Opinion
11 Civ. 3184 (LBS)
12-28-2011
BUKOLA AKINFADERIN, Plaintiff, v. W. P. CAREY & CO. LLC, LEONARD LAW, REBECCA REAVES, DOES 1-10, Defendants.
MEMORANDUM & ORDER
In this action, Plaintiff Bukola Afinfaderin ("Plaintiff") asserts various city, state and federal claims against W.P. Carey & Co., LLC ("W. P. Carey"); her supervisors Leonard Law and Rebecca Reaves; and other individuals employed by W. P. Carey (collectively, "Defendants").
Defendants move to dismiss most of Plaintiff's claims against them. For the following reasons, we grant Defendants' motion to dismiss Plaintiff's fifth, sixth, seventh, ninth, twelfth, sixteenth, eighteenth, nineteenth, and twentieth causes of action. Plaintiff's eighth cause of action is dismissed in part and leave to amend is granted in part. I. Background
Plaintiff, a Nigerian female, was until April 2010 employed by W. P. Carey as a business systems analyst. She began working for W. P. Carey as a support associate upon graduating from university in 2004. W. P. Carey is an investment management company based in New York City. Rebecca A. Reaves is Senior Vice President of Marketing and Investor Relations, while Leonard Law is Senior Vice President and Chief Information Officer, both at W. P. Carey.
Plaintiff asserts a host of claims against Defendants, including racial, gender, and national origin discrimination in violation of Title VII; disability discrimination in violation of the Americans with Disabilities Act; and interference and retaliation under the Family Medical Leave Act. While some of Plaintiff's claims date back to 2005, most date from 2009 and 2010. During this period, Plaintiff claims that Defendants, among other things, consistently underpaid her with respect to her male and/or white colleagues, regularly excluded her from departmental functions because of her race, and retaliated against her for complaining about her disparate treatment.
Plaintiff also claims that while she was on medical leave for neck and back injuries, Defendants persistently harassed her, which resulted in Plaintiff suffering anxiety, stress, insomnia, and panic attacks. On February 22, 2010 Plaintiff filed an EEOC complaint. Approximately one month later, while Plaintiff was on FLMA leave, Plaintiff discovered that Defendants were soliciting applicants to fill her position. On April 4, 2010, Plaintiff claims that she was "constructively terminated" because Defendants had hired her replacement. Plaintiff brought suit one year later.
II. Standard of Review
On a motion to dismiss, a court reviewing a complaint will consider all material factual allegations as true and draw all reasonable inferences in favor of the plaintiff. Lee v. Bankers Trust Co., 166 F.3d 540, 543 (2d Cir. 1999). "To survive dismissal, the plaintiff must provide the grounds upon which his claims rests through 'factual allegations sufficient to raise a right to relief above the speculative level.'" ATSI Commc'ns Inc. v. The Shar Fund, Ltd., 493 F.3d 87, 93 (2d Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Rather, the plaintiff's complaint must include "enough facts to state a claim of relief that is plausible on its face." Id. at 1940 (citing Twombly, 550 U.S. at 570). Plausibility, in turn, requires that the allegations in the complaint "raise a reasonable expectation that discovery will reveal evidence" in support of the claim. Twombly, 550 U.S. at 556.
On a motion to dismiss, a court is not limited to the four corners of the complaint. A court may also consider "documents attached to the complaint as an exhibit or incorporated in it by reference, ... matters of which judicial notice may be taken, or ... documents either in the plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
III. Discussion
a. Third Cause of Action
Defendants argue that, because Plaintiff failed to allege national origin discrimination in her EEOC charge, she is barred from asserting a Title VII, 42 U.S.C. §§ 2000e et seq., claim before this Court on the grounds of discrimination based on national origin (Plaintiff's third cause of action). See, e.g., Butts v. New York Dep't of Hous. Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir. 1985) (noting that a "district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is reasonably related to that alleged in the EEOC charge") (internal citations and quotation marks omitted). We disagree. As the Second Circuit notes in Butts, "we have allowed claims not raised in the [EEOC] charge to be brought in a civil action where the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id. at 1402. Plaintiff did, in fact, use the words "national origin" in her EEOC complaint; however those words were followed by the bracketed word "Black." Lamendola Decl., Ex. 14 ("I reiterate and re-allege that I have been discriminated against on the basis of my ... national origin (Black)...."). Earlier in the EEOC charge, Plaintiff used "Black" to refer not to national origin but to race. Id. ("I believe I am being discriminated against because of my Race (Black), Gender (Female)...."). Despite the apparent conflict in the charge itself, we have little trouble in holding that an EEOC investigation into the alleged racial discrimination could reasonably include discrimination on the basis of national origin. Defendants' motion to dismiss Plaintiff's third cause of action is denied.
b. Fifth, Sixth, Seventh, and Sixteenth Causes of Action
Plaintiff alleges disability discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12112 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Administrative Code § 8-101 et seq., on the basis of her alleged fall-related neck and back injury, and her alleged mental health condition.
Plaintiff further alleges that Defendants violated the ADA by (i) failing to provide Plaintiff with reasonable accommodations and (ii) retaliating against Plaintiff for complaining about the lack of reasonable accommodations.
i. ADA
To plead a claim under the ADA, a plaintiff must, inter alia, allege facts showing that she has a disability within the meaning of the ADA. Weixel v. Board of Educ. of City of New York, 287 F.3d 138, 146-147 (2d Cir. 2002). Merely pleading that one has an impairment is insufficient; rather, one must show that one's impairment "substantially limits" a "major life activity." Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184, 195 (2002). In her Complaint and her Proposed Amended Complaint Plaintiff alleges only that she "suffered a serious, and permanent injury" as well as "anxiety stress, insomnia and panic attacks." Proposed Amended Complaint ¶¶ 35-36. Plaintiff's failure to allege that the disability substantially limits a major life activity is fatal to her claim. See Schwartz v. Comex, No. 96 Civ. 3386 (LAP), 1997 U.S. Dist. LEXIS 4658, *3-11 (S.D.N.Y. Apr. 2, 1997). Even drawing all reasonable inferences in favor of Plaintiff, sustaining her ADA claim based on her pleadings would require "improperly assuming facts that are not alleged." Harewood v. Beth Isr. Med. Ctr., No. 02 Civ. 5511 (HB), 2003 U.S. Dist. LEXIS 10002, at *19 (S.D.N.Y. June 12, 2003). Plaintiff's fifth cause of action alleging discrimination under the ADA is dismissed.
Because Plaintiff has failed to establish disability under the ADA, Plaintiff's allegation that Defendants failed to make reasonable accommodation for her disability, in further violation of the ADA, must fail. Even if Plaintiff were disabled, Plaintiff does not allege, nor is there any evidence that might lead this Court to deduce, that Plaintiff asked Defendants to accommodate her alleged disability. And since Plaintiff was neither disabled nor asked Defendants to accommodate her disability, it follows that Defendants could not have retaliated against Plaintiff for complaining about the lack of reasonable accommodations. We therefore dismiss Plaintiff's sixth and seventh causes of action.
ii. NYCHRL
Plaintiff also brought a New York City Human Rights Law ("NYCHRL") claim relating to her alleged disability. We note at the outset that claims under the NYCHRL "must be reviewed independently from and more liberally than their federal and state counterparts." Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009) (internal quotation marks omitted).
The NYCHRL deems it unlawful for an employer to discharge an employee "because of the actual or perceived ... disability of that individual." N.Y. City Admin. Code § 8-107(1)(a). The NYCHRL defines disability to include "any physical, medical, mental or psychological impairment." Id. § 8-102(16). This definition is broader than the definition of disability in the ADA. Burton v. Metro. Trans. Auth., 244 F. Supp. 2d 252, 258 (S.D.N.Y. 2003). However, the NYCHRL provides for an affirmative defense where a plaintiff "could not, with reasonable accommodation, satisfy the requisites of the job." N.Y. City Admin. Code § 8-107(15)(b).
Under the NYCHRL, Plaintiff has alleged sufficient facts to establish disability. But here, as above, Plaintiff has not alleged that she could, with reasonable accommodation, have satisfied her job requirements. Plaintiff made it quite clear that her conditions prevented her from returning to work, working from home, or indeed working at all. Plaintiff does not allege that she might have been able to work had Defendants furnished her with reasonable accommodation, nor that she asked Defendants to do so. Lamendola Decl. Exs. 7, 8, 14. Accordingly, Plaintiff's sixteenth cause of action is dismissed.
c. Twelfth Cause of Action
Plaintiff claims that Defendants violated the New York State Human Rights Law ("NYSHRL") by subjecting her to a "discriminatory and hostile work environment on account of her disability." This claim is without merit.
"Hostile work environment ... claims under the NYSHRL are generally governed by the same standards as federal claims under Title VII." Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597, 609 (2d Cir. 2006). A plaintiff must show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000).
Plaintiff has failed to carry this burden. Plaintiff never returned to her workplace after her disability began and therefore she cannot claim that it was hostile. Even assuming, arguendo, that "workplace" extends to the various email exchanges between Plaintiff and Defendants that occurred after Plaintiff became disabled, she has provided this Court with nothing whatsoever to indicate the existence of any intimidation, ridicule, and insult stemming from her alleged disability—let alone anything severe or pervasive enough to have altered the conditions of her employment. The only conceivable, but hardly sufficient, factual allegation in the Complaint that supports her hostile work environment claim is that Defendants asked her to work from home while she was on leave. This is not enough—particularly when weighed against the email exchanges demonstrating that during Plaintiff's medical leave, Defendants appear to have treated Plaintiff with courtesy and respect. Lamendola Decl. Exs. 4, 6, 9. Plaintiff's twelfth cause of action is dismissed.
d. Eighth Cause of Action
The Equal Pay Act ("EPA"), 29 U.S.C. § 206(d)(1), prohibits an employer from discriminating "between employees on the basis of sex by paying wages ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work on jobs ... which are performed under similar working condition." Claims brought pursuant to the EPA are subject to a two-year statute of limitations, except where the alleged violation was willful, in which case the limitations period is three years. Id. § 255(a). A separate claim accrues each time an aggrieved employee received a paycheck reflecting discriminatory wages. Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 118 (2d Cir. 1997).
Plaintiff alleges that she was paid less that her co-worker at the help desk, Michael Ciambrello, through Ciambrello was less educated, less experienced, and was hired two years after Plaintiff. Ciambrello is a white male. Plaintiff was promoted from help desk associate to business analyst in April 2008. Because Plaintiff did not file her complaint under April 28, 2011—more than two years, but (just) less than three years after April 2008—Plaintiff's claim with respect to her employment as a help desk associate is timely only if the violation she alleges is found to be willful. A defendant's violation is willful "if the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." Pollis, 132 F.3d at 119. It is unclear whether Plaintiff alleges that Defendants negligently or willfully violated the EPA. As such, we grant Plaintiff leave to amend her complaint to address this issue. Fed. R. Civ. P. 15(a) ("[L]eave to amend shall be freely given when justice so requires.")
Plaintiff further alleges that, after her promotion to business analyst, she was subjected to "unequal treatment" when other employees received bonuses but she did not. This allegation, even as recapitulated in the Proposed Amended Complaint, is simply too conclusory and factually deficient to survive dismissal. See Rose v. Goldman, Sachs & Co., 163 F. Supp. 2d 238, 244 (S.D.N.Y. 2001) (finding that "nothing more than bald assertions that [a plaintiff] and male employees ... received disparate wages for substantially equal jobs under similar working conditions ... are too conclusory to state a claim under the Equal Pay Act"). Insofar as Plaintiff asserts an EPA claim with respect to her tenure as business analyst, Plaintiff's claim is dismissed.
e. Ninth Cause of Action
Defendants move to dismiss Plaintiff's ninth cause of action: retaliation for engaging in protected activity under the EPA. "The EPA is an amendment to the FLSA and is codified under the same chapter; thus retaliation for filing EPA complaints falls under § 215(a)(3)" of the Fair Labor Standards Act ("FLAS")'s anti-retaliation provision. Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir. 1993). FLAS's anti-retaliation provision makes it unlawful to "discharge or in any manner discriminate against any employee because such employee has filed any complaint." 29 U.S.C. § 215(a)(3). "[F]iled any complaint," the United States Supreme Court has recently held, "includes oral as well as written complaints within its scope." Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1329 (2011).
Plaintiff has not alleged that she complained, orally or in writing, about the EPA violation alleged to have occurred during her tenure as a help desk associate. Both the Complaint and the Proposed Amended Complaint allege only that she complained to her supervisor, Leonard Law, that she'd not been paid as promised in her new position as business analyst, not that she complained about any gender-based disparity. Therefore, Plaintiff's ninth cause of action alleging retaliation under the EPA with respect to her position at the help desk is dismissed.
f. Eighteenth and Nineteenth Causes of Action
Plaintiff claims that Defendants violated New York's Wage Statute, New York Labor Law §§ 198-c and 630, by failing to pay Plaintiff certain wages due and that, consequently, Defendant was unjustly enriched. Both claims are frivolous. Plaintiff received the $1,410.26 (gross) amount in what she alleges were unpaid wages on March 24, 2005, as evidenced by her signature on the U.S. Department of Labor receipt form. Lamendola Decl. Exs. 12, 13. Plaintiff's eighteenth and nineteenth causes of action are hereby dismissed.
g. Twentieth Cause of Action
Plaintiff alleges interference and retaliation claims under the Family Medical Leave Act ("FLMA"). To state an interference claim under the FLMA, a plaintiff must plead, inter alia, that "she was denied benefits to which she was entitled under the FLMA." See Geromanos v. Columbia Univ., 322 F. Supp. 2d 420, 427 (S.D.N.Y. 2004). Here, "benefits" mean, first, twelve weeks of leave for treatment of a serious health condition and, second, reinstatement to her former position or an equivalent position at the end of the leave. 29 U.S.C. § 2614(a).
With regard to Plaintiff's interference claim, the Second Circuit has held that a "plaintiff need only prove by a preponderance of evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her. She can prove this claim, as one might any ordinary statutory claim, by using either direct or circumstantial evidence, or both." Sista v. CDC Ixis N. Am., Inc., 445 F. 3d 161, 175-176 (2d Cir. 2006). Because Defendants' decision to terminate Plaintiff predated her request for medical leave, Plaintiff's FLMA-protected leave was irrelevant to her termination. Lamendola Decl. Ex. 18 (demonstrating that, as of January 12, 2010, Defendants had decided to terminate Plaintiff on January 15, 2010, nearly one month before Plaintiff's accident and FLMA leave). Plaintiff's claim for interference is dismissed.
Regarding Plaintiff's retaliation claim, our analysis is substantially the same. Plaintiff cannot, logically, allege prong four of a retaliation claim—namely, that "the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995). Retaliation necessarily implies that an adverse employment decision (Plaintiff's discharge) preceded the protected activity (Plaintiff's exercising her FLMA rights). That is not what happened here. Even taking all inferences in Plaintiff's favor, Plaintiff's FLMA claims cannot succeed. Plaintiff's twentieth cause of action is dismissed.
IV. Conclusion
Defendants' motion to dismiss Plaintiff's fifth, sixth, seventh, eighth, ninth, twelfth, sixteenth, eighteenth, nineteenth, and twentieth causes of action is GRANTED, Defendants' motion to dismiss Plaintiff's other causes of action is DENIED. Plaintiff is GRANTED leave to amend her eighth cause of action with respect to her tenure as help desk associate; Defendants' motion to dismiss the remainder of Plaintiff's eighth cause of action is GRANTED.
This Court has considered all of the parties' other arguments and found them to be moot or without merit. --------
SO ORDERED.
December 28, 2011
New York, N.Y.
/s/_________
U.S.D.J.