Opinion
06 Civ. 477 (DLC).
October 13, 2006
Milan Manik and Olga Manik, pro se For plaintiffs.
For defendants Simon Avram and Rose Associates, Inc.: Todd H. Girshon, Matthew A. Steinberg, Jackson Lewis LLP, New York, NY
For defendants Frank Booth and SEIU Local 32BJ: Katchen Locke, Associate General Counsel, Service Employees International Union, Local 32BJ, AFL-CIO, New York, NY.
OPINION ORDER
Plaintiffs Milan and Olga Manik ("Milan" and "Olga," respectively) bring this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000(e) et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 et seq., to recover damages for Milan's mistreatment and eventual firing from his job as a porter and handyman at a building in New York City. Plaintiffs claim that these actions were taken because Milan is a Slovakian immigrant and because his former employer and the union that represented him perceived him to be disabled after he suffered a stroke. Defendants move to dismiss all claims. For the following reasons, the motions are granted in part and denied in part.
Background
The following facts are taken from plaintiffs' filings. Milan, a 60-year-old Slovakian immigrant with limited English skills, was employed by Rose Associates, Inc. ("Rose Associates") as a porter and handyman at a building on East 40th Street in Manhattan for approximately $700 a week. On July 25, 2003, he suffered a stroke. Olga left a message for Simon Avram ("Avram"), Milan's supervisor, to let him know that Milan was hospitalized and would be missing work. Avram called back to say that, based on his knowledge of strokes, Milan would not be able to return to work for "years." In early September, Milan underwent open-heart surgery.
While he was recovering, Olga called Avram to update him on Milan's condition. Avram said he did not care and informed her that Milan would not be coming back to work. On November 18, Milan received a letter from his doctor stating that he was able to return to his job. Although copies were sent to various people at Rose Associates and Service Employees International Union Local 32BJ (the "Union"), all but one denied receiving it. The conditions under which Milan was allowed to return to Rose Associates are not entirely clear from plaintiff's filings. When he began working again, however, Avram was hostile, almost immediately "demot[ing]" him in the wake of an "electrical mishap" that plaintiffs claim never occurred. Soon thereafter, believing that Avram had fired him, Milan filed a grievance with the Union, but the Union did not "process" it, and Avram claimed that he had never fired Milan in the first place.
Plaintiffs also allege that they were mistreated by Union employees during this time. In November 2003, Olga wrote a letter to a Union representative complaining of Avram's insensitivity. No action was taken. Later, on an unspecified date, Milan and Olga spoke with Kristina Rosario ("Rosario"), a Union employee, about similar issues. Rosario was not concerned about the way Milan was treated by his supervisors, and she said he would be better off if he stopped working altogether. Another Union employee told Olga that Milan should be "taking it easy" and "should not be thinking of working." Plaintiffs also allege that Union representatives often refused to deal with Olga, even though Milan had given her power of attorney.
Approximately one year later, in late November 2004, Milan was told that he would have to begin crushing garbage in the basement — a task that had not previously been part of his job. He attempted to do the work, but found the fumes overwhelming. When he stopped, he was confronted by Avram, who asked if he had been drinking. Milan said he had consumed "a couple beers" the night before to relieve stress. Avram sent him to a hospital to get an alcohol test. Milan checked into the New York University Hospital in Manhattan with elevated blood pressure. Plaintiffs claim the hospital was "manipulated by the Union and Company" into trying to "keep him indefinitely." Milan was released the next day with a letter stating he was "in good condition, and able to go back to work to his normal job duties."
On December 2, 2004, Milan filed a grievance with the Union stating that Avram was harassing him. On December 8, Olga and Milan were told to come to a meeting concerning the grievance. When they arrived, however, they found out that Milan was being fired. Union representative Frank Booth ("Booth") presented them with an agreement (the "Agreement") under which Milan was to receive 11 weeks of severance pay in exchange for withdrawing his December 2 grievance. The Agreement also stated that Milan had been "fully and fairly represented" by the Union. Booth made false allegations about Milan's performance to the Maniks and told them that if they refused to sign the Agreement, Milan would not be allowed to return to work and would not receive any benefits. Booth also told Olga that if she did not accept the proposed terms, she would be responsible for all of Milan's suffering. The Maniks ultimately signed the Agreement.
On December 16, Milan also signed a release (the "Release") under which he disclaimed all causes of action against Rose Associates and others in exchange for $7,673.93 (or approximately 11 weeks' salary). Plaintiffs claim that Milan did not understand that the document was a release, but rather believed he was signing an acknowledgment that he had received the severance pay.
Plaintiffs also claim that Milan was fired in order "to put in someone younger with no health problems." It is not clear, however, whether plaintiffs allege that such a person actually replaced Milan at the East 40th Street building, and plaintiffs have never indicated that they intend to bring a claim for age discrimination.
On July 8, 2005, Milan filed a Charge of Discrimination with the EEOC against Rose Associates, claiming he had experienced discrimination based on "national origin" and "disability." On October 19, the EEOC issued a letter closing its investigation into Milan's allegations, saying that its "review of the evidence . . . fails to indicate that a violation has occurred." The EEOC also informed Milan that he could file a lawsuit against Rose Associates within 90 days of receiving the letter.
In their submissions opposing the instant motions, plaintiffs claim that they intended to file an EEOC charge against the Union, as well. The notary public who helped them fill out the forms, however, mistakenly failed to include the Union's name, and plaintiffs were too hurried to check the notary's work. Milan had previously filed a charge against the Union with the National Labor Relations Board ("NLRB"), claiming that it failed to process his December 2 grievance. The NLRB charge is not at issue here.
Plaintiffs filed their complaint in this action on January 23, 2006, claiming violations of Title VII and the ADA, and naming Avram, Booth, and Rose Associates as defendants. Defendants moved to dismiss the complaint, arguing that (1) plaintiffs had not received a right-to-sue letter from the EEOC for any defendants other than Rose Associates; (2) Olga lacked standing to bring any claims for violations of Milan's rights; (3) by signing the Release, Milan had waived all actions against Rose Associates; (4) the allegations in the complaint were insufficient to state a claim under Title VII or the ADA.
On August 10, after briefing of the present motions had been completed, plaintiffs filed an amended complaint adding the Union as a defendant. Plaintiffs made a number of additional submissions in August and September, apparently in response to defendants' briefs on the motions to dismiss. Through Orders of September 12 and September 15, the Court accepted these submissions and provided defendants an opportunity to respond to the arguments made therein. On October 5, an Order was issued construing defendants' motions to dismiss the complaint as motions to dismiss the amended complaint. Discussion
The October 5 Order also provided that if any claims survived these motions to dismiss, the Court would determine whether supplemental briefing was necessary to allow defendants to respond to additional facts and arguments made in the amended complaint.
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8(a)(2), Fed.R.Civ.P. The purpose of this requirement is to give fair notice of a claim and the grounds upon which it rests so that the opposing party may identify the nature of the case, respond to the complaint, and prepare for trial. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002). Rule 8 is fashioned in the interest of fair and reasonable notice, not technicality, and therefore is "not meant to impose a great burden upon a plaintiff." Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005). In examining a motion to dismiss, the court must "accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). Dismissal under 12(b)(6) is only appropriate when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly v. Bell Atl. Corp., 425 F.3d 99, 106 (2d Cir. 2005) (citation omitted). In addition, "[i]t is well-established that when a plaintiff proceeds pro se . . . a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations." Hemphill v. New York, 380 F.3d 680, 687 (2d Cir. 2004) (citation omitted).
I. Administrative Exhaustion
As a precondition to filing a Title VII claim in federal court, a plaintiff must exhaust available administrative remedies by filing a timely complaint with the EEOC or an authorized state agency. Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003). The pursuit of administrative remedies is "an essential element of Title VII's statutory scheme, and one with which defendants are entitled to insist that plaintiffs comply." Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000) (citation omitted). Because the ADA adopts the enforcement scheme of Title VII, see 42 U.S.C. § 12117, the same exhaustion requirement applies to claims brought under the ADA. Although the claims brought by a plaintiff in a federal lawsuit need not be identical to those in the EEOC filing, they must be "reasonably related" to those pursued. Deravin, 335 F.3d at 200 (citation omitted).
Here, Milan filed a timely Charge of Discrimination with the EEOC (the "Charge") and received a right-to-sue letter indicating that his administrative remedies had been exhausted. The only defendant named in the Charge, however, was Rose Associates. It is therefore the only defendant that Milan can sue. See Vital v. Interfaith Medical Center, 168 F.3d 615, 619 (2d Cir. 1999) (describing 42 U.S.C. § 2000e-5(f)(1) as "limiting aggrieved party's right to sue to the respondent named in the charge"). Defendants' motions are therefore granted with respect to all claims against Avram, Booth, and the Union.
As noted above, plaintiffs claim that they intended to name the Union in the Charge, as well, but that a clerical error prevented them from doing so. While such an oversight is unfortunate, it would undermine the purpose of the administrative exhaustion requirement — namely, "to notify the charged party of the alleged violation" and to secure "voluntary compliance with [the Civil Rights Act's] mandates," Vital, 168 F.3d at 619 (citation omitted) — to allow plaintiffs to circumvent it on this basis.
Although it is not necessary to reach the issue here, it is well settled that individuals are not subject to liability under Title VII, Patterson v. County of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2003), or the ADA, Kelly v. Rice, 375 F. Supp. 2d 203, 206 (S.D.N.Y. 2005). The claims against Avram and Booth could not proceed for this reason, as well.
Furthermore, because Olga did not file a charge with the EEOC, she cannot bring any claims under Title VII or the ADA. Defendants' motions are therefore granted with respect to all claims brought by Olga Manik.
Although it is not necessary to reach the issue here, Olga has also failed to show that she would have standing to bring a Title VII or ADA claim based on defendants' treatment of Milan.See, e.g., Lauria v. Donahue 438 F. Supp. 2d 131, 140 (E.D.N.Y. 2006) (collecting cases from district courts in New York holding that "if an individual is neither an employee, or former employee of a company, he or she does not have the right to sue under the ADA").
II. The Release
Rose Associates argues that the Release exempts it from any liability to Milan for disputes related to his employment. Although a release may serve such a function, the burden is on the defendant to establish that it was a "knowing and voluntary" agreement between the parties. See, e.g., Vital, 168 F.3d at 622. "[T]he validity of a release is a peculiarly fact-sensitive inquiry" that involves examination of the following factors:
(1) the plaintiff's education and business experience,
(2) the amount of time the plaintiff had possession of or access to the agreement before signing it, (3) the role of plaintiff in deciding the terms of the agreement, (4) the clarity of the agreement, (5) whether the plaintiff was represented by or consulted with an attorney, and (6) whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law.Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437-38 (2d Cir. 1998). In addition, courts consider whether the employee was encouraged to consult an attorney and had "a fair opportunity" to do so before executing the release. Id. at 438.
Plaintiffs contend that Milan did not understand that he was signing a release; did not consult with a lawyer; and has little, if any, business experience. In light of these allegations — as well as the fact-sensitivity of the required analysis and the fact that Rose Associates did not request that the motion be converted to one for summary judgment — the Release cannot be deemed "knowing and voluntary" at this stage of the litigation.
III. The Title VII Claim Against Rose Associates
Title VII prohibits an employer from making hiring, firing, and other employment decisions "because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Plaintiffs allege that Milan is a Slovakian immigrant who suffered discrimination based on his national origin. Although plaintiffs do not describe the alleged discrimination in detail, it is clear from the EEOC's right-to-sue letter that the thrust of the claim is that Mian was "coerced . . . into signing a release because of [his] disability and national origin." This provides Rose Associates with "fair notice of the basis for petitioner's claims," which is all that is required to survive a motion to dismiss. Swierkiewicz, 534 U.S. at 514. The motion will be denied as to the Title VII claim against Rose Associates.
Although plaintiffs also argue in one of their responses to the instant motions that Milan was fired "because of the grievance," this does not, as defendants claim, mean that plaintiffs have abandoned their contention that the firing was also linked to Milan's national origin. See, e.g., Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir. 2004) (Title VII plaintiff need only show that "the prohibited factor was at least one of the motivating factors" in the adverse employment action). To the extent that Milan is now making a retaliation claim, it is not procedurally barred, even though he did not raise it in the EEOC charge. Because it is "reasonably related to the claim filed with the agency," it may go forward. Williams v. New York City Housing Authority, 458 F.3d 67, 70 (2d Cir. 2006).
IV. The ADA Claim Against Rose Associates
The ADA prohibits discrimination against a "qualified individual with a disability because of the disability" in the "terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The statute defines a disability as "(a) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (b) a record of such impairment; or (c) being regarded as having such an impairment."Id. at § 12102(2).
Here, Milan apparently claims that, although he was not actually disabled, he was "regarded as" disabled by Rose Associates. A "regarded as" claim "turns on the employer's perception of the employee and is therefore a question of intent, not whether the employee has a disability." Capobianco v. City of New York, 422 F.3d 47, 57 (2d Cir. 2005) (citation omitted). The employer must believe the employee is "disabled within the meaning of the ADA, i.e., having an impairment that substantially limits a major life activity." Id. (citation omitted).
Defendants argue that Milan's ADA claim must be dismissed because he has failed to allege any "facts to establish that Rose Associates is a covered employer, and . . . that his stroke constitutes a disability in that it substantially limits a major life activity." This argument misconstrues the Rule 8 pleading standard. While Milan will ultimately have to prove such facts in order to prevail on his claim, he is not required to do so at this stage. The motion will be denied as to the ADA claim against Rose Associates.
Conclusion
For the foregoing reasons, defendants' motions are granted with respect to all claims against defendants Avram, Booth, and the Union; and all claims brought by Olga Manik. They are denied with respect to Milan Manik's claims against Rose Associates. This action is referred to Magistrate Judge Ellis for all further pretrial proceedings. All correspondence and requests should be sent to the attention of Judge Ellis.
SO ORDERED: