Opinion
10 Civ. 4055 (JGK)(LMS)
05-17-2011
GUY LAURENT, Plaintiff, v. G & G BUS SERVICE, INC., et al., Defendants.
REPORT & RECOMMENDATION
TO: THE HONORABLE JOHN G. KOELTL, U.S.D.J.
Plaintiff Guy Laurent brings this action against G & G Bus Service, Inc. ("G & G"), First Students, Inc. ("FSI"), Sharon K. Becz, Partners in Safety, Inc. ("PIS"), Russell Kamer, M.D., Patricia Quinones, P.A., and Ursula Clancy, R.N., asserting claims of age and disability discrimination and retaliation under federal and state statutes, as well as state common law claims of negligence and tortious interference with prospective business relationship. See Docket # 23 (First Amended Complaint). Now before the Court are motions to dismiss the First Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) filed by all Defendants, Docket ## 35, 48, 51, 54, and 73, as well as Plaintiff's motion for a default judgment against FSI. Docket # 41. For the reasons that follow, I conclude, and respectfully recommend that Your Honor should conclude, that Defendants' motions to dismiss the First Amended Complaint should be granted, Plaintiff's state law claims should be dismissed without prejudice to refiling in state court, and Plaintiff's informal motion for leave to replead should be denied without prejudice to filing a formal motion. I further conclude, and respectfully recommend that Your Honor should conclude, that Plaintiff's motion for default judgment should be denied.
BACKGROUND
The following facts are taken from Plaintiff's First Amended Complaint, which the Court accepts as true for purposes of this motion.
In September, 2008, Plaintiff was interviewed by G & G for employment as a part-time school bus driver. Becz conducted the job interview, during which she asked to see Plaintiff's commercial driver's license. After inspecting the driver's license, Becz told Plaintiff that he was qualified for the position, but he needed to undergo a medical examination by PIS before she could offer him the job. Plaintiff went to PIS on September 10, 2008, where Quinones gave him a form (the "Exam Form") on which Plaintiff entered his full name, social security number, medical history, and other confidential medical information before signing it. Quinones reviewed the Exam Form, examined Plaintiff, and administered medical tests. She asked Plaintiff questions that were intended to uncover cardiovascular and neurological deficits. Kamer formed the medical opinion that Plaintiff suffered from a neurological deficit. He wrote a statement on the Exam Form and initialed it. PIS, Kamer, and Quinones determined that based upon Kamer's diagnosis, Plaintiff could not be medically certified to work as a school bus driver. Instead of telling G & G and Becz that Plaintiff was denied medical certification for the job, PIS told G & G and Becz about Kamer's medical diagnosis. Thus, G & G and Becz regarded Plaintiff as disabled, and they refused to hire him.
In November, 2008, Plaintiff lodged a complaint against G & G with the New York State Division of Human Rights ("NYSDHR"), asserting claims of age and disability discrimination. A related federal charge number was obtained from the Equal Employment Opportunity Commission ("EEOC"). In defense of the complaint, G & G filed a letter with the NYSDHR dated December 30, 2008, which had attached both Plaintiff's private physician's dictation of a medical diagnosis, as well as an unredacted copy of the Exam Form, which had been faxed to G & G by PIS. The NYSDHR concluded its investigation, and its decision was adopted by the EEOC. On January 28, 2010, the EEOC issued a notice of right to sue. Plaintiff, proceeding pro se, commenced this action within 90 days of receipt of the notice.
The NYSDHR determined that there was "NO PROBABLE CAUSE to believe that [G & G] has engaged in or is engaging in the unlawful discriminatory practice complained of." Laurent Affidavit [Docket # 65] Ex. 8 (Determination and Order After Investigation).
Plaintiff, after retaining pro bono counsel, filed a First Amended Complaint, asserting eight causes of action: (1) age discrimination under the Age Discrimination in Employment Act ("ADEA") against G & G and FSI; (2) disability discrimination under the Americans with Disabilities Act ("ADA") against G & G and FSI; (3) retaliation under the ADEA, ADA, and Title VII against G & G and FSI; (4) age discrimination under the New York State Human Rights Law ("NYSHRL") against G & G, FSI, and Becz; (5) disability discrimination under the NYSHRL against G & G, FSI, and Becz; (6) retaliation under the NYSHRL against G & G, FSI, Becz, PIS, Kamer, and Clancy; (7) common law negligence against G & G, FSI, Becz, PIS, Kamer, Clancy, and Quinones; and (8) common law tortious interference with prospective business relationship against PIS. Defendants move to dismiss the First Amended Complaint.
FSI is alleged to have acquired G & G, and thus suit is brought against it as G & G's successor-in-interest. Because, as set forth below, I recommend dismissal of Plaintiff's claims against FSI for failure to state a claim, I do not address the issue of successor liability.
To the extent that the retaliation claim was brought under Title VII, see First Am. Compl. ¶ 45, it was withdrawn at the December 22, 2010, court conference. See Docket Sheet, Minute Entry for 12/22/10.
The fourth and fifth claims in the First Amended Complaint were withdrawn as against G & G at the December 22, 2010, court conference. See Docket Sheet, Minute Entry for 12/22/10.
DISCUSSION
I. Standard for Motion to Dismiss
Federal Rule of Civil Procedure 8(a)(2) requires the complaint to set forth a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). The complaint must include something more than "an unadorned, the-defendant-unlawfully harmed-me accusation." Id.
When considering a defendant's Rule 12(b)(6) motion to dismiss, "a judge must accept as true all of the factual allegations contained in the complaint," Erickson v. Pardus, 551 U.S. 89, 94 (2004) (citations omitted), and must draw all inferences from those allegations in the plaintiff's favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). However, a court is not required to accept as true legal conclusions, and "[t]hreadbare recitals of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949.
Previously, a Rule 12(b)(6) motion to dismiss would not be granted unless "it appeared beyond doubt that the plaintiff [could] prove no set of facts in support of his [or her] claim which would entitle him [or her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). However, the Supreme Court has explained that "Conley's 'no set of facts' language has been questioned, criticized, and explained away long enough," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007), since a literal reading of it would enable a conclusory statement of claim to survive a motion to dismiss "whenever the pleadings left open the possibility that a plaintiff might later establish some 'set of [undisclosed] facts' to support recovery." Id. at 561. Instead, to survive a motion to dismiss, a complaint must set forth sufficient facts to "state a claim to relief that is plausible on its face." Iqbal, 129 S. Ct. at 1949 (internal quotation marks and citation omitted). A claim is facially plausible when the complaint contains enough facts to allow the court to reasonably infer that the defendant is liable for the alleged misconduct. Id. Put another way, a plaintiff must set forth enough facts to "nudge [his or her] claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570.
In deciding a motion to dismiss under Rule 12(b)(6), the court may also consider any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference, matters of which judicial notice may be taken, and documents possessed by, or known to, the plaintiff, and upon which the plaintiff relied in bringing suit. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007); see also Schnall v. Marine Midland Bank, 225 F.3d 263, 266 (2d Cir. 2000) (court may consider documents which are integral to the complaint and of which plaintiff had notice). However, "when matters outside the pleadings are presented in response to a 12(b)(6) motion, a district court must either exclude the additional material and decide the motion on the complaint alone or convert the motion to one for summary judgment under Fed. R. Civ. P. 56 and afford all parties the opportunity to present supporting material. . . . Thus, a district court errs when it consider[s] affidavits and exhibits . . . or relies on factual allegations contained in legal briefs or memoranda, in ruling on a 12(b)(6) motion to dismiss." Friedl v. City of New York, 210 F.3d 79, 83-84 (2d Cir. 2000) (internal quotation marks and citations omitted).
While Quinones, as well as PIS and Clancy, moved to dismiss pursuant to Rules 12(b)(6) and/or 56, Docket ## 35, 54, and Plaintiff responded to all Defendants' motions by providing an affidavit and documents beyond those referenced in the First Amended Complaint, Docket # 65, the Court has treated all of the motions as motions to dismiss.
II. Plaintiff's Claims Brought Pursuant to Federal Law
The first three claims in the First Amended Complaint, and the only federal claims in the action, are asserted solely against G & G and FSI. These claims are for age and disability discrimination, as well as retaliation. The legal standard to be applied to pleadings involving such claims has been described as follows:
The Iqbal plausibility standard applies in conjunction with employment discrimination pleading standards. According to Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S. Ct. 992, 152 L.Ed.2d 1 (2002), employment discrimination claims need not contain specific facts establishing a prima facie case of discrimination. Rather, "a complaint must include . . . a plain statement of the claim . . . [that] give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. at 512 (internal quotation marks and citations omitted); see also Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007). Iqbal was not meant to displace Swierkiewicz's teachings about pleading standards for employment discrimination claims because in Twombly, which heavily informed Iqbal, the Supreme Court explicitly affirmed the vitality of Swierkiewicz. See Twombly, 550 U.S. at 547 ("This analysis does not run counter to Swierkiewicz . . . . Here, the Court is not requiring heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face."); see also Iqbal, --- U.S. ----, 129 S. Ct. at 1953, 173 L.Ed.2d 868 ("Our decision in Twombly expounded the pleading standard for all civil actions, and it applies to antitrust and discrimination suits alike.") (internal quotation marks and citations omitted)). Accordingly, while a complaint need not contain specific facts establishing a prima facie case of employment discrimination to overcome a Rule 12(b)(6) motion to dismiss, it must nevertheless give fair notice of the basis of Plaintiff's claims, and the claims must be facially plausible.Gillman v. Inner City Broad. Corp., No. 08 Civ. 8909, 2009 WL 3003244, at *3 (S.D.N.Y. Sept. 18, 2009) (footnote omitted). "The Swierkiewicz standard applies to all claims 'that the McDonnell Douglas framework covers,' Boykin v. KeyCorp et al., 521 F.3d 202, 212 (2d Cir.2008) (quotation marks omitted), including claims of retaliation, disparate treatment, and hostile work environment." Jackson v. New York State Dep't of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (citations omitted).
Age Discrimination under the ADEA
To establish a prima facie claim of age discrimination under the ADEA, a plaintiff must demonstrate (i) that he or she was a member of the protected class; (ii) that he or she was qualified for the position; (iii) that he or she suffered an adverse employment action; and (iv) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. See, e.g., Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005). While a plaintiff's complaint need not plead "specific facts establishing a prima facie case of employment discrimination to overcome a Rule 12(b)(6) motion to dismiss, it must nevertheless give fair notice of the basis of [p]laintiff's claims, and the claims must be facially plausible." Gillman, 2009 WL 3003244, at *3.
In his First Amended Complaint, Plaintiff alleges that Becz asked to see his commercial driver's license at his job interview in order to ascertain his age and that he was 67 years old when he applied for the job with G & G. He also alleges that upon learning Plaintiff's age, Becz stated that he was qualified for the job, but that he had to undergo a medical examination by PIS. Plaintiff further alleges that Becz knew that the examination by PIS would seek to identify cardiovascular and neurological deficits "that bear a high correlation with age." First Am. Compl. ¶ 30. Elsewhere in the First Amended Complaint, Plaintiff alleges that the medical examination resulted in a determination that he did not meet the standard for medical certification as a school bus driver and was not hired by G & G. See id. ¶¶ 18-20.
This allegation undermines Plaintiff's claim as it demonstrates that even knowing Plaintiff's age, Becz still thought he was qualified for the job.
Plaintiff fails to state a claim since he makes no allegations that the failure to hire him occurred under circumstances giving rise to an inference of age discrimination. Rather, as aptly stated in another case in which a claim of age discrimination was dismissed,
[t]here were no allegations by plaintiff that [anyone from G & G] made any discriminatory comments relating to his age. In addition, the [First Amended] Complaint does not allege that [anyone from G & G] engaged in any overt discriminatory conduct toward the plaintiff concerning plaintiff's age. Indeed, plaintiff's claims do not give rise to an inference of discriminatory intent because there are no allegations from which such an inference can be made. Further, there are no allegations that other older applicants were denied appointments or that only younger workers are employed.Avgerinos v. Palmyra-Macedon Cent. Sch. Dist., 690 F. Supp. 2d 115, 130-31 (W.D.N.Y. 2010) (footnote omitted). While Plaintiff implies that the medical examination was discriminatory because it sought to identify medical deficits "that bear a high correlation with age," this conclusory allegation, without more, is insufficient to support an inference of age discrimination, and Plaintiff provides no factual allegations from which one can infer that the medical examination itself was conducted in a discriminatory manner based on his age.
In sum, Plaintiff's claim of age discrimination under the ADEA fails to "state a claim to relief that is plausible on its face," Iqbal, 129 S. Ct. at 1949 (internal quotation marks and citation omitted). Thus, I conclude, and respectfully recommend that Your Honor should conclude, that this claim should be dismissed.
Plaintiff's memorandum of law in opposition to G & G and FSI's motion characterizes his age discrimination claim as a disparate impact claim. See Mem. of Law in Opp. [Docket # 70] at 19 ("A reasonable jury could infer that, though facially neutral, P.I.S.'s pre-offer medical examination has a disparate impact on senior citizens and that age was the 'but for' reason for G & G [sic] directive that Laurent should undergo a pre-offer medical examination by P.I.S."). However, the First Amended Complaint lacks any allegations in support of such a claim.
As one district court explained,
"In a disparate treatment case, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 123 L.Ed.2d 338 (1993). Thus, if an employee's age played a role in [his or] her employer's decision-making process and influenced the outcome, the proper claim is disparate treatment. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S. Ct. 2097, 147 L.Ed.2d 105 (2000).Zawacki v. Realogy Corp., 628 F. Supp. 2d 274, 280 (D. Conn. 2009).
"[C]laims that stress 'disparate impact' [by contrast] involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Hazen Paper Co., 507 U.S. at 609, 113 S. Ct. 1701 (internal quotation marks omitted). For ADEA disparate impact claims, "the employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." Smith [v. City of Jackson, Miss.], 544 U.S. [228,] 241, 125 S. Ct. 1536 [(2005)] (internal quotation marks omitted) (emphasis in original). "[I]t is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact." Id.
The only allegations set forth in the First Amended Complaint with respect to Plaintiff's age discrimination claim are that (1) "[n]o reasonable factor other than age informed Ms. Becz's decision to inspect" Plaintiff's commercial driver's license; and (2) "[u]pon learning Plaintiff's age, Ms. Becz stated that, although he was qualified for the job, he must undergo a medical examination by P.I.S. [, but] Ms. Becz had reason to know that P.I.S. administers tests and requires responses to questions that seek to identify cardiovascular deficits, e.g., hypertension, and neurological deficits, e.g., stroke, that bear a high correlation with age." First Am. Compl. ¶¶ 29-30. Plaintiff nowhere alleges a facially neutral policy that fell more harshly on the protected group, and his conclusory allegation concerning the medical examination by PIS implies that rather than being a facially neutral policy, it was intended as a cover for intentional discrimination against older job applicants. Thus, the First Amended Complaint fails to state a claim of disparate impact under the ADEA. See Zawacki, 628 F. Supp. 2d at 281 (dismissing Plaintiff's disparate impact claims, citing the Second Circuit decision in Maresco v. Evans Chemetics, Div. of W.R. Grace & Co., 964 F.2d 106, 115 (2d Cir.1992), and noting that "where the employment practices supporting the Plaintiff's disparate impact claims are the employment practices supporting the disparate treatment claims," the disparate impact doctrine may not be invoked because otherwise, it would "provide[] a means for the Plaintiff to avoid establishing the subjective intent requirement for her disparate treatment claims.").
Disability Discrimination under the ADA
Plaintiff did not respond to G & G and FSI's arguments in support of their motion to dismiss Plaintiff's claim of disability discrimination under the ADA. Therefore, the Court may deem the claim abandoned. See Arma v. Buyseasons, Inc., 591 F. Supp. 2d 637, 643 (S.D.N.Y. 2008) (citations omitted). Nonetheless, I consider this claim on the merits and conclude, and respectfully recommend that Your Honor should conclude, that this claim should be dismissed.
Plaintiff sets forth the legal standards that he claims govern his ADA claim, see Mem. of Law in Opp. [Docket # 70] at 9-13, but he nowhere explains how the allegations in the First Amended Complaint satisfy those legal standards and succeed in stating a claim.
To make out a prima facie claim of disability discrimination under the ADA, "the plaintiff must establish that (1) his [or her] employer is subject to the ADA; (2) he [or she] suffers from a disability within the meaning of the ADA; (3) he [or she] could perform the essential functions of his [or her] job with or without a reasonable accommodation; and (4) he [or she] was discriminated against because of his [or her] disability." Siederbaum v. City of New York, 309 F. Supp. 2d 618, 623 (S.D.N.Y. 2004) (citations omitted), aff'd, 121 F. App'x 435 (2d Cir. 2005). With respect to an individual, a "disability" as defined by the ADA is "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(1). In this case, Plaintiff alleges a disability under subsection (C), since he asserts that "G & G's and Ms. Becz's employment decision was motivated by discriminatory animus against Plaintiff as a 'regarded as' disabled person." First Am. Compl. ¶ 35.
Before the 2008 amendment to the ADA, this definition appeared at 42 U.S.C. § 12102(2).
As noted by Plaintiff in his opposition papers, the ADA was recently amended by the ADA Amendments Act of 2008 ("ADAAA"), Pub. L. No. 110-325, 122 Stat. 3553 (2008). The ADAAA sets forth a new standard for determining whether a person is "regarded as having such an impairment":
An individual meets the requirement of "being regarded as having such an
impairment" if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.42 U.S.C. § 12102(3)(A). However, the ADAAA only applies to claims arising on or after January 1, 2009. Plaintiff's claim that G & G failed to hire him in October, 2008, because it regarded him as disabled is therefore governed by the pre-ADAAA standard for "regarded as" disability claims. "Accordingly, with respect to any claim of disability prior to January 1, 2009, where the claim is one of being perceived as disabled, plaintiff must show that the employer regards the plaintiff as disabled within the meaning of the ADA, and not merely that plaintiff is regarded as having some measure of a disability or impairment." Brtalik v. S. Huntington Union Free Sch. Dist., CV-10-0010, 2010 U.S. Dist. LEXIS 107373, at *24 (E.D.N.Y. Oct. 6, 2010) (citing Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 872 (2d Cir.1998)) (emphasis added). "In other words, a plaintiff stating this sort of claim must show that the employer regarded [him or] her as having 'a physical or mental impairment that substantially limited one or more [of the plaintiff's] major life activities.' 42 U.S.C. § 12102(2)(A) (2006)." Eaddy v. City of Bridgeport, No. 09cv1836, 2011 WL 1399031, at *4 (D. Conn. Apr. 12, 2011).
The First Amended Complaint quotes G & G's letter to the NYSDHR which stated that "G & G only determined that Mr. Laurent could not apply for a school bus driver position in October 2008, because the hiring was too close to his TIA." First Am. Compl. ¶ 23(e).
Under the pre-ADAAA version of the ADA, "major life activities" are defined as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). Moreover,
[w]ith respect to the major life activity of working . . . [t]he term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as
compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.29 C.F.R. § 1630.2(j)(3)(i).
In this case, Plaintiff fails to allege how G & G regarded him as disabled within the meaning of the ADA, i.e., the First Amended Complaint lacks any allegations that G & G regarded Plaintiff as having an impairment that substantially limited one or more of his major life activities. All that Plaintiff alleges in support of his disability discrimination claim is that "P.I.S. revealed Dr. Kamer's medical diagnosis of Plaintiff's presumed neurological condition. Upon receipt of the diagnosis, G & G and Ms. Becz refused to hire Plaintiff. G & G's and Ms. Becz's employment decision was motivated by discriminatory animus against Plaintiff as a 'regarded as' disabled person." First Am. Compl. ¶¶ 34-35. The most that can be gleaned from such conclusory allegations is a claim that G & G and Becz regarded Plaintiff as having an impairment that prevented him from working as a school bus driver. However, as noted above, "[t]he inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(i).
In setting forth his disability discrimination claim, Plaintiff adds a final, conclusory allegation that "G & G is liable to Plaintiff under the anti-discrimination provisions of the ADA, 42 U.S.C. §§ 12112(b)(1) (disparate treatment), 12112(b)(6) (disparate impact)." First Am. Compl. ¶ 37. However, to the extent that the disparate treatment claim is based on being "regarded as" disabled (the only form of disparate treatment alleged), I conclude, and respectfully recommend that Your Honor should conclude, that it should be dismissed for the reasons just stated.
[T]he term "discriminate" includes42 U.S.C. §§ 12112(b)(1), (6) (pre-ADAAA version).
(1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee; . . .
(6) using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.
With respect to the assertion of a disparate impact claim, there are no allegations in support of such a claim in the First Amended Complaint. To establish a prima facie case of disability discrimination based upon disparate impact, a plaintiff must show: "(1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant's facially neutral acts or practices." Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565, 575 (2d Cir.2003) (internal quotation marks and citations omitted). "Although the plaintiff need not show discriminatory intent under this theory, [he or she] must prove that the practice actually or predictably results in discrimination" as well as a "causal connection between the policy at issue and the discriminatory effect ." Quad Enters. Co., LLC v. Town of Southold, 369 F. App'x 202, 206 (2d Cir. 2010) (internal quotation marks, alteration, and citations omitted). While, as noted above, a plaintiff's complaint need not plead "specific facts establishing a prima facie case of employment discrimination to overcome a Rule 12(b)(6) motion to dismiss, it must nevertheless give fair notice of the basis of [p]laintiff's claims, and the claims must be facially plausible." Gillman, 2009 WL 3003244, at *3.
In this case, Plaintiff nowhere alleges that G & G has a facially neutral policy or procedure that has a disproportionate impact on disabled persons. Rather, Plaintiff's allegations relate only to how he was treated and the fact that after his medical examination by PIS, Kamer, and Quinones, Plaintiff was "regarded as" disabled by G & G and Becz and denied a job as a school bus driver. This is insufficient to state a disparate impact claim.
Accordingly, I conclude, and respectfully recommend that Your Honor should conclude, that Plaintiff's claim of disability discrimination under the ADA should be dismissed.
Retaliation under the ADEA and ADA
To present a prima facie case of retaliation under the ADEA and the ADA, a plaintiff must establish that (1) he or she was engaged in an activity protected by the statute, (2) the employer was aware of that activity, (3) the employer took adverse action against the plaintiff, and (4) there is a causal connection between the protected activity and the adverse action. Kessler v. Westchester Cnty. Dep't of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006) (ADEA); Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (ADA). As noted, and followed, by the Second Circuit in Kessler, the Supreme Court, in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), held that Title VII's anti-retaliation provision is "not limited to discriminatory actions that affect the terms and conditions of employment." 548 U.S. at 64. Rather, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 68 (internal quotation marks and citations omitted). White's definition of adverse action in the context of retaliation has been applied to claims brought under the ADEA and the ADA as well. See Kessler v. Westchester Cnty. Dep't of Soc. Servs., supra (ADEA); Platt v. Inc. Village of Southampton, 391 F. App'x 62, 64 (2d Cir. 2010) (ADA).
In this case, the alleged retaliatory conduct was disclosure of Plaintiff's medical information and social security number in papers submitted to the NYSDHR by G & G. First Am. Compl. ¶ 41. Plaintiff asserts in his opposition papers that further disclosure of this information has been made by Defendants in the course of litigating this action. In his opposition papers, Plaintiff argues (although only with respect to the disclosures in this action) that these disclosures "constitute materially adverse actions that would dissuade a reasonable job applicant from opposing a discriminatory job application process by filing a lawsuit." Mem. of Law in Opp. [Docket # 70] at 21.
To begin, any disclosure of Plaintiff's personal information in this litigation in contravention of federal or local rules has been inadvertent and resulted from errors made by counsel, not acts of the parties, and counsel for the parties who have made such disclosures have taken steps to correct their error. See, e.g., Docket ## 74, 82. Consequently, this conduct cannot form the basis for Plaintiff's retaliation claim.
It should be noted that while Fed. R. Civ. P. 5.2 and Local ECF Rule 21.3 require redaction of social security numbers, names of minor children, dates of birth, financial account numbers, and home addresses, there is no such requirement with regard to medical information. Rather, Local ECF Rule 21.3 states, "You should not include sensitive information in any document filed with the Court unless such inclusion is necessary and relevant to the case [emphasis added]," and Local ECF Rule 21.4 states only that "[c]aution should be exercised when filing documents that contain . . . [m]edical records, treatment and diagnosis . . . ." Where, as here, Plaintiff's medical condition, and the results of his medical examination by PIS, are in issue, Plaintiff's medical records are relevant to the case. Moreover, in his original pro se Complaint and Request to Proceed In Forma Pauperis filed in this action, Plaintiff himself provided personal information such as his date of birth, employment and salary history, home address, and medical information. Docket ## 1 (Complaint for Employment Discrimination), 6 (Request to Proceed In Forma Pauperis).
With respect to the disclosures to the NYSDHR, Plaintiff's own Verified Complaint filed with that agency provides information concerning his medical condition. See, e.g., Laurent Affidavit [Docket # 65] Ex. 6, Verified Complaint ¶ 3 ("I was sent by the Respondent to Partners in Safety who provide drug screening and medical exams for the Respondent. On their medical history questionnaire, I left blank the question, 'Have you ever had a stroke.' . . . because in May I had been hospitalized with chest pain and although I was released with a diagnosis of 'chest pain' I was uncertain as to why I had the chest pain. I explained to Partners in Safety and they said they needed a doctor's note stating that I had not had a Cerebrovascular accident (CVA) or Transient Ischemic Attack (TIA)."). Having made reference to the medical history questionnaire, Plaintiff has no basis to object to the production of that document to the NYSDHR by G & G. Moreover, it cannot be deemed retaliatory to provide documentation concerning medical conditions placed in issue by Plaintiff himself in his Verified Complaint. Cf. Manessis v. New York City Dep't of Transp., No. 02 Civ. 359, 2002 WL 31115032, at *2 (S.D.N.Y. Sept. 24, 2002) ("Although there is no physician-patient privilege in federal law, [plaintiff] does have a privacy interest in his medical records. Where, however, a litigant puts his [or her] physical or mental condition into issue in the litigation, he [or she] waives his [or her] right to privacy in any relevant medical records.") (footnote and citations omitted); Crawford v. Manion, No. 96 Civ. 1236, 1997 WL 148066, at *2 (S.D.N.Y. Mar. 31, 1997) ("The holder of a privacy right can waive it through a variety of acts, including by written authorization or by instituting a lawsuit. . . . Here, plaintiff waived his right to privacy in his medical records by bringing a lawsuit in which his medical history was a pertinent issue.") (citations omitted); Evanko v. Elec. Sys. Assocs., Inc., No. 91 Civ. 2851, 1993 WL 14458, at *2 (S.D.N.Y. Jan. 8, 1993) (under New York law with respect to physician-patient privilege, "medical records are protected except to the extent that plaintiff may have placed their contents into controversy by [his or] her claims") (citation omitted). Indeed, the crux of Plaintiff's claim is that Defendants wrongly concluded that Plaintiff had suffered either a CVA or TIA and was thus disqualified from the school bus driver position, while Plaintiff's physicians determined that he had not suffered either a CVA or TIA and could, in fact, work as a school bus driver. See Verified Complaint ¶¶ 3-6.
This appears to be the same document as the "Exam Form" identified in the First Amended Complaint. See First Am. Compl. ¶ 15 ("On September 10, 2008, P.I.S. and Ms. Quinones presented a form to Plaintiff, and instructed him to complete it. Plaintiff entered his full name, social security number, medical history and other confidential medical information onto the form, and signed the form (hereinafter, the 'Exam Form').").
Nor can it be deemed retaliatory to make disclosures that are permitted under the ADA. Thus, while Plaintiff asserts, without explanation, that G & G's disclosure of Plaintiff's medical information to the NYSDHR was violative of the ADA, see Mem. of Law in Opp. [Docket # 70] at 18, the ADA provision regarding the confidentiality of medical records states that "government officials investigating compliance with this chapter shall be provided relevant information on request." 42 U.S.C. § 12112(3)(B)(iii). Following Plaintiff's filing of his Verified Complaint with the NYSDHR, the EEOC sent G & G a notice and a copy of the Verified Complaint, explaining that the NYSDHR would be investigating the complaint in the first instance. See Clunis Declaration [Docket # 50] Ex. D. The EEOC notice states, "You are . . . encouraged to cooperate fully with the [NYSDHR]. All facts and evidence provided by you to the [NYSDHR] in the course of its proceedings will be considered by the Commission when it reviews the [NYSDHR's] final findings and orders." Id. Thus, G & G's disclosure to the NYSDHR of medical records relevant to its defense against Plaintiff's charge of disability discrimination, allowed under the ADA, cannot constitute retaliatory conduct.
Finally, as stated in footnote 12, supra, in commencing this action in federal court, Plaintiff himself disclosed some of the same personal information that he now contends Defendants disclosed in retaliation. Consequently, he cannot be heard to complain about such disclosures.
In sum, there is no basis to find that the alleged disclosures are materially adverse actions that would support a retaliation claim, and I conclude, and respectfully recommend that Your Honor should conclude, that Plaintiff's claim of retaliation under the ADEA and ADA should be dismissed.
III. Plaintiff's State Law Claims
With respect to Plaintiff's state law claims, "district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). Therefore, because I recommend dismissal of Plaintiff's federal claims, I conclude, and respectfully recommend that Your Honor should conclude, that the Court should decline to exercise supplemental jurisdiction over Plaintiff's state law claims and that those claims should be dismissed without prejudice to refiling in state court. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 121-22 (2d Cir. 2006); Weathers v. Millbrook Cent. Sch. Dist., 486 F. Supp. 2d 273, 275-76 (S.D.N.Y. 2007).
Because I recommend dismissal of the state law claims under 28 U.S.C. § 1367(c)(3), I do not address any of the Defendants' arguments for dismissal of these claims pursuant to Fed. R. Civ. P. 12(b)(1) or Fed. R. Civ. P. 12(b)(6).
IV. Leave to Replead
In all sets of his opposition papers, Plaintiff summarily requests that he be granted leave to replead under Fed. R. Civ. P. 15(a) if the Court decides to dismiss any of his claims. See, e.g., Mem. of Law in Opp. [Docket # 70] at 25. In making this request, Plaintiff fails to provide a copy of any such proposed amended pleading. As one district judge confronted with this situation explained,
It is the usual practice upon granting a motion to dismiss to allow leave to replead. Although leave to replead is within the discretion of the district court, refusal to grant it without any justifying reason is an abuse of discretion. At this point, however, there is before me no proposed second amended complaint, and it is not the Court's role to explain to plaintiffs what they need to do in order to correct the flaws in the first amended complaint.Ironforge.com v. Paychex, Inc., 747 F. Supp. 2d 384, 406 (W.D.N.Y. 2010) (internal quotation marks and citation omitted). Thus, the district judge concluded, "Plaintiffs are free to file a formal motion for leave to replead, along with a proposed second amended complaint, but their present request for leave to replead is denied." Id.
It is hardly clear that Plaintiff will be able to amend his complaint to state a cognizable federal claim. Nonetheless, I decline to opine at this juncture on any hypothetical amended pleading that Plaintiff might draft. Accordingly, I conclude, and respectfully recommend that Your Honor should conclude, that Plaintiff's current request for leave to replead should be denied without prejudice to the filing of a formal motion for leave to replead that includes a copy of the proposed amended pleading.
V. Motion for Default Judgment
Plaintiff moves for entry of default judgment against FSI. The Second Circuit has "repeatedly noted that the dispositions of motions for entries of defaults and default judgments . . . are left to the sound discretion of a district court, and ha[s] made known [its] preference for resolving disputes on the merits." Palmieri v. Town of Babylon, 277 F. App'x 72, 74 (2d Cir. 2008) (internal quotation marks, citations, and alteration omitted). "In determining whether to grant such a motion, the court may consider numerous factors, including whether plaintiff has been substantially prejudiced by the delay involved and whether the grounds for default are clearly established or are in doubt." O'Callaghan v. Sifre, 242 F.R.D. 69, 73 (S.D.N.Y. 2007) (internal quotation marks, alteration, and citations omitted). "The court is also guided by the same factors that apply to a motion to set aside entry of a default: (1) whether the default was willful; (2) whether the plaintiff[] would be prejudiced by the denial of the motion for default judgment; and (3) whether there are any meritorious defenses to plaintiff's claims." Id. (citations omitted). "Because defaults are generally disfavored and are reserved for rare occasions, when doubt exists as to whether a default should be granted or vacated, the doubt should be resolved in favor of the defaulting party." Id. (internal quotation marks, alteration, and citation omitted).
In this case, Plaintiff filed his motion for entry of default judgment against FSI on the same day that FSI filed its motion to dismiss. See Docket ## 41, 48. Moreover, Plaintiff's attorney acknowledges (1) that there was a "miscommunication" between herself and counsel for FSI regarding how much time she would allow for FSI to retain an attorney to represent it in this action before proceeding to file her motion for default judgment, and (2) that she was notified of the filing of FSI's motion papers on February 18, 2011 (albeit after she had already filed the motion for default judgment). See Okoronkwo Declaration [Docket # 66] ¶¶ 12-16; Clunis Affirmation [Docket # 62] Ex. A (Letter dated February 15, 2011, from counsel for FSI to Plaintiff's counsel, "confirm[ing] our conversation [yesterday] whereby [FSI's] time to file an answer . . . is due by Friday, February 18, 2011 pursuant to Court Order," and "confirm[ing] that if [FSI] moves to file an answer after Friday's deadline, you will have no objection to that motion"). Therefore, in light of both the lack of prejudice to Plaintiff and the Court's ability to rule on the merits of the case, I conclude, and respectfully recommend that Your Honor should conclude, that Plaintiff's motion for default judgment against FSI should be denied.
February 18, 2011, was the deadline set by the Court for the filing of Defendants' motions to dismiss. See Docket Sheet, Minute Entry dated 12/22/10.
CONCLUSION
For the foregoing reasons, I conclude, and respectfully recommend that Your Honor should conclude, that Defendants' motions to dismiss (Docket ## 35, 48, 51, 54, and 73) should be granted, and that Plaintiff's first through third claims should be dismissed with prejudice for failure to state a claim, while Plaintiff's fourth through eighth claims should be dismissed without prejudice to refiling in state court. I further conclude, and respectfully recommend that Your Honor should conclude, that Plaintiff's informal motion for leave to replead should be denied without prejudice to filing a formal motion that includes a copy of the proposed amended pleading. Lastly, I conclude, and respectfully recommend that Your Honor should conclude, that Plaintiff's motion for default judgment (Docket # 41) should be denied.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1), as amended, and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days, plus an additional three (3) days, pursuant to Fed. R. Civ. P. 6(d), or a total of seventeen (17) days, see Fed. R. Civ. P. 6(a), from the date hereof, to file written objections to this Report and Recommendation. Such objections, if any, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of The Honorable John G. Koeltl at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned at the United States Courthouse, 300 Quarropas Street, White Plains, New York 10601.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Koeltl and should not be made to the undersigned. Dated: May 17, 2011
White Plains, New York
Respectfully submitted,
/s/_________
Lisa Margaret Smith
United States Magistrate Judge
Southern District of New York