Opinion
20-CV-9055 (VEC) (OTW)
08-26-2021
MANDELA T. BROCK, Plaintiff, v. PRIME NOW LLC, et al., Defendants.
To the Honorable VALERIE E. CAPRONI, United States District Judge:
REPORT & RECOMMENDATION
ONA T. WANG, United States Magistrate Judge:
Defendants Prime Now, LLC (“Prime Now”), Jeffrey Bezos (“Bezos”), Alex Martin Lopez (“Lopez”), Melissa D. Hill, and Liliya P. Kramer move to dismiss Plaintiff Mandela T. Brock's Amended Complaint against them. (ECF 28, the “Motion”). For the reasons stated below, I recommend that the Motion be GRANTED.
Prime Now LLC is named in the Amended Complaint as “Amazon, Prime Now LLC.”
I. Background
A. Facts
From May to August 2020, Plaintiff worked for Defendant Prime Now, a wholly owned subsidiary of Amazon.com LLC, as a Whole Foods shopper. Am. Compl. (ECF 15) ¶¶ 6, 25. In this role, Plaintiff fulfilled online grocery orders by collecting the requested items and packing them. Am. Compl. ¶ 10. Defendant Lopez was Prime Now's area manager and Plaintiff's supervisor in New York, New York. Am. Compl. ¶ 9. After Plaintiff filed his Complaint, Lopez relocated to a Prime Now location in Garden City, New York. (ECF 14 at 4 n.2).
For purposes of deciding the Motion, the Court accepts as true all facts alleged by Plaintiff and draws all inferences in Plaintiff's favor. See, e.g., Krassner v. 2nd Ave Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007).
While Plaintiff does not explicitly identify alcoholism as his disability, he alleges facts suggesting that he suffered from alcoholism during his employment with Prime Now. Am. Compl. ¶ 11 (“Mandela Brock, spoke with . . . Lopez, in private, concerning his . . . disability and the need to listen in and or participate in Alcoholic Anonymous meetings and Rehabilitation Groups to maintain sobriety.”). Plaintiff does not allege any facts related to how his addiction substantially limits or otherwise impacts any of his major life activities.
1. June 2020: Prime Now warned Plaintiff multiple times that wearing headphones was in violation of company policy.
While at work, Plaintiff used his headphones during his shifts to listen to and/or participate in Alcoholic Anonymous (“AA”) meetings, necessary for him to maintain sobriety. Am. Compl. ¶ 11. Plaintiff alleges that after learning Defendant Lopez did not approve of Plaintiff using headphones while working, he stopped wearing them, but Defendants nevertheless engaged in “a pattern of denial of the right to work with a disability, ” creating a hostile work environment. See Am. Compl. ¶¶ 12, 13.
Plaintiff is inconsistent in alleging that he stopped wearing the headphones upon learning Defendant Lopez did not approve of the behavior. Compare Am. Compl. ¶ 12 (“Lopez[] was against the [P]laintiff wearing headphones . . . [so] [P]laintiff refrained from wearing them . . . .”) with ECF 33 ¶ 23 (“Plaintiff then was ‘forced' to sneak to engage in his rehabilitation activity when defendant, Alex Martin Lopez, was not on the premises . . . .”). Notably, Plaintiff does not allege any discriminatory acts outside of Defendants' rejection of, and subsequent reprimands for, Plaintiff's headphone use.
In June 2020, Lopez warned Plaintiff three times that using headphones while working was in violation of Prime Now's policy. See Am. Compl. Exs. A (June 23, 2020 warning), B (June 29, 2020 warning), and D (June 30, 2020 warning). The warnings stated that wearing headphones violated company policy because Plaintiff's role was “customer facing[, ] and having headphones on can pose [a] safety hazard and poor customer experience.” Am. Compl. Ex. A.Each warning included written supportive feedback that stated he was not meeting “Behavioral expectations, ” which was a “critical component” of his job. Id. The June 23, 2020 and June 29, 2020 warnings stated that Plaintiff was expected to follow “Amazon.com's Safety Standards of Conduct” at all times to ensure a “safe work environment, ” and “[f]urther violations of these standards may result in further corrective action, up to and including termination.” Id. The “Areas of Improvement Required” by Plaintiff in his final June 30, 2020 warning similarly stated that Plaintiff must be aware of his surroundings for safety purposes, but also separately stated that he had failed to: (1) act as a team player, (2) follow instructions of his leadership team; and (3) communicate to his leadership team in a respectful manner in the event he cannot follow instructions. See Am. Compl. Ex. D. For each incident, Plaintiff was observed shopping while wearing headphones.
The first warning on June 23, 2020 stated:
[Y]ou were observed shopping while having headphones on[.] As standard work and safety, we need to be aware of our surroundings at all times since we are customer facing and having headphones on can pose safety hazard and poor customer experience. [Y]ou have been warned about this before and it is still a barrier. . . . Amazon is committed to providing a safe work environment, and it is everyone's responsibility to work in a safe, responsible manner and to call out unsafe situations. Adhering to Amazon.com's Safety Standards of Conduct is critical to maintaining this safe work environment and you are expected to follow these standards at all times. As detailed above, you failed to meet these expectations. Further violations of these standards may result in further corrective action, up to and including termination.Am. Compl. Ex. A.
2. August 2020: Plaintiff was terminated for violating Amazon's Time Off Task Guidelines.
On August 5, 2020, Defendant Lopez emailed Plaintiff asking why he had been unavailable for over two hours during his August 3, 2020 shift. Am. Comp. Ex. C. Plaintiff stated that “[t]he system be timing out without consent and putting a shopper as unavailable on its own and I forgot to check it periodically so as to refresh it! This is a constant system error that many shoppers experience.” Am. Compl. Ex. F. Plaintiff was terminated on August 9, 2020 for violating Amazon's Time Off Task (“TOT”) Guidelines on August 3, 2020. Am. Compl. Ex. G.
Plaintiff does not identify any warnings or headphone use in July 2020.
The full message stated:
Your recent job performance is not meeting Behavioral expectations. Meeting performance standards is a critical component of your job. . . . On 8/03/2020, you were found to be off-task/unavailable for 2H:20M but after backing out your 30 minute lunch as well as your 40 minute brake [sic] on a double shift you were still found to be unavailable for 1H27M. On our [Seek to Understand conversation] held on 8/6/2020 you stated that the system logged you out however upon checking here, you were inactive from 11 AM to 1:20pm which coincides with [sic] time in question.” This was in violation of Amazon's Time Off Task Guidelines, which stated “it is critical that you remain on-task during your scheduled shift. Excessive unproductive time may cause you to fail to meet our performance expectations and may affect your team's morale and performance. In addition, you are required to follow Amazon's break and meal policy and ensure your breaks do not exceed fifteen (15) minutes and meal periods do not exceed thirty (30) minutes. At this time, based on your violation of Amazon's TOT Guidelines, your employment will end effective immediately.Am. Compl. Ex. G.
B. Procedural History
Plaintiff sued Defendants Prime Now, Bezos and Lopez in New York State Supreme Court on September 15, 2020. (ECF 1-1). Defendants, through their counsel, Melissa D. Hill (“Hill”) and Liliya P. Kramer (“Kramer”) of Morgan, Lewis & Bockius LLP, removed the action to federal court pursuant to 28 U.S.C. § 1441(b) on the basis of diversity jurisdiction under 28 U.S.C. § 1332 on December 28, 2021, before Lopez had been served, and without alleging Lopez's citizenship. (ECF 1 ¶¶ 10-11). The Court ordered that if Plaintiff sought to have his case remanded, he must file a motion to remand to state court by November 25, 2020. (ECF 10). Plaintiff filed a Motion to Remand on November 25, 2020 (ECF 9), to which Defendants objected on November 25, 2020. (ECF 14). Plaintiff then filed an Amended Complaint on December 1, 2020, after which Plaintiff apparently withdrew his objection to removal. (ECF 21). The District Court denied the Motion to Remand on January 22, 2021. (ECF 22).
Plaintiff's Amended Complaint, filed on December 1, 2020 (ECF 15) added claims under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68 (“RICO”) as well as claims against Hill and Kramer, stemming from their representation of Defendants Prime Now, Bezos and Lopez. In all, the Amended Complaint brings fifteen claims for disability discrimination and related employed claims, breach of contract, slander, and libel, violations of the New York penal code, as well as the aforementioned RICO claims. On February 22, 2021, all Defendants moved to dismiss all claims against them. (ECF 28). Although not explicitly stated, the Amended Complaint purports to be based on federal question jurisdiction.
On July 29, 2021, this Court ordered Defendant to file supplemental briefing concerning diversity jurisdiction, the original basis for Defendants' removal. (ECF 44). Although Defendants conceded that adding Defendants Kramer and Hill destroyed diversity, they failed to identify their client's, Defendant Lopez's, citizenship. On August 17, 2021, this Court ordered defense counsel to address Lopez's citizenship for purposes of diversity jurisdiction. (ECF 47). On August 18, 2021, Defendants admitted that Lopez is a citizen of the state of New York. (ECF 49).
II. Analysis
A. Rule 12(b)(6) Standard for Pro Se Complaints
Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration ‘to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). The court must accept as true all non-conclusory factual allegations in the plaintiff's complaint, documents attached to the complaint as exhibits, and any documents incorporated by reference. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). At this stage, the court must draw all reasonable inferences in favor of the plaintiff. Id.
To survive such a motion, a plaintiff must plead enough facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). More specifically, the plaintiff must allege enough facts to allege “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 . If the plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed.” Twombly, 550 U.S. at 570.
As relevant here, where the plaintiff is proceeding pro se, his complaint should be “liberally construed . . . and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal quotation marks omitted). Therefore, a court is “obligated to afford a special solicitude to pro se litigants.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). Thus, when considering Plaintiff's submissions, the Court must interpret them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks omitted). Nevertheless, “to survive a motion to dismiss, a pro se plaintiff must still plead sufficient facts to state a claim that is plausible on its face.” Chukwueze v. NYCERS, 891 F.Supp.2d 443, 450 (S.D.N.Y. 2012) (internal quotation marks omitted). Moreover, the court may not consider as true conclusions of law even when evaluating a pro se complaint. See First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994).
B. Federal Claims
Plaintiff brings claims for disability discrimination, but does not specify the federal laws under which he brings a claim. See Am. Compl. First and Fifth Causes of Action. The Court will construe Plaintiff as bringing his discrimination claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), and his claims against Defendants Hill and Kramer-stemming from their representation of Defendants Prime Now, Bezos and Lopez-under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68 (“RICO”). In all, the Amended Complaint brings eight federal claims.
1. Plaintiff Does not State A Claim of Employment Discrimination Under the ADA.
Plaintiff brings two causes of action under the ADA: (1) disparate treatment on the basis of his disability, and (2) failure to accommodate his disability. Since Plaintiff did not exhaust his administrative remedies and also failed to adequately allege that he suffers from a disability, both claims should be dismissed.
a) Plaintiff has not exhausted his administrative remedies under the ADA.
Generally, ADA discrimination claims require a timely employment discrimination charge with the United States Equal Employment Opportunity Commission (“EEOC”). See, e.g., Telemaque v. Marriott Int'l, Inc., No. 14-CV-6336 (ER), 2016 WL 406384, at *5 (S.D.N.Y. Feb. 2, 2016) (“Failure to exhaust Title I's administrative remedies constitutes a failure to state a claim pursuant to FRCP 12(b)(6).”); Bento v. NYC Dep't of Citywide Admin. Servs., 2020 WL 1434570, at *2 (S.D.N.Y. Mar. 24, 2020) (“To pursue an ADA claim of discrimination, a plaintiff must file a complaint with a State or local agency . . . within 300 days of the allegedly unlawful act.”). Because defendants bear the burden of showing non-exhaustion, the “issue of exhaustion is generally not amenable to resolution by way of a motion to dismiss. Rather, the defendants must present proof of non-exhaustion.” Id. at 335 (quoting Nicholson v. Murphy, No. 02-CV-1815, 2003 WL 22909876, at *6 (D. Conn. June 16, 2003)). However, dismissal is appropriate on a motion to dismiss if Plaintiff's submission is clear on its face that he has failed to exhaust. Id. (citations omitted).
Here, it is clear from the Amended Complaint that Plaintiff failed to exhaust his administrative remedies. Plaintiff does not raise any allegations relating to any filing with the EEOC. See ECF 30 at 11 n.8 (“Plaintiff here does not allege that he filed with the EEOC, and upon information and belief, has wholly failed to do so . . . .”). Moreover, Plaintiff all but confirms that he has not filed a claim with the EEOC, because he argues that “only” a “federal employee” must exhaust his administrative remedies before suing a “public employer.” (ECF 33 ¶ 68).
b) Equitable tolling does not apply.
The incidents about which Plaintiff complains occurred, at the latest, on August 9, 2020, when Defendants terminated his employment. Am. Compl. Ex. G. Plaintiff had 300 days from then to file a complaint with the EEOC, exhausting all administrative remedies at his disposal in a timely fashion. See Ford v. Bernard Fineson Dev. Ctr., 81 F.3d 304, 307 (2d Cir. 1996). In other words, Plaintiff had until June 5, 2021 to file a complaint with the EEOC, which he apparently has not done. Instead, Plaintiff filed suit against Defendants in New York State court on September 15, 2020. (ECF 1-1).
Although not expressly raised by either party, this Court recognizes that the filing of a charge with the EEOC under the ADA is subject to equitable tolling where a claimant has pursued judicial remedies, but filed a defective pleading within the statutory time period. See South v. Saab Cars USA, Inc., 28 F.3d 9, 11-12 (2d Cir. 1994). The Court must determine whether the plaintiff acted with reasonable diligence during the tolling period, and whether the plaintiff “has proved that the circumstances are so extraordinary that the doctrine [of equitable tolling] should apply.” Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80-81 (2d. Cir 2003).
Here, Plaintiff does not present any extraordinary circumstances to suggest equitable tolling should be permitted. The Second Circuit has previously held that equitable tolling of the limitation period because of a petitioner's ignorance of EEOC filing requirements is warranted only if the employer actively misled the petitioner into thinking that there was no 300-day deadline-facts Plaintiff does not allege here. See Cheng v. Metro. Life Ins. Co., No. 94-CV-0808 (MBM), 1995 WL 37843, at *3 (S.D.N.Y. Jan. 31, 1995), aff'd, 71 F.3d 404 (2d Cir. 1995). Indeed, Plaintiff acknowledges the EEOC requirement raised in Defendants' Motion, but argues it did not apply to him. See ECF 33 ¶ 68. “Ignorance of the law excuses no one; not because courts assume everyone will know the law but because this excuse is one that all will plead and no one can refute.” Dezaio v. Port Auth., 205 F.3d 62, 64 (2d Cir. 2000). This reasoning applies to pro se litigants. Kantor-Hopkins v. Cyberzone Health Club, No. 06-CV-431 (DLI)(LB), 2007 WL 2687665, at *7 (E.D.N.Y. Sept. 10, 2007) (dismissing plaintiff's Title VII action as time barred). Accordingly, to the extent Plaintiff seeks to bring a federal disability discrimination claim, that claim should be dismissed for failure to exhaust administrative remedies. Nevertheless, in the event that the District Court interprets Plaintiff's pleadings to seek and warrant equitable tolling, I briefly address the merits of his claims.
NYSHRL and NYCHRL do not require exhaustion of administrative remedies. See Medina v. Waste Connections of New York, Inc., No. 19-CV-291 (RA), 2019 WL 3532048, at *5 n.6 (S.D.N.Y. Aug. 2, 2019).
c) Plaintiff does not plausibly allege disability discrimination.
To state a claim for disability discrimination under the ADA, Plaintiff would need to plausibly allege that (1) Defendants are subject to the relevant statutes; (2) he suffers from a disability within the meaning of the statute; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered an adverse employment action because of his disability. See McMillian v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013). Plaintiff must plead facts that give plausible support that a “minimal inference” of discriminatory motivation existed in connection with the adverse employment action. Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). For the reasons set forth below, Plaintiff fails to plausibly allege that he suffers from a disability or that he suffered an adverse employment action because of a disability, and thus this claim should be dismissed.
There is no individual liability under the ADA. See Warshun v. New York Cmty. Bancorp. Inc., 957 F.Supp.2d 259, 265 (E.D.N.Y. 2013). Only employers are subject to the NYSHRL. Under the NYSHRL, “an individual is properly subject to liability for discrimination when that individual qualifies as an ‘employer.'” Townsend v. Benjamin Enter., Inc., 679 F.3d 41, 57 (2d Cir. 2012) (quoting N.Y. Exec. Law § 296(1)).
i. Prime Now is subject to the relevant statutes.
An employer is subject to the ADA if, inter alia, it “has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” 42 U.S.C. § 12111(5)(A). Plaintiff alleges enough facts for Prime Now to be considered an employer under the ADA, and Defendant does not contest that Prime Now is subject to the ADA. See ECF 33 ¶ 56 (arguing that Defendants have are bound by the law, generally).
ii. Plaintiff does not allege that he suffers from a disability.
“[M]ere status” of a drug or alcohol dependency, without more, is not a disability within the meaning of the statutes. See Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 47 (2d Cir. 2002). To prevail, a recovering drug addict or alcoholic “must demonstrate [not only] that he [or she] was actually addicted to drugs or alcohol in the past, [but also] that this addiction substantially limit[s] one or more of his [or her] major life activities.” Id. As relevant here, Plaintiff must allege that (1) his alcoholism was an impairment that substantially limited a major life activity (pursuant to 42 U.S.C. § 12102(1)(A)), and (2) he has a record of such impairment. See Behringer v. Lavelle Sch. for Blind, 08-CV-4899 (JGK), 2010 WL 5158644, at *8 (S.D.N.Y. Dec. 17, 2010).
Assuming that Plaintiff is alleging alcoholism as his disability, he has not alleged any facts demonstrating that his alcohol addiction “substantially limits one or more of his major life activities.” Johnson v. New York Presbyterian Hosp., No. 00-CV-6776 (LAP), 2001 WL 829868, at *4 (S.D.N.Y. July 20, 2001), aff'd, 55 Fed.Appx. 25 (2d Cir. 2003) (dismissing Plaintiff's ADA and RHA claims because he merely stated he had a “history of alcoholism, ” without alleging “how his alcoholism has substantially interfered with his ability to perform any of his major life activities”). At most, Plaintiff alleges that he must participate in AA meetings to maintain sobriety, and that Defendants forbade him from participating in AA meetings while working his scheduled shifts. Plaintiff does not allege specific facts that his alcoholism interferes with his ability to work; rather, Plaintiff alleges that his preferred treatment plan of his purported alcoholism interferes with his ability to work. See Rodriguez v. Verizon Telecom, No. 13-CV-6969 (PK) (DCF), 2014 WL 6807834, at *4 (S.D.N.Y. Dec. 3, 2014) (finding plaintiff failed to sufficiently plead a disability where he stated that he had a “history and battle with addiction” that “limits [his] major live [sic] activity of working”). Therefore, Plaintiff does not adequately allege that he suffers from a disability under the statute.
iii. Plaintiff adequately alleges that he can perform the essential functions of the job.
In determining the essential functions of a job, a court will give “considerable deference to an employer's determination as to what functions are essential.” McMillian, 711 F.3d at 126. A court will also consider factors such as the employer's judgment, written job descriptions, and the amount of time spent on the job performing the function. Stone v. City of Mt. Vernon, 118 F.3d 92, 97 (2d Cir. 1997).
Plaintiff's job was to shop for and pack grocery orders. (ECF 30 ¶ 15). When doing this work, it was essential that Plaintiff was “aware of [his] surroundings at all times.” Am. Compl. At Ex. A. Plaintiff adequately pleads that he is qualified to do this job. See ECF 33 ¶¶ 57, 62; see also Am. Compl. ¶ 50.
iv. Plaintiff does not allege that he suffered adverse employment action because of his disability.
At most, Plaintiff alleges: (1) that his employment was terminated because of his disability, and (2) that he experienced a “hostile work environment” because of his disability. While termination is an adverse employment action, Plaintiff does not adequately allege that his termination was because of his disability. Plaintiff alleges facts related to his desire to wear headphones to participate in AA meetings during shifts and attaches warnings from June 2020 in which he was reprimanded for doing so. See Am. Compl. Ex. A. Separately, Defendants terminated Plaintiff's employment on August 9, 2020, because he was “off task” for over two hours, in violation of TOT Guidelines. Am. Compl. Ex. G. Plaintiff does not allege that his being off task was at all related to his disability, or even that his use of headphones was the reason for why he was off task. Instead, Plaintiff argues that Prime Now's system errouneously marked him as off task. Am. Compl. Ex. F. This explanation does not connect Plaintiff's termination to his disability. See Malone v. New York Pressman's Union No. 2, No. 07-CV-9583 (LTS) (GWG), 2011 WL 2150551, at *7 (S.D.N.Y. May 31, 2011), aff'd sub nom. Watson v. New York Pressman's Union No. 2, 444 Fed.Appx. 500 (2d Cir. 2011) (granting a motion to dismiss where the Plaintiff conclusorily alleged discrimination but “fail[ed] to connect [defendants' actions] to any concrete adverse employment action”); Ingrassia v. Health & Hosp. Corp., 130 F.Supp.3d 709, 720 (E.D.N.Y. 2015) (dismissing a claim because Plaintiff merely alleged in a conclusory fashion that she suffered employment action because of her age or gender).
Plaintiff also alleges that he suffered a “hostile work environment” because Defendants denied his request to use headphones, and during his shift reprimanded him for using headphones. See Am. Compl. ¶¶ 14-25. Reading the facts most favorably to Plaintiff, criticisms about his headphone use amount to “harassment” because the reasons for Defendants' rebukes were inconsistent and sometimes unrelated to safety. Id. Moreover, this refusal “created” a hostile work environment because he was “‘forced' to sneak to engage in his rehabilitation activity.” (ECF 33 ¶¶ 23, 31) (emphasis in original).
Notably, Plaintiff does not allege that he sought any other form of accommodation, such as requesting specialized shifts so that he could virtually attend AA meetings, listening to AA meetings on breaks, or requesting modifications to his schedule that would allow him to listen to meetings during any time when not actively shopping in the public store. This fact alone is not dispositive. See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008) (concluding that the employer must engage in an “interactive process” to assess whether an employee's disability can be reasonably accommodated, even if the employee has not requested a specific accommodation).
To defeat the movants' motion to dismiss an ADA hostile work environment claim, Plaintiff must allege: “(1) that the harassment was sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment[;] and (2) that a specific basis exists for imputing the objectionable conduct to the employer.” Dipinto v. Westchester Cty., No. 18-CV-00793 (PMH), 2020 WL 6135902, at *5 (S.D.N.Y. Oct. 19, 2020) (quoting Fox v. Costco Wholesale Corp., 918 F.3d 65, 74 (2d Cir. 2019). To be actionable under the ADA, the alleged harassment must be based on disability. See Cain v. Mandl Coll. of Allied Health, Mandl Coll., Inc., No. 14-CV-1729 (ER), 2016 WL 5799407, at *4 (S.D.N.Y. Sept. 30, 2016) (dismissing plaintiff's discrimination claims because she did not allege sufficient facts to establish that the harassment she experienced was based on her disability).
Defendants' alleged hostility was neither sufficiently pervasive, nor was it based on his alleged disability. A hostile work environment is not automatically established when a defendant-employer reprimands an employee for engaging in prohibited activity. Even assuming the criticisms of Plaintiff's behavior were based on Plaintiff's disability, the conduct alleged was not severe enough to rise to the level of a hostile work environment. Here, Plaintiff states that Defendant Lopez sometimes told him he exceeded expectations, see Am. Compl. ¶ 50, so any harassment-related behavior was not pervasive or consistent. See Montanez v. McDean LLC, 770 Fed.Appx. 592, 594 (2d Cir. 2019), cert. denied, 140 S.Ct. 1278 (2020) (“‘[T]he ordinary tribulations of the workplace, such as the sporadic use of abusive language,' do not rise to a level constituting a hostile work environment.”) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998).
d) Plaintiff does not adequately plead failure to accommodate under the ADA.
Plaintiff also alleges that Defendants failed to accommodate his disability by prohibiting him from participating remotely in AA meetings while he was working. This claim similarly fails because Plaintiff does not adequately plead that he is a person with a disability.
An employer may violate the ADA by failing to provide a reasonable accommodation. See McMillan, 711 F.3d 120 at 125-26. To state a claim for failure to accommodate, “a plaintiff must establish that (1) he is a person with a disability; (2) defendant had notice of his disability; (3) plaintiff could perform the essential functions of the job at issue with reasonable accommodation; and (4) defendant refused to make such accommodations.” Howard v. United Parcel Serv., Inc., 101 F.Supp.3d 343, 352 (S.D.N.Y. 2015), aff'd sub nom. Howard v. United Parcel Serv., 648 Fed.Appx. 38 (2d Cir. 2016). As discussed above, Plaintiff fails to plead disability, and so his claim fails.
Notably, Plaintiff does not allege that he sought any other form of accommodation, such as requesting specialized shifts so that he could virtually attend AA meetings, listening to AA meetings on breaks, or requesting modifications to his schedule that would allow him to listen to meetings during any time when not actively shopping in the public store. This fact alone is not dispositive. See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008) (concluding that the employer must engage in an “interactive process” to assess whether an employee's disability can be reasonably accommodated, even if the employee has not requested a specific accommodation).
Although Plaintiff pleads that he gave notice of his disability to Defendants (Am. Compl. ¶ 11); that he could perform the essential functions of the job (Section II.B.1.c.iii), and that Defendants denied his request (Am. Compl. ¶ 12), Plaintiff failing to adequately plead a disability is dispositive.
2. Plaintiff Does Not Sufficiently Plead Retaliation.
To state a claim for retaliation under the ADA, a plaintiff must allege: (1) he was engaged in a protected activity; (2) the employer was aware of the activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. See Treglia v. Town of Manlius, 313 F.3d 713, 719 (S.D.N.Y. 2002). Under the ADA, a plaintiff does not need to plead every element of a prima facie case to plead a plausible claim of retaliation on a motion to dismiss; he need only allege facts that could establish a causal nexus between a protected activity and the adverse employment action. See Pahuja v. Am. Univ. of Antigua, No. 11-CV-4607 (PAE), 2012 WL 6592116, at *11 (S.D.N.Y. Dec. 18, 2012). Since Plaintiff fails to allege any connection between protected activity and any adverse employment action, his claim should be dismissed.
Reading the Amended Complaint generously, Plaintiff pleads that his protected activity was either (1) using headphones at work (ECF 33 ¶ 27) or (2) requesting an accommodation to use his headphones at work. (ECF 33 ¶ 7, 31). Wearing headphones was not a protected activity because Plaintiff's alcoholism, as pleaded, is not a disability. Seeking an accommodation for a disability is protected activity, even if a plaintiff is not actually disabled under the ADA. See e.g., Teachout v. N.Y.C. Dept. of Educ., No. 04-CV-945 (GEL), 2006 WL 452022, at *2 (S.D.N.Y. Feb. 22, 2006) (finding plaintiff's request for an accommodation to the school principal was protected activity even though it was for his diabetes-an impairment that was not a disability under the ADA). Plaintiff's retaliation claim still fails, however, because there are no facts to suggest that Plaintiff's termination was related to his seeking an accommodations to use headphones at work.
3. Plaintiff Does Not Adequately Plead Federal RICO Claims.
Plaintiff's Amended Complaint alleges, as predicate acts, that Defendants violated five federal statutes by removing this case to federal court. See Am. Compl. ¶¶ 69, 38, 90 (18 U.S.C. § 1511); id. ¶ 90 (18 U.S.C. § 1512); id. ¶¶ 68, 73 (18 U.S.C. § 1341); id. ¶¶ 94-97 (18 U.S.C. § 1951); id. ¶¶ 77-78 (18 U.S.C. § 1029). Since removing to federal court constitutes litigation activity, and “[l]itigation activity alone cannot constitute a viable RICO predicate act, ” these claims should be dismissed. See Brock v. Zuckerberg, No. 20-CV-7513 (LJL), 2021 WL 2650070, at *5 (S.D.N.Y. June 25, 2021) (quoting Kim v. Kimm, 884 F.3d 98, 103 (2d Cir. 2018)).
The Amended Complaint only alleges facts relating to the removal of the action from state to federal court and to Defendant Lopez's transfer from a Manhattan Whole Foods to a Long Island Whole Foods “during the pendency of the suit.” (ECF 30 at 4). Lopez's transfer is not illegal activity. Without a viable RICO predicate act, all of Plaintiff's RICO claims fail and should be dismissed.
C. Remaining State Claims
This Court has subject matter jurisdiction over all federal claims raised in this case under federal question jurisdiction. See 28 U.S.C. § 1331. While Defendants timely removed this case initially on diversity grounds, they have failed to plead diversity jurisdiction. (ECF 46). Therefore, this Court lacks independent subject-matter jurisdiction over any state law claims. See 28 U.S.C. §§ 1441 and 1446.
Defendants removed Plaintiff's original Complaint on the basis of diversity jurisdiction, before Lopez had been served, and without pleading Lopez's citizenship. After Plaintiff amended his Complaint to include federal claims, Defendants asserted that he fraudulently joined Hill and Kramer to defeat diversity jurisdiction (ECF 46 at 2), all the while ignoring Lopez's citizenship and seeking to have this Court decide Plaintiff's state law claims on the merits. Indeed, even after I ordered them to brief diversity jurisdiction, they stayed silent on Lopez's citizenship, until I issued a second order explicitly directing them to divulge Lopez's citizenship. See ECF 47, 49.
A district court “may decline to exercise supplemental jurisdiction over a claim” once it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c). Courts in this District routinely decline to exercise supplemental jurisdiction over a plaintiff's NYCHRL and NYSHRL claims after dismissing all federal claims. See, e.g., Harris v. NYU Langone Med. Ctr., No. 12-CV-0454 (RA), 2014 WL 941821, at *1-2 (S.D.N.Y. Mar. 11, 2014) (declining to exercise jurisdiction over NYCHRL and NYSHRL claims); Algarin v. City of New York, No. 12-CV-1264 (LTS), 2012 WL 4814988, at *4 (S.D.N.Y. Oct. 10, 2012) (declining to exercise jurisdiction over New York Executive Law § 296 and NYCHRL claims); Mabry v. Neighborhood Def. Serv., 769 F.Supp.2d 381, 402 (S.D.N.Y. 2011) (declining to exercise jurisdiction over NYCHRL and NYSHRL claims). Accordingly, I recommend that this Court declines to exercise supplemental jurisdiction over the remaining state law claims.
III. Conclusion and Recommendation
For the reasons stated above, I recommend that the Motion be GRANTED. Although pro se complaints should generally be given leave to amend when there is “any indication that a valid claim might be stated, ” Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002), amendment may be denied upon a finding of futility. See Chill v. Gen. Elec. Co., 101 F.3d 263, 271-72 (2d Cir. 1996). Because the employment discrimination claims were not exhausted, and there are no illegal acts that could constitute predicate acts for purposes of a federal RICO claim, the federal claims are futile, and I recommend they be dismissed with prejudice. The remaining state law claims may be remanded to state court, or dismissed without prejudice so Plaintiff can bring them in state court.
I have reviewed and considered Plaintiff's “Permission to file addendum to [his] ‘Amended Complaint'” (ECF 35), which could be construed as both a surreply and a request for leave to amend. To the extent ECF 35 is a request to amend Plaintiff's Amended Complaint, it is denied.
IV. Objections
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed. R. Civ. P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Hon. Valerie E. Caproni. Any requests for an extension of time for filing objections must be directed to Judge Caproni. If Plaintiff wishes to review, but does not have access to, cases cited herein that are reported on Westlaw, he should request copies from Defendants. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the pro se Plaintiff.