this Action, Leonard “held supervisory authority over Plaintiff,” including the authority to “discipline, hire, fire, affect and/or influence the terms and conditions of Plaintiff’s employment.” ( Id . ¶ 18.)
1. Allegations of Discrimination During Plaintiff’s Employment Plaintiff alleges that, while Stew Leonard’s Yonkers “prides itself as a farm-fresh, family friendly place to work and shop,” Defendants “repeatedly mistreated, ignored, threatened, bullied, and discriminated against” Plaintiff during the course of his employment. ( Id . ¶¶ 26– 27.) Specifically, Plaintiff alleges that he and his co-workers “were subjected to a discriminatory workplace environment that was riddled with systemic racism, sexism, [and] anti[]semitism, to which Plaintiff repeatedly and continually opposed.” ( Id . ¶ 28.)
As to Plaintiff’s racism-related allegations, Plaintiff alleges that Leonard made several racially charged comments throughout Plaintiff’s employment. ( See id . ¶¶ 29–31.) For example, Plaintiff alleges that Leonard “regularly” characterized young African American male employees as “thugs,” referred to another employee as “Big Black Henry” while making comments about the employee’s genitalia, and referred to an African American female employee’s “big black lips.” ( Id .) On one occasion on or about March 11, 2020, Plaintiff alleges that Leonard told Plaintiff to tell another employee to “pull up his pants or get rid of him,” referring to an African American employee using the n-word. ( Id . ¶ 41.)
Plaintiff also alleges that Leonard made numerous sexist comments, referring to women as “bitches” and otherwise making sexually suggestive and explicit commentary throughout Plaintiff’s course of employment. ( Id . ¶ 36; see also id . ¶¶ 37–40.) For example, Plaintiff describes a Christmas party “in the early 2000s” where Leonard “insisted that upper management wear sexually suggestive and inappropriate attire, including fake breasts, lingerie, sex toys[,] and present a sexually suggestive and offensive skit.” ( . ¶ 37; see also id . ¶ 38 (presenting additional allegations related to the alleged party).) Plaintiff also alleges “[u]pon information and belief” that Leonard “disseminated photographs” of his wife and other women topless on a beach throughout the workplace. ( Id . ¶ 39.) In addition, on or about March 11, 2020, Plaintiff alleges that Leonard made a derogatory comment about a female customer, stating “I don’t know how you guys do it working with these hot bitches all day, I’d blow my load.” ( Id . ¶ 40.)
Finally, Plaintiff alleges that Leonard made repeated, derogatory comments regarding Jewish employees throughout his employment. ( See id . ¶¶ 32–35.) Specifically, Plaintiff alleges that Leonard referred to white male Jewish employees as his “resident Jews,” “Resident Yonkers Jew,” and as his “Jew Boy.” ( Id . ¶¶ 32, 35.) On or around December 2012, Plaintiff witnessed Leonard provide a racist and antisemitic video to a Jewish employee entitled “Hannukah Song, Hood Style” which “feature[ed] African American and Hispanic men sarcastically mocking and ‘celebrating’ the Jewish holiday.” ( Id . ¶ 34.) Finally, Plaintiff alleges that Leonard repeatedly stated that “Jews were the ‘worst customers to deal with.’” ( Id . ¶ 33.)
Plaintiff alleges that, “[o]ver the course of his near 20 years of employment, Plaintiff repeatedly and consistently, reasonably believed that Defendant Leonard[’s] behavior was discriminatory and repeatedly and consistently opposed such discriminatory practices . . . by complaining to . . . the head of Human Resources and others.” ( Id . ¶ 42.) However, the head of HR allegedly told Plaintiff that Leonard’s actions were “Stew[] just being Stew” and that “he means no harm; he has no filter.” ( Id . (italics omitted).) Plaintiff alleges that “Defendants not only ignored all of [Plaintiff]’s complaints, but the unlawful conduct continued, and [Defendants] threatened [Plaintiff] with disciplinary action, including the termination of his employment.” ( Id . ¶ 45.) In addition, “on or about 2011, Defendants began to exclude [Plaintiff] from management-wide emails, thereby taking disciplinary and retaliatory action against him.” ( .)
2. Plaintiff’s Health During His Employment Plaintiff alleges that, on or about March 5, 2020, Plaintiff “had become increasingly concerned about the lack of Personal Protective Equipment (PPE) available at Stew Leonard’s of Yonkers and complained at a manager’s meeting” and expressed concern about “a co-worker [who] had been in close contact with another individual who had been exposed to COVID-19, but that the Defendants had not taken any steps to quarantine this employee.” ( Id . ¶ 49.) Plaintiff alleges continued complaints throughout 2020 to managers and HR and that “Defendants were not permitting social distancing, team members were not permitted to wear protective masks and gloves” and more, but that Plaintiff’s complaints were ignored. ( Id . ¶¶ 50– 56.) On or about March 28, 2020, Plaintiff complained at a manager’s meeting about “having contact with multiple team members who were COVID positive,” but Plaintiff alleges that the manager “dismissed Plaintiff’s plea for help and guidance as to protocols and procedures.” ( Id . ¶ 57.) Plaintiff alleges that he was told by two supervisors and the head of HR “to keep quiet about Defendants[’] unsafe working environment or he would lose his job.” ( Id . ¶ 59.)
On March 29, 2020, Plaintiff notified HR and management through email that he had been exposed to an employee in the receiving department who had been infected by COVID-19, seeking advice as to the COVID-19 protocol. ( Id . ¶ 60.) Defendants “promised Plaintiff, as a precautionary measure, to remain out of work for 14 days.” ( Id . ¶ 61.) On March 31, 2020, Plaintiff emailed HR stating that another employee had contacted Plaintiff, notifying him that he was hospitalized with complications from COVID-19. ( Id . ¶ 63.) In the email, Plaintiff stated that he had “extended contact” with the employee on March 27, 2020. ( Id .) Plaintiff alleges that no member of HR responded to his email. ( Id .) Defendants notified Plaintiff, however, that he was expected to return to work on April 4, 2020. ( Id . ¶ 62). On April 3, 2020, Plaintiff tested positive for COVID-19. ( . ¶ 64).
Plaintiff was hospitalized after he experienced numerous COVID-19 related symptoms, including “low oxygen levels, shortness of breath, fever, severe gastrointestinal and digestive issues (diverticulitis), migraines, loss of smell and taste, nausea, brain fog, Epstein Barr Syndrome, Chronic Fatigue Syndrome, memory loss, muscle weakness, dizziness, blurred vision and anxiety, psoriasis, [and] mast cell activation syndrome.” ( Id . ¶ 65.) Plaintiff requested Family and Medical Leave under the Family Medical Leave Act (“FMLA”), which was granted through June 22, 2020. ( Id . ¶ 66.) Plaintiff took additional discretionary personal leave until July 22, 2020, pursuant to his 80 hours of “banked time.” ( Id .) Plaintiff alleges that Defendants “pressured him to return to work” at the end of his FMLA leave, despite being “aware that Plaintiff was still suffering from Long Haul COVID-19.” ( Id . ¶ 67.) Plaintiff alleges that Defendants “failed to engage in the required interactive process to determine whether an accommodation was available, despite [P]laintiff’s repeated requests for an accommodation.” ( Id .) At the end of Plaintiff’s personal leave, “due to repeated threats from co-workers that . . . HR . . . [was] looking to terminate him,” Plaintiff requested medical clearance to return to work. ( Id .)
Sometime thereafter, Plaintiff returned to work which “proved extraordinarily difficult and his condition worsened.” ( Id . ¶ 68.) On August 13, 2020, Plaintiff alleges that his symptoms, which resembled his symptoms at the onset of his COVID-19 diagnosis, became “so debilitating that he could no longer even report to work,” so Plaintiff took paid Family Personal Time (“FPT”). ( Id .) Plaintiff alleges that “[t]hese symptoms substantially limited [his] life activities, including but not limited to difficulty breathing, difficulty walking, needing to sit frequently, [and] difficulty focusing.” ( .) However, Plaintiff alleges that he was “able to perform the essential function of his job with or without an accommodation” as he continued to “work from home and the hospital while disabled.” ( Id .) Plaintiff also alleges that, before he returned to work, Defendants “forced Plaintiff to work from home despite his condition[,] [a]lthough he had repeatedly requested . . . a reasonable accommodation at that time.” ( Id . ¶ 69.) “At no point during this period did Defendants advise Plaintiff of how much FMLA, leave, sick pay, vacation time[,] or banked time he had remining to use for the year.” ( Id . ¶ 70.) On September 1, 2020, several coworkers told Plaintiff that he needed to return to the job or “they are going to fire you.” ( Id . ¶ 71.) Plaintiff “[f]ear[ed] he would lose his job” and returned to work “even though he was still disabled with Long Haul COVID-19 and even though Defendants were aware of his disability.” ( Id .)
On September 4, 2020, Plaintiff asked the Vice President of the Yonkers store (Plaintiff’s supervisor) for permission to leave work at 1:00PM because he was experiencing gastrointestinal issues related to his diverticulitis. ( Id . ¶ 72.) The Vice President allowed Plaintiff to leave, however Plaintiff alleges that “at no point did Defendants engage in the interactive process to identify a suitable accommodation that would permit [Plaintiff] to perform the essential functions of his job while he suffered from Long Haul COVID-19.” ( Id . ¶ 73.) On September 5, 2020, Plaintiff was admitted to the hospital again with severe gastrointestinal issues, where he remained until he was released on September 11, 2020. ( Id . ¶¶ 74–75.) On or about September 5, 2020, Plaintiff submitted a medical note to Defendants requesting a short leave as an accommodation, “or in the alternative, the ability to work from home or create a modified schedule.” ( Id . ¶ 82.) Plaintiff also alleges that accommodations Plaintiff requested were extended to several disabled and nondisabled employees. ( See id . ¶ 87.)
While in the hospital on September 6, 2020, the Vice President directed Plaintiff to work “by scheduling a police detail” for the store; a request with which Plaintiff complied. ( . ¶ 76.) On September 10, 2020, Plaintiff spoke with the Vice President from the hospital, where the Vice President “acknowledged that he too had diverticulitis and knew how debilitating it was, yet he continued to demand that Plaintiff work from his hospital bed.” ( Id . ¶ 77.) Plaintiff alleges that “[d]uring [his] period of convalescence, he repeatedly requested of the Defendants a reasonable accommodation until he fully recovered from the Long Haul COVID-19 symptoms but once again, Defendants ignored his requests.” ( Id . ¶ 78; see also id . ¶¶ 79–81.)
On September 28, 20202, Defendants terminated Plaintiff’s employment. ( Id . ¶ 85.) At the time of termination, HR told Plaintiff that “he had utilized all of his ‘protected leave’” which Plaintiff alleges is false. ( Id . ¶ 86.) Plaintiff also alleges that Defendants have failed to pay him the remaining 80 hours of “banked time” or his accrued PTO. ( Id .)
3. EEOC Exhaustion On June 1, 2021, Plaintiff filed a discrimination complaint with the New York State Division of Human Rights (“NYSHDR”) and the Equal Employment Opportunity Commission (“EEOC”). ( Id . ¶ 8.) On November 30, 2021, Plaintiff received a Notice of Probable Cause finding from the NYSDHR. ( . ¶ 9; see also NYSDHR Rpt.) On December 8, 2021, Plaintiff requested administrative dismissal of the matter before the NYSDHR to file the instant Action, which was granted on February 15, 2022. ( See TAC ¶ 10; TAC Ex. 2 (Dkt. No. 52-3).) On March 28, 2022, Plaintiff received a Notice of Right to Sue from the EEOC. (TAC ¶ 11; see also TAC Ex. 3 (Dkt. No. 52-4).)
C. Procedural History
Plaintiff filed his initial Complaint on or about June 13, 2022. ( See Compl (Dkt. No. 3).) [4] On June 17, 2022, Plaintiff filed the First Amended Complaint. ( See First Am. Compl. (“FAC”) (Dkt. No. 8).) On July 12, 2022, Plaintiff filed seven successive motions for default judgment, ( see Dkt. Nos. 11–17), however Defendants appeared on the same day, ( see Dkt. Nos. 18–19). On July 12, 2022, Defendants filed a pre-motion letter in anticipation of filing a motion to dismiss. (Dkt. Nos. 21–22.) On July 19, 2022, Plaintiff filed a letter in response requesting leave to amend the FAC, ( see Dkt. No. 24), which the Court granted shortly thereafter, ( see Dkt. No. 26).
On August 18, 2022, Plaintiff filed his Second Amended Complaint. ( See Sec. Am. Compl. (“SAC”) (Dkt. No. 27).) On August 26, 2022, Defendants filed a pre-motion letter in anticipation of filing a motion to dismiss. (Dkt. Nos. 35–36.) After receiving an extension to answer, ( see Dkt. Nos. 38–40), Plaintiff responded to Defendants’ letter on September 11, 2022, ( see Dkt. Nos. 42–43). The Court held a pre-motion conference on October 17, 2022, and adopted a briefing schedule. ( See Dkt. (minute entry for Oct. 17, 2022); Order (Dkt. No. 47)). On October 18, 2022, Plaintiff filed a letter to the Court seeking clarification as to whether, if he removed two claims, the Court would “disallow Defendant[s’] motion to dismiss[,]” and requested an opportunity to file an amended complaint. ( See Dkt. No. 48.) The Court allowed Plaintiff to file another amended complaint, but noted that Defendants were still allowed to file their Motion to Dismiss regardless of any changes to the amended complaint. (Dkt. No. 49.) On or about October 24, 2022, Plaintiff filed his TAC. ( See TAC.) [5]
On September 7, 2022, Defendants filed the instant Motions. ( See Not. of Mot. 1; Not. of Mot. 2; Defs’ Mem.; Mem. of Law in Supp. of Mot. (Dkt. No. 58).) Plaintiff filed his Opposition on October 7, 2022. ( See Pl’s Opp.) On December 13, 2022, Defendants filed their Reply. ( See Reply Mem. in Supp. of Mot. (“Defs’ Reply”) (Dkt. No. 63); Reply Mem. in Supp. of Mot. (Dkt. No. 64).)
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a Rule 12(b)(6) motion to dismiss, “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.”
Bell Atl. Corp. v. Twombly
, 550 U.S.
544, 555 (2007) (alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of
Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”
Ashcroft v. Iqbal
,
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,”
Erickson v. Pardus
,
B. Analysis
Defendants argue that the TAC should be dismissed in its entirety, arguing that the Complaint does not set forth plausible claims of disability discrimination, (Defs. Mem. 7–12); failure to accommodate, ( see id. ); retaliation claims under Title VII or the NYSDHR, ( see id . at 12–15); or any claims under the FMLA, ( see id . at 15–17). The Court will address each argument to the extent necessary to resolve the instant Motion.
1. ADA Discrimination Claims Plaintiff asserts two claims against Defendants under the ADA and NYSHRL for disability discrimination and failure to accommodate. ( See TAC ¶¶ 88–114.) Defendants argue that Plaintiff has not sufficiently alleged either a disability discrimination or failure to accommodate claim under the ADA and the NYSHRL because (1) Plaintiff has not plausibly alleged an unlawful motive based on Plaintiff’s disability, ( see Defs’ Mem. 8–9), and (2) Plaintiff has not plausibly alleged that he was unable to perform the essential functions of his job with or without a reasonable accommodation, ( see id . at 10–12). Because both of Defendants’ arguments touch upon similar elements of both a disability discrimination and a failure to accommodate claim, the Court will address both simultaneously.
a. Legal Standards
A defendant violates the ADA by “not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability . . . unless
such covered entity can demonstrate that the accommodation would impose an undue hardship.”
42 U.S.C. § 12112(b)(5)(A). Under the NYSHRL, the term disability “means (a) a physical,
mental or medical impairment resulting from anatomical, physiological, genetic or neurological
conditions which prevents the exercise of a normal bodily function or is demonstrable by
medically accepted clinical or laboratory diagnostic techniques . . . ” N.Y. Exec. Law § 292(21).
“NYSHRL claims are analyzed as ADA claims.”
Fox v. Costco Wholesale Corp.
,
“To establish a prima facie case of disability discrimination under the ADA or NYSHRL,
a plaintiff must show that (1) the defendant is a covered employer; (2) the plaintiff suffered from,
or was regarded as suffering from, a disability within the meaning of the statute; (3) the plaintiff
was qualified to perform the essential functions of the job, with or without a reasonable
accommodation; and (4) she suffered an adverse employment action because of her disability or
perceived disability.”
Dobbs v. NYU Langone Medical Ctr.
, No. 18-CV-1285, 2021 WL
1177767, at *5 (S.D.N.Y. Mar. 29, 2021) (italics omitted) (citing
Fox
,
“To establish a prima facie case for failure to provide a reasonable accommodation, the
plaintiff must establish: (1) [his] employer is subject to the [NYSHRL]; (2) []he was disabled
within the meaning of the [NYSHRL]; (3) []he was otherwise qualified to perform the essential
functions of her job, with or without reasonable accommodation; and (4) the employer refused to
make such accommodations.”
McKenna
,
b. Analysis
Defendants appear to concede—or at least do not contest for purposes of their Motion—
that (1) Defendants are subject to the ADA and the NYSHRL, and (2) Plaintiff is a person with a
disability under the meaning of the ADA and the NYSHRL. (
See generally
Defs’ Mem.)
However, Defendants first argue that Plaintiff has not pled a plausible claim of a discriminatory
motive based upon Plaintiff’s disability. (
See
Defs’ Mem. 8–9.) Citing
Boncoeur v.
Haverstraw-Stony Point Central School Dist.
, No. 20-CV-10923,
Here, Plaintiff has pleaded sufficient facts to support a minimal inference of
discriminatory motivation. To support a discriminatory animus, Plaintiff alleges that: (1) he
repeatedly complained to management about Defendants adherence to COVID-19 protocols and
was told to “keep quiet . . . or he would lose his job,” (TAC ¶¶ 54–59); (2) when Plaintiff
contracted COVID-19, Defendants “pressured him to return to work” at the end of his FMLA
leave despite being “aware that Plaintiff was still suffering from Long Haul Covid-19, (
id
. ¶ 67;
see also id
. ¶¶ 65–68); (3) Defendants expected Plaintiff to work while on medical leave, (
id
. ¶¶
69, 76–77); (4) co-workers indicated that Plaintiff needed to return to work while on leave “or
they are going to fire [him],” (
id
. ¶ 71); (5) Defendants denied his requested accommodations,
(
id
. ¶¶ 80–84); and (6) Plaintiff was terminated approximately two weeks after Plaintiff’s second
hospitalization, (
id
. ¶¶ 75, 85).
[7]
This is sufficient to support a “minimal inference of
discriminatory motivation.”
See Basso
,
Defendants also argue that, at the time of Plaintiff’s termination, he was “not able to
work with or without a reasonable accommodation” because he could not perform the essential
function of his position. (Defs’ Mem. 10–12.) In a failure to accommodate claim, “[t]he
plaintiff bears the burden of showing that ‘the accommodation exists that permits her to perform
the job's essential functions.’”
Schneider v. Wal-Mart Stores, Inc.
, No. 16-CV-2010, 2019 WL
294309, at *6 (S.D.N.Y. Jan. 23, 2019) (quoting
Jackan v. N.Y. State Dep’t of Labor
, 205 F.3d
562, 566 (2d Cir. 2000)). “If the plaintiff satisfies this burden, the defendant has the burden of
proving that the proposed accommodation is not reasonable.” . While the ADA does not
define the term “essential functions,” the EEOC has promulgated regulations that indicate the
term “encompasses ‘the fundamental job duties of the employment position.’”
McBride v. BIC
Consumer Products Mfg. Co.
,
(i) The employer’s judgment as to which functions are essential; (ii) [w]ritten job descriptions prepared before advertising or interviewing applicants for the job; (iii) [t]he amount of time spent on the job performing the function; (iv) [t]he consequences of not requiring the incumbent to perform the function; (v) [t]he terms of a collective bargaining agreement; (vi) [t]he work experience of past incumbents in the job; and/or (vii) [t]he current work experience of incumbents in similar jobs.
Lavender v. Verizon N.Y. Inc.
, No. 17-CV-6687,
While Plaintiff’s allegations regarding his ability to perform the essential functions of the
position are slim, Plaintiff has plausibly alleged that, with or without a reasonable
accommodation, he can perform the “essential functions” of his position. Plaintiff alleges that,
while suffering from numerous symptoms of Long Haul COVID-19, he “was able to perform the
essential function of his job with or without an accommodation” because he worked from home
during his employment with Defendants. (
See
TAC ¶¶ 68–69; 73, 76, 82.) Defendants argue
that “the Complaint describes the ‘paramount’ function of [Plaintiff’s] job position as ‘safety and
security’ of the store premises which undermines any contention that he could have performed
them from home.” (Defs’ Mem. 10.) Indeed, chronic absenteeism can be a grounds for
dismissal at a motion to dismiss.
See Soto v. Marist College
, No. 17-CV-7976, 2019 WL
2371713, at *14 (S.D.N.Y. June 5, 2019) (granting a motion to dismiss where a plaintiff
“nowhere explains whether circumstances had changed such that he would be capable of
performing the essential functions of his position” where he was required to report to classes to
teach and could not appear due to health problems);
Lewis v. N.Y.C. Police Dep’t
, 908 F. Supp.
2d 313, 327 (E.D.N.Y. 2012) (“[C]ourts have specifically noted that the ADA does not require
employers to tolerate chronic absenteeism even when attendance problems are caused by an
employee’s disability.” (alterations and quotation marks omitted) (collecting cases)),
aff’d
, 537
F. App’x 11 (2d Cir. 2013) (summary order);
Pierce v. Highland Falls-Fort Montgomery Cent.
Sch. Dist.
, No. 08-CV-1948,
Thus, contrary to Defendants’ argument, the Court cannot dismiss plaintiff’s claims
solely on the general proposition that employer attendance expectations constitute essential job
functions, especially given the Second Circuit’s guidance to the contrary. In
McMillan v. City of
New York
,
At this stage, the Court must accept as true Plaintiff’s allegations that he could perform
the essential functions of the position with or without Plaintiff’s requested accommodations.
Because “the nature of a job’s essential functions is a fact-bound question ill-suited for resolution
on a motion to dismiss,” the Court denies Defendants’ motion to dismiss the ADA discrimination
claim.
Miller v. Kendall
, No. 14-CV-393,
This is unsurprising—all of the cases Defendants cite for the proposition that a lack of
certainty for returning to work were found at summary judgment, not at this early stage of the
instant Action.
See Mitchell v. Washingtonville Cent. School Dist
,
McDonnell Douglas
framework, the allegations need only give plausible support to the reduced
prima facie requirements.”
Thomson v. Odyssey House
, No. 14-CV-3857,
To establish a prima facie case of retaliation, the plaintiff must show that: “(1) he was
engaged in an activity protected under Title VII; (2) his employer was aware of his participation
in the protected activity; (3) the employer took adverse action against him; and (4) a causal
connection existed between the protected activity and the adverse action.”
Zann Kwan
, 737 F.3d
at 850 (Parker, J., concurring in part) (citing
Gordon v. New York City Bd. of Educ.
, 232 F.3d
111, 116 (2d Cir. 2000)). Accordingly, “for a retaliation claim to survive . . . a motion to
dismiss, the plaintiff must plausibly allege that: (1) defendants discriminated—or took an
adverse employment action—against him, (2) ‘because’ he has opposed any unlawful
employment practice.”
Vega v. Hempstead Union Free School Dist.
,
“The Supreme Court has held that in the context of a Title VII retaliation claim, an
adverse employment action is any action that ‘could well dissuade a reasonable worker from
making or supporting a charge of discrimination.’”
Vega
,
Here, Plaintiff argues—without citation—that he has “identified at least eleven instances [wherein he engaged in protected activity] and alleges [a] discriminatory workplace environment riddled with systemic racism, sexism[,] and antisemitism” which he consistently opposed. (Pl’s Mem. 16.) However, and as implicitly argued by Defendants, ( see Defs’ Mem. 14–15), the Court cannot identify such eleven instances. Instead, at best, Plaintiff has alleged two potential adverse employment actions: (1) Plaintiff alleges that Defendants “ignored all of [his] complaints . . . [and] they threatened [Plaintiff] with disciplinary action, including the termination of employment[,]” (TAC ¶ 45); and (2) in 2011, “Defendants began to exclude [Plaintiff] from management-wide emails,” ( id ). Neither of the adverse employment actions described by Plaintiff is sufficient to sustain a retaliation claim under Title VII or the NYSDHR.
While “[t]here is no question . . . that Plaintiff’s reports to [HR] about [Leonard’s]
[discriminatory] comments may qualify as protected activity[,]”
Vaughn v. Empire City Casino
at Yonkers Raceway
, No. 14-CV-10297,
Plaintiff also alleges that he overheard discriminatory comments by Leonard in March
2020. (TAC ¶¶ 40–41;
see also
Pl’s Mem. at 17 (“Plaintiff’s last complaint of unlawful activity
was March 2020.”).) Though Plaintiff argues that a six-month gap between the protected activity
and his termination is reasonable “under the unique circumstances surrounding Plaintiff’s
disability and COVID’s impact on the workplace should allow for an inference of causation,”
(Pl’s Mem. 17–18), Plaintiff provides not a single case to support such an assertion. Moreover,
as Defendants point out, (
see
Defs’ Mem. 13–14), the Supreme Court and numerous courts
within the Second Circuit have consistently held that much shorter periods of time are too
attenuated to support causation through temporal proximity.
See, e.g.
,
Clark Cty. Sch. Dist.
, 532
U.S. at 273–74, (citing cases where three to four months deemed insufficient);
Hollander v. Am.
Cyanamid Co.
,
To the extent that Plaintiff is also arguing that his termination occurred, “against a
backdrop of continuing antagonism and frustration of [Plaintiff’s] professional ambitions,”
which, in some cases, can “establish a drumbeat of retaliatory animus from which a plausible
inference of causation can be drawn,” this too must fail.
See Duplan v. City of New York
, 888
F.3d 612, 626 (2d Cir. 2018). Indeed, “[t]emporal gaps that are too long to give rise to an
inference of causation may be bridged by an intervening pattern of retaliatory treatment.”
Burgos v. City of New York
, No. 18-CV-1150,
Plaintiff’s only remaining alleged adverse employment action is that, in 2011,
“Defendants began to exclude [Plaintiff] from management-wide emails.” (TAC ¶ 45.)
However, beyond the fact that this “began” to occur nine years prior to Plaintiff’s termination,
“[t]he allegation that Plaintiff was not included on an e[]mail . . . does not rise to the level of an
adverse employment action[,]” because it “amounts to a petty slight or minor annoyance.”
Ziyan
Shi v. N.Y. Dep’t o f State, Div. Licensing Servs.
,
Accordingly, because Plaintiff has not sufficiently alleged any adverse action that resulted from protective activity, Plaintiff’s retaliation claims under Title VII and the NYSDHR are dismissed.
3. FMLA Claims
a. Retaliation
FMLA retaliation claims are analyzed under the three-step burden-shifting analysis set
forth in
McDonnell Douglas
.
See Potenza v. City of New York
,
Here, Defendants argue that Plaintiff has failed to allege the requisite inference of
unlawful motivation on the part of Defendants. (
See
Defs’ Mem. 15–16.) The Court agrees. As
with a claim for retaliation under Title VII and the NYSDHR,
see supra
Section II.B.2., an
inference of retaliatory intent in the FMLA context can be shown when a “causal connection
exists between the plaintiff's protected activity and the adverse action taken by the employer,”
which can manifest from “very close” temporal proximity between the protected activity and
adverse action.
Donnelly v. Greenburgh Cent. Sch. Dist. No. 7
,
In relevant opposition, Plaintiff argues that he “pleads [that the] adverse job action
occurred while out on FMLA.” (Pl’s Mem. 14–15.) However, this is inconsistent with
Plaintiff’s own allegations. Plaintiff’s allegations are clear that he took FMLA leave until June
22, 2020 and, as alleged, took any remaining leave as personal time or sick time. (
See
TAC ¶
66–67.) This makes sense, as “[t]he FMLA provides generally that a covered employer is
required to grant an eligible employee
up to a total of 12 weeks of
leave
during any 12-month
period
for personal or family needs indicated in the Act.”
Coutard v. Mun. Credit Union
, 848
F.3d 102, 108 (2d Cir. 2017) (emphasis added) (citing 29 U.S.C. § 2612(a)). While Plaintiff
does not allege the exact date that his FMLA leave began, calculating it from the time Plaintiff
was first exposed to COVID-19 on March 29, 2020, (
see
TAC ¶ 60), Plaintiff likely exhausted
his allotted 12 weeks of leave during the 12-month period. Thus, it is not plausible that Plaintiff
was
still
on FMLA leave, despite whatever he understood from his communications from HR, at
the time of his termination in September 2020. As such, any supposed inference related to
Plaintiff’s termination and its relation to his FMLA leave cannot stand due to lack of temporal
proximity.
Cf. Reilly v. Revlon
,
Accordingly, as Plaintiff has not sufficiently pleaded retaliatory intent, the Court grants Defendants’ motion to dismiss the FMLA retaliation claim.
b. Interference
To establish an interference claim pursuant to 29 U.S.C. § 2615(a)(1), a plaintiff need
only prove that an “employer in some manner impeded the employee’s exercise of his or her
right[s]” protected provided by the FMLA.
Sista v. CDC Ixis North America, Inc.
,
Here, Plaintiff argues that “it is irrefutable that asking a disabled person to work while out on disability leave and hospitalized[] denies him the full benefit of leave under [the] FMLA.” (Pl’s Mem. 14.) Defendants argue that “[t]here are no allegations of interference occurring during [the] 12-week [FMLA] period and Plaintiff was reinstated to his position twice after that leave had expired.” (Defs’ Mem. 16.) The Court agrees that Plaintiff has not sufficiently alleged an FMLA interference claim. Plaintiff alleges that he received his FMLA leave after requesting it in March 2020 through June 22, 2020. (TAC ¶ 66.) It is only “[a]t the end of his FMLA leave” that Defendants allegedly “pressured him to return to work and failed to engage in the required interactive process to determine whether an accommodation was available.” ( . ¶ 67.) While Plaintiff is correct that, in some circumstances, a plaintiff can allege an interference claim by “forcing [a plaintiff] to work from home during” the FMLA leave period, see Reilly , 620 F. Supp. 2d at 536–37, Plaintiff does not allege that he was required to perform any work or otherwise did any work during his FMLA leave. Plaintiff’s allegations to this effect all postdate Plaintiff’s FMLA leave. ( See TAC ¶¶ 67–71; 74–77.)
Moreover, to the extent Plaintiff is attempting to argue that Defendants “fail[ed] to
provide [him] with necessary information about its FMLA leave policies” which “affect[ed] [his]
ability [to] exercise [his] substantive right[,]” “where the lack of notice [has] had no effect on the
employee’s exercise of or attempt to exercise any substantive right conferred by the Act, no
denial has occurred.”
Desiderio
,
Accordingly, the Court grants Defendants’ motion to dismiss the FMLA interference claim.
III. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss is granted in part and denied in part. Specifically, Plaintiff’s disability discrimination claim under the ADA and the NYSHRL survive, and all other claims are dismissed. Defendants’ Motion to Strike is also granted in part and denied in part. Specifically, the Court strikes paragraphs 46–48 of the TAC, and all other paragraphs stand. Because this is the first adjudication of Plaintiff's claims on the merits, the Court will deem the dismissal of the claims as without prejudice. To the extent Plaintiff has a good faith basis for filing an amended complaint to allege additional facts and otherwise addressing the deficiencies identified above, he must do so within 30 days of the date of this Opinion & Order.
The Clerk of Court is respectfully requested to terminate the pending motions at Dkt. Nos. 55 and 57. The Court will hold a status conference on October 10, 2023, at 2:00 PM. SO ORDERED.
Dated: September 28 , 2023
White Plains, New York
KENNETH M. KARAS United States District Judge
Notes
[1] Plaintiff voluntarily withdrew two claims under New York Labor Laws. ( See TAC ¶¶ 153–56.)
[2] Defendants filed two separate but identical motions to dismiss in this Action, filing duplicate sets of memoranda under the two different Defendants’ names. ( Compare , e.g. , Mem. of Law in Supp. of Mot. (“Defs’ Mem.”) (Dkt. No. 56), with Mem. of Law in Supp. of Mot. (Dkt. No. 58).) As such, the Court will only refer to one copy of Defendants’ filings and assume that the arguments apply as to both Defendants.
[3] The Court notes a discrepancy between Plaintiff’s allegations and the documents
attached to Plaintiff’s TAC as it relates to Plaintiff’s race. While Plaintiff states in his Complaint
that he is a “white male,” (
see
TAC ¶ 17), a New York State Division of Human Rights
(“NYSDHR”) Investigation Report states that Plaintiff is a black male, (
see
TAC Ex. 1
(“NYSDHR Rpt.”), at 10 (Dkt. No. 52-2) (describing Plaintiff as “male, Black, has a
disability”)).
Generally, “[w]hen considering a motion to dismiss, the Court’s review is confined to the
pleadings themselves,” because “[t]o go beyond the allegations in the Complaint would convert
the Rule 12(b)(6) motion into one for summary judgment pursuant to [Rule] 56.”
Thomas v.
Westchester Cnty. Health Care Corp.
,
[4] Plaintiff first filed a Complaint on June 11, 2022, but refiled the Complaint on June 13, 2022 due to a clerical error. ( See generally Dkt.)
[5] Plaintiff first filed a TAC on October 24, 2022, but refiled the TAC on October 25, 2022 due to a clerical error. ( See generally Dkt.)
[6] One key difference between the NYSHRL and the ADA is that the NYSHRL has a
broader definition of disability than does the ADA in that it does not require any showing that
the disability substantially limits a major life activity.
See Ugactz v. U.P.S., Inc.
, 10-CV-1247,
[7] However, Defendants are correct that Plaintiff may not have adequately pled comparative treatment as a vehicle for Plaintiff’s disability discrimination claim. ( See Defs’ Mem. 9.) Plaintiff alleges “[u]pon information and belief” that “the accommodations requested by Plaintiff were extended to favored disabled and nondisabled employees.” (TAC ¶ 87.) This allegation cannot establish a plausible inference of discriminatory motivation, but instead infers that Defendants provided the same accommodations to employees within and outside of the protected class. Accordingly, Plaintiff cannot establish an inference of discriminatory intent because his allegation forecloses the argument that Defendants provided “more favorable treatment of employees not in the protected group.” Chambers v. TRM Copy Ctrs. Corp. , 43 F.3d 29, 37 (2d Cir. 1994).
[8] Defendants also argue that “information attached to the complaint reflects that Plaintiff was asked to have his medical provider give an estimated return to work date” which was never provided to Defendants. (Defs’ Mem. 10–12.) It appears that Defendants are referring to a portion of the NYSDHR report discussing emails and doctor’s notes provided in July and