Summary
holding that the remark of a decision-maker asking why the plaintiff did not retire given his illness, among other things, gave rise to an inference of discrimination
Summary of this case from Clark v. Jewish Childcare Ass'n, Inc.Opinion
12 Civ. 9047 (WHP)
01-22-2014
JOHNNY PAGAN, Plaintiff, v. MORRISANIA NEIGHBORHOOD FAMILY HEALTH CENTER, Defendant.
Counsel of Record: Christine A. Palmieri, Esq. Liddle & Robinson, LLP 800 Third Avenue, 8th Floor Spring Valley, NY 10977 Counsel for Plaintiff Leah S. Schmelzer, Esq. Assistant Corporation Counsel 100 Church Street New York, NY 10001 Counsel for Defendant New York City Health and Hospitals Corporation
MEMORANDUM & ORDER
:
Johnny Pagan brings this action against the Morrisania Neighborhood Family Health Center, a Bronx facility of the New York City Health and Hospitals Corporation, alleging age and disability discrimination. Morrisania moves to dismiss Pagan's amended complaint. For the following reasons, Morrisania's motion is granted in part and denied in part.
BACKGROUND
The allegations of the amended complaint are accepted as true for the purposes of this motion. Pagan was born in 1941. He suffers from a number of medical conditions, including heart disease, high blood pressure, and diabetes. He also has a coronary stent implant. In 1998, Pagan was hired as the Coordinating Manager at Morrisania. In October 2003, Pagan retired after having been diagnosed with prostate cancer.
In April 2007, Jose Sanchez rehired Pagan as the Assistant Director of the Administration Outreach Department at Morrisania. In that position, Pagan reported to Nancy Hernandez and visited community organizations, churches, businesses, and other groups to provide information on Morrisania's services. Pagan helped organize several successful neighborhood outreach programs. He was rated as "fully competent" for the April 30 to October 30, 2007 evaluation period. In April 2008, Pagan took a medical leave of absence for wrist surgery. When he returned in August 2008, he found his office had been given to someone else.
On May 4, 2009, Hernandez completed four performance reviews for Pagan that covered evaluation periods stretching back to October 30, 2007. For the October 30, 2007 to April 30, 2008 period, Hernandez rated Pagan as "fully competent," but told him he would have been rated "needs improvement" if the evaluation had been completed more timely. Pagan was rated as "needs improvement" for three other three-month review periods.
A few days after completing those performance reviews, Hernandez told Pagan she had "bad news" and that he was being reassigned to oversee the Dental, Podiatry, and Laboratory Clinics. (Am. Compl. ¶ 23.) In that position, Pagan reported to Nancy Gonzalez, who in turn reported to Hernandez. Gonzalez regularly asked Pagan why he did not retire given his illnesses and said at least once "you are sick, do not get sick in this moment." (Am. Compl. ¶ 26.) Gonzalez rated Pagan "needs improvement" for the July 1, 2009 to June 30, 2010 evaluation period.
The amended complaint alleges Pagan was reviewed for periods of various lengths, ranging from three months to one year.
On August 11, 2009, Hernandez sought permission to terminate Pagan based on five "needs improvement" ratings in his performance reviews, despite the fact he had actually received only four such ratings, and several were performed long after the relevant review periods. On August 12, 2009, Pagan was informed he would be terminated effective August 26.
Pagan filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) on February 19, 2010. He received a right-to-sue letter on October 24, 2012. He filed this action pro se on December 12, 2012. He then obtained counsel and filed an amended complaint on June 7, 2013. He brings this employment discrimination action under the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL).
DISCUSSION
I. Statute of Limitations
The statute of limitations for NYSHRL and NYCHRL claims is three years. N.Y. C.P.L.R. 214(2); Murphy v. Am. Home Prods. Corp., 448 N.E.2d 86, 93 (N.Y. 1983). Pagan filed his complaint three years and four months after he was terminated. Morrisania contends Pagan's claims under state and city law are untimely.
By statute, the filing of a complaint with the State Division of Human Rights or the City Commission for Human Rights tolls the statute of limitations. N.Y. Exec. Law § 297(9); N.Y.C. Admin. Code § 8-502(d). Under a work-sharing agreement between the two offices, complaints filed with the EEOC are deemed to have been cross-filed with the State Division of Human Rights, so the filing of an EEOC complaint also tolls the statute. See, e.g., Hanley v. Chi. Title Ins. Co., No. 12 Civ. 4418 (ER), 2013 WL 3192174, at *8 (S.D.N.Y. June 24, 2013); DeNigris v. N.Y.C. Health & Hosps. Corp., 861 F. Supp. 2d 185, 192 (S.D.N.Y. 2012); Esposito v. Deutsche Bank AG, No. 07 Civ. 6722 (RJS), 2008 WL 5233590, at *5 (S.D.N.Y. Dec. 15, 2008). The statute of limitations was therefore tolled from February 19, 2010 to October 24, 2012, and Pagan's complaint is timely.
Morrisania cites several cases in support of its argument that an EEOC complaint does not toll the statute of limitations for state and city law discrimination claims, all of which are inapposite. See Johnson v. Ry. Express Agency, Inc., 421 U.S. 454 (1975) (EEOC complaint does not toll claim under Civil Rights Act of 1866); Yaohua Deng v. Aramark Educ. Grp., Inc., No. 04-5670-CV, 2006 WL 1049073, at *1 (2d Cir. Apr. 19, 2006) (untimely EEOC complaint does not toll statute of limitations); Ashjari v. Nynex Corp., No. 98-9411, 1999 WL 464977, at *1 (2d Cir. June 22, 1999) (EEOC complaint does not toll statute of limitations for assault, battery, and false imprisonment claims); Tomici v. N.Y.C. Dep't of Educ., 910 F. Supp. 2d 472, 487 (E.D.N.Y. 2012) (EEOC complaint does not toll the one-year statute of limitations applicable to claims against school districts); Ayazi v. N.Y.C. Dep't of Educ., No. 08 Civ. 2456 (MKB), 2012 WL 4503257, at *8 (E.D.N.Y. Sept. 28, 2012) (same); Floratos v. Int'l Leadership Charter Sch. Inc., No. 09 Civ. 9136 (BSJ), 2011 WL 291852, at *2-3 (S.D.N.Y. Jan. 20, 2011) (same); Hargett v. Metro. Transit Auth., 552 F. Supp. 2d 393, 400 (S.D.N.Y. 2008) (EEOC complaint does not toll statute of limitations for intentional infliction of emotional distress claim).
II. Failure to State a Claim
To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To determine plausibility, courts follow a "two-pronged approach." Iqbal, 556 U.S. at 679. "First, although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (internal punctuation omitted). Second, a court determines "whether the 'well-pleaded factual allegations,' assumed to be true, 'plausibly give rise to an entitlement to relief.'" Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting Iqbal, 556 U.S. at 679). On a motion to dismiss, courts may consider "facts stated on the face of the complaint, in the documents appended to the complaint or incorporated in the complaint by reference, and . . . matters of which judicial notice may be taken." Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991).
A. Age Discrimination
To state a claim for age discrimination under the ADEA and NYSHRL, a plaintiff makes out a prima facie case by alleging (1) he was over 40 years old, (2) he was qualified for the position, (3) that he experienced an adverse employment action, and (4) that the action occurred under circumstances giving rise to an inference of discrimination. Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010); Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115 n.3 (2d Cir. 2007) (stating ADEA and NYSHRL claims are analyzed under same standard) (citing Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001)).
For many years, the NYCHRL was also considered coextensive with the ADEA and NYSHRL. See, e.g., Tomassi, 478 F.3d at 115 n.3. But in 2005, the New York City Council enacted the Local Civil Rights Restoration Act of 2005, N.Y.C. Local L. No. 85. "In amending the NYCHRL, the City Council expressed the view that the NYCHRL had been 'construed too narrowly' and therefore ' underscore[d] that the provisions of New York City's Human Rights Law are to be construed independently from similar or identical provisions of New York state or federal statutes.'" Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (quoting Restoration Act § 1) (alteration in the original). The Restoration Act provides that "similarly worded provisions of federal and state civil rights laws" provide a "floor below which the City's Human Rights law cannot fall." Restoration Act § 1. It also requires that the NYCHRL "be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title have been so construed." Restoration Act § 7.
The NYCHRL is therefore broader than the ADEA and NYSHRL, For example, whereas the ADEA and NYSHRL require age discrimination to have been the "but-for" cause of an adverse employment action, Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009); Gorzynsky, 596 F.3d at 106, the NYCHRL requires only that it be a "motivating factor." Colon v. Trump Int'l Hotel & Tower, No. 10 Civ. 4794 (JGK), 2011 WL 6092299, at *5 (S.D.N.Y. Dec. 7, 2011) (citing Weiss v. JPMorgan Chase & Co., No. 06 Civ. 4402 (DLC), 2010 WL 114248, at *3-4 (S.D.N.Y. Jan. 15, 2013)).
But "[w]hile the New York City Council may provide a different substantive standard to be applied to particular claims in federal court, the same federal procedural rules apply." Mihalik, 715 F.3d at 111-12 (citing Com/Tech Commc'n Techs., Inc. v. Wireless Data Sys., Inc., 163 F.3d 149, 150-51 (2d Cir. 1998) (per curiam)). Every plaintiff in federal court must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. . . . Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556-57). Therefore, despite the more liberal construction of the NYCHRL, a plaintiff must still allege facts giving rise to an inference of discrimination. See Gorzynski, 596 F.3d at 107.
The sole allegation in Pagan's amended complaint possibly evincing age discrimination is that his supervisor, Nancy Gonzalez, asked him several times why he did not retire. But "cases that have found references to retirement to be significant involved other indicia of an improper animus." Hamilton v. Mount Sinai Hosp., 528 F. Supp. 2d 431, 447 (S.D.N.Y. 2007). "[D]iscussion of retirement is common in offices, even between supervisors and employees, and is typically unrelated to age discrimination." Hamilton, 528 F. Supp. 2d at 447. Such discussion can be particularly expected where, as here, the employee previously retired. Moreover, Gonzalez's questioning as to when Pagan would retire made reference not to his age but to his health, asking him "why he did not retire, particularly given his illness." (Am. Compl. ¶ 26.) If anything, this suggests disability discrimination, not age discrimination. Pagan having pleaded no facts allowing for a reasonable inference that Morrisania discriminated against him on the basis of age, his age discrimination claims under the ADEA, NYSHRL, and NYCHRL are dismissed.
In several footnotes, Pagan asserts new allegations and requests leave to file a second amended complaint if those allegations are necessary to sustain his claims. In accord with this Court's individual practices, Morrisania sent a pre-motion letter outlining its intended arguments for this motion. At a pre-motion conference, this Court invited Pagan's counsel to amend the complaint in response to Morrisania's arguments. She declined. Having already having had the opportunity to amend his complaint in response to Morrisania's arguments, Pagan's request for leave to replead his age discriminations claims is denied.
B. Disability Discrimination
1. ADA
"In order to establish a prima facie case of discrimination under the ADA, a plaintiff must show (a) that his employer is subject to the ADA; (b) that he is disabled within the meaning of the ADA or perceived to be so by his employer; (c) that he was otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (d) that he suffered an adverse employment action because of his disability." Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008) (citing Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 2004)). Morrisania does not dispute that it is subject to the ADA or that Pagan was otherwise qualified to perform his job.
a. Whether Pagan is "Disabled"
A "disability" under the ADA is "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual," "a record of such an impairment," or "being regarded as having such an impairment." 42 U.S.C. § 12102(1). The definition of "disability" must be "construed in favor of broad coverage of individuals under [the ADA], to the maximum extent permitted by the terms." § 12102(4)(A).
"[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." § 12102(2)(A). "[A] major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." § 12102(2)(B). Pagan alleges he suffers from a number of conditions but does not allege that any of them limit any major life activity in any way. A medical condition alone, even a serious one, is not a per se disability under the ADA; it must substantially limit a major life activity. See, e.g., Anyan v. N.Y. Life Ins. Co., 192 F. Supp. 2d 228, 244-45 (S.D.N.Y. 2002) (finding diabetes condition that does not substantially limit any major life activities is not a disability under the ADA). Pagan has not alleged that his medical conditions substantially limit any major life activity.
But an individual is also protected by the ADA if he experiences an adverse action "because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." 42 U.S.C. § 12102(3)(A). A plaintiff does not have to "show that the employer had a reasonable basis for perceiving him as suffering from a disability." Darcy v. City of N.Y., No. 06 Civ. 2246 (RJD), 2011 WL 841375, at *4 (E.D.N.Y. Mar. 8, 2011). Pagan was on disability leave from April to August 2008, which supports a finding that he was perceived as disabled. See Davis v. N.Y.C. Dep't of Educ. , 10 Civ. 3812 (KAM), 2012 WL 139255, at *6 (E.D.N.Y. Jan. 18, 2012). Beginning in May 2009 and continuing until his termination, his supervisor, Ms. Gonzalez, asked him why he did not retire because of his illness. (Am. Compl. ¶ 26.) The perceived impairment must not be both minor and transitory, which is defined as having an actual or expected duration of six months or less. § 12102(3)(B). The amended complaint, construed broadly as it must be, alleges facts, including his disability leave, sufficient to conclude Pagan's employers perceived him as impaired for more than six months.
This definition was broadened by the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3557 (Sept. 25, 2008). It became effective January 1, 2009. Amendments Act § 8. Because Pagan was terminated in 2009, this definition applies to his claim.
Morrisania argues Pagan has not adequately alleged which disability he was perceived as having, providing only a "laundry list" of medical conditions. (Def.'s Br. at 17.) It is enough that Pagan has sufficiently alleged he was perceived as impaired without alleging the precise disability, or disabilities, he was perceived as having. Pagan cannot be expected to know the specifics of how he was perceived, and it would make little sense to dismiss a disability discrimination suit because the plaintiff suffers from too many conditions to know which of them caused the discrimination.
b. Whether Pagan Suffered an Adverse Employment Action Because of His Perceived Disability
"[T]here is no unbending or rigid rule about what circumstances allow an inference of discrimination when there is an adverse employment decision." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996). "The circumstances that give rise to an inference of discriminatory motive include actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus." Chertkova, 92 F.3d at 91 (citing Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992)). The remarks at issue are Gonzalez's questioning of Pagan as to why he did not retire given his illness. In determining whether a remark like "you are sick, do not get sick in this moment" is probative of discrimination, courts consider (1) who made the remark, (2) when the remark was made in relation to the employment decision at issue, (3) the content of the remark, and (4) the context in which the remark was made. Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010). Here, the remarks were made by Pagan's supervisor, the same employee who prepared the performance reviews that formed the basis of Pagan's termination. The remarks began three months before his termination and continued until that time and indicate a belief that Pagan should not work because of a perceived disability. Though the remarks were not made in the context of the decision making process, "none of the factors should be regarded as dispositive." Henry, 616 F.3d at 150. Overall, the remarks allow for an inference of discrimination.
2. NYSHRL and NYCHRL
The elements that apply to an ADA claim apply to claims under the NYSHRL and NYCHRL as well. Kinneary v. City of N.Y., 601 F.3d 151, 158 (2d Cir. 2010). However, the NYSHRL provides broader protection than the ADA, and the NYCHRL is broader still. Phillips v. City of N.Y., 884 N.Y.S.2d 369, 373 (App. Div. 1st Dep't 2009). Pagan having pleaded a claim under the more demanding ADA standard, he has also pleaded claims under the NYSHRL and NYCHRL. Ugactz v. United Parcel Serv., Inc., 10 Civ. 1247 (MKB), 2013 WL 1232355, at *14 n.25 (E.D.N.Y. 2013); see also Loeffler, 582 F.3d at 278 (federal and state civil rights laws set a "floor beneath which the City's Human Rights law cannot fall" (emphasis in original)).
Importantly, to show a disability under state and city law, a plaintiff need only prove he has a "medically diagnosable impairment;" it does not need to substantially limit a major life function. Attis v. Solow Realty Dev. Co., 522 F. Supp. 2d 623, 631-32 (S.D.N.Y. 2007). Pagan clearly meets this broader test.
CONCLUSION
For the foregoing reasons, Pagan's age discrimination claims under the ADEA, NYSHRL, and NYCHRL are dismissed with prejudice. The remainder of the New York City Health and Hospitals Corporation's motion is denied. The Clerk of Court is instructed to terminate the motion pending at ECF No. 21. Dated: January 22, 2014
New York, New York
SO ORDERED:
/s/_________
WILLIAM H. PAULEY III
U.S.D.J.
Counsel of Record:
Christine A. Palmieri, Esq. Liddle & Robinson, LLP 800 Third Avenue, 8th Floor Spring Valley, NY 10977 Counsel for Plaintiff 12 Leah S. Schmelzer, Esq. Assistant Corporation Counsel 100 Church Street New York, NY 10001 Counsel for Defendant New York City Health and Hospitals Corporation