Opinion
21-CV-3045 (PAE) (OTW)
02-14-2023
ANURAG SHANKAR, Plaintiff, v. ACCENTURE LLP, Defendant.
REPORT & RECOMMENDATION TO THE HONORABLE PAUL A. ENGELMAYER
ONA T. WANG, United States Magistrate Judge:
Plaintiff Anurag Shankar (“Plaintiff”) brings this discrimination action against Defendant Accenture LLP (“Defendant”), alleging claims sounding in disability, age, national origin, and race discrimination, as well as failure to reasonably accommodate a disability. Plaintiff brings these claims under the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). Defendant now moves to fully dismiss Plaintiff's federal claims, and partially dismiss his state law claims. For the reasons that follow, I recommend that the Court GRANT Defendant's motion to dismiss all of Plaintiff's federal claims and his state claims for age and disability discrimination, and allow him leave to replead his state law claims.
Plaintiff initially brought this case pro se in state court. Defendant removed on the basis of federal question and diversity jurisdiction. (ECF 1). After obtaining counsel and during the pendency of Defendant's Motion to Dismiss, Plaintiff withdrew his federal claims. (ECF 46).
ORDER
I. BACKGROUND
Plaintiff is a citizen of the United Kingdom and of Indian (South Asian) ancestry. (Complaint, ECF 1-1 (“Compl.”) ¶ 2). Plaintiff was hired by Defendant's London office on or about January 23, 2014, with the title of Management Consulting Manager. (Compl. ¶ 8). Plaintiff alleges that he has the disabilities of sleep apnea and posterior tibial tendon dysfunction (“PTTD”), a condition that causes him foot and ankle pain. (Compl. ¶¶ 1, 2, 9-11). Plaintiff alleges that he informed his “managers and HR team” about his disabilities. (Compl. ¶ 12). In October 2016, Plaintiff was encouraged to apply for a transfer to Defendant's office in New York City. (Compl. ¶ 14). Plaintiff applied for and received an offer of employment in March 2017. (Compl. ¶ 15).
In May 2017, Plaintiff was advised by his treating physician to undergo immediate surgery for a “stomach issue.” (Compl. ¶ 18). Plaintiff alleges that he immediately informed Defendant's Human Resources team in London of his need for surgery, and requested a delay of his transfer to the New York City office. Defendant's Human Resources team in London denied this request, and Plaintiff was informed that if he did not report to Defendant's New York City office, his employment would be terminated. (Compl. ¶ 20). Against his treating physician's recommendation, Plaintiff reported to Defendant's New York City office on May 15, 2017. (Compl. ¶ 21).
Plaintiff alleges that after he began work at Defendant's New York City office, he was compensated at a lower salary rate than other similarly situated employees who, unlike him, did not require a temporary worker visa in order to work in the United States. (Compl. ¶ 16). Plaintiff alleges that he received less money than his counterpart employees because he “originated from another country - specifically, the United Kingdom and is of Indian ancestry.” (Compl. ¶ 17).
Plaintiff also informed Defendant's Human Resources team at the New York City office that he needed to have surgery, after which Defendant provided him with information concerning leave under the Family and Medical Leave Act (“FMLA”). (Compl. ¶¶ 22-23). Plaintiff specifically alleges that he informed Defendant's Managing Directors Thomas S. Marshall and David C. Jones about his need for surgery within a few weeks of moving to New York City. (Compl. ¶ 24). He attempted to inform them again of his medical circumstances, speaking with Mr. Marshall around July 31, 2017, and on August 7, 2017 with Mr. Jones. At the August 7 meeting, Mr. Jones informed Plaintiff to seek a job internally in other departments within two weeks. (Compl. ¶ 26). When Plaintiff asked for additional time to find another role, Mr. Jones directed him to contact Lauren Kelly and Grace Gummels, who subsequently sent him a notice of termination on August 7, 2017. (Compl. ¶ 26).
Plaintiff alleges that while Defendant's Managing Directors represented to him that many employees at Defendant's company were without team projects, Defendant continued to hire others after terminating Plaintiff. Plaintiff further alleges that internal roles similar to Plaintiff's former role were being advertised internally at Defendant's company. (Compl. ¶ 27). Specifically, Plaintiff alleges that his white American citizen colleagues were given more time to look for a job internally. (Compl. ¶ 28). On June 15, 2017, Harshil Shah, a Senior Manager for Defendant, made “derogatory comments” about Plaintiff's age and “ridiculed” him for being a manager at his age with a lower billing rate, level, and salary than Mr. Shah. (Compl. ¶ 29).
In August 2017, Defendant granted and approved leave and disability benefits under the FMLA for Plaintiff. (Compl. ¶ 30). Plaintiff underwent surgery on August 21, 2017 and requested that Defendant give him additional time to secure another internal role. (Compl. ¶ 31). Defendant agreed to extend Plaintiff's termination date to November 13, 2017, and Plaintiff was subsequently interviewed for other internal roles. (Compl. ¶ 34). Although Plaintiff informed Defendant of his “impending offer” for another internal team role, Defendant still elected to terminate him on November 13, 2017. (Compl. ¶ 35). Plaintiff alleges that “Caucasian American employees” were provided with either more time to find another internal position, or were not terminated for being unable to secure a project to work on during the same time period as Plaintiff. (Compl. ¶ 36).
II. PROCEDURAL HISTORY
Plaintiff commenced this action pro se in the Supreme Court of the State of New York, New York County on November 13, 2020. (ECF 1-1). Defendant removed the case to the Southern District of New York on April 8, 2021, citing federal question and diversity jurisdiction. (ECF 1 at 1). After Defendant moved to partially dismiss the Complaint (ECF 6), Judge Engelmayer ordered Plaintiff to file either an amended complaint or an opposition to the motion to dismiss by May 6, 2021. (ECF 10). Plaintiff filed an amended complaint in New York State Supreme Court. (ECF 16). On May 28, 2021, I ordered Plaintiff to file his amended complaint in this Court forthwith. (ECF 17). After Plaintiff failed to file either an amended complaint or his opposition to Defendant's motion to dismiss, I issued an order to show cause why I should not recommend dismissal of the action for Plaintiff's failure to prosecute. (ECF 24).
Subsequently, Plaintiff obtained counsel. (ECF 26). Plaintiff finally filed his opposition to Defendant's motion to dismiss on May 16, 2022. (ECF 46).
III. FEDERAL CLAIMS
Defendant moves to dismiss Plaintiff's federal claims in their entirety. (See Defendant's Memorandum of Law in support of its Partial Motion to Dismiss Plaintiff's Complaint, ECF 7 (“Motion”)). Plaintiff does not object to the dismissal of his federal claims. (ECF 46). Because Plaintiff does not and has not opposed dismissal of his federal claims, those claims should be dismissed. Team Obsolete Ltd. v. A.H.R.M.A. Ltd., 216 F.R.D. 29, 37 (E.D.N.Y. 2003) (dismissing subset of plaintiffs' claims where plaintiffs “agreed with defendants” to dismiss those claims with prejudice).
IV. JURISDICTION OVER STATE AND LOCAL LAW CLAIMS
Defendant additionally seeks dismissal of Plaintiff's age and disability discrimination claims under the NYSHRL and the NYCHRL. Plaintiff asks the Court to decline to exercise supplemental jurisdiction over his remaining state law claims, seeking remand to state court. (Plaintiff's Memorandum of Law in Response to Defendant's Motion to Dismiss, ECF 47 (“Opposition”) at 2). Plaintiff argues that because Plaintiff does not object to the dismissal of Plaintiff's federal claims over which the Court has original jurisdiction, the Court should dismiss Plaintiff's state law claims without prejudice to their refiling in New York state court. (Opposition at 2). Plaintiff makes no other arguments in response to Defendant's motion to dismiss his state and local age and disability discrimination claims.
Defendant does not seek dismissal of Plaintiff's claims for national origin and race discrimination under the NYSHRL and NYCHRL.
Defendant, in turn, argues that the Court should not decline jurisdiction over Plaintiff's state law claims, because the Court continues to have diversity jurisdiction over the entire matter. (Defendant's Reply Memorandum in Further Support of its Partial Motion to Dismiss Plaintiff's Complaint, ECF 17 (“Reply”) at 4 (“Even if the Court dismisses each of the claims at issue in the motion, the Court will continue to have original jurisdiction based on diversity over the remaining claims or national origin and race discrimination under state and local law, to the extent they are not time-barred”).
In this case, Defendant removed this matter from New York State Supreme Court “under both federal and diversity of citizenship jurisdiction.” (Defendant's Notice of Removal, ECF 1 (“Removal Notice”) at 1). The Court no longer retains federal question jurisdiction, as both parties agree that the federal claims should be dismissed.
Diversity jurisdiction exists because “Plaintiff is a citizen of the United Kingdom” and Defendant is an “Illinois limited liability partnership with a total of two partners: Accenture Inc. and Accenture LLC.” (Removal Notice ¶ 20-21). Both partners are Delaware corporations with their principal places of business in Illinois. Because the parties here are “citizens of a State and citizens or subjects of a foreign state,” the Court has original jurisdiction under 28 U.S.C.A. § 1332.
V. STATE LAW CLAIMS
A. Age Discrimination under the NYSHRL and the NYCHRL
“NYSHRL claims of age and national origin discrimination are analyzed using the same standard as ADEA and Title VII claims.” Desrosiers v. Summit Sec. Servs., Inc., No. 21-CV-10941 (JPO), 2022 WL 13808524, at *7 (S.D.N.Y. Oct. 21, 2022). To state a claim for age discrimination under the NYSHRL, a plaintiff must demonstrate “(1) that she was within the protected age group, (2) that she was qualified for the position, (3) that she experienced adverse employment action, and (4) that such action occurred under circumstances giving rise to an inference of discrimination.” Powell v. Delta Airlines, 145 F.Supp.3d 189, 199 (E.D.N.Y. 2015). Specifically, a plaintiff “must allege that age was the ‘but for' cause of the employer's action. Id. “Even under the more liberal NYCHRL, a plaintiff must allege facts giving rise to an inference of discrimination based on age to prevail.” Moore v. Verizon, No. 13-CV-6467 (RJS), 2016 WL 825001, at *8 (S.D.N.Y. Feb. 5, 2016).
Here, Plaintiff's Complaint contains only one allegation relating to his age - namely, that on June 15, 2017, another one of Defendant's employees, Harshil Shah, made “derogatory comments” about Plaintiff's age. (Compl. ¶ 29). Specifically, Mr. Shah “ridiculed” Plaintiff for being a manager at his age with a lower billing rate, level, and salary than Mr. Shah. (Compl. ¶ 29). Plaintiff does not connect this statement by Mr. Shah with any adverse action by Defendant, nor even suggest that Mr. Shah communicated this comment to others. Plaintiff also does not allege that Mr. Shah had any involvement with his termination or any other adverse action, nor that he was treated differently in any way than younger employees. Plaintiff's allegations of a single age-related remark, sans any allegation that the remark was connected with his termination or any other adverse action, fails to satisfy the NYSHRL and NYCHRL's requirements that a plaintiff must allege facts giving rise to an inference that he was discriminated against because of his age. Williams v. Victoria's Secret, No. 15-CV-4715 (PGG) (JLC), 2017 WL 384787, at *9 (S.D.N.Y. Jan. 27, 2017), report and recommendation adopted, No. 15-CV-4715 (PGG) (JLC), 2017 WL 1162908 (S.D.N.Y. Mar. 28, 2017) (noting that “negative remarks about an individual's attributes do not demonstrate the requisite discriminatory intent where there is no ‘causal nexus' between the comments and the decision to terminate the plaintiff” and dismissing federal and age discrimination claims based on stray remarks not linked to an employment decision); Spires v. MetLife Grp., Inc., No. 18-CV-4464 (RA), 2019 WL 4464393, at *7 (S.D.N.Y. Sept. 18, 2019) (dismissing age discrimination claims where plaintiff did not allege any facts suggesting that adverse action was predicated on his age).
B. Disability Discrimination under the NYSHRL and the NYCHRL
To survive a motion to dismiss NYSHRL and NYCHRL disability discrimination claims, a plaintiff must allege facts showing “that her employer took adverse action against her, and that the action was taken because of her disability or perceived disability.” Lebowitz v. New York City Dep't of Educ., 407 F.Supp.3d 158, 175 (E.D.N.Y. 2017)
Plaintiff alleges that he has the disabilities of sleep apnea and PTTD, and that he informed his managers about those disabilities. (Compl. ¶¶ 9-11; 12). Beyond these initial statements, Plaintiff does not mention these disabilities in the Complaint again. Indeed, there is no allegation in the Complaint suggesting any causal connection between these disabilities and any alleged adverse employment action. The “sine qua non” of state and federal employment discrimination claims “is that the discrimination must be ‘because of' the employee's protected status.” Idlisan v. New York City Health & Hosps. Corp., No. 12-CV-9163 (PAE), 2013 WL 6049076, at *4 (S.D.N.Y. Nov. 15, 2013). Because Plaintiff has not alleged any causal link between his identified disabilities and any action taken by Defendants, adverse or otherwise, his discrimination claims under the NYSHRL and NYCHRL fail as a matter of law. See Osby v. City of New York, No. 13-CV-8826 (TPG), 2016 WL 4372233, at *7 (S.D.N.Y. Aug. 15, 2016) (dismissing disability discrimination claim where plaintiff's complaint was “bare of facts supporting any connection between [plaintiff's] disability and [adverse employment action]”) Idlisan, 2013 WL 6049076, at *11 (dismissing disability discrimination claims where plaintiff's complaint did not “plead a plausible nexus between his disability and [adverse employment action]”).
Plaintiff's Complaint additionally contains allegations relating to a “stomach issue,” for which Plaintiff required surgery. (See Compl. ¶¶ 18, 20-21, 24-26). Plaintiff does not specifically state in the Complaint that this “stomach issue” was a disability within the meaning of the ADA, the NYSHRL, or the NYCHRL. The NYSHRL and NYCHRL “have a broader definition of ‘disability' than does the ADA; neither statute requires any showing that the disability substantially limits a major life activity.” Thomson v. Odyssey House, No. 14-CV-3857 (MKB), 2015 WL 5561209, at *18 (E.D.N.Y. Sept. 21, 2015), aff'd, 652 Fed.Appx. 44 (2d Cir. 2016). However, the mere fact of an injury requiring surgery “does not mean that it qualified as a disability under the ADA or NYSHRL.” Cornetta v. Town of Highlands, 434 F.Supp.3d 171, 186 (S.D.N.Y. 2020).
Plaintiff has not provided allegations about the extent of his “stomach issue,” how long his expected recovery was, or what particular tasks he believed he was expected to do before, after, or during his surgery. Accordingly, Plaintiff has not pled enough factual content for the Court to conclude that his “stomach issue” was a disability within the meaning of the NYSHRL or the NYCHRL. Id. (finding that plaintiff did not show he was disabled under NYSHRL where plaintiff alleged injuries requiring surgeries but did not allege any additional limitations imposed by the injuries); Tatas v. Ali Baba's Terrace, Inc., No. 19-CV-10595 (ER), 2022 WL 993566, at *12 (S.D.N.Y. Mar. 31, 2022), reconsideration denied, No. 19-CV-10595 (ER), 2022 WL 18027 620 (S.D.N.Y. Dec. 30, 2022) (finding that plaintiff had not established that he was disabled under NYSHRL and NYCHRL where he only alleged that he had basal cell carcinoma requiring surgery).
Additionally, Plaintiff has also not established that his “stomach issue” was causally related to Defendant's termination of his employment. Plaintiff does not allege that he was terminated because he needed to have surgery. Rosen v. N.Y.C. Dep't of Educ., No. 18-CV-6670 (AT), 2019 WL 4039958, at *9 (S.D.N.Y. Aug. 27, 2019) (stating that even if plaintiff's surgeries may have met the definition of disability under the NYSHRL or the NYCHRL, disability claims brought under both statutes failed because there was no allegation that plaintiff received any adverse employment action based on her surgeries, or that she was treated less well than other employees because of her surgeries).
1) Failure to Reasonably Accommodate a Disability
To plead a claim for disability discrimination for failure to accommodate under the NYSHRL and the NYCHRL, a plaintiff must establish that: “(1) his employer was subject to the NYSHRL and the NYCHRL; (2) he was disabled, within the meaning of those statues; (3) he was otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability.” Fernandez v. Windmill Distrib. Co., 159 F.Supp.3d 351, 366 (S.D.N.Y. 2016).
Plaintiff does not identify the alleged disabilities for which he sought and was denied accommodations for. With respect to Plaintiff's alleged disabilities of sleep apnea and PTTD, Plaintiff mentions them only initially in the Complaint and does not allege that he ever requested any accommodation relating to either disability. For this reason, to the extent that Plaintiff seeks to allege a claim based on a failure to accommodate his identified disabilities of sleep apnea and PTTD, such claim fails. Thomson, 2015 WL 5561209, at *19 (dismissing plaintiff's NYCHRL and NYSHRL failure to accommodate claims where plaintiff did not allege that she requested an accommodation from the employer).
The Court next turns to whether Plaintiff may have stated a claim for failure to accommodate his “stomach issue,” regarding which Plaintiff made two requests. Plaintiff alleges that he informed Defendant's London office of his need for surgery prior to his move to the New York office, that he requested a delay in his transfer from both the London and U.S. office, and that this request was denied by Defendant's U.S. office, “[a]gainst [Plainitff's] treating physician's recommendation.” (Compl. ¶¶ 19, 20-21). Plaintiff also alleges that he requested “some more time to look for a role” on August 7, 2017, the same date that he was informed of his termination and prior to his August 21, 2017 surgery. (Compl. ¶¶ 26, 31). Because Plaintiff has not established that his “stomach issue” was a disability under the NYSHRL or the NYCHRL (see supra Section B), Plaintiff fails to state a failure to accommodate claim.
VI. CONCLUSION
For the reasons stated above, I recommend that the Court GRANT Defendant's motion to dismiss Plaintiff's federal claims and his claims for age and disability discrimination under the NYSHRL and the NYCHRL. Defendant does not seek to dismiss Plaintiff's claims for national origin and race discrimination under the NYSHRL and the NYCHRL, and those claims remain before the Court.
Cognizant of the fact that Plaintiff did not properly respond to Defendant's arguments regarding his state law claims because he sought leave to refile his claims in state court, and that he was pro se when he filed his original Complaint, I recommend that Plaintiff be given leave to amend his state law claims.
The Court should decide any potential statute of limitations issues after Plaintiff files an amended complaint, taking into account the reasons for dismissal identified in this Report and Recommendation.
VII. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days (including weekends and holidays) from service 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 Honorable Paul A. Engelmayer, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Engelmayer.
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).
SO ORDERED.