DESIREE DE FIGUEROA v. NEW YORK STATE, STATE UNIVERSITY OF NEW YORK AT STONY BROOK, JOHN PETER GERGEN in his official and individual capacities, Director, Undergraduate Biology, and LYNN JOHNSON in her official and individual capacities, Vice President, Human Resource Services
Case 2:17-cv-00436-PKC-LB
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
September 5, 2019
PAMELA K. CHEN, United States District Judge
Document 35
MEMORANDUM & ORDER
17-CV-436 (PKC) (LB)
On January 26, 2017, Plaintiff Desiree De Figueroa (“Plaintiff”), proceeding pro se, initiated this employment discrimination action against New York State, the State University of New York at Stony Brook (the “University”), and two employees of the University—Undergraduate Biology Director John Peter Gergen (“Gergen”) and Human Resources Director Lynn Johnson (“Johnson”) (the “Individual Defendants”) (together with New York State and the University, “Defendants”). Plaintiff alleges violations of the Family and Medical Leave Act of 1993,
BACKGROUND
Plaintiff has worked in the University‘s Undergraduate Biology program for over 20 years, and she has held the title of Curator-SL3 since approximately 2006. (SAC, Dkt. 15, ¶ 3.) As a Curator-SL3, Plaintiff is responsible for, inter alia, acquiring supplies and equipment for instructional facilities, preparing guidelines for instructional exercises, collecting and maintaining live materials, mentoring and training staff and students, supervising student assistants working in the undergraduate biology laboratories, and operating the labs when the Curator is absent. (Id.) Plaintiff was granted tenured status in 2008. (Id.)
In or around 1992, Plaintiff was diagnosed with Crohn‘s disease, a chronic inflammatory bowel disease that is characterized by inflammation of the gastrointestinal tract. (Id. ¶ 5.) Like many individuals suffering from Crohn‘s disease, Plaintiff experiences “flare-ups” every few months, which may last from one day up to a few weeks. (Id.) When Plaintiff experiences a flare-up, she is unable to work or engage in basic life activities. (Id.) This action stems from various actions allegedly taken by the University, Gergen, and Johnson between March 2011 and June 2017 in response to Plaintiff‘s requests for leave to manage her condition.
A. Plaintiff‘s Requests for FMLA Leave
In January 2007, March 2011, July 2011, and February 2012, Plaintiff requested leave under the FMLA in order to conduct “self-care,” seek medical treatment, and rest as necessary to resolve the symptoms of her Crohn‘s disease. (Id.) On those occasions, the University‘s Human Resources Department (“HR”), of which Defendant Johnson is the Director (id. ¶ 1), granted Plaintiff‘s requests for FMLA leave (id. ¶ 5.) Beginning in 2011, however, Gergen began to express his belief that employees within the Undergraduate Biology program should not take FMLA leave. (Id. ¶ 6.) He became openly hostile to Plaintiff and other employees who requested FMLA leave, stating that they were “screwing the department.” (Id. ¶ 7.) And at a senior staff meeting on March 16, 2011, Gergen spoke disparagingly about employees who had taken FMLA leave. (Id. ¶ 8.) On the same day, Plaintiff requested that HR remind staff in the Undergraduate Biology program that FMLA and medical information should be kept confidential. (Id. ¶ 9.)
Sometime later, Gergen found out that Plaintiff had informed a colleague about the process for applying for FMLA leave. (Id. ¶ 10.) Gergen subsequently assigned tasks to Plaintiff that were beyond the responsibilities of her position. (Id.) In particular, on August 28, 2012, Gergen ordered Plaintiff to help distribute over 1,300 books throughout their department. (Id. ¶ 11.) Plaintiff did not comply with this directive, as she believed book distribution was not one of her job responsibilities. (Id.) When Gergen sent a “harassing” email demanding an explanation for her failure to distribute the books, Plaintiff informed Johnson and the Dean of the University about Gergen‘s email. (Id.)
Around March 26, 2013, Plaintiff filed a request for FMLA leave with HR. (Id.
On April 3, 2013, HR denied Plaintiff‘s FMLA request, and she was accused of forging her FMLA leave request form. (Id. ¶ 14.) On April 12, 2013, Plaintiff was hospitalized for four days for treatment of a flare-up of her Crohn‘s disease. (Id. ¶ 15.) On April 24, 2013, Plaintiff met with her doctor in order to discuss her employer‘s accusation that she had forged her FMLA request form. (Id. ¶ 16.) Plaintiff‘s doctor provided written documentation to HR confirming that he had overseen Plaintiff‘s completion of the leave request form and had, in fact, personally signed the form. (Id. ¶ 17.) Defendants granted Plaintiff FMLA leave post hoc based on her re-submitted request. (SAC, Dkt. 15, ¶¶ 17–18; Pl.‘s Opp., Dkt. 26, at 13.)
On September 20, 2013, Plaintiff met directly with Gergen. (SAC, Dkt. 15, ¶ 19.) During this meeting, Gergen accused Plaintiff of failing to provide a faculty member with certain materials that Plaintiff had used to teach a course in previous semesters. (Id.) Plaintiff alleges that her job duties did not include providing faculty with academic teaching materials, and Gergen had not previously instructed Plaintiff to do so. (Id. ¶ 20.) Nevertheless, Gergen verbally accosted Plaintiff, screaming “I want your resignation” in front of faculty, other staff, and students. (Id. ¶ 21.) Immediately after this meeting, Plaintiff filed a complaint with HR and sought Johnson‘s assistance in processing the complaint. (Id. ¶ 22.) Johnson and HR did not follow up on Plaintiff‘s complaint. (Id. ¶¶ 22–24.)
On February 11, 2015, Plaintiff‘s doctor prepared documentation for another FMLA leave request. (Id. ¶ 25.) Plaintiff never submitted this request, however, because she feared harassment and retaliation based on her experiences with Gergen and Johnson following her March 2013 request for FMLA leave. (Id. ¶ 26.) Plaintiff continues to fear that she will face harassment and retaliation if she requests FMLA leave. (Id. ¶ 28.)
B. Plaintiff‘s Application for a Promotion
On March 4, 2015, Plaintiff applied for the position of Assistant Director of the Undergraduate Biology program. (Id. ¶ 29.) This position is designated as an “SL-4” position, which allows the holder to obtain a higher salary, better opportunities within the University, and more professional contacts than Plaintiff‘s current position. (Id. ¶ 30.)
Plaintiff was well qualified for the Assistant Director position. At the time she applied, Plaintiff had worked at the University for over 20 years and had served as a Curator at the SL3 level since 2006. (Id. ¶ 32.) As a Curator-SL3, Plaintiff had managerial experience, held a New York State credit card, and had already received most of the training and computer access required for the Assistant Director position. (Id. ¶¶ 33–36.) Additionally, Plaintiff‘s past performance reviews were outstanding, and she had already achieved tenured status. (Id. ¶ 32.)
Despite Plaintiff‘s excellent qualifications, she was never seriously considered for the Assistant Director position. Plaintiff received a first-round interview, but only two of the three members of the search committee attended her interview. (Id. ¶ 39.) Notably, both members in attendance for Plaintiff‘s interview were Gergen‘s subordinates. (Id.) All other first-round
Ultimately, on June 17, 2015, Plaintiff was informed via a departmental email from Gergen that Nancy Black had been hired for the Assistant Director position. (Id. ¶ 42.) Prior to this promotion, Black held a laboratory position at the SL2 level and lacked managerial experience and relevant training. (Id. ¶¶ 32–36.) In fact, Plaintiff had interviewed, supervised, and evaluated Black until 2010. (Id. ¶ 35.) Plaintiff believes that she was never seriously considered for the
Assistant Director position because Gergen manipulated the hiring process to ensure that Black was chosen for promotion instead of Plaintiff and to retaliate against Plaintiff for taking FMLA leave related to her Crohn‘s disease.3 (Id. ¶¶ 37, 44.)
C. Changes to Plaintiff‘s Work Requirements and Performance Evaluation
In July 2014, Gergen began to assign Plaintiff more complex work than her co-workers and supervisor, expanding Plaintiff‘s duties and generally making her job more difficult. (Id. ¶¶ 45, 56.) On July 30, 2014, Gergen informed Plaintiff that a new course, Biology 207, was being added to her workload. (Id. ¶ 46.) On September 17, 2014, Gergen assigned Plaintiff to assist in supporting a biology club, iGEM, a duty that is typically filled by the Director. (Id. ¶ 47.) And in February and March 2015, Gergen expanded Plaintiff‘s duties in relation to another course, Biology 311, beyond those that had previously been expected of her. (Id. ¶ 48.)
In light of the additional work being assigned to her, Plaintiff requested a salary increase and review of her position on February 4, 2015. (Id. ¶ 49.) Gergen responded to Plaintiff‘s request by email, stating “maybe . . . need to move some of these duties to others to obtain parity.” (Id. ¶ 50.) Plaintiff‘s duties were not adjusted. (Id.) In fact, on April 6, 2015, Plaintiff was asked to take over teaching an additional class until the instructor arrived. (Id. ¶ 51.) Due to the lack of adjustment in her duties, Plaintiff placed a formal request for a salary increase and review of her position with her direct supervisor, Mary Bernero, on August 18, 2015. (Id. ¶ 50.) Gergen denied this request by email on October 23, 2015. (Id. ¶ 52.) In addition to denying Plaintiff‘s request, Gergen‘s email accused Plaintiff of wrongdoing and made (unspecified) disparaging and intimidating comments. (Id.)
This pattern continued during the fall 2015 academic semester, when Gergen eliminated support staff for a course that Plaintiff was assigned to, forcing Plaintiff to do extra work for the course. (Id. ¶ 57.) Subsequently, in February 2016, Gergen instructed Plaintiff to supervise a night-shift employee, despite the fact that Plaintiff is a day-shift employee. (Id. ¶ 53.) When the night-shift employee failed to complete her assignments correctly, Gergen berated Plaintiff for failing to “make sure [the night-shift employee] had everything she needed” and to “step[] in” to make sure tasks were done appropriately. (Id. ¶ 54.)
On July 19, 2016, Plaintiff went to her union representative to express concern about Gergen‘s revisions. (Id. ¶ 61.) Subsequently, HR rescinded Gergen‘s negative performance evaluation. (Id.) Nevertheless, on August 16, 2016, Gergen added two new courses to Plaintiff‘s workload, and the next day, he threatened to alter Plaintiff‘s performance evaluation for the next year. (Id. ¶¶ 62, 65.) On September 27, 2016, Gergen reduced the credit limit on Plaintiff‘s New York State credit card from $50,000 per month to $10,000 per month. (Id. ¶ 63.) This made Plaintiff‘s job more difficult due to the large orders she had to place for up to 7 courses each year. (Id.) At an unspecified time in or around January 2017, Plaintiff learned that Gergen had denied her a discretionary bonus. (Id. ¶ 66.)
On June 15, 2017, Plaintiff received her annual performance evaluation. (Id. ¶ 67.) Bernero indicated that she had met with Gergen and Marvin O‘Neal, a Lecturer in the Undergraduate Biology program, at which Gergen and O‘Neal had negatively altered Plaintiff‘s performance evaluation. (Id. ¶¶ 68–70.) Soon thereafter, Plaintiff complained about Gergen‘s alteration of her performance evaluation (id. ¶ 71), and she sent Bernero a rebuttal to the performance evaluation (id. ¶ 72). In response, Bernero informed Plaintiff that she was instructed by Gergen not to make any changes to Plaintiff‘s evaluation. (Id.) Plaintiff believes that Gergen only became interested in her 2017 performance evaluation after she filed her complaint with the United States Equal Employment Opportunity Commission (“EEOC”) on July 23, 2015 and initiated this lawsuit on January 26, 2017. (Id. ¶ 74; see also EEOC Charge of Discrimination, Dkt. 25-7, at ECF4 3; Complaint, Dkt. 1.)
II. Administrative Proceedings
On November 14, 2013, Plaintiff filed a complaint with the New York State Division of Human Rights (“NYSDHR”), alleging discrimination on the basis of her gender and disability, as well as retaliation based on her election to take FMLA leave in March/April of 2013. (See NYSDHR Complaint Form, Dkt. 25-3, at ECF 3–4.) By a Determination and Order After Investigation dated May 13, 2014, NYSDHR rendered a “No Probable Cause Determination.” (See Determination and Order After Investigation, Dkt. 25-5, at ECF 2–3.) On June 27, 2014, the EEOC adopted the findings of the NYSDHR and issued a right-to-sue letter. (See First Notice of Right to Sue, Dkt. 25-6, at ECF 2.) Plaintiff did not file a complaint in federal court within 90 days of receipt of this letter. On July 23, 2015, Plaintiff filed a second charge with the EEOC, alleging retaliation and discrimination based upon her gender and disability in violation of Title
VII and the ADA.5 (See EEOC Charge of Discrimination,
PROCEDURAL HISTORY
Plaintiff‘s initial complaint was filed on January 26, 2017.6 (See Complaint, Dkt. 1.) On April 27, 2017, Plaintiff filed an amended complaint with additional factual allegations to support her claims. (See Amended Complaint, Dkt. 7.) By letter dated May 16, 2017, Defendants sought leave to file a motion to dismiss the amended complaint. (See Defendants’ Pre-Motion Conference Letter, Dkt. 9.) On July 6, 2017, Judge Azrack held a pre-motion conference with the parties and granted Plaintiff leave to file a second amended complaint. (See July 6, 2017 Minute Entry, Dkt. 12.) Plaintiff filed her Second Amended Complaint the next day. (See SAC, Dkt. 15.)
On September 5, 2017, Defendants filed a motion to dismiss Plaintiff‘s Second Amended Complaint for lack of jurisdiction and failure to state a claim. (See Defendants’ First Motion to Dismiss, Dkt. 18.) Defendants’ motion was fully briefed on December 26, 2017. (See Defendants’ First Motion to Dismiss, Dkt. 25.) On June 13, 2018, Judge Azrack denied Defendants’ motion
without prejudice to renew and referred this case to the Court Annexed Mediation Advocacy Program. (See Order dated June 13, 2018.) The parties attended a mediation session on December 10, 2018 (see Selection of Mediator, Dkt. 31), but mediation was unsuccessful (see December 13, 2018 Report of Mediation Unsettled). In light of the failure of mediation, Defendants renewed their motion to dismiss on December 12, 2018. (Defendants’ Renewed Motion to Dismiss, Dkt. 32.) On March 22, 2019, this case was reassigned from Judge Azrack to the undersigned. (See Order dated March 22, 2018.)
STANDARD OF REVIEW
To survive a motion to dismiss pursuant to
Determining whether a complaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation omitted); Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013). In addressing the sufficiency of a complaint, courts are required to accept the well-pleaded factual allegations contained within the complaint as true, see Building Indus. Elec. Contractors Ass‘n v. City of New York, 678 F.3d 184, 188 (2d Cir. 2012), but “need not credit conclusory statements unsupported by assertions of facts[,] or legal conclusions . . . presented as factual allegations,” In re Livent, Inc. Noteholders Sec. Litig., 151 F. Supp. 2d 371, 404 (S.D.N.Y. 2001) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Additionally, a court “need not feel constrained to accept as truth conflicting pleadings that make no sense, or that would render a claim incoherent, or that are contradicted either by statements in the complaint itself or by documents upon which its pleadings rely, or by facts of which the court may take judicial notice.” Id. at 405–06 (citing Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1095 (2d Cir.1995)).
At the pleadings stage, a court must limit its inquiry to the facts alleged in the complaint, the documents attached to the complaint or incorporated therein by reference, and “documents that, while not explicitly incorporated into the complaint, are ‘integral’ to [the] plaintiff‘s claims and were relied upon in drafting the complaint.” In re Livent, Inc. Noteholders Sec. Litig., 151 F. Supp. 2d at 404 (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 44 (2d Cir. 1991)). Thus, in employment discrimination cases, courts may consider filings with state administrative agencies or the EEOC to the extent that a complaint necessarily rests upon them. See Littlejohn v. City of New York, 795 F.3d 297, 305 n.3 (2d Cir. 2015) (“[I]t is proper for this court to consider the plaintiff‘s relevant filings with the EEOC” and other documents related to the plaintiff‘s claim . . . so long as those filings are . . . ‘integral to’ and ‘solely relied upon by the complaint.” (brackets omitted) (quoting Holowecki v. Fed. Express Corp., 440 F.3d 558, 565–66 (2d. Cir. 2006))).
DISCUSSION
Plaintiff‘s SAC asserts the following claims: (1) interference and retaliation in violation of the FMLA; (2) discrimination, hostile work environment, and retaliation in violation of the ADA and Rehabilitation Act; (3) due process violations under
move to dismiss all of Plaintiff‘s claims. (See generally Defendants’ Memorandum of Law in Support of Defendants’ Motion to Dismiss the Second Amended Complaint (“Defs.” Br.”), Dkt. 25-9.)
I. Eleventh Amendment Sovereign Immunity7
The Eleventh Amendment of the United States Constitution provides that
sued in their official capacities, in federal court for legal and equitable relief. See Davis v. Proud, 2 F. Supp. 3d 460, 476–77 (E.D.N.Y. 2014).
A. Claims Against New York State and the University
In enacting § 504 [of the Rehabilitation Act], Congress expressed its clear intent “to condition [a state‘s] acceptance of federal funds on [the] state‘s waiver of its Eleventh Amendment immunity.” Garcia v. State Univ. of N.Y. Health Sci. Ctr. of Brooklyn, 280 F.3d 98, 113 (2d Cir. 2001); see also
I of the ADA, or Section 1983. See Coleman, 566 U.S. at 37 (“Standing alone, the self-care provision [of the FMLA] is not a valid abrogation of the States’ immunity from suit.”); Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (holding that Congress did not abrogate the states’ sovereign immunity against employment discrimination claims arising under Title I10 of the ADA). Neither has New York State waived its Eleventh Amendment immunity and consented to suit in federal court under the NYSHRL. See Quadir v. N.Y. State Dep‘t of Labor, 39 F. Supp. 3d 528, 537–38 (S.D.N.Y. 2014). Accordingly, Plaintiff‘s claims under the FMLA, ADA, and NYSHRL must be dismissed as to New York State and the University.11
B. Official Capacity Claims Against Individual Defendants
The same analysis does not necessarily apply to Plaintiff‘s claims against Individual Defendants in their official capacities, however, as the Supreme Court has created an exception to state sovereign immunity for the purpose of such suits. Under Ex parte Young, 209 U.S. 123 (1908), “a plaintiff may sue a state official acting in his official capacity—notwithstanding the Eleventh Amendment—for prospective, injunctive relief from violations of federal law.” State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 95 (2d Cir. 2007) (internal quotations and
citation omitted). The Ex parte Young exception “rests on the premise—less delicately called a ‘fiction’—that when a federal court commands a state official to do nothing more than refrain from violating federal law, he is not the State for sovereign-immunity purposes.” Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011) (internal citation omitted). Before applying this exception, however, a court is “specifically required . . . to examine whether there exists an ongoing violation of federal law.” Pierre v. N.Y. State Dep‘t of Corr. Servs., No. 05-CV-00275 (RJS), 2009 WL 1583475, at *18 (S.D.N.Y. June 1, 2009) (internal quotations and citation omitted). Where a plaintiff alleges “only discrete
In light of these standards, Plaintiff‘s claims against Individual Defendants in their official capacities for interference and discrimination under the FMLA and ADA must be dismissed, as these claims rest solely on past acts that have been completed. (See SAC, Dkt. 15, ¶¶ 12–17, 29–44.) Likewise, Plaintiff‘s claims against Individual Defendants in their official capacities under the NYSHRL fail because “a federal court‘s grant of injunctive relief against a state official may not be based on violations of state law.” Dube, 900 F.2d at 595.
However, the Court considers whether Plaintiff may assert claims for prospective injunctive relief against Defendants Gergen and Johnson in their official capacities with respect to her claims of retaliation and hostile work environment under the FMLA and ADA. Plaintiff continues to be employed by Defendants, and she alleges multiple times in her Second Amended Complaint that there is “an ongoing effort to harass and retaliate against [her].” (SAC, Dkt. 15, at 16, ¶¶ 59, 69.) Liberally construed, the Second Amended Complaint also alleges that Defendant Gergen has taken actions since this case began that could constitute retaliation against Plaintiff for
filing this case. (See id. ¶¶ 70, 74 (alleging that Gergen became interested in Plaintiff‘s 2017 performance evaluation only after she filed this action and subsequently made negative edits to her performance evaluation); id. ¶ 66 (stating that Plaintiff became aware in January 2017, the same month in which she filed this action, that Gergen denied her a discretionary bonus).) Plaintiff also alleges that “[i]t is clear that Mr. Gergen will continue to harass, intimidate[,] and retaliate against [her,] . . . continue to prevent [her] from advancing in [her] career[,] . . . [and] do irreparable harm to [her] reputation, current career, and chances of advancement elsewhere in the University.” (Id. ¶ 76.) As relief, Plaintiff seeks an injunction “preventing defendant12 from engaging in any harassing and/or retaliatory activities” and assigning all responsibilities related to Plaintiff‘s job to her current immediate supervisor for the remainder of Gergen‘s tenure as Director of the Undergraduate Biology program. (Id. ¶¶ 75–76.) Such relief is properly characterized as prospective and may be sought against Individual Defendants in their official capacities pursuant to Ex parte Young if it would remedy the ongoing violations under any FMLA or ADA claim that Plaintiff sufficiently alleges. See State Emps. Bargaining Agent Coalition, 494 F.3d at 98 (“The prohibition against retaliation sought by plaintiffs . . . would prevent this alleged ongoing injury from occurring again in the future. Thus, sovereign immunity does not bar the . . . forms of injunctive relief sought by plaintiffs.”).
*
In light of the foregoing analysis, Plaintiff may assert her Rehabilitation Act claims for discrimination, hostile work environment, and retaliation against New York State and the University. She may also assert her FMLA retaliation, ADA hostile work environment, and ADA
retaliation claims against Individual Defendants in their official capacities to the extent that
II. Claims Under the FMLA
“The FMLA provides generally that a covered employer is required to grant an eligible employee up to a total of 12 weeks[‘] leave during any 12-month period for personal or family needs indicated in the Act.”13 Coutard v. Mun. Credit Union, 848 F.3d 102, 108 (2d Cir. 2017) (citing
In order to ensure that eligible employees are not deprived of their statutory rights, the FMLA makes it unlawful for an employer (1) “to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right” established by the FMLA, or (2) “to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful” by the FMLA.
claims: interference claims and retaliation claims. See Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004). Plaintiff has asserted both types of FMLA claims in this case. (See SAC, Dkt. 15, at 3.) In light of the Court‘s sovereign immunity analysis, supra, Plaintiff may assert her FMLA retaliation claim against Individual Defendants in their official capacities.14 Plaintiff may also assert both FMLA claims against Individual Defendants in their individual capacities.15
The standard statute of limitations for interference and retaliation claims under the FMLA is two years. See
is willful if an employer either “knew or showed reckless disregard” for whether its conduct violated the FMLA. Porter v. N.Y. Univ. Sch. of Law, 392 F.3d 530, 531 (2d Cir. 2004) (per curiam). However, if an employer acted reasonably, or “unreasonably[] but not recklessly[,] in determining its legal obligation,” then the alleged violations should not be considered willful. Mejia v. Roma Cleaning, Inc., 751 F. App‘x 134, 136 (2d Cir. 2018) (summary order) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)).
With respect to Plaintiff‘s interference claims, the two-year statute of limitations must apply. Plaintiff alleges that all of her requests for FMLA leave prior to April 3, 2013 were granted. (SAC, Dkt. 15, ¶ 5.) In April 2013, the one occasion on which Plaintiff submitted an FMLA leave request that was subsequently denied, Johnson allegedly denied Plaintiff‘s request based on a lack of appropriate supporting documentation. (See id. ¶¶ 14–18.) Because the University may require any request for FMLA leave to be supported with documentation from a doctor, see
As to Plaintiff‘s FMLA retaliation claims, however, the three-year statute of limitations should apply. In a recent summary order, the Second Circuit stated that “retaliating against an employee for exercising FMLA rights is almost by definition a ‘willful’ violation.” Offor v. Mercy Med. Ctr., 676 F. App‘x 51, 54 n.2 (2d Cir. 2017) (summary order). Though this non-precedential decision does not definitively resolve the issue, the three-year statute of limitations is appropriate
in this case. Accepting Plaintiff‘s allegations as true for purposes of this motion to dismiss, Individual Defendants exhibited reckless disregard for their obligation to refrain from retaliating against Plaintiff for requesting FMLA leave and opposing practices that violate the FMLA. On multiple occasions, Plaintiff exercised her rights to request
B. Interference Claims
In the Second Circuit, a plaintiff must plead the following elements to state a claim of interference under the FMLA: “1) that she is an eligible employee under the FMLA; 2) that the defendant is an employer as defined by the FMLA; 3) that she was entitled to take leave under the FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied benefits to which she was entitled under the FMLA.” Graziadio, 817 F.3d at 424. Defendants do not dispute that Plaintiff is an eligible employee under the FMLA or that she was entitled to take leave, as she alleges, under the FMLA. Furthermore, Plaintiff‘s allegations
establish that Individual Defendants are her employers within the meaning of the FMLA. See Ziccarelli, 247 F. Supp. 3d at 446. Nevertheless, Plaintiff‘s FMLA interference claims fail on the fourth and fifth prongs.To establish the fourth element of an FMLA interference claim, an employee need not give “formal notice” that she intends to take FMLA leave, but she “must objectively assert” her rights under the FMLA. Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 535-36 (S.D.N.Y. 2009); see also Avila-Blum v. Casa de Cambio Delgado, Inc., 519 F. Supp. 2d 423, 429 (S.D.N.Y. 2007) (“[M]erely calling in sick is insufficient to put a company on notice that an employee is requesting leave that may be eligible under the FMLA. . . . The critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee‘s request to take time off for a serious health condition.” (alterations and quotations omitted)). The fifth element, i.e., that the employee was denied FMLA leave, may be satisfied either by a formal denial or via a “discouragement theory” of denial. Under this theory, a plaintiff is denied benefits under the FMLA if the plaintiff “tried to assert her FMLA rights and was thereafter discouraged from taking FMLA leave.” Reilly, 620 F. Supp. 2d at 535. Indeed, a plaintiff may plausibly allege the fourth and fifth elements of an interference claim if her allegations establish that “the employer‘s purported acts of discouragement would have dissuaded a similarly situated employee of ordinary resolve from attempting to exercise . . . her FMLA rights.” Id. at 535 (citing Golden v. N.Y.C. Dep‘t of Env‘t‘l Prot., No. 06-CV-01587 (DLC), 2007 WL 4258241, at *3 (S.D.N.Y. Dec. 3, 2007)); see also Santiago v. Dep‘t of Transp., 50 F. Supp. 3d 136, 144 (D. Conn. 2014).
Here, there is no allegation that Plaintiff asserted a right to FMLA leave after January 26, 2015, or even that Individual Defendants denied Plaintiff FMLA benefits after that date. Plaintiff does allege, however, that her doctor prepared documentation for an FMLA leave request on February 11, 2015 that she never submitted. (SAC, Dkt. 15, ¶¶ 25-26.) Plaintiff states that she did not submit the form because she feared “the retaliation and harassment that [she] was subjected to when [she] submitted the previous [FMLA leave request] form in March[] 2013.” (Id. ¶ 26.) Plaintiff further alleges that she continues to fear requesting FMLA leave. (Id. ¶ 28.)
Though Plaintiff‘s allegations establish that she has been discouraged from attempting to exercise rights granted to her by the FMLA, they do not plausibly establish that “a similarly situated employee of ordinary resolve” would be discouraged from doing so. Reilly, 620 F. Supp. 2d at 535. Though Plaintiff‘s March 2013 FMLA leave request was initially denied, the denial email explained the reason for denial, which allowed Plaintiff to return to her doctor to properly prepare her request. (See SAC, Dkt. 15, ¶¶ 14-17; Pl.‘s Opp., Dkt. 26, at 12-13.) Once Plaintiff resubmitted her request, it was granted. (SAC, Dkt. 15, ¶¶ 17-18; Pl.‘s Opp., Dkt. 26, at 13.) Furthermore, almost two years pass between the initial denial of Plaintiff‘s March 2013 FMLA leave request and February 2015, when Plaintiff alleges that she continued to fear requesting FMLA leave. (SAC, Dkt. 15, ¶¶ 26-28.) Under the circumstances alleged in the Second Amended Complaint, Plaintiff‘s failure to “objectively assert” her rights under the FMLA within the statute of limitations cannot be excused under the “interference by discouragement” theory. Accordingly, Plaintiff‘s FMLA interference claims against Individual Defendants based on conduct occurring after January 26, 2015 are dismissed.
C. Retaliation Claims
A plaintiff may bring FMLA retaliation claims for violations of both
“For purposes of FMLA retaliation claims, an adverse employment action is ‘any action by the employer that is likely to dissuade a reasonable worker in the plaintiff‘s position from exercising h[er] legal rights.‘” Smith v. N. Shore-Long Island Jewish Health Sys., 286 F. Supp. 3d 501, 512 (E.D.N.Y. 2018) (quoting Millea v. Metro-N. R. Co., 658 F.3d 154, 164 (2d Cir. 2011) (alteration in original). “‘[P]etty slights, minor annoyances, and simple lack of good manners will not’ give rise to actionable retaliation claims.” Millea, 658 F.3d at 165 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).17 “In determining whether conduct amounts to an adverse employment action, the alleged acts of retaliation need to be considered both separately and in the aggregate, as even minor acts of retaliation can be sufficiently ‘substantial in gross’ as to be actionable.” Smith, 286 F. Supp. 3d at 512 (quoting Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010)). “[T]he standard for an adverse employment action in retaliation claims is
considerably broader than the standard for discrimination claims under Title VII.” Vaughn v. City of New York, No. 06-CV-6547 (ILG), 2010 WL 2076926, at *14 (E.D.N.Y. May 24, 2010) (citing Burlington N. and Santa Fe Ry. Co., 548 U.S. 53).
As to the fourth element, a plaintiff in the Second Circuit can raise an inference of retaliatory intent “by showing that the protected activity was closely followed in time by the adverse employment action.” Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001) (internal brackets omitted). There is no firm outer limit to the temporal proximity required, but most courts in the Second Circuit have held that a lapse of time beyond two or three months will break the causal inference. See Walder v. White Plains Bd. of Educ., 738 F. Supp. 2d 483, 503-04 (S.D.N.Y. 2010) (collecting cases).
Here, there is no dispute that Plaintiff is qualified for the position that she holds. Further, when Plaintiff filed this action on January 26, 2017, she was exercising her rights under the FMLA to oppose practices that she believed were prohibited. See
The Court finds, however, that Plaintiff has only plausibly alleged that Gergen‘s decision to deny her a discretionary bonus around January 2017 occurred under circumstances giving rise to a reasonable inference of retaliatory intent. Though the actual date of this denial is
Therefore, Plaintiff‘s FMLA retaliation claim can proceed based on Gergen‘s decision to deny Plaintiff a discretionary bonus in January 2017. However, because this denial is a “discrete act” rather than an “ongoing violation,” Pierre, 2009 WL 1583475, at *18 (internal quotations and citation omitted), this claim will only proceed against Defendant Gergen in his individual capacity. Further, Defendant Johnson is not alleged to have been involved in the denial of the discretionary bonus in January 2017, so Plaintiff‘s retaliation claim against her must be dismissed. Cf. Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d 302, 315 (S.D.N.Y. 2014) (denying a motion to dismiss FMLA claims where the second amended complaint alleged personal involvement in the decision to fire the plaintiff).
III. Claims Under the ADA and Rehabilitation Act
Title I of the ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
In light of the Court‘s sovereign immunity analysis supra, Plaintiff has validly asserted claims of discrimination, hostile work environment, and retaliation under the Rehabilitation Act against the University and New York State. Plaintiff has also asserted valid claims for prospective injunctive relief against Individual Defendants in their official capacities for hostile work environment and retaliation in violation of the ADA.20
A. Statutes of Limitations
A plaintiff asserting a claim under the ADA must bring a complaint of workplace discrimination to the EEOC within 300 days of an incident‘s occurrence, and then file a related lawsuit within 90 days of receiving a notice of right to sue from the EEOC. See Bowens v. Corr. Ass‘n of New York, No. 19-CV-1523 (PKC) (CLP), 2019 WL 1586857, at *5 (E.D.N.Y. Apr. 12, 2019); Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 38 (2d Cir. 2011). This filing period operates as a statute of limitations, so the failure to file a timely administrative complaint will bar a plaintiff‘s claims. See Nat‘l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (“[D]iscrete 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.“). In this case, Plaintiff filed her first administrative complaint with the NYSDHR on November 14, 2013, but she failed to file a lawsuit after receiving a Notice of Right to Sue letter from the EEOC. (Pl.‘s Opp., Dkt. 26, at 5). Accordingly, Plaintiff cannot base a cause of action on any allegations contained in her NYSDHR complaint. Subsequently, however, Plaintiff filed a second administrative charge on July 23, 2015, this time with the EEOC. (SAC, Dkt. 15, at ¶ 4.) Plaintiff timely filed this action after receiving a right-to-sue letter from the EEOC. (Id.) Accordingly, Plaintiff‘s ADA claims may be based upon alleged violations that occurred after September 26, 2014 and were contained in her EEOC charge of discrimination.
Unlike the ADA, the Rehabilitation Act does not contain a specific statute of limitations. Morse v. Univ. of Vt., 973 F.2d 122, 125 (2d Cir. 1992). In the absence of an express statute of limitations, the Second Circuit has held “that actions under § 504 of the Rehabilitation Act are governed by the state statute of limitations applicable to personal injury actions.” Id. at 127. In New York, the statute of limitations for personal injury actions is three years. See Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002); see also
B. Disability Discrimination in Violation of the Rehabilitation Act
To state a prima facie claim of employment discrimination under the Rehabilitation Act, a plaintiff must plausibly allege: “(1) that [s]he is an individual with a disability within the meaning of the statute, (2) that [s]he was otherwise qualified for the position or benefit denied, and (3) that [s]he suffered an adverse employment action because of his disability; and (4) the program sponsoring [her] position receives federal funding.” Day v. MTA N.Y.C. Transit Auth., No. 17-CV-07270 (VSB), 2019 WL 1437616, at *4 (S.D.N.Y. Mar. 31, 2019). Defendants move to dismiss this claim on the grounds that Plaintiff‘s allegations fail to establish that she suffered an adverse employment action because of her disability. (See Defs.’ Br., Dkt. 25-9, at 11-16.)
As an initial matter, there is no dispute that Plaintiff has adequately alleged that she suffered from a disability, i.e., Crohn‘s disease. Plaintiff further claims that the denial of her March 2013 FMLA leave request establishes that Defendants failed to provide a reasonable accommodation for her disability. However, this act falls outside of the statute of limitations for Rehabilitation Act claims. Thus, Plaintiff cannot state a claim to relief on that basis. Further, though Plaintiff has alleged that she suffered adverse employment actions on three discrete occasions (SAC, Dkt. 15, at ¶¶ 31, 52, 66), none of her allegations plausibly connect those actions to discriminatory animus based on her disability. And while Plaintiff alleges that, on multiple occasions between 2011 and 2013, Gergen expressed his general displeasure with employees who took FMLA leave (id. ¶¶ 6-8), these allegations are insufficient to infer a causal connection between the changes to Plaintiff‘s job responsibilities and her disability. See Falcon v. City Univ. of N.Y., 263 F. Supp. 3d 416, 430-31 (E.D.N.Y. 2017) (“The fact that the [p]laintiff may be a member of a [protected] group and something happens to her that she does not like is not nearly sufficient to constitute an employment discrimination claim.” (internal quotations, brackets, and citation omitted)). There are no indications that the Defendants disparaged, criticized, or otherwise made derogatory comments related to Plaintiff‘s disability after 2013. See Hagan v. City of New York, 39 F. Supp. 3d 481, 503 (S.D.N.Y. 2014). Finally, there are no allegations that Defendants gave more favorable treatment to similarly situated employees who are not disabled. Accordingly, Plaintiff‘s discrimination claims under the Rehabilitation Act must be dismissed.
C. Hostile Work Environment in Violation of the Rehabilitation Act and the ADA
While other claims of discrimination address discrete harms such as hiring or discharge, a hostile work environment claim requires a court to “analy[ze] a workplace environment as a whole to discover whether it is ‘abusive.‘” Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir. 2001) (quoting Harris v. Forklift, 510 U.S. 17, 22 (1993)). To state a hostile work environment claim under both acts, a plaintiff must allege she suffered conduct that “(1) is objectively severe or pervasive; (2) creates an environment that the plaintiff . . . subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff‘s [disability].” Nadel v. Shinseki, 57 F. Supp. 3d 288, 299 (S.D.N.Y. 2014) (internal quotations and citation omitted). Isolated incidents or “episodic”
Plaintiff‘s hostile work environment claims fail on the third element for the same reason that her discrimination claims fail: the allegations in the Second Amended Complaint simply do not suggest that Defendants’ conduct is reasonably attributable to her disability.21 While Gergen allegedly yelled at Plaintiff (SAC, Dkt. 15, at ¶ 21), asked for her resignation (id.), gave her additional work responsibilities on at least nine occasions between 2012 and 2016 (id. ¶¶ 11, 19, 45-65), and “manipulated” the University‘s hiring committee to ensure that Nancy Black was selected as Assistant Director of Undergraduate Biology instead of Plaintiff (id. ¶¶ 32, 37), there are no indications, such as contemporaneous disparaging remarks, that these actions were taken because of Plaintiff‘s disability. See Raniola, 243 F.3d at 621-22 (“To demonstrate that all of the alleged abuse was on account of [a protected characteristic], [a plaintiff] may either show that the verbal abuse indicated that other adverse treatment was also suffered on account of [the protected characteristic], or resort to circumstantial proof that the other adverse treatment that was not explicitly [based on the protected characteristic] was, nevertheless, suffered on account of [it].“); see also Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002) (“Everyone can be
characterized by sex, race, ethnicity, or (real or perceived) disability; and many bosses are harsh, unjust, and rude. It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination.“). Because Plaintiff has failed to allege facts that give rise to an inference that Defendants’ allegedly hostile conduct was motivated by her disability, her hostile work environment claims under the ADA and Rehabilitation Act fail.
D. Retaliation in Violation of the Rehabilitation Act and the ADA
To state a prima facie case of retaliation under the ADA and the Rehabilitation Act, a plaintiff must allege that “(1) [the d]efendants took an adverse employment action against [her], (2) because [s]he opposed an employment practice made unlawful by the ADA or Rehabilitation Act.” Johnson v. N.Y. State Office of Alcoholism, No. 16-CV-9769 (RJS), 2018 WL 1353258, at *4 (S.D.N.Y. Mar. 13, 2018); Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (stating that retaliation claims under the Rehabilitation Act and ADA are governed by the same standards).
For substantially the same reasons that Plaintiff has successfully stated a plausible claim of FMLA retaliation, she has also stated a retaliation claim against the University and New York State under the Rehabilitation Act based on the allegation the she was denied a discretionary bonus. When Plaintiff filed this action in January 26, 2017, she was acting to oppose discrimination and retaliation made unlawful
The Court also finds that Plaintiff may assert a claim of retaliation under the ADA against Gergen in his official capacity based on his denial of Plaintiff‘s August 2015 request for a salary increase.22 Plaintiff filed her second administrative charge with the EEOC in July 2015. (SAC, Dkt. 15, at 23.) One month later, Plaintiff requested a salary increase in light of her increased job responsibilities. (Id. ¶ 50.) Gergen denied Plaintiff‘s request on October 23, 2015 and accused Plaintiff of wrongdoing and performance deficiencies. (Id. ¶ 52.) Liberally construed, these alleged adverse employment actions raise an inference of retaliatory intent.23 Accordingly, Plaintiff may pursue her ADA retaliation claims for injunctive relief against Gergen.24
Because Plaintiff failed to file an administrative charge of retaliation based on the bonus denial, however, she may not assert a claim of retaliation under the ADA against Individual Defendants in their official capacities.25 Vives, 2019 WL 1386738, at *6 (“Before bringing a federal claim under Title VII or the ADA, a plaintiff must first file a complaint with the EEOC or equivalent state agency.” (citing
IV. Claims Under the United States Constitution
In the Second Amended Complaint, Plaintiff asserts that she is bringing claims pursuant to ”
V. State Law Claims
In addition to her viable federal claims, Plaintiff also asserts corresponding state law claims under the NYSHRL. (See SAC, Dkt. 15, at ECF 3.) In light of the Court‘s sovereign immunity analysis, supra, these state law claims are validly asserted only as to Individual Defendants in their individual capacities.
“The NYSHRL allows for individual liability under two theories: [(1)] if the defendant has ‘an ownership interest’ in the employer or has ‘the authority to hire and fire employees,’ [
Here, Plaintiff has expressly characterized the University as her employer. (See SAC, Dkt. 15, at ECF 3 (naming Plaintiff‘s place of employment as “Stony Brook University“).) And though Individual Defendants hold authority over Plaintiff in the workplace, they clearly lack an ownership interest in the University, as well as the power to hire and fire Plaintiff. (See id. ¶ 32 (stating that Plaintiff has attained “permanent/tenured status“); id.
establish a viable claim of liability against the University under
CONCLUSION
For the reasons stated, Defendants’ motion to dismiss is granted in part and denied in part. Plaintiff‘s claims against the University and New York State for retaliation in violation of the Rehabilitation Act, as well as her claim for prospective injunctive relief against Defendant Gergen in his official capacity for retaliation in violation of the ADA shall proceed to discovery. Likewise, Plaintiff‘s claim against Defendant Gergen in his individual capacity for retaliation in violation of the FMLA shall proceed. All other claims are dismissed. Given that no claims remain against Defendant Johnson, she is terminated as a party to this action.
SO ORDERED.
Dated: September 5, 2019
Brooklyn, New York
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge