Opinion
No. 10 Civ. 9571 (RJS)
12-05-2011
JOSEPH L. YOUNG, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
MEMORANDUM AND ORDER
RICHARD J. SULLIVAN, District Judge:
On December 23, 2010, Plaintiff Joseph L. Young filed suit against the United States Department of Homeland Security and others under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for alleged employment discrimination on the basis of race as well as retaliation on the basis of prior protected activity. Now before the Court is Plaintiff's motion to amend the Complaint to add claims under the Age Discrimination in Employment Act ("ADEA") and the Rehabilitation Act ("RA"), and to add William Joyce as a defendant. Plaintiff's motion was filed on August 26, 2011. The motion was fully briefed as of September 12, 2011. For the following reasons, Plaintiff's motion is denied.
Although Plaintiff requests leave to amend in order to add a claim under the Americans with Disabilities Act (the "ADA"), the proper statute is Section 501 of the Rehabilitation Act, which establishes a cause of action for federal employees claiming discrimination on the basis of disability and adopts in relevant part the standards under the ADA. 29 U.S.C. § 791(g)). Accordingly, the Court addresses relevant provisions of both the RA and the ADA.
I. DISCUSSION
A. Legal Standard
Although the Court has discretion to grant or deny leave to amend pleadings, it "should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). However, "[l]eave to amend may be denied on grounds of futility if the proposed amendment fails to state a legally cognizable claim or fails to raise triable issues of fact." AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 726 (2d Cir. 2010). "An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002).
B. Plaintiff's Failure to Exhaust ADEA and RA Claims
Plaintiff, an Immigration Enforcement Agent for the United States Department of Homeland Security, alleges in his Complaint that due to his race, and in retaliation for prior complaints of discrimination, he was subjected to "continuous emotional abuse" and threatened with firing, and that supervisors forced Plaintiff to perform shooting practice while he was ill in an effort to have him fired. (Compl. Attach. C.) Plaintiff now seeks to amend the Complaint to add claims under the ADEA and RA. Specifically, Plaintiff alleges that, inter alia, Defendant "constantly hires younger men and puts the older men on the night shift," and that "Gregory Toback had medical problems and was out of work for six months and was not criticized." (Pl.'s Mem. 6.) Plaintiff further alleges that he failed a shooting test on November 20, 2009 because his father was ill that night and his supervisor would not permit him to reschedule, and that in August 2010, Plaintiff was told that he must go to the shooting range despite his father's poor health. (Id. at 5-6.) Plaintiff also alleges that he "has high blood pressure which has necessitated two hospitalizations," which prevented him from "go[ing] to the range, and . . . pas[sing] the test." (Id.)
Plaintiff's Memorandum states that this event took place on November 20, 2011. (Pl.'s Mem. 5.) However, because Plaintiff's briefing was filed before that date, and his filings refer to a November 20, 2009 incident, the Court assumes that Plaintiff intended to allege it took place in 2009.
Plaintiff adds that "Miriam Axelrod never went to the range, and she was a deportation officer," while two Caucasian officers, Steven Meade and Ana Snitkovskaia, "were given special training to pass the range test." (Pl.'s Mem. 6.) However, nothing in these allegations relates to Plaintiff's claims of age discrimination or of disability discrimination; they appear to merely contribute to the allegations of race discrimination already in the Complaint.
Ordinarily, a plaintiff may not bring an age or disability discrimination claim without first pursuing administrative remedies. Thus, a government employee seeking to bring an employment discrimination claim must first seek informal EEO counseling within his agency, and then file a formal complaint with the agency. See 29 C.F.R. §§ 1614.105, 1614.106; see also Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001); Gentile v. Potter, 509 F. Supp. 2d 221, 233 (E.D.N.Y. 2007). Only after final agency action may the complainant appeal to the EEOC or file an action in federal district court. Id. § 1614.110; see also Boos v. Runyon, 201 F.3d 178, 181 (2d Cir. 2000). Unexhausted claims must be dismissed. Hamilton v. Wilson, No. 03 Civ. 5685 (GEL), 2004 WL 169789, at *3 (S.D.N.Y. Jan. 28, 2004) (internal citations and quotation marks omitted). Here, there is no dispute that Plaintiff did not assert age or disability-based claims when he initiated contact with the Department of Homeland Security's EEO counselor on March 11, 2010. (Compl. Ex. 1.) However, a plaintiff may bring an unexhausted claim along with an exhausted one "where the conduct complained of would fall within the scope of the [administrative] investigation which can reasonably be expected to grow out of the charge of discrimination." Carter v. New Venture Gear, Inc., 310 F. App'x 454, 458 (2d Cir. 2009) (internal quotation marks and citations omitted).
Alternatively, a federal employee seeking to bring an ADEA claim may proceed directly to federal district court after giving at least thirty days' written notice to the EEOC. 29 U.S.C. § 633a(d); Avillan v. Potter, No. 01 Civ. 1648 (SHS), 2002 WL 252479, at *2 (S.D.N.Y. 2002). However, Plaintiff does not allege that he filed notice of intent to file an age discrimination complaint with the EEOC, and instead bases his argument on an exception to the administrative exhaustion requirement.
There are two additional exceptions to the administrative exhaustion requirement: "(2) where the claim alleges an employer's retaliation for filing an [administrative] charge; and (3) where a plaintiff alleges further incidents of discrimination carried out in [precisely] the same manner alleged in . . . the [administrative] charge." Carter v. New Venture Gear, Inc., 310 F. App'x 454, 458 (2d Cir. 2009) (internal quotation marks and citations omitted). Neither is applicable here.
In determining whether a new claim is "reasonably related" to the exhausted claim, courts are directed to assess whether there were facts or allegations in the administrative charge sufficient to put the investigating agency "on notice" of Plaintiff's other complaints. Id.; see also Mathirampuzha v. Potter, 548 F.3d 70, 76-77 (2d Cir. 2008) ("[T]he focus should be on the factual allegations made in the fEEOJ charge itself, describing the discriminatory conduct about which a plaintiff is grieving. . . . The central question is whether the complaint . . . gave th[e] agency adequate notice to investigate discrimination on both bases." (alterations in original) (internal quotation marks and citations omitted)). Particularly because many complainants are proceeding pro se when they file their initial administrative charge of discrimination or retaliation, the Second Circuit has described the standard for EEOC charges as one of "loose pleading." Ximines v. George Wingate High Sch., 516 F.3d 156, 158 (2d Cir. 2008) (internal quotation marks and citations omitted). Accordingly, technical errors should not result in dismissal if the factual allegations in the administrative complaint taken as a whole point to the conduct of which the plaintiff complains. See id. at 159 (holding that, although plaintiff failed to explicitly include discriminatory nonpromotion in her charge, the claim was reasonably related because factual allegations put EEOC on notice of alleged action); Amin v. Akzo Nobel Chems., Inc., 282 F. App'x 958, 961 (2d Cir. 2008) (holding that charge of age, religion, and national origin discrimination should have prompted investigation of retaliation because documents revealed plaintiff had complained of discrimination); Williams v. New York City Housing Auth., 458 F.3d 67, 71 (2d Cir. 2006) (holding that, although "retaliation and discrimination represent very different theories of liability . . . specific factual allegations [of disparate treatment based on gender] put the EEOC on notice that, in addition to a retaliation claim, a gender discrimination claim may also exist"); Deravin v. Kerik, 335 F.3d 195, 203 (2d Cir. 2003) (reversing dismissal of race claim where plaintiff exhausted national origin discrimination claim).
However, a claim that is wholly unrelated to the administrative charge may not be brought in federal court without independent exhaustion. In contrast to additional adverse actions on the same theory of discriminatory animus, which have been deemed reasonably related, claims that introduce a "wholly different type of discrimination" from that in the administrative charge are typically deemed to be not reasonably related. Gutierrez v. City of New York, 756 F. Supp. 2d 491, 499 (S.D.N.Y, 2010) (internal quotation marks and citations omitted); Peterson v. Ins. Co. of N. Am., 884 F. Supp. 107, 109-10 (S.D.N.Y. 1995); see also Muhammad v. N.Y.C. Transit Auth., 450 F. Supp. 2d 198, 206 (E.D.N.Y. 2006) ("[C]laims alleging discrimination based upon a protected classification which are different than the protected classification asserted in administrative filings are not reasonably related." (internal quotation marks and citations omitted)). Where the "animus involved" in two theories of discrimination differ, charging one would not usually lead the administrative agency to investigate the other absent some factual prompting. Bonilla v. Smithfield Assocs. LLC, No. 09 Civ. 1549 (DC), 2009 WL 4457304, at *3 (S.D.N.Y. Dec. 4, 2009) (internal citations and quotation marks omitted) (holding national origin discrimination not reasonably related to age discrimination charge that alleged only a single remark relating to plaintiff's national origin); see also Wali v. One Source Co., 678 F. Supp. 2d 170, 183-84 (S.D.N.Y. 2009) (holding that, where plaintiff raised race discrimination in EEOC charge, his Muslim name was not enough to prompt the EEOC to investigate religious discrimination).
In this case, Plaintiff seeks to amend the Complaint to add claims that are based on entirely different theories of discrimination than the underlying charge of race discrimination that was brought before the EEO counselor. While Plaintiff's failure to check the boxes on his EEO form for age and disability discrimination alone is not fatal to excusing his failure to exhaust those claims, the total absence of allegations supporting either claim is. The particular factual allegations in Plaintiff's administrative complaint relate only to racial discrimination, harassment, and retaliation, and make no mention whatsoever of Plaintiff's age or status as a disabled person, much less any discrimination on those bases. (See Declaration of David Suna, Sept. 12, 2011, Ex. D, Doc No. 23 ("Suna Decl.").) Although Plaintiff's attachment to his EEO complaint states that, during a test, he was "experiencing headaches, blurry vision and general weakness," Plaintiff attributed these symptoms to being "ill and troubled over management's abuse and [his] father's illness," and asserted that his supervisor acted in retaliation for Plaintiff's involvement in the EEO process. (Id.; see also Compl. Attach. C (attributing Defendants' decision to force Plaintiff to take a test while ill to racial discrimination and harassment).) Clearly, such characterizations would not have prompted an EEO investigator to probe potential claims for disability discrimination. Moreover, as Defendant's submissions show, when the agency's EEO Counselor characterized Plaintiff's complaints as being based on race and age (Suna Decl., Ex. C, at 3), Plaintiff pointed out in the attachment to his EEO complaint that the basis for discrimination being alleged was "race not age" (id., Ex. D (emphasis added)). Accordingly, there is no reason to conclude that the agency or the EEOC would or should have investigated age discrimination when Plaintiff expressly told them not to.
To the extent that Plaintiff alleges associational discrimination on the basis of his father's illness, Plaintiff fails to state a cognizable claim. The ADA's association provision was intended to prevent stereotyping about disabled individuals and their caretakers, but "does not obligate employers to accommodate the schedule of an employee with a disabled relative." Erdman v. Nationwide Ins. Co., 582 F.3d 500, 510-11 (3d Cir. 2009); see also 29 C.F.R. § 1630, App. ("[A]n employee would not be entitled to a modified work schedule as an accommodation to enable the employee to care for [a family member] with a disability."); Darby v. Hinds Cnty. Dep't of Human Svcs., 83 F. Supp. 2d 754, 761 (S.D. Miss. 1999) ("[The employer] was not obligated to accommodate [the plaintiff] to allow her to care for her allegedly disabled family members."). Plaintiff has at most alleged that Defendants were unwilling to change schedules to accommodate Plaintiff's need to take care of his father, and not that any adverse action was taken because of Plaintiff's father's alleged disability.
Because Plaintiff's claim fails on the grounds of exhaustion, the Court declines to address whether Plaintiff has adequately alleged that he is disabled under the ADA and RA. --------
C. William Joyce
Finally, Plaintiff seeks to add his supervisor, William Joyce, as a defendant, arguing that in denying Plaintiff's request to reschedule his test, Joyce allegedly discriminated against Plaintiff on the basis of his race and disability. (Pl.'s Mem. 10.) Although it is difficult to discern from Plaintiff's briefing whether he intends to sue Joyce under the RA only or under Title VII as well, the law is clear that employers' agents, such as supervisors, are not subject to individual liability under either Title VII or the RA. See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) ("[I]ndividuals are not subject to liability under Title VII."); Pierre v. N.Y. State Dep't of Corr. Servs., No. 05 Civ. 0275 (RJS), 2009 WL 1583475, at *7 (S.D.N.Y. June 1, 2009) ("The law is well settled that individuals cannot be held liable for Title VII and ADA violations." (internal quotation marks and citations omitted)); cf. Spiegel v. Schulmann, 604 F.3d 72, 79-80 (2d Cir. 2010) (holding no individual liability under retaliation provision of the ADA, because it adopts Title VII procedures). Accordingly, Plaintiff's contemplated amendment to add William Joyce as a defendant would be futile.
II. CONCLUSION
For the foregoing reasons, Plaintiff's motion to amend is denied. The Clerk of the Court is respectfully directed to terminate the motion located at Doc. No. 21. SO ORDERED. DATED: December 5, 2011
New York, New York
/s/_________
RICHARD J. SULLIVAN
UNITED STATES DISTRICT JUDGE