Opinion
7:23-CV-6006 (CS)
08-03-2023
ORDER TO AMEND
CATHY SEIBEL, United States District Judge:
Plaintiff Kathleen A. Bennett, of Yonkers, New York, brings this pro se action under the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990 (“ADA”), and the New York State and City Human Rights Laws. She sues “Nicole R. Hall/Internal Revenue Service,” which the Court understands to be Nicole R. Hall, apparently her manager or supervisor at her employer, the Internal Revenue Service (“IRS”). Plaintiff seeks backpay, and asks the Court to order her employer, the IRS, to reasonably accommodate her disability, allow her to participate in “telework from home 5 days per week,” and to transfer Hall away from her such that Hall would not have “access to [her] Seta Time keeping....” (ECF 1, at 6.) Plaintiff also seems to seek restoration of her debited annual and sick leave, the expungement of any mention of her being absent without leave from her employment record, as well as the expungement of any other reprimand that has been posted in her employment record. (Id.) Because Plaintiff alleges that she is a federal employee, and because she appears to assert claims of disability and age discrimination, as well as claims of retaliation, the Court construes Plaintiff's claims under federal law as brought under the Rehabilitation Act of 1973 and the Age Discrimination in Employment Act of 1967.
See Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir. 1998) (“[A] federal employee . . . has no remedy for employment discrimination under the ADA. [Her] sole claim for discrimination on the basis of disability is under the Rehabilitation Act, if anywhere.” (citing 42 U.S.C. § 12111(5)(B))).
The Court notes that Plaintiff has paid the fees to bring this action. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
STANDARD OF REVIEW
The Court has the authority to dismiss a complaint, even when the plaintiff has paid the fees to bring a federal civil action, if the Court determines that the action is frivolous, see Fitzgerald v. First E. Seventh Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000), or that the Court lacks subject matter jurisdiction, see Fed.R.Civ.P. 12(h)(3); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). The Court also may dismiss an action for failure to state a claim on which relief may be granted, “so long as the plaintiff is given notice and an opportunity to be heard.” Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994) (citation and internal quotation marks omitted).
While the law allows for dismissal on these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
Rule 8 requires that a complaint must include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the court to draw the inference that the defendant is liable for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Id. But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Id. (citing Twombly, 550 U.S. at 555). After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id. at 679.
BACKGROUND
Plaintiff appears to allege that she is an employee of the IRS who normally works at an IRS office located in New York, New York. She asserts that she is “qualified to [t]elework from home.” (ECF 1, at 5.) Plaintiff further alleges that her manager or supervisor, who appears to be Defendant Hall, reprimanded her from being absent without leave, though Plaintiff had been teleworking from home and “despite [Plaintiff's] disability to stay on [her] feet, . . . [and her physician's] notifications and RA [s]pecialists['] indications [sic].” (Id.) She alleges that “[e]veryone else in the department [has been] able to [t]elework from home.” (Id.) Plaintiff also alleges that her manager or supervisor “is retaliating because of a previous claim filed with the [Equal Employment Opportunity (“EEO”) officer] against her.” (Id.) She further asserts that her manager's or supervisor's actions constitute “a violation [of the] Teleworking Agreement of 2010 [and] a violation of the ADA....” (Id.) Plaintiff states that, during one week, her manager or supervisor “deducted $1,054.00 from [her] salary[,] [then] deducted another $1,503” during the next week. (Id.) She also states that, for the week thereafter, she was not paid at all. (Id.) Plaintiff further states that her pay was reduced, and was ultimately suspended, “because of age and disability.” (Id.)
DISCUSSION
A. New York State and City Human Rights Laws
Because Plaintiff asserts claims of discrimination and retaliation arising from her federal employment with the IRS, the Court must dismiss her claims under the New York State and City Human Rights Laws (“NYSHRL” & “NYCHRL”). Relief under the NYSHRL and the NYCHRL, which are state and municipal statutes, respectively, is unavailable to persons asserting claims of discrimination and retaliation arising from federal employment. See, e.g., Rivera, 157 F.3d at 105; Williams v. Soc. Sec. Admin., No. 23-CV-2348, 2023 WL 3728375, *5 (S.D.N.Y May 30, 2023); Songv. Becerra, No. 22-CV-9678, 2022 WL 17618485, at *1 (S.D.N.Y. Dec. 13, 2022); Perkins v. United States Dep't of the Treasury, No. 18-CV-8911, 2022 WL 19772, at *16 (S.D.N.Y Jan. 3, 2022); Malloy v. Pompeo, Nos. 18-CV-4756, 19-CV-6533, 2020 WL 5603793, at *9 (S.D.N.Y Sept. 18, 2020). Accordingly, the Court dismisses Plaintiff's claims under the NYSHRL and NYCHRL for failure to state a claim on which relief may be granted.
B. Proper defendant
The Court must dismiss Plaintiff's claims under the Rehabilitation Act of 1973 and the Age Discrimination in Employment Act of 1967 (“ADEA”) against Defendant Hall. These statutes do not provide for claims of discrimination or retaliation against individual employees. See Williams, 2023 WL 3728375, at *5; Shaw v. USPS, No. 09-CV-6617, 2010 WL 3749233, at *13 (S.D.N.Y. Aug. 16, 2010), report & recommendation adopted, 2010 WL 3767115 (S.D.N.Y. Sept. 27, 2010). The Court therefore dismisses these claims against Defendant Hall for failure to state a claim on which relief may be granted.
The proper defendant for such claims, when they arise from federal employment, is the head of the relevant federal agency. See 42 U.S.C. § 2000e-16(c) (Title VII of the Civil Rights Act of 1964 (“Title VII”)); 29 U.S.C. § 794a(a)(1) (Rehabilitation Act adopts Title VII's remedial and procedural scheme); Williams, 2023 WL 3728375, at *5; Shaw, 2010 WL 3749233, at *13; Torres v. United States Dep't of Veterans Affairs, No. 02-CV-9601, 2004 WL 691237, at *2 (S.D.N.Y. Mar. 31, 2004) (holding, in the federal-employee context, that “[e]mployees, including supervisors, are not subject to suit under . . . the Rehabilitation Act or the ADEA”); see also Thomas v. Dep't of Veterans Affairs, No. 05-CV-5348, 2006 WL 1636738, at *6 (S.D.N.Y. Apr. 3, 2006) (“Although the ADEA does not expressly designate who the proper defendants are in an ADEA action, and neither the Supreme Court nor the Second Circuit have addressed the issue, the weight of authority holds that the head of the federal agency is the only proper defendant.”) (citation omitted), report & recommendation adopted, 2006 WL 1594481 (S.D.N.Y. June 6, 2006). The Court therefore grants Plaintiff leave to file an amended complaint in which she names the head of the IRS, IRS Commissioner Danny Werfel, as the sole defendant in this action.
C. Claims of disability discrimination and age discrimination
Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, “prohibits discrimination on the basis of disability in employment decisions by the Federal Government.” Lane v. Pena, 518 U.S. 187, 193 (1996); see also Rivera, 157 F.3d at 104-05 (“Congress explicitly made Title VII remedies available for violations of [S]ection 501 [of the Rehabilitation Act] . . . to obtain relief for . . . discrimination against a federal employee.”). The ADEA “prohibits discrimination in employment on the basis of age against persons aged 40 or older.” D'Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 194 (2d Cir. 2007) (citing 29 U.S.C. §§ 623(a)(1), 631(a)); see 29 U.S.C. § 633a(a).
To state a claim of failure to provide a disability accommodation under the Rehabilitation Act, which the Court understands Plaintiff's complaint as asserting, a plaintiff must allege facts showing that: “(1) [the plaintiff] is a person with a disability under the meaning of [the Rehabilitation Act]; (2) an employer covered by the statute had notice of [the plaintiff's] disability; (3) with reasonable accommodation, [the] plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.” Natofsky v City of New York, 921 F.3d 337, 352 (2d Cir. 2019) (internal quotation marks and citation omitted, first alteration in original). For a claim under the ADEA, a plaintiff must allege facts indicating that her age was the but-for cause of the employer's adverse employment action. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015) (quoting Gross v. FBL Fins. Servs., Inc., 557 U.S. 167, 177 (2009)).
Plaintiff's complaint does not provide facts sufficient to state a claim of discrimination under the Rehabilitation Act or under the ADEA. With respect to Plaintiff's claims under the Rehabilitation Act, it is unclear whether Plaintiff suffers from a disability as defined for the purpose of that statute; Plaintiff merely alleges that she is “qualified to [t]elework from home” and that she has a “disability to stay on [her] feet.” (ECF 1, at 5.) She also does not allege facts showing that she ever notified her employer, the IRS, which appears to be covered by the Rehabilitation Act, of her disability; she only states that her manager or supervisor reprimanded her for being absent without leave, though she teleworked from home because of her disability and “d[e]spite [her physicians'] notifications and RA [s]pecialist['s] indications [sic].” (Id.) Plaintiff further does not show in her complaint that with a reasonable accommodation (in this case, teleworking from home), she can perform the essential functions of her position. Finally, it is not entirely clear that her employer has refused to allow her such an accommodation for her disability.
For the purpose of claims of employment discrimination under the Rehabilitation Act, a “disability” is defined as: “(A) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1); see also 29 U.S.C. § 705(20)(B) (incorporating by reference the definition of “disability” in 42 U.S.C. § 12102(1) for claims of employment discrimination brought under the Rehabilitation Act).
As to her claims of age discrimination under the ADEA, Plaintiff does not show that, at the time of the alleged discrimination, she was 40 years of age or older. She also does not allege facts showing that, but for her age, her employer would not have discriminated against her.
For all of these reasons, Plaintiff fails to state a claim on which relief may be granted as to her claims of disability discrimination under the Rehabilitation Act and as to her claims of age discrimination under the ADEA. In light of her pro se status, however, the Court grants Plaintiff leave to file an amended complaint in which she alleges facts sufficient to state claims of discrimination under these statutes.
D. Claims of retaliation
Under ADEA's antiretaliation provision:
[i]t shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.29 U.S.C. § 623(d). The Rehabilitation Act incorporates by reference the ADA's antiretaliation provision, which provides that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful [under the Rehabilitation Act] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the Rehabilitation Act].” 42 U.S.C. § 12203(a) (ADA); see 29 U.S.C. § 794(d) (Rehabilitation Act).
To state a claim of retaliation under the ADEA, a plaintiff must allege facts showing that: “(1) [the] defendant[] discriminated - or took an adverse employment action - against [her], (2) ‘because' [s]he has opposed any unlawful employment practice.” Vega, 801 F.3d at 90 (quoting 42 U.S.C. § 2000e-3(a), discussion in the Title VII context); Kopchik v. Town of Fishkill, N.Y., 759 Fed.Appx. 31, 34-35 (2d Cir. 2018) (summary order) (quoting Vega, 801 F.3d at 90-91, discussion in the ADEA context). “[F]or an adverse retaliatory action to be ‘because' a plaintiff [opposed an unlawful employment practice], the plaintiff must plausibly allege that the retaliation was a ‘but-for' cause of the employer's adverse action. It is not enough that retaliation was a ‘substantial' or ‘motivating' factor in the employer's decision.” Vega, 801 F.3d at 90-91 (internal quotation marks and citations omitted). To state a claim of retaliation under the Rehabilitation Act, a plaintiff must show that: “(i) [the] plaintiff was engaged in protected activity; (ii) the alleged retaliator knew that [the] plaintiff was involved in protected activity; (iii) an adverse decision or course of action was taken against [the] plaintiff; and (iv) a causal connection exists between the protected activity and the adverse action.” Natofsky, 921 F.3d at 353 (internal quotation marks and citation omitted). Such a causal connection may be shown either: “(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Id. (internal quotation marks and citation omitted).
With respect to her claims of retaliation brought under the ADEA, Plaintiff does not allege facts sufficient to show that she suffered an adverse employment action because she opposed an unlawful employment practice. Plaintiff refers to a previous administrative claim filed against her manager or supervisor with the EEO officer, which could show opposition to an unlawful employment practice. But she does not allege whether she or someone else filed it, when it was filed, why it was filed, or when she suffered discriminatory treatment. Even assuming all these factors are present, she does not allege facts showing that but for her filing the administrative claim, her employer would not have taken any adverse employment action against her. As to her claims of retaliation under the Rehabilitation Act, Plaintiff does not allege facts sufficient to show that there was a causal connection between any protected activity she performed against her manager or supervisor (as stated above, it is unclear whether she or someone else previously filed an administrative claim against her manager or supervisor with the EEO officer and, if she did, when and under what circumstances she filed it) and any adverse employment action that she suffered because of it. Thus, Plaintiff fails to state a claim on which relief may be granted as to her claims of retaliation under the ADEA and the Rehabilitation Act. In light of Plaintiff's pro se status, however, the Court grants Plaintiff leave to file an amended complaint in which she alleges facts sufficient to state a claim of retaliation under the ADEA or the Rehabilitation Act.
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the United States Court of Appeals for the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional facts to state a valid claim of discrimination or retaliation under either the Rehabilitation Act or the ADEA, the Court grants Plaintiff 60 days' leave to amend her complaint to detail such claims.
Plaintiff is granted leave to amend her complaint to name the proper defendant, the Commissioner of the IRS, Danny Werfel, and to provide more facts about her claims. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated her federally protected rights; how, when, and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint. The Court strongly encourages Plaintiff to attach to her amended complaint a copy of any administrative decision she has received, either from the IRS or from the United States Equal Employment Opportunity Commission (EEOC), with regard to the administrative claim she alleges she filed on or about June 26, 2023.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this court's Pro Se Intake Unit within 60 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 7:23-CV-6006 (CS). An amended complaint for employment discrimination form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the Court will dismiss this action for failure to state a claim on which relief may be granted.
The Clerk of Court is respectfully directed to separately docket and effectuate the Consent to Electronic Service found at page 9 of ECF No. 1.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
(Exhibit Omitted).