Opinion
02 Civ. 3798 (JSR) (GWG)
February 5, 2003
REPORT AND RECOMMENDATION
Plaintiff Barbara Jean Guster Burch filed this complaint pro se against her former employer Beth Israel Medical Center ("Beth Israel") as well as a number of Beth Israel employees, Naomi Jackson, Jennifer Metzger, Merilyn Nezbit, Elsie Vernow, and Barbara Young (collectively "Individual Defendants"). The complaint purports to raise claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12111-12117. The defendants have moved to dismiss the complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). For the reasons stated below, the motion should be granted in part and denied in part.
I. BACKGROUND
A. Factual History
For purposes of this motion, the allegations in the complaint are taken as true and all inferences are drawn in Burch's favor. In addition, because of plaintiff's pro se status, the Court has deemed allegations made in Burch's opposition to the defendants' motion to supplement her complaint. See, e.g., Woods v. Goord, 2002 WL 731691, at *1 n. 2 (S.D.N.Y. Apr. 23, 2002).
Burch was an employee of Beth Israel for almost ten years from 1993 to 2002. See Amended Complaint, filed June 12, 2002 ("Am. Compl."), ¶ 8. Burch began a medical leave in November 1999. See Letter to Burch from Shirley Escala, dated December 13, 1999 (reproduced in Plaintiff's Opposition to Motion to Dismiss, dated September 16, 2002 ("Pl. Opp.")), at 1. From 1993 until she took leave in 1999, Burch worked as a Patient Care Associate — a job that required various physical acts. See Beth Israel Application for Transfer, dated April 12, 2001 ("Transfer App.") (reproduced in Am. Compl.), at 1. During her medical leave Burch underwent surgery on her spine. See Opposition to Motion to Dismiss the Case of Barbara J. Guster Burch v. Beth Israel Medical Center, dated October 22, 2002 ("Pl. Mem."), at 2. Burch now suffers from paravertebral spasm in the lumbo-sacral region of her lower back and is limited in her ability to conduct physical activities. See Residual Functional Capacity Form, dated January 28, 2002 (reproduced in Am. Compl.), at 1-2. While she was on leave, Burch filed an application to transfer to a clerical position. See Transfer App. at 1. Beth Israel denied Burch's application because she was still on a leave of absence. See id.
Burch continued to apply for a transfer to a non-physical clerical position through the human resources department at Beth Israel. While Beth Israel apparently offered Burch some clerical positions, none met her requirements. See Pl. Opp. at 2.
On June 28, 2001, Burch filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging employment discrimination under the ADA. See Am. Compl., ¶ 8; see also EEOC Notice of Charge of Discrimination, dated June 11, 2001 ("EEOC Compl.") (reproduced in Memorandum of Law in Support of Defendants' Rule 12(b)(6) Motion, dated August 30, 2002 ("Def. Mem."), Ex. C), at 1-2. Burch alleged that based on her disability she was entitled to a non-physical clerical job and to have Beth Israel provide equipment — a telephone headset, a cart with wheels, and an ergonomic chair — that would allow her to perform her job. See Letter to Mark Bretches, EEOC Investigator, from Burch, dated June 10, 2001 ("Bretches Letter") (reproduced in Def. Mem. Ex. C) at 1. On November 14, 2001, during the pendency of the EEOC investigation, Burch began working at Beth Israel as a Patient Service Representative — a clerical position. See Mid-Probationary Period Performance Appraisal for Barbara Burch — End of 2001 PACC Pediatrics (undated) ("Prob. Rep.") (reproduced in Am. Compl.), at 1.
On December 17, 2001, the EEOC reached a determination on Burch's complaint. Based on Burch's allegations that she had a disability and that Beth Israel had failed to accommodate her, the EEOC found that Burch had stated a prima facie case of employment discrimination under the ADA. See EEOC Determination, dated December 17, 2001 ("EEOC Decision") (reproduced in Def. Mem. Ex. D), at 1. The EEOC noted that Beth Israel had failed to respond to the allegations and, therefore, the EEOC took as true all of Burch's claims. See id. The EEOC found for Burch and initiated a conciliation process between the parties in an attempt to reach a settlement of the dispute. See id. at 2.
Beth Israel states that the EEOC did not get their response due to the events of September 11, 2001. See Def. Mem. at 3 n. 2.
At the end of December 2001, Beth Israel issued a progress report on Burch's work as a Patient Service Representative. Despite finding that Burch had "progressed" in her work, the report found that Burch spent too much time scheduling appointments, was impermissibly "triaging" patients over the phone, and was failing to work as a "team player." Prob. Rep. at 1-2. The report recommended that Burch work at "putting all of the pieces together" during the remainder of her probationary period. See id. at 2. Burch has alleged that, during her entire experience at Beth Israel, no other employee has been subjected to a similar mid-probationary period report. See Pl. Mem. at 3. She also alleges that her disabilities were not accommodated in this position. Am. Compl., ¶ 8.
On February 12, 2002, Burch was fired from Beth Israel. See Letter to Michael Garvey from Burch, dated March 5, 2002 (reproduced in Am. Compl.), at 1. Beth Israel stated that Burch was fired for not working as a team player. See id. On March 20, 2002, the EEOC notified Burch that its efforts to reach a conciliation with Beth Israel had failed, see Letter to Burch from Spencer H. Lewis, New York District Director, EEOC, dated March 20, 2002 (reproduced in Am. Compl.), at 1, and issued Burch a "right to sue" letter. See id. at 2.
B. The Individual Defendants
According to Burch, Young was the Nursing Supervisor at Beth Israel who denied Burch the right to sign a report relating to an incident that occurred in 1996. See Am. Compl., at 7. Vernow was the nursing supervisor of employment health at Beth Israel. See id. Metzger was the administrator or supervisor of pediatrics at Beth Israel. See id. Nezbit was the acting supervisor of pediatrics at Beth Israel. See id. at 8. Metzger and Nezbit were allegedly at fault for Burch's February 2002 dismissal. See id. at 7-8. Jackson was the human resources director who purportedly violated Burch's rights by not placing her in a clerical position. See id. at 8.
C. Previous Proceedings
Burch initially filed a complaint in this matter on May 17, 2002 and filed her amended complaint on June 12, 2002. The defendants filed their motion to dismiss on August 30, 2002. On September 16, 2002, Burch filed a motion to amend her amended complaint — which is discussed in Section II.B below. Burch has also filed several documents in opposition to the motion to dismiss.
II. DISCUSSION
A. Standard of Review
On a motion to dismiss under Rule 12(b)(6), dismissal is appropriate "only if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" Ganino v. Citizens Utils. Co., 228 F.3d 154, 161 (2d Cir. 2000) (quoting Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000)). All allegations made by the plaintiff are accepted as true and all reasonable inferences are drawn in plaintiff's favor. See Halperin v. Ebanker USA.com, Inc., 295 F.3d 352, 356 (2d Cir. 2002). "At the Rule 12(b)(6) stage, '[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (quoting Branham v. Meachum, 77 F.3d 626, 628 (2d Cir. 1996)).
When a plaintiff appears pro se, the complaint is viewed under "less stringent standards than formal pleadings drafted by lawyers . . ." Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); accord Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) (per curiam). The Court "must 5 construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency." Lerman v. Bd. of Elections, 232 F.3d 135, 140 (2d Cir. 2000) (emphasis in original) (citations and footnote omitted), cert. denied, 533 U.S. 915 (2001). "When considering motions to dismiss a pro se complaint such as this, 'courts must construe [the complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggest[s].'" Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 145-46 (2d Cir. 2002) (quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)).
A court may consider documents referred to in a complaint, explicitly or by reference, on a motion to dismiss. See Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001); Stuto v. Fleishman, 164 F.3d 820, 826 n. 1 (2d Cir. 1999); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992).
B. Individual Defendants
Supervisory employees may not be held personally liable under Title VII. See, e.g., Gregory, 243 F.3d at 689 n. 1; Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam); Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 n. 2 (2d Cir. 1995). The same is true for claims against individual employees under the ADA. See, e.g., Connell v. City of New York, 2002 WL 22033, at *4 (S.D.N.Y. Jan. 8, 2002); Loren v. Levy, 2001 WL 921173, at *5 (S.D.N.Y. Aug. 14, 2001); Menes v. CUNY Univ. of New York, 92 F. Supp.2d 294, 306 (S.D.N.Y. 2000); Sutherland v. New York State Dep't of Law, 1999 WL 314186, at *7 (S.D.N.Y. May 19, 1999), aff'd, 216 F.3d 1073 (2d Cir. 2000). In Burch's motion to amend her complaint, she seeks to omit the individual defendants from her complaint. See Notice of 6 Motion for Leave to Amended Complaint [sic], filed September 16, 2002, at 1. Accordingly, Burch's claims against the individual defendants should be dismissed.
C. Claims Against Beth Israel
1. Title VII Claims
"A plaintiff may bring an employment discrimination action under Title VII . . . only after filing a timely charge with the EEOC . . . Exhaustion of remedies is a precondition to suit." Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 82-83 (2d Cir. 2001) (internal citations omitted) (citing Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000)). Here, Burch's complaint to the EEOC claimed discrimination only due to disability. See EEOC Compl. at 1. Beth Israel argues that Burch's failure to raise a Title VII claim before the EEOC deprives this Court of jurisdiction to even hear the claim. See Def. Mem. at 3-5. Filing a charge with the EEOC, however, is merely a precondition to suit; failure to do so does not deprive a court of jurisdiction. See Francis, 235 F.3d at 768 ("'as a general matter, the failure to exhaust administrative remedies is a precondition to bringing a Title VII claim in federal court, rather than a jurisdictional requirement'") (quoting Gibson v. West, 201 F.3d 990, 994 (7th Cir. 2000)) (citations omitted).
Nonetheless, there are "three kinds of situations where claims not alleged in an EEOC charge are sufficiently related to the allegations in the charge that it would be unfair to civil rights plaintiffs to bar such claims in a civil action." Butts v. City of New York, 990 F.2d 1397, 1402 (2d Cir. 1993), superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Service Care, 163 F.3d 684, 692-93 (2d Cir. 1998). Those situations occur where the later claim: (1) alleges "retaliation by an employer against an employee for filing an EEOC charge"; (2) "alleges further incidents of discrimination carried out in precisely the same manner alleged in 7 the EEOC charge"; or (3) "where the conduct complained of would fall within the 'scope of the EEOC investigation which can be reasonably expected to grow out of the charge of discrimination.'" Id. at 1402-03 (quoting Smith v. Am. President Lines, Ltd., 571 F.2d 102, 107 n. 10 (2d Cir. 1978)) (citations omitted). This latter category does not permit a new claim of discrimination to be included, however, where the EEOC allegations "are too vague to serve as predicates for allegations in the complaint." Id. at 1403.
Burch's complaint to the EEOC claimed discrimination only under the ADA and did not make any reference to discrimination on the basis of race, sex or any of the other grounds enumerated in Title VII. See EEOC Complaint at 1. Burch has provided no basis for concluding that any of the Butts exceptions apply here. Indeed, Burch's own district court complaint does not allege discrimination based on any of the categories protected by Title VII. See Amended Compl., ¶ 7.
Filing a claim with the EEOC (or an appropriate state agency, see 42 U.S.C. § 2000e-5(e)) is a statutory prerequisite that must be fulfilled before a party can bring suit in federal court under Title VII. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973); Pikulin v. City Univ. of New York, 176 F.3d 598, 599 (2d Cir. 1999) (per curiam). Because Burch made no claim under Title VII and has not shown that she fits within any of the exceptions to the exhaustion rule, Burch's claim under Title VII should be dismissed.
2. ADA Claims
The ADA prohibits discrimination in employment against individuals with disabilities, as set forth in detail in the statute. 42 U.S.C. § 12111-12117. While it is not directly relevant on a motion to dismiss, see Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515 (2002), a plaintiff 8 makes out a prima facie claim of discrimination under the ADA where "(1) her employer is subject to the ADA; (2) she suffers from a disability within the meaning of the ADA; (3) she could perform the essential functions of her job with or without reasonable accommodation; and (4) she was fired because of her disability." Ryan v. Grae Rybicki, 135 F.3d 867, 869-70 (2d Cir. 1998) (citations omitted). Beth Israel's motion to dismiss is premised on two theories: (1) that Burch's complaint on its face bars her claim; and (2) that "any claim arising before August 15, 2000 is time-barred." Def. Mem. at 6, 7.
a. Sufficiency of the complaint. With respect to the first contention, Beth Israel argues that Burch has "admitted" that the hospital accommodated her disability placing her in a clerical position. See Def. Mem. at 6. Burch, however, explicitly alleges that Beth Israel did not accommodate her in the clerical position from which she was terminated. See Am. Compl., ¶ 8 ("I was not accommodated for this position."). Even if this allegation is groundless, as defendants assert, it is sufficient to comply with Fed.R.Civ.P. 8(a)(2)'s requirement of a "short and plain statement" of the claim for relief. See Swierkiewicz, 534 U.S. at 512.
Beth Israel also contends that — in contravention of the above-mentioned allegation — Burch has admitted that her termination as a Patient Service Representative was "performance related." Def. Mem. at 6. In support of this contention Beth Israel cites a letter Burch wrote to her union representative regarding her firing and her midterm probation report — each of which was appended to her complaint. See id. (citing Letter to Michael Garvey from Burch, dated March 5, 2002 (reproduced in Am. Compl.), at 1; Prob. Rep. at 1-2). The letter to her union representative, however, disputes the reasons given for her firing and thus does not constitute an admission that she was terminated for a non-discriminatory cause. The probation report is even 9 more irrelevant. It was not authored by Burch and thus could not possibly constitute an admission. Indeed, Burch claims that no other employee was subjected to a similar midterm probation report, see Pl. Mem. at 3, leading to an inference that the report itself could constitute evidence of discrimination.
Certainly, this is not a case where "no relief could be granted under any set of facts that could be proved consistent with [Burch's] allegations." Hishon v. King Spalding, 467 U.S. 69, 73 (1984). Therefore, Beth Israel is not entitled to dismissal of Burch's claims under the ADA on this ground.
b. Dismissal of claims arising prior to August 15, 2000. Beth Israel also contends that Burch's ADA claims should be dismissed because portions of Burch's allegations are time barred. See Def. Mem. at 6. A charge under the ADA against an employer in New York State must be filed within 300 days of the incident complained of. See 42 U.S.C. § 12117 (incorporating 42 U.S.C. § 2000e-5); Pikulin, 176 F.3d at 599. Burch's charge was filed on June 11, 2001. Thus, Beth Israel contends that "all of plaintiff's pre-August 15, 2000 ADA claims should be dismissed." Def. Mem. at 7.
The Court would agree with this proposition had Burch attempted to sue for adverse employment actions occurring prior to August 15, 2000. The complaint does not appear to make any such claim, however, and Beth Israel makes virtually no effort to explain what portions of Burch's complaint should be construed as raising pre-August 15, 2000 claims. Beth Israel's brief adverts only to the fact that Burch's EEOC charge "reference[s] incidents as early as 1996." Def. Mem. at 7. However, these incidents appear to be included only to explain the injuries that led to Burch's disability. See Bretches Letter at 1-2. To the extent there is any lack of clarity in 10 Burch's complaint as to which employment actions are at issue, that clarity can be achieved through the service of interrogatories or a motion under Fed.R.Civ.P. 12(e).
Because Burch's amended complaint can reasonably be construed as raising claims of discrimination only for conduct that occurred after August 15, 2000, the complaint should not be dismissed on statute of limitations grounds.
Conclusion
For the foregoing reasons, Burch's claims against the individual defendants should be dismissed in their entirety. Burch's claim against Beth Israel under Title VII should also be dismissed. The motion to dismiss Burch's claim against Beth Israel under the ADA should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Honorable Jed S. Rakoff, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Rakoff. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).