Summary
finding fractured ankle did not constitute qualifying disability
Summary of this case from Parks v. Port of OaklandOpinion
10 Civ. 5857 (BSJ)(KNF)
10-07-2011
ELLA LOUISE SMITH, Plaintiff, v. REGIONAL PLAN ASSOCIATION, INC., ROBERT YARO, THOMAS WRIGHT, AND JAMES FINCH Defendants.
Memorandum & Order
OPINION & ORDER
Plaintiff Ella Louise Smith asserts claims of race and disability discrimination, retaliation, and hostile work environment against Defendants Regional Plan Association, Inc. ("RPA"), Robert Yaro, as President of RPA, Thomas Wright, as Executive Vice President of RPA, and James Finch, as Director of Human Resources at RPA. The Amended Complaint ("Complaint") alleges violations of Title VII and § 1981 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981 ("Title VII" and "§ 1981," respectively), the Americans with Disabilities Act, 42 U.S.C. § 12112 et seq. ("ADA"), the Family and Medical Leave Act, 29 U.S.C. § 2611 et seq. ("FMLA"), and New York State and City Human Rights Law ("NYSHRL" and "NYCHRL"). Before the Court is Defendants' motion to dismiss. For the reasons below, the motion is granted in part and denied in part.
BACKGROUND
Smith was employed as a research assistant by RPA from May 2002 to November 2008. She is an African American female and identifies herself as a person with disabilities. Complaint, ¶ 10.
A. Allegations relating to her race-based claims
Smith alleges that her employers began harassing her approximately two weeks after she started at RPA. Smith's desk was located outside of Wright's office, and, soon after her arrival, he allegedly began subjecting her "to numerous inappropriate racial and disability remarks, that he never subjected the Caucasian employees to." Complaint, ¶ 13. Smith alleges the following specific incidents as examples of such racial harassment: on one occasion, Smith overheard Wright say to Yaro that he wanted someone with more "sex appeal" sitting outside of his office. Id. ¶ 14. On another occasion, Wright allegedly remarked to Smith that "[t]he only way you can get my attention is to sit on my desk in lotus position." Id. ¶ 15. Between June and November 2002, Wright supposedly made other "unwanted racial jokes" to Smith. She told him that his comments were offensive to her. Id. ¶ 16. Wright then apparently told Finch that Smith was "unfriendly" because she did not laugh at his jokes. Id. Smith claims that there were other comments that offended her as an African American. For example, in one incident, Wright purportedly walked by Smith's desk and stated, "God I hate the smell of the food that poor people eat." Id. ¶ 18. She also alleges that Wright (and other employees) made several comments, one of which she identifies as taking place around September 2008, implying that Smith was ugly. Id. ¶¶ 21, 24.
With respect to Finch, Smith claims that he "subliminally referred to [her] as a monkey." Id. ¶ 17. In one interaction, Finch remarked to another employee that they were hiring someone new, to which Smith chimed in, "oh really." In response, Finch apparently said, "Yes, we're going to be hiring a monkey, it'll be friendlier and get more work done," then laughed and walked away. Id. Also, sometime in April 2003, when another employee was describing a recent vacation to Costa Rica, Finch remarked in Smith's presence, "You'll find plenty of monkeys right here in New York"; he then apparently looked at her with a "smirk." Id. ¶ 20. Smith claims that she complained to Finch that she found these comments offensive. Id. Additionally, Smith alleges an incident in which a group of employees was eating pizza in the conference room and, while collecting the garbage, Finch remarked to Smith, "come here and climb into this trash bag! You [sic] trash, you're trash!" Id. ¶ 19.
Smith also claims that racially insensitive or offensive emails were circulated by other employees in the office. Sometime around February 2006, an email circulated referring to "urban renewal" and "negro removal." Id. ¶ 22. She also claims that, around this time, employees would pass by her desk singing racially provocative songs such as "Sweet Georgia Brown" or "Zippyde do da, zippy de day." Id. Smith alleges that she complained to Yaro about this behavior, but no remedial action was taken. Later, in the fall of 2008, an email was circulated describing how the 1950's were "white and white." Id. ¶ 45. Another set of emails circulated in November 2008 in connection with the Presidential election. In one November 5, 2008 email, noting how "great" it was to be an American on that day, the sender attached a drawing of forty white faces and one black face—President Obama—at the end. Id. ¶ 46. In another email around that time, an image was attached depicting President Obama shining Sarah Palin's shoes. Id. Smith complained about these emails and asked to be removed from the lists, both in 2006 and in 2008, yet no remedial action was taken to stop their circulation or remove her from the listservs. Id. ¶¶ 22, 46. Smith also alleges that she overheard a comment made in September 2008 by two employees, that "Now the Country is going to be run by 'big scary inner-city black people.'" Id. ¶ 23.
She generally alleges that Yaro, Wright, and Finch "regularly shouted at [her], called her stupid, told her that she stunk, and generally degraded her," but never treated Caucasians this way. Id. ¶ 37.
Finally, Smith makes several allegations related to the 2008 hiring of Elizabeth Case, a Caucasian employee. Smith alleges that many of her substantive job responsibilities were transferred to Case while Smith was out of the office visiting her ill father in July 2008, and that these responsibilities were not re-assigned to Smith subsequent to her return. As a result, after Case's arrival, Smith was left with principally data entry work. Id. ¶ 42. In October 2008, she complained to Wright that she was being treated differently from Case, in particular, of the fact that her job duties had been shifted to Case. Id. ¶ 25.
B. Allegations related to her disability-based claims
Around May 2004, Smith fractured her ankle, causing her to limp and/or use crutches at work. She identifies this as her disability. She claims that defendants "constantly disparaged and humiliated [her] because of her disability or perceived disabilities, published derogatory statements about her, and disclosed confidential personnel and medical information about [her] to her co-workers." Id. ¶ 32. Specifically, she alleges several incidents in which other employees commented on her ankle injury. On one occasion, another employee, Lilly Chin, purportedly said that Smith's crutches made her look like a disabled person and Chin "hated looking at disable[d] people." Id. ¶ 34. Smith claims that she complained to Defendants about that comment. In another incident, around January 2008, another employee asked a coworker as Smith walked by, "Did you see her limp? You know she plans to make money off of that leg." Id. ¶ 39. It is based on that comment that Smith suggests Defendants had revealed personnel and/or medical information about her to other employees.
Smith attributes another series of putatively discriminatory comments to Finch. She alleges that he began referring to her as a "lame duck" around January 2008 and once commented that the company did not "want to spend any more money on that lame duck," referring to an information request from Smith's personal injury attorney. Id. ¶¶ 35, 36. Finch also allegedly referred to Smith as a "crippled criminal." Id. ¶ 38. Around May 16, 2008, Smith complained to Yaro of this "disrespectful and unprofessional behavior." Id. ¶ 41.
In addition to these comments, Smith alleges an incident in which the Defendants failed to accommodate her disability. In April 2008, Smith claims that a large number of heavy boxes were placed in front of her desk, which she was told "were her problem," and which she was instructed to move from the front hall to the mailroom. Id. ¶ 40. Smith alleges that she told Defendants that this instruction was in violation of her disability accommodation—which she claims was granted by her immediate supervisor "to accommodate her injuries and disability." Id. ¶¶ 40, 33. Defendants apparently then left the boxes in front of her desk for several weeks, which Smith contends constituted a failure to accommodate her disability. Id. ¶ 40.
In November 2008, Smith's position was terminated. On February 5, 2009, she filed a charge with the New York State Division of Human Rights ("NYSDHR") and the Equal Employment Opportunity Commission ("EEOC"), alleging, inter alia, violations of State and City Human Rights Law, Title VII, and the ADA, based on claims of race and disability discrimination and retaliation. In March 2009, Smith filed a rebuttal to RPA's response, alleging more factual instances of discriminatory and/or retaliatory treatment than she had included in her initial charge. The instant action was commenced on November 10, 2010.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion, a plaintiff must plead sufficient factual allegations in the complaint to "state a claim [for] relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The facts pleaded in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 555. On a motion to dismiss, a plaintiff gets the benefit of all reasonable inferences, see, e.g., Goodrich v. Long Island R.R. Co., No. 10-2809-cv, 2011 WL 3559997, at *2 (2d Cir. 2011), but "[t]hreadbare 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). Though a plaintiff need not establish a prima facie case at the pleading stage in employment discrimination cases, "the claim must be "facially plausible and must give fair notice to the defendants of the basis for the claim." Ortiz v. Standard & Poor's, No. 10-cv-8490, 2011 WL 4056901, at *2 (S.D.N.Y. 2011) (emphasis in original) (quoting Barbosa v. Continuum Health Partners, Inc., 716 F. Supp. 2d 210, 215 (S.D.N.Y. 2010).
DISCUSSION
A. Claims of Race Discrimination under Title VII and § 1981 (Counts 1 and 2)
The standard of proof for claims brought under § 1981 is identical to that of Title VII claims. See Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010).
Smith alleges that Defendants subjected her to disparate treatment and a hostile work environment because of her race, in violation Title VII and § 1981.
1. Disparate Treatment Theory of Race Discrimination
To establish a prima facie case of race discrimination, "[i]n the context of an alleged discriminatory discharge, a plaintiff must show that (1) [s]he is a member of a protected class; (2) [s]he was qualified for the position [s]he held; (3) [s]he suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to the inference of discrimination." Ruiz, 609 F.3d at 491-92. When a disparate treatment theory of discrimination is alleged, an inference of discrimination can be established by facts showing that a similarly situated Caucasian employee was treated differently. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (1997).
Here, Smith has alleged facts sufficient to satisfy each prong of this test.
2. Hostile Work Environment
"[R]acially offensive comments or incidents of racial harassment, though different in kind and occurring in different locations, may create a racially hostile work environment in violation of Title VII." Abdullah v. Panko Elec. & Maint.,Inc., No. 3:08-cv-0598, 2011 WL 1103762, at *13 (N.D.N.Y. Mar. 23, 2011). However, Title VII is not "a general civility code." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1988) (internal citation and quotation marks omitted). Ultimately, "whether a work environment is sufficiently hostile to violate Title VII is one of fact" and depends on the totality of the circumstances. Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 75 (2d Cir. 2001); Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007). Relevant considerations include "(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is threatening and humiliating, or a mere offensive utterance; and (4) 'whether it unreasonably interferes with an employee's work performance.'" Patane, 508 F.3d at 113 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
Here, though many of the incidents Smith alleges are race-neutral, the Court nonetheless finds that the balance of her pleadings alleges facts that, if believed by a reasonable jury, would be legally sufficient to show a hostile work environment. See id. at 113. ("Ultimately, to avoid dismissal under FRCP 12(b)(6), a plaintiff need only plead facts sufficient to support the conclusion that she was faced with harassment . . . of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse, and we have repeatedly cautioned against setting the bar too high in this context." (internal quotation marks omitted)).
Therefore, Defendants' motion to dismiss Counts 1 and 2 is denied.
B. Retaliation under Title VII and § 1981 (Counts 3 and 4)
Smith alleges that Defendants retaliated against her for complaining of or opposing the race discrimination and hostile work environment, in violation Title VII and § 1981.
To state a claim for retaliation in violation of Title VII, a plaintiff must allege facts tending to show that "(1) she participated in a protected activity known to the defendant; (2) the defendant took an employment action disadvantaging her; and (3) there exists a causal connection between the protected activity and the adverse action." Id. at 115.
Smith has sufficiently alleged that (1) she complained to Defendants on numerous occasions that their (and the other employees') comments and conduct were racially offensive to her; (2) Defendants stripped Smith of many of her substantive duties and then fired her; and (3) based on the proximity in time between her last few complaints in the fall of 2008 and her termination, a causal connection between the protected activity and the adverse action, see Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988) ("Proof of the causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.").
Therefore, Smith has alleged a plausible claim for retaliation under Title VII and § 1981 and, accordingly, Defendants' motion to dismiss Counts 3 and 4 is denied.
C. Claims of Disability Discrimination under the ADA (Count 7)
Smith asserts that Defendants: (1) discriminated against her because of her disability; (2) subjected her to a hostile work environment; and (3) failed to accommodate her disability.
1. Disability Discrimination
A prima facie case of discrimination under the ADA includes facts showing that: (1) RPA was subject to the ADA; (2) Smith was disabled within the meaning of the ADA; (3) she was otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (4) she suffered an adverse employment action because of [her] disability. Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 2004).
For one, Smith has not alleged facts sufficient to support a claim that she was disabled within the meaning of the ADA. The ADA defines disability as "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(1). Fractured bones do not generally qualify as a disability within the meaning of the ADA. See Morse v. City, 00-cv-2528, 2001 WL 968996, at *7 (S.D.N.Y. Aug. 24, 2001). To the extent Smith alleges walking as a major life activity that was affected by her fracture, she has not pled facts suggesting that her ability to walk was substantially limited. "[A] plaintiff must meet a demanding standard to establish a claim of disability based on difficulties walking." Watson v. Arts & Entm't Television Network, No. 04-cv-1932, 2008 WL 793596, at *13 (S.D.N.Y. Mar. 26, 2008). Merely alleging "difficulty walking" does not pass this threshold. Nor has Smith pled facts adequate to show that her employers perceived her as disabled. She merely offers the conclusory statement that "Defendants perceived Plaintiff as a disabled person." Complaint, ¶ 29. That formulaic recitation of an element of her cause of action will not do under Twombly. 127 S. Ct. at 1959.
Moreover, Smith has not claimed that she was subject to any adverse action (i.e., that she was terminated or stripped of job duties) because of her disability. "Without actual facts demonstrating discriminatory animus, discrimination is just one possibility for [RPA's] actions—as such, plaintiff's claim . . . may be conceivable, but it is certainly not plausible." Ortiz, 2011 WL 4056901, at *4.
2. Failure to Accommodate
As discussed, Smith has not alleged facts sufficient to demonstrate that she was disabled within the meaning of the ADA. Therefore, she has not stated a claim for failure to accommodate.
To state a claim for failure to accommodate under the ADA, a plaintiff must plead facts tending to show that she was "(1) a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of [her] disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations." McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009)
Hostile work environment claims under the ADA are evaluated under the same standards as hostile work environment claims under Title VII. See Disanto v. McGraw-Hill, Inc./Platt's Div., No. 97 Civ. 1090, 1998 WL 474136, at *5 (S.D.N.Y. Aug. 10, 1998)
As noted above, in order to state a claim for a hostile work environment, a plaintiff must plead facts that would tend to show, inter alia, that the complained of conduct "is objectively severe or pervasive—that is, . . . creates an environment that a reasonable person would find hostile or abusive." Patane, 508 F.3d at 113.
In support of her hostile work environment claim, Smith alleges six incidents: (1) an employee's comment that she "hated looking at disabled people"; (2) another comment that Smith was trying to "make money off of that leg"; (3) Finch's references to her at various times as a "lame duck", (4) on whom they did not "want to spend any more money"; (4) Finch's references to her as "crippled" or a "crippled . . . criminal"; (5) and the time that boxes were left in front of her desk for several weeks. In the first instance, several of these incidents are alleged to have occurred prior to April 11, 2008—including the "lame duck" and "make money" comments. These incidents are time barred because they occurred more than 300 days prior to her February 5, 2009 filing of the EEOC/NYSDHR complaint. See Flores v. N.Y. City Human Res. Admin., No. 10-cv-2407, 2011 WL 3611340, at *1 (S.D.N.Y. 2011). Even if they were not, these six allegations show, at most, "[s]imple teasing, offhand comments, or isolated incidents of offensive conduct," which do not demonstrate harassment of such a quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse. Petrosino v. Bell Atl., 385 F.3d 210, 223 (2d Cir. 2004).
Thus, Smith has not made a plausible claim for hostile work environment under the ADA, assuming such a cause of action is available to her. Defendants' motion to dismiss Count 7 is therefore granted.
The Court notes that the Second Circuit has yet to decide whether a hostile work environment claim is available under the ADA. See Ragusa v. Malverne Union Free Sch. Dist., 381 Fed. Appx. 85, 88 (2d Cir. 2010). --------
D. Claims of Retaliation under the ADA (Count 8)
Smith alleges that she was "subjected to adverse employment actions because she engaged in protected activities" within the meaning of the ADA. Complaint, ¶ 70.
This claim fails because Smith has not identified a protected activity related to her disability or an adverse employment action taken because of her disability, let alone a causal connection between the two. Thus, Defendants' motion to dismiss Count 8 is granted.
F. FMLA Claim (Count 11)
To state a claim under the FMLA, a plaintiff must plead facts showing that (1) she is an eligible employee under the FMLA and (2) RPA is an employer under the FMLA; (3) she was entitled to leave under the FMLA; and (4) she gave notice to RPA of her intention to take leave. Vicioso v. Pisa Bros. Inc., No 98-cv-2027, 1998 WL 355415, at *2 (S.D.N.Y. July 1, 1998). Plaintiff has not alleged facts in connection with any of these four elements. Thus, she has failed to state a plausible FMLA claim and Defendants' motion to dismiss count 11 is granted. F. Claims of Race/Disability Discrimination and Retaliation under NYSHRL and NYCHRL (Counts 5, 6, 9, 10)
1. State law claims
"In this Circuit, a disability-based discrimination claim under the NYSHRL . . . involve[s] the 'same elements' as an ADA claim." See Crawford-Bey v. N.Y. & Presbyterian Hosp., No. 08-cv-5454, 2011 WL 4530193, at *5 n.6 (S.D.N.Y. Sept. 30, 2011) (internal quotation marks omitted). Because, as discussed above, Smith has failed to state any adverse action taken against her because of her disability, the Court finds that she has failed to state a corresponding claim for discrimination or retaliation under the NYSHRL.
2. City law claims
Likewise, disability-based discrimination claims arising under the NYCHRL have the same elements as an ADA claim. Id. However, the Court must construe these claims "independently from and more liberally than their state and federal counterparts," to fulfill that law's "uniquely broad and remedial purposes." Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir.2009) (internal quotation marks omitted). With respect to retaliation in particular, the Court recognizes that a "plaintiff need not prove any 'adverse' employment action,' to establish a claim, but only "that something happened that would be reasonably likely to deter a person from engaging in protected activity." See Gioia v. Forbes Media LLC, No. 09-cv-6114, 2011 WL 4549607, at *10 n.5 (S.D.N.Y. Sept. 30, 2011). However, the NYCHRL's more liberal standard has no impact here: Smith has "failed to link any action on behalf of Defendant[s] to a retaliatory motivation" related to her disability. Kaur v. N.Y. City Health & Hosps. Corp., 688 F. Supp. 2d 317, 340 (S.D.N.Y. 2010). Thus, she has failed to state a claim for disability discrimination or retaliation under the NYCHRL and, accordingly, the claims are dismissed.
By contrast, the Court finds that Smith has stated plausible state and city law claims for race-based discrimination, retaliation, and hostile work environment as "[t]he standards for liability under [the NYSHRL and NYCHRL] are the same as those under the equivalent federal antidiscrimination laws," such as Title VII. Ferraro v. Kellwood Co, 440 F.3d 96, 99 (2d Cir.2006); see also Torres v. Pisano, 116 F.3d 625, 629 n.1 (2d Cir. 1997). Thus, for the reasons discussed above, the Court will not dismiss these claims.
CONCLUSION
For the reasons set forth above, Defendants' Motion to dismiss is granted in part and denied in part. The motion to dismiss Counts 1, 2, 3, and 4 is DENIED. The motion to dismiss Counts 7, 8, and 11 is GRANTED. The motion to dismiss Counts 5 and 6 is GRANTED without prejudice only insofar as those claims relate to disability, and not race, discrimination and retaliation. Likewise, the motion to dismiss Counts 9 and 10 is GRANTED without prejudice only insofar as those claims relate to disability, and not race, discrimination and retaliation, respectively.
SO ORDERED:
/s/ _________
Barbara S. Jones
UNITED STATES DISTRICT JUDGE Dated: New York, New York
October 7, 2011